Canadian Union of Postal Workers v. Canada Post Corporation

Canadian Union of Postal Workers v. Canada Post Corporation Court Supreme Court Date 2010-08-26 Citation 2010 NSSC 331 Docket Hfx 319983 Judge/Registrar/Adjudicator Kennedy, Joseph P. (Honourable Chief Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Canadian Union of Postal Workers v. Canada Post Corporation, 2010 NSSC 331 Date: 20100826 Docket: Hfx No. 319983 Registry: Halifax Between: Canadian Union of Postal Workers Applicant/Plaintiff v. Canada Post Corporation Respondent/Defendant Judge: The Honourable Chief Justice Joseph P. Kennedy Heard: March 2, 2010, in Halifax, Nova Scotia (Special Time Chambers) Counsel: Raymond Larkin, Q.C. and Robyn Kennedy (A/C) for the Plaintiff/Applicant Terry Roane, Q.C. and Sarah Pottle for the Respondent/Defendant By the Court: Statement of Facts [1] This is an application for judicial review of a decision of Arbitrator Kevin Burkett dated November 9, 2009. [2] The application is brought by the Canadian Union of Postal Workers ("CUPW"). [3] The decision under review deals with a National Policy Grievance filed by CUPW on July 17, 2009, claiming that on July 13, 2009, Canada Post Corporation ("Canada Post") violated the Collective Agreement between CUPW and Canada Post by denying access to the Halifax Mail Processing Plant to the President of the CUPW Nova Local, Lori Stacey. [4] The grievance was accompanied by an application by CUPW for an interlocutory order requiring Canada Post to cease and desist from denying access to its facilities to Lori Stacey pending the hearing of the grievance on its merits. [5] The application for an interlocutory order was referred under the provisions of the Collective Agreement to Arbitrator Guy E. Dulude, Q.C. [6] On July 30, 2009, counsel for CUPW delivered affidavit evidence and a pre-hearing brief with authorities to Arbitrator Dulude and to counsel for Canada Post. The authorities cited in the CUPW brief included a decision by Arbitrator A. Ponak in Canada Post Corporation v. Canada Union of Postal Workers (Read Grievance, CUPW 730-95-01659) [2001] C.L.A.D. No. 22 (the "Ponak Award"). A copy of the Ponak Award was included in the book of authorities which accompanied CUPW's brief. [7] On July 31, 2009, counsel for Canada Post delivered affidavits and a pre-hearing brief to Arbitrator Dulude and counsel for CUPW. The pre-hearing brief of Canada Post also cited the Ponak Award and was accompanied by a book of authorities which included a copy of the Ponak Award. [8] The interlocutory application for a cease and desist order was heard by Arbitrator Dulude on August 3, 2009. Both counsel for CUPW and counsel for Canada Post referred to the Ponak Award in opening statements. At the hearing, the parties agreed to expedite the process on the merits of the grievance rather than proceed with the cease and desist application. Arbitrator Dulude issued a decision on August 8, 2009 which referred the grievance to Arbitrator Kevin Burkett. [9] The grievance was heard on the merits by Arbitrator Kevin Burkett on September 10, 2009. At the hearing, counsel for CUPW again cited the Ponak Award and provided the arbitrator with a book of authorities which included the Ponak Award. Counsel for Canada Post also cited the Ponak Award to the arbitrator and also provided him with a book of authorities which included the Ponak Award. [10] The parties filed post-hearing submissions. On October 2, 2009, counsel for CUPW filed submissions which yet again referred to the Ponak Award and were accompanied by a book of authorities which included the Ponak Award. On October 16, 2009, counsel for Canada Post filed written submissions which referred to the Ponak Award. [11] Arbitrator Burkett issued a written decision on November 9, 2009, which allowed CUPW's grievance in part and dismissed CUPW's grievance in other respects. [12] In his reasons, the arbitrator indicated that the issue in dispute fell to be determined on the basis of the correct interpretation of Article 3.04 of the Collective Agreement which provided: Union Access to Place of Employment (a) Full-time officers of the Union, or local officers not on post office duty, will be granted permission to enter the non-public area(s) of a postal installation, providing they contact the organizational level of the Corporation equivalent to that of the Union representative who desires access of the management representative in charge on duty, to state the approximate time, place and purpose of the visit. (b) Where it is not possible to make the arrangements described in paragraph 3.04(a), officers of the Union will be granted permission to enter a postal installation, provided they first contact the management representative in charge on duty, state the purpose of their visit and secure that permission. At the commencement of the visit they will identify themselves to the management representative in charge on duty. [13] In considering the interpretation of Article 3.04, Arbitrator Burkett referred to Article 9.103 of the Collective Agreement which bound him to follow certain prior awards interpreting Article 3.04. Article 9.103 of the Collective Agreement provides: The final decision rendered by an arbitration binds the Corporation, the Union and the employees