Bakery, Confectionery & Tobacco Workers International Union, Local 446 v. Canada Bread Atlantic-Ben's Ltd.

Bakery, Confectionery & Tobacco Workers International Union, Local 446 v. Canada Bread Atlantic-Ben's Ltd. Court Supreme Court Date 2004-08-24 Citation 2004 NSSC 200 Docket SH 220012 Judge/Registrar/Adjudicator Cacchione, Felix (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Bakery, Confectionery & Tobacco Workers International Union, Local 446 v. Canada Bread Atlantic- Ben’s Ltd., 2004 NSSC 200 Date: 20040824 Docket: S.H. 220012 Registry: Halifax Between: Bakery, Confectionery & Tobacco Workers International Union, Local 446 (the “Union”) Applicant v. Canada Bread Atlantic - Ben’s Limited (the “Employer”) Respondent Judge: The Honourable Justice Felix A. Cacchione Heard: August 24th, 2004 in Chambers at Halifax, Nova Scotia Written Decision: October 6th, 2004 Counsel: Kimberley H. W. Turner, Q.C. and Brad H. Ridge, for the Applicant Rebecca K. Saturley, for the Respondent By the Court: (Orally) [1] Let me start by thanking both counsel for their very thorough written submissions and very able oral argument. [2] This is an application for judicial review of an award by Lynn Connors dated February 26th, 2004. In that award the arbitrator, Ms. Connors, denied a grievance of the Bakery, Confectionery & Tobacco Workers and Grain Millers International Union, Local 446. The grievance was an allegation that the employer had breached the Collective Agreement and failed to act in a reasonable manner when it changed the work schedule of Cheryl DeYoung. The remedy requested is a quashing of that award and a setting aside of the decision of the arbitrator. [3] I am going to cut right to the chase here. We will deal with the standard of review. This is an award by a consensual arbitrator and the standard of review accordingly is that of patent unreasonableness. In these circumstances the arbitrator’s award is entitled to be treated with deference by this Court on an application for judicial review. Justice Hallett in Canada Post Corporation v. Canadian Post Masters and Assistance Association (1993), 121 N.S.R. (2d) at 112 stated at page 128: The test for judicial review of an award of a consensual arbitrator protected by a privative clause such as is the case is whether he exceeded or declined to exercise his jurisdiction, which question turns on the determination of the issue before him and whether he dealt with that question. If the issue before him involves the interpretation of clauses of the collective agreement the arbitrator must give to those clauses an interpretation the language will reasonably bear. (emphasis added) [4] A patently unreasonable decision is one that is clearly irrational or not in accordance with reason. It is one that interprets a collective agreement in a manner that the words cannot reasonably bear. I am citing United Brotherhood of Carpenters and Joiners of America local 579 v. Bradco Construction, [1993] 2 S.C.R. 316. [5] In the case of the Toronto Board of Education v. The Ontario Secondary School Teachers Federal District 15, [1997] 1 S.C.R. 487 Justice Cory stated and I quote: When a court is reviewing a tribunal’s findings of fact or the inferences made on the basis of the evidence, it is can only intervene “where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact”. [6] The fundamental object in construing the terms of a collective agreement is to discover the intention of the parties who agreed to that agreement. The arbitrator is required to ascertain what the parties meant by the words used and for that proposition I cite Delta Sydney v. Canadian Auto Workers Union, Local 4624, judgment of this court dated 2001 NSJ 40. [7] The same proposition is stated in N.A.P.E. v. Western Avalon Roman Catholic School Board (2000), 190 D.L.R. (4th) at 146. In the present case Arbitrator Connors was cognizant of Section 7 of Schedule A to the Collective Agreement. She was cognizant that Section 7 of Schedule A was relevant to the matter before her. She cited the provision. In fact she even cited provision Article 6 of the Schedule. However, she failed to consider the interpretation and application of this provision to the matter before her. [8] There is nothing on the record before me to indicate that the arbitrator considered what the intention of the parties was as expressed by that particular provision in Schedule A. Clearly management rights contained in Section 2 of the Collective Agreement were restricted or fettered by the provisions of Sections 6 and 7 of Schedule A attached to the Collective Agreement. Authority for that would be in fact the decision of Arbitrator Kydd in the Ben’s Bakery case referred to by the arbitrator in the present case. [9] It is evident that Sections 