Halifax (Regional Municipality) v. Halifax (Regional Police Association)

Halifax (Regional Municipality) v. Halifax (Regional Police Association) Court Supreme Court Date 2024-10-10 Citation 2024 NSSC 302 Docket Hfx 530118 Judge/Registrar/Adjudicator Campbell, Jamie S. (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Halifax (Regional Municipality) v. Halifax (Regional Police Association), 2024 NSSC 302 Date: 20241010 Registry: Halifax Docket: Hfx 530118 Between: Halifax Regional Municipality Applicant and Halifax Regional Police Association Respondent DECISION Judge: The Honourable Justice Jamie Campbell Heard: September 4, 2024, in Halifax, Nova Scotia Counsel: Nancy Barteaux K.C. and Michelle Lahey, for the Applicant Ronald Pink K.C. and George Franklin, for the Respondent By the Court: [1] The employer in this case has been referred to as both Halifax Regional Municipality and Halifax Regional Police. The relevant collective agreement is between Halifax Regional Municipality and the Halifax Regional Police Association, while the arbitration awards are referred to as being between Halifax Regional Police Association and Halifax Regional Police. For purposes of this judicial review Halifax Regional Municipality (“HRM”) or Halifax Regional Police (“HRP”) are both names for the employer. [2] HRM has applied for judicial review of the decision of Arbitrator Susan Ashley dated December 11, 2023. That decision was a Supplemental Award -Remedy, dealing with the implementation of the Grievance Arbitration Award dated June 10, 2021. Summary [3] The arbitrator found that HRM had breached the collective agreement by failing to recognize that the grievor, Cst. Johnson, was entitled to compensation for injuries sustained while fulfilling his duties. The collective agreement provided that those in receipt of compensation for on the job injuries, OJI Benefits, at a specific date and whose names appeared on an agreed upon list, were entitled to a further benefit. In the Grievance Arbitration Award Cst. Johnson was found to have been entitled to OJI Benefits as of the specified date. HRM said that he was not entitled to the further benefit because he was not actually receiving OJI Benefits on that date and his name was not on the agreed upon list of those receiving OJI Benefits. [4] In the Supplemental Award - Remedy the arbitrator reiterated the original finding that the failure of HRM to provide Cst. Johnson with OJI Benefits was a breach of the collective agreement. She declined to rectify the list by adding Cst. Johnson to it because there was no evidence that the parties had intended to include him. He was not somehow mistakenly left off the list. She addressed the issue of remedy for the breach of the collective agreement by finding that Cst. Johnson should be placed in the same position he would have been in had the collective agreement not been breached. [5] HRM argued, as it did in the judicial review, that if Cst. Johnson had been receiving OJI Benefits on the specified date either the further benefit would have been negotiated differently or Cst. Johnson would not have been included on the list. The list was not intended to be expanded. [6] The arbitrator relied on established caselaw in finding that Cst. Johnson was entitled to be put in the position he would have been in had he been in receipt of OJI Benefits on the specified date. She did not accept that the evidence showed that Cst. Johnson would have been excluded from the list and treated differently to other officers receiving OJI Benefits, or that the further benefit offered to those officers would have been negotiated differently had Cst. Johnson been included. She accepted that Cst. Johnson should be compensated in the same way as every other officer who was receiving OJI Benefits and whose name was on the list of those receiving those benefits on the specified date. [7] The arbitrator’s award was intelligible. Her path of reasoning from the evidence to her conclusion can be followed. There are no logical gaps. She had to make a choice. She could treat Cst. Johnson like every other officer receiving OJI benefits on the specified date, or compensate him on the basis that he would have been the one officer “left behind” and left off the list. She engaged with the evidence and concluded that Cst. Johnson should be treated like all other officers who were receiving OJI Benefits. That decision is reasonable and supportable on the evidence. Grievance Arbitration Award June 10, 2021 [8] To understand the Supplemental Award - Remedy, and to place the arbitrator’s decision with respect to that issue in context, it is necessary to appreciate what the original arbitration was about and what gave rise to the dispute about its implementation. The arbitration was heard over 17 days from December 3, 2018 to March 11, 2021. The Grievance