in all cases involving identical and/or substantially identical circumstances. [14] A prime consideration in Arbitrator Burkett's reasons was the application of Article 9.013 to the interpretation of Article 3.04. [15] Arbitrator Burkett characterized this as follows: Each side identifies a different award as the seminal award under the current language of Article 3.04 that, pursuant to Article 9.013, governs. [16] Arbitrator Burkett summarized the arguments presented to him by both parties. He recounts that CUPW argued that the Award of Arbitrator Lauzon between the Canadian Union of Postal Workers and Canada Post Corporation (National No. N00-95-00023) was "the seminal award within the meaning of Article 9.103 that must be followed". He recounts that Canada Post argued that the seminal award was the Ponak Award and "that under Article 9.103, I am required to apply the foregoing [the Ponak Award] in deciding this case". [17] Ultimately, Arbitrator Burkett decided that "it is the Ponak Award that governs under Article 9.103". [18] Having determined that the interpretation of Article 3.04 in the Ponak Award was binding, the arbitrator applied the Ponak interpretation to the facts of this case. [19] After so doing, Aribtrator Burkett concluded his decision with the following statement: Having regard to all of the foregoing, I hereby declare that, for the reasons given, the Employer breached article 3.04 when it denied access to Ms. Stacey on July 13, 2009 for the purpose of touring the HMPP. The grievance as it pertains to the denial of access for the purpose of distributing shift schedule changes to the affected employees at work in the distribution products and RVU area is, for the reasons given, dismissed. [20] Subsequent to this Burkett decision, counsel for CUPW discovered that the Ponak Award was a decision reached through the Regular Arbitration Procedure under the Collective Agreement between CUPW and Canada Post. [21] Under the Collective Agreement, there are two procedures - the "Regular Arbitration Procedure" and a "Formal Arbitration Procedure". The Regular Arbitration Procedure, which is governed by Articles 9.50 to 9.71, is an expedited arbitration procedure in which a hearing must be conducted in the most informal way that is possible given the nature of the grievance and all of the circumstances. The Formal Arbitration Procedure which is governed by Articles 9.72 to 9.80, is a more structured procedure involving a full judicial style hearing. [22] The Regular Arbitration Procedure is governed by the following rule: 9.70 The decision of the arbitrator shall not constitute a precedent and shall not be referred to in subsequent arbitrations. Clause 9.103 shall not apply to such decision. [23] Counsel for CUPW and Canada Post were obviously unaware that the Ponak decision resulted from the Regular Arbitration Procedure when it was cited and argued before Arbitrator Burkett. [24] It is also clear that Arbitrator Burkett was not aware that Ponak was from a Regular Arbitration process. [25] The Regular Arbitration Procedure in the Collective Agreement included Article 9.71 which provides: The parties may at any time agree not to follow any of the rules outlined in clauses 9.62 to 9.70. [26] Canada Post and CUPW did not, at any time, agree not to follow Clause 9.70 of the Collective Agreement. [27] On November 17, 2009, CUPW filed an application for judicial review requesting an order setting aside and quashing the Burkett Award and also an order remitting the grievance to a different arbitrator under the provisions of the Collective Agreement. Issues [28] The Applicant (CUPW), submits that the issue in this application is whether Arbitrator Burkett committed a reviewable error in his finding that he was bound by Article 9.103 to follow the Ponak Award in interpreting Article 3.04 of the Collective Agreement. [29] The Respondent (Canada Post) submits that there are hurdle issues that CUPW must get over before the question of reviewable error is addressed. [30] It says: (a) CUPW is estopped from proceeding with Judicial Review; and (b) CUPW is prevented from raising new arguments regarding its rights under Article 9.70 of the Collective Agreement at Judicial Review. Estoppel [31] I will deal firstly with the issue of estoppel. [32] Canada Post submits that CUPW is estopped from engaging the Court's judicial review process is this specific because it was CUPW which first submitted the Ponak decision now complained of. [33] Canada Post argues that CUPW must be taken to have represented to both the arbitrator and to Canada Post that the Ponak Award could and should be considered and relied upon by the arbitrator and the parties. [34] How can CUPW, asks Canada Post, now properly argue that it submitted the Ponak Award in error and that this error should form the basis for judicial review? [35] In reality, both sides submitted the Ponak Award to this arbitrator. This award was contained in both books of authorities and was a significant factor in their arguments. [36] Estoppel by representation has roots in both law and equity; the only distinction being that equitable estoppel by representation was applied only to situations where the Plaintiff had entered into a contract on the faith of the representations made by the