6 and 7 of the Schedule requires that the employer advise employees as far as possible in advance of scheduling changes in order to obtain the benefit of the employee’s comments and suggestions. Section 7 requires the employer to consider the significance of weekend days off when scheduling employees. Although the arbitrator mentioned both Sections 6 and 7 of Schedule A in her decision, she did not interpret these provisions or consider the impact of these sections on the employer’s ability to unilaterally alter the employee’s work schedule. The effect of not interpreting and considering these sections is that the arbitrator overlooked a material provision in the Agreement between those two parties. [10] A review of the award shows that the arbitrator’s finding that Section 7 of Schedule A was a considered factor by the employer is not supported by the evidence before the arbitrator. At page 8 of the award the arbitrator refers to the evidence of Donna Barrett. She notes that Ms. Barrett did not pay close attention to the Collective Agreement, in particular Sections 6 and 7. Ms. Barrett did not dialogue with the Union, nor was she aware of Section 7 of Schedule A when making those scheduling changes that are presently before me. Ms. Barrett also admitted that although she had read Section 6 of Schedule A she was not specifically aware of it at the time she made the scheduling changes. In her reasons Arbitrator Connors at page 14 of the award stated: I accept that in relation to...the lack of notice in the change in schedule and her lack of familiarity with Section 6 and 7 of Schedule A of the collective Agreement, that Ms. Barrett did not familiarize herself adequately with the terms of the Collective Agreement in relation to the implications of her decision. [11] Section 7 of Schedule A specifically requires the employer to consider the importance of weekend days off when scheduling employees. Further on, the arbitrator concluded that based on her findings of fact and the provisions of the Collective Agreement she was required to deny the grievance. [12] In the Toronto Board of Education case cited previously at paragraph 78 Justice Cory stated ...The absence of such evidence relied upon by the arbitrators in arriving at their decision renders the decision patently unreasonable... (emphasis added) [13] The evidence before the arbitrator in the present case, in particular the evidence of Ms. Barrett, was incapable of supporting a finding that Section 7 of Schedule A of the Collective Agreement and the importance of the weekend days off was considered by the employer. The evidence before Arbitrator Connors clearly shows that Ms. Barrett did not even contemplate Section 7 and the requirement to consider the importance of weekend days off when she changed the grievors hours of work. [14] The arbitrator accepted at page 14 of the award that Ms. Barrett did not familiarize herself adequately with the terms of the Collective Agreement in relation to the implications of her decision. This in my view demonstrates that when the employer made the decision to alter the grievors work schedule, it did not consider Section 7 of Schedule A and the Collective Agreement. The statements of the arbitrator at page 14 are contrary to her finding that the employer did not breach the Collective Agreement and acted reasonably in changing the grievors work schedule. The employer was required to consider the importance of weekend days off when scheduling work changes. The arbitrators finding was that Section 7 was not something Ms. Barrett was familiar with and something that she did not familiarize herself with in terms of the Collective Agreement. [15] Despite this finding the arbitrator concluded that the decision to change the work schedule was reasonable. [16] The evidence before Arbitrator Connors was incapable in my view of supporting a finding that the work schedule change was reasonable. To use Cory, J.’s phrase in Toronto Board of Education there was no basis for her “leap of faith”. [17] I am unable to determine, after reviewing all of the materials before me and the award in particular, the existence of any logical process by which the final conclusion drawn was reached from the evidentiary foundation before the arbitrator. [18] A finding based on no evidence is patently unreasonable, as is one based on evidence on the record contrary to the arbitrator’s finding. By ignoring the clear language of Section 7 and the undisputed evidence before her that Section 7 of Schedule A was not considered by the employer the arbitrator reached a decision which was patently unreasonable. [19] Accordingly, the award is quashed and set aside. Costs are awarded to the applicant in the amount of $750.00. __________________________ Cacchione, J.