Arbitration Award issued on June 10, 2021, provided a detailed statement of the facts leading up to the filing of a grievance. The issue was whether Cst. Kevin Johnson’s various injuries were compensable under Article 44 of the collective agreement between the Halifax Regional Police Association and Halifax Regional Municipality. That article provided benefits to officers for injuries suffered on the job, or OJI Benefits. [9] Arbitrator Ashley set out that her approach was to determine whether three areas of impairment, Post-Traumatic Stress Disorder and Major Depressive Disorder, an eye injury and neurological issues, constituted injury on duty for purposes of Article 44. The psychological injury, encompassing both PTSD and MDD, arising from Cst. Johnson’s attending at the scene of a wildfire in Spryfield in 2009, were found by the arbitrator to be an on the job injury and compensable under Article 44. The eye injury arose when Cst. Johnson was using a computer at home and a CD that was being ejected from the computer shattered and injured his eye. Arbitrator Ashley concluded that the injury had not arisen out of and in the course of Cst. Johnson’s employment was, in that case, not compensable under Article 44. Cst. Johnson had a series of neurological issues including chronic neck, arm and hand pain. Arbitrator Ashley concluded that it was as likely as not that the neurological issues flowed from the PTSD diagnosis, so that but for the original trauma, they would not have arisen. The neurological issues were found to be properly considered an on the job injury compensable under Article 44. [10] The grievance was allowed in part. The psychological and neurological issues were to be considered as on the job injuries and Cst. Johnson was to be granted OJI Benefits under Article 44 to the date of the grievance with prejudgment interest. [11] Arbitrator Ashley’s award of June 10, 2021 was not disputed. There has been no judicial review filed in respect of that award. But the parties could not agree on its implementation. That led to the second arbitration and the Supplemental Award - Remedy, dated December 11, 2023. It is that award that is the subject of this judicial review. Supplemental Award - Remedy December 11, 2023 [12] The matter was heard over the course of 4 days with final written submissions provided received on July 24, 2023. [13] Arbitrator Ashley noted that the main area of disagreement was whether Cst. Johnson should be included or considered included under amendments to Article 44. Those amendments were made through a memorandum of Understanding between the parties signed October 8, 2019. If Cst. Johnson were covered he would be entitled to OJI Benefit payments for three years past his earliest retirement date of August 1, 2023. If he were not covered by the amendment, he would only receive benefits to August 1, 2020, his earliest retirement date. [14] The arbitrator set out the extensive background related to the negotiations leading to the amendment of Article 44. Before the amendment members who were on OJI leave and unable to return to work in any capacity were granted their full salary and related compensation. They were required to retire on their earliest retirement date. HRM gave notice some time around 2018 that it wanted to change that because it was becoming increasingly expensive. HRM believed that it would be better to have sworn officers moved to the Workers’ Compensation system entirely. The parties began negotiations to that end in September 2018 and concluded the Memorandum of Understanding on October 8, 2019. [15] That MOU provided that any new on the job injuries, as of September 1, 2019, would be covered by the Workers’ Compensation Board of Nova Scotia. All those who were on OJI Benefits on that date, would remain on OJI, but would be entitled to retire three years past their earliest retirement date. That was considered the HRPA’s quid pro quo, as Arbitrator Ashley said, “to help convince the members to accept the changes”. The officers on OJI, as of September 1, 2019, were on a list of names agreed to by the parties, referred to as Appendix A. Cst. Johnson’s name was not on that list, because as of September 1, 2019 he was not receiving OJI Benefits. The arbitration about whether he was entitled to those benefits was still taking place. The first day of the hearing had been December 3, 2018 and arbitration was not to be concluded until March 11, 2021. The arbitration was proceeding at the same time as the negotiations regarding Article 44 and the move to the Workers’ Compensation system. [16] It appears that the list locked in place those who were considered to be receiving OJI Benefits. The benefits are such that an officer might be entitled to benefits, become disentitled to benefits and once again become entitled to benefits. The list would