Canadian Union of Public Employees, Local 933 v. Cape Breton ( Regional Municipality)

Canadian Union of Public Employees, Local 933 v. Cape Breton ( Regional Municipality) Court Supreme Court Date 2004-06-02 Citation 2004 NSSC 111 Docket 210609 Judge/Registrar/Adjudicator MacDonald, Simon J. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Canadian Union of Public Employees, Local 933 v. Cape Breton (Regional Municipality), 2004 NSSC 111. Date: 20040602 Docket: 210609 Registry: Sydney IN THE MATTER OF: The Trade Union Act, R.S.N.S. 1989, c.475, as amended -and- IN THE MATTER OF: A Grievance Alleging a Violation of a Collective Agreement between Canadian Union of Public Employees Local 933 and Cape Breton Regional Municipality - and - IN THE MATTER OF: An Application by Canadian Union of Public Employees, Local 933 for an Order To quash and set aside the Award of Gregory I. North, Q.C., Arbitrator, dated September 15, 2003 BETWEEN: Canadian Union of Public Employees, Local 933 Applicant - and - Cape Breton Regional Municipality Defendant Judge: The Honourable Justice Simon J. MacDonald Heard: February 10, 2004, in Sydney, Nova Scotia Written Decision: May 31, 2004 Counsel: Lionel G. Clarke, for the Applicant Eric Durnford, Q.C. and Demitrius Kachafanas , for the Respondent By the Court: [1] This is an application in the nature of Certiorari by the Canadian Union of Public Employees, Local 933 (Union) to set aside the decision of Arbitrator Gregory I. North, Q.C., made in arbitration proceedings, with the Cape Breton Regional Municipality( Municipality). [2] The Union has a collective bargaining relationship with the Municipality pursuant to a Collective Bargaining Agreement covering the period November 1, 2000 and October 31, 2003. [3] On July 10, 2002 the Union alleged a violation of the Collective Agreement when the Municipality made a decision to eliminate the position of Materials Coordinator and declared that position redundant effective July 13, 2002. [4] The Union filed the grievance on behalf of its member, John Taylor who had held the position of Material Coordinator with the Municipality. [5] A brief review of the facts indicate the Municipality was formed after amalgamation took place of various municipalities on or about August 1, 1995. At that time there was a position established by the Municipality entitled Materials Coordinator. Mr. Taylor obtained that position effective November 22, 1999. [6] On or about February 19, 2001 Mr. Taylor was granted a leave of absence without pay. During the course of his absence the position of Materials Coordinator was filled as a term position by one, Allan MacEachern. [7] During the course of Mr. Taylor’s leave the Municipality determined it would eliminate the position of Materials Coordinator and the Grievor was advised of same on or about June 13, 2002. The employer determined that it needed a non‑bargaining unit position and created the position of Stores Supervisor. Mr. Taylor applied for that position but was unsuccessful. He did however successfully apply for another position of employment in the Finance Department of the Municipality. [8] In it’s grievance the Union claimed the Municipality violated the Collective Agreement by eliminating the Materials Coordinator position and sought to have the position included in the Bargaining Unit with Mr. Taylor reinstated. The Union also claimed compensation for all lost wages and benefits for him as a result of the Municipality’s actions. [9] Arbitrator Gregory North, Q.C. was appointed pursuant to the provisions of the Collective Agreement. Both sides have agreed he was properly appointed and had jurisdiction to deal with the issues in dispute. He held hearings on June 10th 2003, September 4, 2003 and dismissed the Union’s grievance. [10] ISSUE: The issues raised by the Union are: (1) did Arbitrator North commit reviewable error by failing to answer the question put before him? (2) Did the Arbitrator improperly allow extraneous or irrelevant considerations become a factor in reaching his conclusions? [11] THE LAW: Both parties have agreed that the Arbitrator was consensual and as well he would be protected by the privilege clause in the Collective Agreement (s.11.11), The Arbitration Act, R.S.N.S. 1989, c.19, s.5 (h) and the Trade Union Act, R.S.N.S. 1989 c.475, s.42. It is well known that Arbitrator North is a highly qualified arbitrator in the area of labour relations. When one considers this along with the privilege clause I am satisfied he is owed a high level of deference. [12] It has been agreed the scope of review of the Arbitrator’s decision is one of patently unreasonable. [13] Counsel have presented several case authorities