Defendant (Halsbury's Laws of England 16(2), para. 1052). Common law estoppel by representation is defined as follows by Halsbury's Laws of England at 16(2), para. 1076: Common law estoppel by representative arises where a person has by words or conduct made to another a clear and unequivocal representation of fact, either with knowledge of its falsehood or with the intention that it should be acted upon, or has so conducted himself that another would, as a reasonable person, understand that a certain representation of fact was intended to be acted upon, and the other person has acted upon such representation and thereby altered his position. In such circumstances an estoppel arises against the party who made the representation, and he is not allowed to aver that the fact is otherwise than he represented it to be. [37] Three essential factors for estoppel by representation were set out by Lord Tomlin in Greenwood v. Martins Bank, Limited [1933] A.C. 51 at 57: (1.) A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made. (2.) An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made. (3.) Detriment to such person as a consequence of the act or omission. [38] These factors are endorsed by the Supreme Court of Canada in C.P. Hotels Ltd. v. Bank of Montreal [1987] 1 S.C.R. 711 at para. 32 and by Chipman, J.A. in Ford v. Kennie 2002 NSCA 140 at paras. 38-40. [39] I find that one of the essential factors of a successful estoppel application is not shown by Canada Post in this matter. [40] It is not shown that Canada Post experienced any detriment caused by CUPW's use of the Ponak Award. [41] The substance of Canada Post's alleged reliance is provided at para. 16 of the Respondent's brief. Canada Post submits that in reliance on CUPW's representations as to the applicability of the Ponak decision, Canada Post "was forced to respond forcefully to the submissions and alter its legal argument to include a consideration of Ponak". This response, of course, did not result in the discovery of CUPW's mistake. [42] The content of the requirement for detrimental reliance in the context of estoppel by convention was expounded upon by Bastarache J. in Ryan v. Moore [2005] 2 S.C.R. 53, at para. 69: Detrimental reliance encompasses two distinct, but interrelated, concepts: reliance and detriment. The former requires a finding that the party seeking to establish the estoppel changed his or her course of conduct by acting or abstaining from acting in reliance upon the assumption, thereby altering his or her legal position. If the first step is met, the second requires a finding that, should the other party be allowed to abandon the assumption, detriment will be suffered by the estoppel raiser because of the change from his or her assumed position. [43] As to the requirement of detriment, Bastarache J. provides at para. 73: Once the party seeking to establish estoppel shows that he acted on a shared assumption, he must prove detriment. For the plea to succeed, it must be unjust or unfair to allow a party to resile from the common assumption (Wilken, at p. 228). It is often said that the fact that there will have been a change from the presumed legal position will facilitate the establishment of detriment: "This is because there is an element of injustice inherent within the concept of the shared assumption ‑‑ one party has acted unjustly in allowing the belief or expectation to 'cross the line' and arise in the other's mind": Wilken, at p. 228. [44] Although CUPW was first to put Ponak before this arbitrator, Canada Post then adopted this Award in support of its own position and characterized it as "seminal" to the issue before him. [45] After distinguishing the circumstances in CUPW's preferred Lauzon Award, the arbitrator then says "These were the circumstances dealt with by the arbitrator Ponak and therefore to the extent that the Union seeks access for purposes of touring the work floor and interacting with employees on the work floor during working hours it is the Ponak Award that governs under article 9.103." [46] I conclude that Canada Post was "enthusiastic" in its use of Ponak to its benefit and was successful in convincing the arbitrator that it involved a similar fact situation and was binding upon him. Canada Post, after Ponak was first cited by the Union, adopted it as its own and used it to its advantage. [47] I do not conclude that Canada Post suffered any detriment because CUPW first submitted this Award. We are here because both sides were mistaken in their use of this decision. There being no detriment shown in these circumstances and estoppel does not lie in this matter. Can CUPW Raise a New Argument on Judicial Review? [48] Canada Post contends that CUPW cannot raise an argument on judicial review that was not put before Arbitrator Burkett. This Court has endorsed, on at least two occasions, the proposition that applicants are barred from raising new arguments on judicial review. In Camp Hill Medical Centre v. Nova Scotia Nurses Union, Camp Hill Medical Centre Local [1996] N.S.J. No. 455, Palmeter, A.C.J. states at para. 12: I accept the submission by counsel for the respondent in her brief where she states "An application for judicial review of the award of a consensual arbitrator is not an appeal where new arguments can be raised or argued. ... [49] In Nova Scotia Teachers Union v. Conseil Scolaire Acadien Provincial [1999] N.S.J. No. 87, at paras. 