not include those whose circumstances changed so that after the effective date of September 1, 2019 they became entitled once again to receive OJI Benefits. The parties disagreed on whether Cst. Johnson would be included. [17] The arbitrator reviewed the evidence provided by Ron Pink K.C. and Martin Ward K.C., who were negotiators for HRPA and HRM respectively. The position taken by HRPA was that if Cst. Johnson’s grievance were successful he would be on the list. The issue was raised by Mr. Pink in a December 20, 2018 email to Mr. Ward. And there was no response. It remained unresolved. [18] Arbitrator Ashley found that there could be any number of reasons why Cst. Johnson’s name was not on the list of officers agreed by the parties as being on OJI Benefits as of September 1, 2019. She noted that the arbitration was still ongoing and his status was unclear. She said that Mr. Ward indicated in his evidence that he did not believe that HRPA would be successful in the arbitration which would give HRP little incentive to include Cst. Johnson on the list. There were other grievances that had been resolved with the amendment to Article 44, but Cst. Johnson’s status was not part of those discussions. [19] Arbitrator Ashley found as a fact, that even if Cst. Johnson had been successful in the arbitration the evidence of Mr. Pink and Mr. Ward did not support a conclusion that there was any agreement as to his status. Mr. Pink, as of December 2018, wanted Cst. Johnson’s name on the list and Mr. Ward had earlier indicated that he did not agree with that position. Mr. Ward testified that the cost implications of the amendments were an important consideration for HRM and there had been no analysis of the cost implications if Cst. Johnson were to be included. There was no evidence of any mutual understanding with respect to Cst. Johnson’s status should the arbitration find in his favour. [20] Arbitrator Ashley found that the parties had negotiated Article 44 over a long time, with many proposals having been made. “Their conscious and definitive agreement is represented by the words of the changes, which I have no authority to change.” Supplemental Award - Remedy, para. 53. The HRPA had argued that the agreement should be rectified to include Cst. Johnson’s name, because that would reflect the true intention of the parties. Arbitrator Ashley specifically found that they had not made any agreement to add Cst. Johnson’s name to the list in Appendix “A” if the arbitration were to be successful. There was no agreement that he would be included and no agreement that he would not be included if he succeeded in the grievance arbitration. [21] Having found that the parties had not agreed that Cst. Johnson’s name should be included in the Appendix, and that they did not come to an agreement as to his status if the grievance were successful, “it was no secret that the Grievor’s status would be affected by the outcome of the arbitration, one way or the other. Even so, the parties took no steps to limit my jurisdiction to order a remedy in the event that the grievance was successful.” Supplemental Award - Remedy, para. 54. The parties did not agree that Cst. Johnson’s name should be added if his grievance were successful, so the arbitrator was not able to simply amend the agreement herself by adding his name. She noted that the parties, knowing that Cst. Johnson’s status would be affected by the outcome of the arbitration, when the agreement was being negotiated, said nothing in the agreement to prevent her from issuing an award of damages to compensate Cst. Johnson in a way that would recognize the nature of the breach of the collective agreement, if such a breach were to be found. The parties could have said that the scope of the grievance arbitration was limited to determining whether Cst. Johnson was entitled to receive OJI Benefits up to his earliest retirement date. They did not do that. [22] The arbitrator reiterated that the award on the Grievance Arbitration Award determined Cst. Johnson’s entitlement in relation to three areas of impairment. The grievance letter requested damages if successful. Two of the three areas of alleged impairment were found to be on the job injuries, as of the date of the grievance. “There can be no doubt that there was a finding that the collective agreement was breached.” Supplemental Award - Remedy, para. 57. And had it not been for the breach of the collective agreement, Cst. Johnson would have been receiving OJI Benefits on the effective date. That was a finding of fact, based on evidence from Mr. Ward and Mr. Pink. Mr. Ward and Mr. Pink had agreed that “no one would be left behind” and that if members were off on the effective date and receiving OJI Benefits, they would receive the bonus of a further three years. Supplemental Award - Remedy, para. 20. [23] Arbitrator