Award Number 11-009

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Award Date: 2011-05-31
Arbitrator: Snow, H.
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Municipality: Toronto
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Region: Central
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Classifications: Remedies, Jurisdiction, Complaints
Grievor: I.S. Abutalib
Appearances: I.E. Book, for the Complainant M.N. Freeman and C.V. Jones, for the Association, for the Association
Length of Award:10 pp
Collective Agreements Cit.
Statutory Cit. Police Services Act, ss. 124 and 127Arbitration Act 1991, s. 54(1)Statutory Powers Procedures Act, s. 17.1 Labour Relations Act, 1995


Remedies   Costs - Request for costs following award of damages - Arbitrator upheld complaint of unfair representation and awarded complainant damages - Complainant seeking his costs of the arbitration proceeding - No jurisdiction under Police Services Act to award costs - Arbitration of unfair representation complaint is an arbitration conducted under Part VIII of PSA - Arbitration Act, 1991 not applicable - Request for costs denied.

Jurisdiction   Appointment of arbitrator - Whether arbitrator hearing duty of fair representation complaint has jurisdiction to award costs - Police Services Act expressly stating each party to bear its own costs - Complainant a “party” - PSA expressly stating Arbitration Act, 1991 not applicable to arbitrations conducted under “this part” - Arbitration of unfair representation complaint following a s. 124 appointment is an arbitration under “this part” - No jurisdiction to award costs.

Complaints   Duty of fair representation - Request for costs in arbitration of duty of fair representation complaint - Complainant awarded damages and now seeking costs of the arbitration - Arbitrator has no jurisdiction under Police Services Act to award costs - Arbitration Act, 1991 excluded - Award of costs not an inherent part of Ontario labour arbitration proceedings - Request for costs denied.


Mr. Abutalib had brought a complaint against the association claiming that it violated its duty to represent him fairly in the handling of his dismissal grievance. In an award dated December 17, 2010 [199 L.A.C.(4th) 1; OPAC #10-016] the arbitrator upheld the complaint and awarded damages to the complainant. The complainant then sought his costs of the arbitration proceeding. This award dealt with the issue of costs by way of written submissions. Part VIII of the Police Services Act, entitled Labour Relations, included provisions for the appointment of arbitrators. Under s. 124(3) the Solicitor General appoints a sole arbitrator where the parties so request or are unable to agree on an arbitrator. Pursuant to s. 124(6)(2), each party pays its own costs incurred in the arbitration. Section 127 states, “The Arbitration Act, 1991 does not apply to arbitrations conducted under this part.”


Counsel for the complainant argued that s. 124(6) of the PSA had application to grievances filed under collective agreements, where a well financed association was litigating against a well financed police services board. He submitted, however, that s. 124(6) did not apply to the arbitration of a duty of fair representation complaint. Consequently, the Arbitration Act did apply, specifically s. 54(1) which gives arbitrators jurisdiction to award costs of an arbitration. Counsel also relied on the right of successful litigants to seek costs, arguing that this was an inherent aspect of their right of access to justice. Counsel for the association contended that this was an arbitration proceeding under the PSA, not the Arbitration Act; that an arbitrator appointed under s. 124 of the PSA had no jurisdiction to award costs; that such jurisdiction was likewise not to be found in the Statutory Powers and Procedures Act; and that policy considerations did not favour departing from the common practice not to award costs in labour arbitrations.

Award #

In accordance with the Court of Appeal’s decision in Renaud v. Town of Lasalle Police Assn. (infra), the complainant was a “party” to the arbitration of his fair representation complaint. The arbitrator had been appointed under s. 124 of the PSA. Section 124(6)(2) stated that “each party shall pay its own costs”. Therefore the arbitrator had no jurisdiction under the PSA to award costs. The Arbitration Act did confer authority to award costs. However s. 127 of the PSA stated that the Arbitration Act did not apply to any arbitration conducted under “this part”. “This part” referred to Part VIII of the PSA, entitled “Labour Relations”. The arbitration in this case followed a s. 124 appointment. Therefore it was included in “arbitrations conducted under this part”. Consequently the Arbitration Act did not apply to the duty of fair representation arbitration. An award of costs was not inherent in the notion of justice in the context of Ontario labour relations; in fact successful parties in labour disputes typically had no right to seek costs. In any event, the Legislature’s intent was clearly expressed in the Police Services Act and the arbitrator was bound by that clear legislative direction.

Authorities Cited

• Re Lafrance and North Bay Police Services Board (2009), 180 L.A.C. (4th) 385 (Starkman); OPAC #09-001 • Renaud v. Town of Lasalle Police Assn. (2006), 151 L.A.C. (4th) 154; 216 O.A.C. 1 (OCA) • Bellai Brothers Ltd. [1994] OLRB Rep. January 2 • Kimberly-Clark Corporation [2008] CanLII 23941 (OLRB) • Berlinguette v. O’Ryan [2010] ONSC 4266 (CanLII) • National Grocers [2003] CanLII) 35708 (OLRB) • Inergi LP [2009] OLRD. No. 3418 (OLRB) • Brown & Beatty, Canadian Labour Arbitration (4th ed.) (Thomson Reuters, 2011) 2:1430, Ordering Costs ** This award has been selected for publication in Labour Arbitration Cases.

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