Canadian Union of Public Employees v. Ashton
A-489-93
MacGuigan J.A.
2/6/94
5 pp.
Application for judicial review of Canada Labour Relations Board's decision respondent's union violated duty of fair representation under Canada Labour Code, s. 37 -- Respondent, flight attendant, suspended without pay for three days after failed recurrent training examination -- Applicant union arguing Code, s. 37 requiring Board to decide not only whether union fulfilled duty of fair representation, but if conclusion negative, whether rights covered under applicable collective agreement, or whether evidence collective agreement applying to matter -- Board did not address issue in decision, and said to have acted without jurisdiction in referring grievance to arbitration -- Board's interpretation of s. 37, taken in conjunction with s. 60(1), under s. 37 Board to address only question of fair representation, and all issues as to whether matter arbitrable, in particular application of collective agreement to grievance, to be left to arbitrator to decide -- Given factual complexity of matters (whether examination marking accurate, whether suspension disciplinary, whether it was justified), wisdom on Board's part in believing relationship of facts to collective agreement best determined by arbitrator, and Parliament's intention -- Court not in position to say such interpretation irrational -- No inconsistency between Board's avoiding jurisdictional issue and order that "any compensation respondent might be awarded by arbitration shall be borne by union" -- Board entitled to segregate remedy from arbitrability -- Application dismissed.