Ashley concluded that Cst. Johnson should be put in the position he would have been in had the collective agreement not been breached. If the collective agreement had not been breached, Cst. Johnson would have been receiving OJI Benefits as of September 1, 2019. He was in fact, entitled to those benefits as of December 16, 2016, the date of the grievance. Even though there had been no agreement to put Cst. Johnson on the list, in order to compensate him by putting him in the position he would have been in had the collective agreement not been breached, damages were awarded. Those damages were based on the premise that Cst. Johnson would have been treated like every other employee receiving OJI Benefits on the specified date, and not singled out for different treatment. Issues [24] HRM seeks to have the arbitrator’s Supplemental Award - Remedy quashed. [25] HRM says that Arbitrator Ashley’s decision was unreasonable in that she exceeded her jurisdiction to provide a remedy by effectively amending the terms of the collective agreement negotiated by the parties and awarding Cst. Johnson “whatever seem[ed] appropriate in the circumstances equivalent to Johnson having been placed on Appendix A”. [26] HRP argues that the decision was unreasonable because the arbitrator speculated regarding the agreement the parties would have reached if there was an estimated additional cost to the agreement of placing Cst. Johnson on Appendix “A” and in doing so the arbitrator failed to reveal a rational chain of analysis in reaching her decision. [27] And HRP contends that Arbitrator Ashley rendered an unreasonable decision when she fundamentally misapprehended the evidence before her when concluding that the quid pro quo between HRP and HRPA would have been the same for the amendment of the collective agreement if Johnson had been included on the list of employees on Appendix “A”. Standard of Review [28] The parties agree that the standard of review for each of the issues is one of reasonableness. The Supplemental Award - Remedy is the decision of a labour arbitrator whose authority is derived from the collective agreement, subject to the Trade Union Act, RSNS 1989, c. 475. The Trade Union Act does not include a statutory right of appeal and does not provide any other legislated standard of review. [29] It is nevertheless important to address what the reasonableness standard means. HRM bears the burden of demonstrating that Arbitrator Ashley’s decision was unreasonable. [30] In Paladin Security Group Ltd. v. Canadian Union of Public Employees Local 5479, 2023 NSCA 86, and more recently in EMC Emergency Medical Care Inc. v. Canadian Union of Postal Workers, 2024 NSCA 55, Fichaud J.A. summarized the principles governing a reasonableness review as set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. Justice Fichaud described reasonableness as a “reasons first” approach. The reviewing court must begin its inquiry by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker in arriving at their conclusions. The reviewing court does not start with its view and then, as described in Vavilov at paras. 83-84, proceed with a “disguised correctness review”. Justice Fichaud’s reminder to put the reasons first requires a reviewing judge to refrain from deciding the case before the arbitrator on its merits and measuring the reasonableness of the decision based on whether the right outcome was reached. [31] The phrases “respectful attention” and “seeking to understand the reasoning process” referenced by Justice Fichaud reflect the deference due to administrative decision makers. They both suggest that a reviewing court must make a good faith effort to try to understand the decision. That may require effort. It takes rather less effort to dismiss something as not making sense. The reviewing court must try to make sense of it. That does not mean papering over the logical gaps with speculation. [32] Both the outcome and the reasoning matter. The outcome must be “justifiable” and where reasons are required the outcome must be justified by the reasons. Both the outcome and the reasons supporting the outcome must be “reasonable”. [33] Justice Fichaud goes on to note that the reasonableness standard accounts for context. Reviewing courts must analyze administrative decisions in light of the history and context in which they were rendered. An apparent shortcoming in reasoning may not actually be a failure of justification after examination of the history and context. History and context include the evidence, submissions, record, policies and guidelines that informed the decision makers’ work and past decisions. Context also includes the administrative regime, the decision maker’s institutional expertise and the degree of flexibility assigned to the decision maker by the governing statute. [34] A decision is unreasonable when