19 and 20, Tidman, J. states: 19 Ms. Martin correctly points out that the Union did not argue the provisions of Article 24 before the Arbitrator and she submits the Union should not be permitted to rely on that new argument on an application for review. 20 . . . I accept the position put forward by the late Associate Chief Justice Palmeter, in Camp Hill Medical Centre v. Camp Hill Medical Centre Local of the N. S. Nurses Union (1996), 156 N.S.R. (2d) 153, wherein at page 158 he stated: An application for judicial review of the award of a consensual arbitrator is not an appeal where new arguments can be raised or argued. [50] There is no such bar, however, in cases in which a question of jurisdiction is put in issue. [51] Canadian courts have modified the proposition that new arguments cannot be raised on judicial review in light of the Supreme Court of Canada's strong statements in Crevier v. Quebec(Attorney General) [1981] 2 S.C.R. 220. Crevier addressed whether insulation of a statutory tribunal from judicial review offended s. 96 of the British North Amercia Act. Laskin, J., writing for a unanimous court, held that privative clauses may effectively oust judicial review on questions of law and fact, but cannot impact review on questions of jurisdiction. In light of the need to provide unfettered judicial review on questions of jurisdiction, Canadian courts have permitted new arguments to be raised on judicial review insofar as those new arguments speak to questions of jurisdiction. (See Shubenacadie Indian Band v. Canada (Canadian Human Rights Commission) (Re Macnutt) [1997] F.C.J. No. 1481 aff'd by [2000] F.C.J. No. 702, Rothstein J. of the Federal Court.) [52] In Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (O.P.S.E.U.) 2003 SCC 42, Iacobucci, J. characterized the issue under review as a question of jurisdiction. The majority held that a grievance arbitrator's jurisdiction includes "the power and responsibility to enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement". As such, Iacobucci, J. concludes that a reviewing court would have been obliged to consider the provisions of the Employment Standards Act even though the statute was not invoked at arbitration. [53] This is consistent with the cases cited above insofar as it is an acknowledgement that a reviewing court is not limited to those arguments raised before the administrative decision-maker on questions of jurisdiction. [54] I see nothing in the jurisprudence to prevent the applicant from raising a new argument on judicial review insofar as that argument concerns an alleged excess of jurisdiction taken by Arbitrator Burkett. [55] Arbitrator Burkett received his jurisdiction in this matter from the Collective Agreement. [56] Under "General Powers of the Arbitrator", Article 9.99 states in part: The arbitrator shall be vested with all the powers that are necessary for the complete resolution of the dispute. ... [57] However, Article 9.100, under the heading "Restriction of Power", states: The arbitrator shall not modify the provisions of this collective agreement. [58] Article 9.102 reads: The award of the arbitrator shall be final and executory. It shall be binding upon the Corporation, the Union and the employees. [59] The prime issue here does go to the jurisdiction of the arbitrator. The arbitrator receives his power (jurisdiction) from the Collective Agreement, which Agreement prevents him from considering previous awards that have been generated by the "regular process". [60] By considering such an award and finding that it was binding upon him, the arbitrator would seem to have exceeded the jurisdiction that the Agreement provided. [61] I conclude that the Union can make argument before me as to the use by the arbitrator of a "regular decision" which argument was not made at the arbitration. Review [62] The question on this application then becomes whether the arbitrator committed a reversible error in finding that he was bound by Article 9.103 of the Collective Agreement to follow the Ponak Award in the interpretation of Article 3.04. Standard of Review [63] As both parties acknowledge, the Supreme Court of Canada's decision in Dunsmuir v. New Brunswick, 2008 SCC 9 is the controlling authority in determining the standard for judicial review. [64] Justices Bastarche and LeBel make clear at para. 57 of that decision that reviewing courts need not undertake an exhaustive review where existing jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded. [65] Fichaud J. states in Police Association of Nova Scotia Pension Plan v. Amherst (Town), 2008 NSCA 74 at para. 41, "The first step is to determine whether the existing jurisprudence has satisfactorily determined the degree of deference on the issue. If so, the SOR analysis may be abridged". [66] Both the Applicant and Respondent accept that Canadian courts have determined that the decision of arbitrators made under the Canada Labour Code should be shown deference on judicial review (see Voice Construction Ltd. v. Construction & General Workers' Union, Local 92 [2004] 1 S.C.R. 609 at para. 22 and Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union,, Local 454 [1998] 1 S.C.R. 1079 at para. 58. [67] As Bastarache and LeBel JJ. state at para. 68 of Dunsmuir, supra, "This Court has often recognized the relative expertise of labour arbitrators in the interpretation of collective agreements, and counselled that the review of their decisions should be approached with deference ...". [68] I find that the standard of review in this matter is one of reasonableness. [69] The Supreme Court of Canada in Dunsmuir sets out the approach to review on the basis of reasonableness in the following passage: 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [70] I recognize that the interpretation of clauses in a collective agreement may lead to more than one specific result and the arbitrator has a margin within the range of acceptable and rational solutions. [71] There is no doubt that Mr. Burkett's Award meets the requirements of "justification, transparency and intelligibility within the decision-making process". His reasoning is easy to understand. He says that Article 9.103 binds him to the prior Ponak Award in interpreting and applying Article 3.04. [72] This case then turns on whether Arbitrator Burkett's decision falls within a range of possible, acceptable outcomes that are defensible in respect to the facts and the law. [73] That assessment should be conducted with an eye to the application of this approach by the Supreme Court of Canada in the Dunsmuir decision itself. The approach of the Court can be found in para. 74 as follows: 74 The interpretation of the law is always contextual. The law does not operate in a vacuum. The adjudicator was required to take into account the legal context in which he was to apply the law. The employment relationship between the parties in this case was governed by private law. The contractual terms of employment could not reasonably be ignored. That is made clear by s. 20 of the Civil Service Act. Under the ordinary rules of contract, the employer is entitled to discharge an employee for cause, with notice or with pay in lieu of notice. Where the employer chooses to exercise its right to discharge with reasonable notice or pay in lieu thereof, the employer is not required to assert cause for discharge. The grievance process cannot have the effect of changing the terms of the contract of employment. The respondent chose to exercise its right to terminate without alleging cause in this case. By giving the PSLRA an interpretation that allowed him to inquire into the reasons for discharge where the employer had the right not to provide or even have such reasons, the adjudicator adopted a reasoning process that was fundamentally inconsistent with the employment contract and, thus, fatally flawed. For this reason, the decision does not fall within the range of acceptable outcomes that are defensible in respect of the facts and the law. [74] CUPW says the same reasoning applies in this case. The interpretation of article 3.04 and Article 9.103 is contextual. These clauses do not exist in a vacuum. Arbitrator Burkett was required to take into account the legal context in which he was to apply Article 9.103 to the interpretation of Article 3.04. Article 9.70 of the Collective Agreement provides that Article 9.103 shall not apply to the decision of an arbitrator in the regular arbitration process. Such a decision shall not constitute a precedent. It may not be referred to in subsequent arbitrations. [75] Yet, Arbitrator Burkett's decision turned on his finding that he was bound by Article 9.103 to follow the decision of Arbitrator Ponak, a decision from the Regular Arbitration Procedure. [76] Canada Post says in response that CUPW exaggerates the importance of the Ponak Award to Arbitrator Burkett's decision - that, in fact, he would have reached the same decision if he had ignored Ponak. [77] I do not agree that CUPW has overstated the significance of the Ponak Award to the arbitrator's decision. [78] Excerpts from that decision demonstrate the role that the Ponak Award played in the outcome. At p. 12 he states ... However, article 9.103 of the collective agreement stipulates that: The final decision rendered by an arbitrator binds the Corporation, the Union and the employees in all cases involving identical and/or substantially identical circumstances. Accordingly, while the language of article 3.04 may be latently ambiguous (especially with respect to what, if any, discretion is given to the Employer to assess the validity of the stated purpose of a visit), I must follow the prior award(s) interpreting the access language in its current iteration. Indeed, if a prior award on point exists, as in this case, article 9.103 precludes any consideration of the historical development of the language for the purpose of arriving at an interpretation that is inconsistent with the application of the seminal award in substantially identical circumstances. [79] In this case, each party relied on a different award as being the seminal one and therefore the controlling award under Article 9.103. [80] The Union relies on the Lauzon Award (Randy Mapp, No. N00-07-00023). The Arbitrator Burkett discusses the result in Lauzon which would give the Union liberal access to the shop floor during working hours under Article 3.04. [81] He then goes on to say (again at p. 13): The