explaining the meaning of patently unreasonable. In Halifax Employers Association v. International Longshoremen’s Association, Local 269, [2003] N.S.J. No. 439, Associate Chief Justice MacDonald discussed two recent Supreme Court of Canada judgments which he said are particularly apt when considering the issue of patently unreasonable. He said at para. 12 and 13: “12. In Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17, 2003 SCC 20, when comparing the standard of patently unreasonable to reasonableness simpliciter the Supreme Court of Canada beginning at paragraph 52 summarized several of its recent decisions: 52. The standard of reasonableness simpliciter is also very different from the more deferential standard of patent unreasonableness. In Southam, supra, at paras. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted "in the immediacy or obviousness of the defect". Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as "clearly irrational" or "evidently not in accordance with reason" (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at pp. 963‑64, per Cory J.; Centre communautaire juridique de l'Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84 at paras. 9‑12, per Gonthier, J.). A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand. 53. A decision may be unreasonable without being patently unreasonable when the defect in the decision is less obvious and might not be discovered after "significant searching or testing" (Southam, supra, at paras. 57). Explaining the defect may require a detailed exposition to show that there are no lines of reasoning supporting the decision which could reasonably lead that tribunal to reach the decision it did. 13. Most recently is the Supreme Court's decision in Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 [2003] S.C.J. No. 42. Beginning at paragraph 17, Iacobucci, J. for the majority explained the rational for applying the patently unreasonable test when reviewing arbitration awards: 17. This high degree of curial deference to the decisions of arbitration boards is necessary to maintain the integrity of the grievance arbitration process. As Cory J. wrote in Toronto Board of Education, [1997] 1 S.C.R. 487, supra, at paras. 36, "the whole purpose of a system of grievance arbitration is to secure prompt, final and binding settlement of disputes arising out of the interpretation or application of collective agreements and the disciplinary actions taken by an employer". This is a basic requirement for peace and harmony in industrial relations, which is important both to the parties and to society as a whole. The protective clause found in s. 48(1) of the LRA is the legislative recognition that the basic nature of labour disputes requires their prompt and final resolution by expert tribunals. 18. The patent unreasonableness standard is a very high standard that will not easily be met. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paras. 57, the Court described the difference between an unreasonable and patently unreasonable decision in the following terms: The difference ... lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. As Cory J. observed in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 963, "[i]n the Shorter Oxford English Dictionary 'patently', an adverb, is defined as 'openly, evidently, clearly'". This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem. ... But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident. [Emphasis added.]” [14] Laskin C.J. speaking on behalf of the Supreme Court of Canada in Volvo Canada Ltd. V. International Union, United Automobile, Aerospace and Agricultural Implement Workers of Amercia (UAW) Local 720, [1980] 1 S.C.R., 178 said at page 8: “....Chief Justice MacKeigan states that the arbitrator asked himself "the wrong question" but I cannot find anywhere in his reasons what this wrong question was. It seems to me, and it is patent on the face of the award, that the arbitrator, not very elegantly perhaps, addressed himself to the very question he was asked to consider. In my opinion, it was Chief Justice MacKeigan and as well Coffin J.A. who raised another question, a question within the main question, and purported to make it the essential issue for determination, an issue which, in my opinion, the arbitrator considered and decided against the Union's contention.” [15] Furthermore at page 9: “....I am not concerned here to re‑examine the Metropolitan Insurance case, which was concerned with the decision of a statutory tribunal, the Ontario Labour Relations Board, and not with that of a consensual arbitrator. In my opinion, talk about the right or wrong question is merely a euphemism for addressing the issue which