the reasons read along with the record, do not make it possible to understand the decision maker’s reasoning on a critical point. The reasons must provide a justification for the outcome and be both transparent and intelligible. In other words, the decision maker must say why they came to the conclusion that they did. Setting out a series of facts and stating a conclusion does not provide an answer to the question, why? [35] That leads to the next part of Justice Fichaud’s summary of the reasonableness standard from Vavilov. The reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic. There must be a line of analysis that could reasonably lead the decision maker from the evidence to the conclusion. Justice Fichaud referred to the “question-begging gap on a critical point that impairs intelligibility”. That turn of phrase suggests that reviewing court should not be left to ponder on a critical point how the conclusion could reasonably follow from the evidence. [36] In any decision there may be those moments to pause and ponder about what appears to be a “question-begging gap”. But what matters is whether the flaw is central enough or significant enough to make the decision unreasonable. A minor misstep or a superficial or peripheral shortcoming is not enough to overturn an administrative decision. The reviewing court has to ask whether the decision itself is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrain the decision maker. The facts and law that constrain the decision maker are the governing statutory scheme, other statutory and common law, principles of statutory interpretation, evidence before the decision maker, submissions of the parties, past practices and decisions, and the impact of the decision on the affected individuals. [37] As set out in Vavilov, the starting point for a review for reasonableness is judicial restraint and deference to the decision maker. A reviewing court should only interfere with an administrative decision makers’ factual findings in exceptional circumstances. Intervention should happen only where it is “truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.” Vavilov, para. 13. [38] A reviewing court is left to achieve the fine balance between deference to the arbitrator’s decision and applying a reviewing standard that is both robust and responsive to context. That means “reasons first” or considering the arbitrators’ reasoning process to assess whether the reasoning justifies the outcome. It means not forming an opinion on the outcome and working back to find gaps in the reasoning process that might justify overturning the decision. The outcome must be reasonable and the logical process of getting to that outcome must also be transparent, intelligible and reasonable. And none of that means that the reviewing court must agree with the outcome. Did Arbitrator Ashley effectively amend the collective agreement? [39] HRM argues that the arbitrator’s decision to place Cst. Johnson in the position he would have been in but for the breach of the collective agreement and compensating him as if he had been on Appendix “A” as of the effective date of the amendment was an unjustified extension of her jurisdiction. Arbitrators have very limited authority to amend or vary the collective agreement. Where the parties have not addressed a matter in the collective agreement a rights arbitrator, such as Arbitrator Ashley, cannot make an interest determination or fill in gaps where they see them. [40] Arbitrator Ashley acknowledged that in her decision. She said that she had no jurisdiction to amend or change the collective agreement. Adding Cst. Johnson to Appendix “A” would amend the collective agreement and she found that the parties had shown no intention of doing that. Arbitrator Ashley used her broad remedial authority to grant a remedy. She said at para. 62 of the Supplemental Award - Remedy, Having found that the Grievor was entitled to OJI benefits as of the date of the grievance (December 16, 2016), I find that the appropriate remedial response is to place him in the position he would have been in if not for the breach, that is, that he be compensated as if he had been on Appendix “A” at the effective date, in terms of salary, benefits, and payment of expenses. This does not constitute an amendment to the collective agreement, but falls within the broad remedial jurisdiction of arbitrator. [41] HRM argues that while an arbitrator does have broad remedial authority it should be exercised in an appropriate and reasonable manner. Other than by saying that she must bear in mind not only the collective agreement “but also the statutory policy underlying the arbitration process”, Arbitrator Ashley provided no explanation for her authority. She did not offer a further explanation or terms of reference with respect to the statutory policy and when read