Employer, on the other hand, relies upon the more recent 2001 award of arbitrator Ponak (Carol Read, Edmonton). Specifically, the Employer points to the holding of arbitrator Ponak in interpreting article 3.04 that "access to the operational areas of a postal installation does not give union representatives the right to interrupt production. Union officials are obligated to comport themselves in a manner that does not disrupt production. This means keeping a reasonable distance from union members who are working and not engaging them in discussions while they are at work." If article 3.04 restrict Union access in this manner, the grievance must be dismissed at least in so far as it seeks to enforce a right to interact with employees at their workstations during working hours. [82] Under Article 9.103, the arbitrator distinguishes the circumstances in Lauzon which dealt with access to employees on breaks in a lunchroom and not union interaction with employees at their workstations during working hours. [83] He then says at p. 14: ... Accordingly, the limitations that he implied into the language of article 3.04 must be read as applying to the circumstances of that case which are markedly different than the circumstances that present themselves here - namely interaction with employees at their workstations during working hours. These were the circumstances dealt with by arbitrator Ponak and, therefore, to the extent that the Union seeks access for the purposes of touring the work floor and interacting with employees on the work floor during working hours, it is the Ponak award that governs under article 9.103. [84] The arbitrator determines the matter based on his interpretation of the "governing" Ponak Award. [85] It is clear and obvious that the Arbitrator Burkett mistakenly considered that on these facts he was bound by the Ponak Award and used it to determine the matter. His mistake was in relying on the parties to accurately characterize the case cited. [86] It is well established in reviewing a decision to which deference is required, the reviewing court must consider the decision-making process in its entirety, including the failure of the Tribunal to consider all of the relevant factors and legal principles. This is because a decision will be unreasonable if the Tribunal reaches a particular conclusion on account of its failure to take into account legal principles that clearly are relevant to the issue that must be resolved. [87] By making reference to a decision rendered under the Regular Arbitration Procedure as binding upon him, Arbitrator Burkett acted contrary to Article 9.70 of the Collective Agreement. [88] I find that in so doing, in finding that he was bound to follow the Ponak Award in the interpretation and application of Article 3.04 of the Agreement in this case, his decision is outside the range of possible acceptable outcomes which are defensible in respect of the facts and law and he committed a reviewable error. Remedy [89] Brown & Beatty (Canadian Labour Arbitration, 4th Ed., Vol. 1) outline that where a court determines that an award is defective, it can quash the award, set it aside, or remit it to the arbitrator for reconsideration. The authors contend that Canadian courts have shown a preference for the latter of these options (see note 7 at p. 1:5700). [90] In this matter, the Applicant has requested that this Court set aside the decision of Arbitrator Burkett and remit the matter to a different arbitrator. A review of the case law indicates that Canadian courts have remitted to a different arbitrator only in those exceptional cases where there is doubt that the matter can be reheard fairly. [91] The Supreme Court of Canada has held in Université du Québec à Trois‑Rivières v. Laroque [1993] 2 S.C.R. 471 that remittance to a different arbitrator is appropriate where the initial arbitrator had refused to admit relevant evidence. The Court doubted whether the initial arbitrator could objectively hear evidence which he already determined was so lacking as to be deemed irrelevant. [92] In Dayco (Canada) Ltd v. National Automobile, Aerospace & Agricultural Workers Union of Canada [1990] O.J. No. 1650, Blair J.A. of the Ontario Court of Appeal held at para. 49 that is was appropriate to remit to a different arbitrator where the original arbitrator had effectively pre-determined the case on its merits (see also Bond v. New Brunswick (1992) 95 D.L.R. (4th) 733 (NBCA) and Eastern Provincial Airways Ltd. v. Canada (Canada Labour Relations Board) (1983) 2 D.L.R. (4th) 597. [93] Charney and Brady (Judicial Review in Labour Law) state that decisions which are found to be contrary to natural justice are often remitted to a different arbitrator or panel of the labour relations board (see note 7 at p. 17.340). [94] Some Canadian courts have remitted a matter to a different arbitrator where the initial arbitrator gave the collective agreement an interpretation it could not reasonably bear (see United Glass & Ceramic Workers of North America, Local 235 v. Libbey-St. Clair Inc. [1981] O.J. No. 181. [95] None of these circumstances apply herein. [96] Arbitrator Burkett would seem to be well positioned to reconsider this matter. [97] I remit this matter back to Arbitrator Burkett for determination. Kennedy, C.J.S.C.