is properly before the arbitrator. It provides a form of judicial control which goes beyond error of law, as that has been hitherto understood, and it is fraught with the danger of substitution of judicial opinion for that of the tribunal which the Legislature has put in place or for that of the arbitration board or arbitrator selected by the parties. There may, of course, be cases, rare ones I would think, in which an arbitration board or an arbitrator in labour management relations matters has completely misunderstood or misconceived the task before it or him; in short, it or he has not addressed the issue‑‑I mean here, the main issue and not subsidiary or ancillary considerations‑‑which has been committed for determination. That is not true in the present case. The arbitrator, whether correctly or incorrectly, has met and determined the main issue, indeed the single question before him, and there is no room for interference on the ground that he had failed to address himself to the right question.” [16] The heavy emphasis on an arbitrator’s expertise in determining the appropriate standard of review is one of the major factors repeated throughout the case law (United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., (1993), 153 N.R. 81 (S.C.C.) at pp. 414‑415: Canada (Director of Investigation and Research) v. Southam Inc. (1997), 144 D.L.R. (4th) 1 (S.C.C.) at p.17; Re: O.P.S.E.U. and the Queen in Right of Ontario (Ministry of Community Services and Social Services), (1995) 27 O.R. (3d) 135 (Ont. Div. Ct.) at 140). [17] Arbitrator North was clearly appointed by the consent of both parties to decide a particular dispute under the Collective Agreement. Interpretation of a Collective Agreement lies at the heart of an arbitrator’s specialized function and expertise. The issue in this dispute was the allegation by the union the employer had violated the collective agreement by eliminating the position of Materials Coordinator and declaring the position redundant. [18] The Union has argued Arbitrator North did not follow the correct procedure in analyzing the problem placed before him. The Union argues Arbitrator North should have followed Arbitrator Veniot in Re: Nova Scotia Department of Transportation & Communications and C.U.P.E., Local 1867, 19 L.A.C. (4th) 23 where Arbitrator M.J. Veniot, Q.C. set forth the following procedures at pg. 30, in analyzing whether or not the employer’s actions in declaring a position redundant undermined the integrity of the bargaining unit: “1. Is there such a thing as “bargaining unit work” under this Agreement? 2. If the answer to (1) is “yes”, was there an assignment of this bargaining unit work to non‑bargaining unit members? 3. If the answer to (2) is “yes”, does that assignment violate the agreement? 4. If there is a violation of the Agreement what is the appropriate remedy?” [19] The Union argued strenuously when Arbitrator North concluded the employer’s right to assign bargaining unit work to non‑bargaining unit employees is not unfettered that he should then have gone on to the next step in the analysis as outlined by Arbitrator Veniot in Re: Department of Transportation & Communication and C.U.P.E. Local 1867, supra, and determined whether the employer had violated the agreement. In doing so the Union argues Arbitrator North should have questioned whether the performance of the work outside the bargaining unit was such as to impair the integrity of the Union or whether it was so minor as to impose no threat. [20] The Union argued Arbitrator North, rather than following that process, embarked in another manner by determining whether a decision made by the employer to declare the Materials Coordinator position redundant and create a new non‑bargaining unit position of Stores Supervisor was made for good business reasons, or was made arbitrarily or in bad faith, or with the intent of undermining the integrity of the bargaining unit. [21] Mr. Clarke argued further that the issue is whether or not the agreement has been violated in fact, not whether the employer did so with the intention of undermining the integrity of the bargaining unit. Thus Mr. Clarke says the Arbitrator failed to answer the question remitted to him and instead answered the wrong question. [22] Mr. Clarke further states Arbitrator North considered improperly extraneous or irrelevant considerations in arriving at his conclusions. He stated this was done by his referring to the difficulties the employer was having with members of another bargaining unit, C.U.P.E .Local 759. They were refusing to accept directions from the Materials Coordinator, who was a member of the applicant’s union. [23] The Municipality argued strongly