in the context of her award of a make-whole remedy, “facilitates her creation of a reverse engineered decision”. HRM argued that by simply framing her award as a make-whole remedy the arbitrator circumvented the clear jurisdictional limits on her authority. HRP’s position was that despite saying that she was not amending the collective agreement that is precisely what the arbitrator did, without offering any justification for it. [42] When placed within Justice Fichaud’s summary of the reasonableness standard, HRM’s argument is that Arbitrator Ashley’s award was unreasonable because it leaves the question-begging gap. Where is the authority to effectively amend the collective agreement and impose a remedy that effectively places Cst. Johnson on the list in Appendix “A” despite the parties never having agreed to do that? [43] Arbitrator Ashley’s decision must be read fairly, in context and with an effort to understand the reasoning process. To begin with, she did not amend the collective agreement. She specifically declined to do that and gave reasons why. She provided a remedy in damages and damages to make a grievor whole are well recognized as being a remedy that an arbitrator can award. This was a rights arbitration in a labour law context. The Trade Union Act at sections 42 and 43B(2)(d) provides that the remedies issued by rights arbitrators should provide for a final and binding resolution of all disputes between the parties and should have regard for the real substance of the matter in dispute. The context of this longstanding dispute involved the unresolved status of Cst. Johnson. Arbitrator Ashley determined that there had been a breach of the collective agreement by failing to recognize two of his three conditions as compensable under Article 44, providing for OJI Benefits. Having recognized that breach the arbitrator had the jurisdiction to issue an order making Cst. Johnson whole or providing compensation that would put him in the same position as if the breach had never happened. Blouin Drywall Contractors Ltd. v. C.J.A. Local 2486, 1975 CarswellOnt 827 (ONCA). [44] That remedial authority can only be limited by an express agreement between the parties. Nova Scotia Government and General Employees Union v. Nova Scotia (Public Service Commission), 2003 NSSC 34, para. 12. In this case the parties were aware that Cst. Johnson’s status, as it related to Article 44 would change if the grievance were upheld. Arbitrator Ashley found at para. 6 of the Supplemental Award - Remedy, that the parties were aware that the grievance arbitration was proceeding at the same time as the negotiations regarding Article 44 and the move to the WCB scheme, “and that the Grievor’s status would be clarified, one way or the other, by the arbitration Award”. The parties did not agree on his status but also did not agree to limit the scope of any remedy she might determine to be appropriate. They could have agreed that no award in the grievance arbitration would have the effect of compensating Cst. Johnson “as if” he had been on the list in Appendix “A”. [45] Arbitrator Ashley found that the collective agreement had been breached by HRP’s failure to recognize Cst. Johnson’s conditions as compensable under Article 44, as of the date of the grievance, December 16, 2016. All members who were on OJI leave as of the effective date, September 1, 2019, were listed in Appendix “A”. Cst. Johnson was not. He was not receiving OJI Benefits as of that date, even though according to the arbitration award, he was entitled to be receiving them, as of the effective date, September 1, 2019. It was reasonable for Arbitrator Ashley to conclude that the way to make Cst. Johnson whole was to compensate him as if he had been, like the others receiving OJI Benefits on the effective date, actually receiving what he was entitled to receive. [46] The arbitrator’s reasoning path on that issue is clear. She noted that there had been no evidence of a mutual intention to amend the collective agreement to add Cst. Johnson to the list in Appendix “A”. She could not rectify the agreement. She noted that she had authority to make Cst. Johnson whole by making an order for compensation. That authority comes from long established caselaw and the provisions of the Trade Union Act. She was not purporting to exercise some newly discovered jurisdiction requiring any further explanation. This was not a situation like the one in Ontario Power Generation v. The Society of United Professionals, 202 ONSC 7824. In that case, the arbitrator sought to limit the jurisdiction of a subsequent arbitrator and cited no authority for doing that. The reviewing court noted, at para. 46, that the arbitrator never addressed his authority to limit the jurisdiction of a subsequent arbitrator and “there is no legislative authority to do so”. In this case, the