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ARBITRATORS - Jurisdiction

Friday, September 04, 2020 @ 6:01 AM  


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Appeal by McAulay, the vice-president of the respondent York University, from an order of the Divisional Court allowing the respondents’ application for judicial review of a decision of a York University Appeal Panel on the basis that a labour arbitrator had exclusive jurisdiction over their discipline. The respondents were graduate students at York and union members as teaching assistants. The University alleged the respondents engaged in conduct during a legal strike that the University Tribunal found warranted discipline under its Code of Student Rights and Responsibilities. Section 17(4) of the Back to Class Act provided that any dispute between the parties concerning discharge or discipline in respect of activities that took place during the strike period was to be determined through the grievance procedure and arbitration procedure established in the new collective agreement. The University Tribunal determined that it had jurisdiction to hear the appellant’s complaints against the respondents. It accepted that the complaints were raised by her on behalf of York community members and not as an agent for the employer University. The Tribunal’s findings and sanctions against the respondents were upheld by the York University Appeal Panel. The respondents sought judicial review of this decision. The Divisional Court found the essence of the dispute was an employer-employee dispute governed by the Labour Relations Act and must therefore be determined by a labour arbitrator not, by the University Tribunal.

HELD: Appeal dismissed. The student discipline initiated by the appellant was a dispute concerning discipline in respect of activities during the strike period. Any dispute about discipline had to be resolved by way of grievance under the collective agreement. The Legislature intended York to be free to discipline Union members for their activities during the strike period without the risk that such discipline would be undone in the mediation-arbitration. The Legislature also intended the legislation to be comprehensive, using the words “any activity that took place” during the period of the strike in s. 17(3) of the Act. The Legislature required any contested discipline to be resolved under grievance arbitration. By using broad language, the Legislature stated its intention that the matters of discharge and discipline in respect of any activity were to be reserved to the parties and any disputes to be resolved ultimately by grievance arbitration. The present dispute was deeply rooted in the labour conflict and in the collective agreement. A labour arbitrator was better fitted to resolve it since a labour arbitrator was not connected in interest to the disputants, unlike the Tribunal in this case, and was better fitted to resolve disputes over strike-related discipline.

Ball v. McAulay, [2020] O.J. No. 3185, Ontario Court of Appeal, G.R. Strathy C.J.O., P.D. Lauwers and G.I. Pardu JJ.A., July 24, 2020. Digest No. TLD-August312020009