Arbitrator North found as a fact the matter at hand was not a case of reassigning the tasks of a bargaining unit position to a non‑bargaining unit position. Mr. Durnford says Arbitrator North analyzed the problem before him and reached his conclusions. He argues the employer had not simply transferred the functions of the redundant position to the new management position. He referred to Arbitrator’s North’s decision and said, based on the evidence before him, there was a very detailed job description for the two positions and Arbitrator North held the employer had properly declared the bargaining unit position redundant and made a separate decision to create a new management position instead. In so doing, Mr. Durnford referred to Arbitrator North’s comments at p.16 of his Award where he stated: “However, the present case is not one where bargaining unit work is simply and exclusively being unilaterally assigned to a non‑unit employee. This is a case where one position, namely, the Materials Coordinator, has been determined by management to be redundant. The tasks performed by the Grievor are no longer required but an effective supervisory position is. A new position reflects significant differences is being created outside the bargaining unit as part of the management structure dealing with Inventory Control.” [24] The employer states in dealing with the irrelevant consideration argument raised by the Union, Arbitrator North had only considered the evidence about the difficulties with the unions during the former Materials Coordinator position to show the new management position of Stores Supervisor was not very similar in scope to the task performed by the Materials Coordinator. Mr. Durnford argued this was necessary to assess whether the employer’s decision was made in good faith for the purposes of business efficacy and was not arbitrary or unreasonable. [25] CONCLUSION: The Arbitrator was dealing with matters within his primary jurisdiction and the Court’s role is to determine if the Arbitrator committed a reviewable error by making findings which were patently unreasonable as described above. I’ve considered all the careful arguments Mr. Clarke put forward but I do not find Arbitrator North’s decision was patently unreasonable. [26] The Arbitrator was asked if the Employer violated the Collective Agreement by eliminating the position of Materials Coordinator and declaring the position redundant when it created a new position of Stores Supervisor. In analyzing the question Arbitrator North agreed the right of the Employer to assign bargaining unit work to non-bargaining unit employees is not unfettered and looked to see if it impaired the integrity of the Union. [27] There is no obligation for Arbitrator North to follow the approach taken by Arbitrator Veniot who chose a different approach in analyzing the question before him. I find Arbitrator North analyzed the problem and came to a conclusion in favour of the Employer. He might not have followed the method as done in the Re: Nova Scotia Department of Transportation and Communications and C.U.P.E. Local 1867 by Arbitrator Veniot, but nonetheless, in my opinion I am satisfied he understood the issue to be decided, considered all the evidence before him and answered the question put to him. [28] The fact another Arbitrator in another arbitration analyzed the issue in a different manner does not persuade me that Arbitrator North did not answer the question put to him. He just did it another way. [29] I reject the Union position that in considering the difficulties the employer was having with the two unions in the manner in which they dealt with the former Materials Coordinator position was an extraneous or irrelevant factor. Quite the contrary, I agree with the Employer it was raised at the hearing and Arbitrator North had to consider same in order to assist him in concluding the Employer’s decision had been made in good faith, for the purposes of business efficacy and was not arbitrary or unreasonable. [30] I am satisfied this was simply part of the overall evidence which Arbitrator North quite properly had to consider in reaching the conclusions and findings that he did. I am satisfied Arbitrator North’s decision ought not to be disturbed unless it is patently unreasonable. In other words to set his ruling aside, it is not enough for me to determine what I would have done in the circumstances. It is not even enough for me to conclude the learned Arbitrator’s decision was simply unreasonable. It must be more than that. It must be obviously and seriously flawed. I find it is not. [31] In the result, the application is dismissed and I award costs to the Respondent in the amount of $1200. J.