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PROCESS AND PROCEDURE - Grievances - Refusal to accept grievance

Monday, October 26, 2020 @ 9:14 AM  

Appeal by the Resource Development Trades Council from the dismissal of its application for judicial review of two decisions. Construction work on a hydroelectric generation project was subject to a collective agreement between the parties. The parties also agreed to a Plan for the resolution of trade jurisdiction disputes that was separate from the collective agreement. The appellant filed a grievance on the basis that certain work at the project was assigned to the wrong union. The arbitrator found the grievance was an impediment to job progress under the Plan and could not proceed. The administrative committee found the appellant was in violation of the Plan after the appellant did not withdraw its grievance under the collective agreement. It determined the appellant was prohibited from processing a case before the Plan until the grievance was withdrawn. The appellant’s application for judicial review of the arbitrator’s decision was filed more than five months after the decision was made.

HELD: Appeal allowed in part. The application judge did not err in deciding that judicial review of the arbitrator’s decision was barred by the 60-day statutory limit in s. 14(2) of the Arbitration Act. The decision by the administrative committee was not an appeal or review of the arbitrator’s decision. Its decision did not extend the limitation period for seeking judicial review of the arbitrator’s decision. The process to determine whether filing the grievance constituted a violation of the Plan was completed when the arbitrator made his decision. The application judge provided insufficient reasons as to why he deemed a review of the administrative committee’s decision as unnecessary. His conclusion that it was unnecessary to review that decision because the application to review the arbitrator’s decision had been dismissed conflated two distinct applications for judicial review, dealing with different issues, decision makers and circumstances, and was an error. The application for judicial review of the administrative committee’s decision was remitted back to the Supreme Court.

Resource Development Trades Council of Newfoundland and Labrador v. Muskrat Falls Employers’ Association Inc., [2020] N.J. No. 193, Newfoundland and Labrador Court of Appeal, J.D. Green, C.W. White and F.P. O'Brien JJ.A., September 18, 2020. Digest No. TLD-October262020001