authority to issue an award of damages to make a grievor whole is part of well known and well understood caselaw, starting with Blouin Drywall Contractors. [47] The arbitrator did not amend the collective agreement and did not exceed her jurisdiction by making an award of damages. Did the arbitrator award damages based on speculation about Cst. Johnson being placed on Appendix “A”? [48] HRP argues that Arbitrator Ashley superimposed an outcome based on an unfounded premise. HRP says that she speculated that had Cst. Johnson been receiving OIJ Benefits on the effective date he would have been on the list of officers receiving OJI Benefits set out in Appendix “A” and therefore entitled to retire three years after his earliest retirement date. Adding Cst. Johnson to the list would have increased the costs so that the quid pro quo might have been and likely would have been different. The decision made at the time was heavily influenced by costing of the proposals and the arbitrator had the emails exchanged between the parties regarding the quid pro quo. Each officer added to the list increased the costs. [49] The parties argued that issue before Arbitrator Ashley. HRP made arguments about speculation as to whether Cst. Johnson would have been on the list in Appendix “A” and the arbitrator addressed that issue. At para. 62 of the Supplemental Award - Remedy she said that whether or not the quid pro quo would have been the same had Cst. Johnson’s name been on the list was not a matter on which she could speculate. She noted that this was a matter of damages flowing from a breach of the collective agreement. It was not a matter of rectification of the collective agreement. It was not about deciding whether the parties had agreed to have Cst. Johnosn’s name listed in Appendix “A” if he succeeded in the grievance arbitration. It was about deciding on an appropriate remedy in which to make Cst. Johnson whole. [50] As with many damage assessments there was an element of uncertainty. There was no way to know for certain whether Cst. Johnson would have been included on the list in Appendix “A” or whether if he had the quid pro quo would have changed. It was not clear from Mr. Ward’s evidence, as noted in the arbitrator’s decision, whether it would have changed or not. It was not a “given” that had Cst. Johnson been on the list that the quid pro quo would have been the same. Supplemental Award - Remedy, para. 62. In light of the uncertainty, Arbitrator Ashley had to make a decision about damages. There had been a breach and there should be a remedy. [51] She might have concluded that, as HRP suggests, Cst. Johnson should be compensated for the benefits he was entitled to receive only up until his earliest retirement date. That assumes that had if he been in receipt of OJI Benefits on the effective date, he, unlike all others receiving OJI Benefits on that date would have been “left behind”, that there would have been no quid pro quo or that the quid pro quo would have been something quite different because of the costs. It assumes that there would either be an agreement with Cst. Johnson, no agreement or a different agreement of some kind. [52] Arbitrator Ashley chose another route. She could not be certain what would have happened had HRP not breached the collective agreement. It was reasonable for the arbitrator to anchor her decision in the real world of what had actually happened. It was reasonable to infer, in those circumstances, that the quid pro quo would have been agreed upon and that Cst. Johnson, like the others receiving OJI Benefits, would have been part of it. [53] The conclusion reached by Arbitrator Ashley was not some kind of non sequitur statement detached or unhinged from what had gone before it. There had been a breach of the collective agreement. There should be a remedy. That could be based on either of two assumptions. One, which favoured HRM and assumed best case counterfactual scenario for the party who breached the collective agreement, was that if Cst. Johnson had been in receipt of OJI Benefits on the effective date of the memorandum of understanding either he would have been treated differently from the others in the same position and not entitled to retire three years after his earliest retirement date, there would have been no agreement or a different one would have been reached. And of course, there is no way to know what that different agreement might have been. The other assumption was that the memorandum of agreement would have been signed, as it was, and that Cst. Johnson, like every other officer receiving OJI Benefits at the time, would have been listed and entitled to retire three years after his earliest retirement date. That is no less reasonable an assumption than the other best-case scenario for HRM. [54] The arbitrator’s decision to award damages as if Cst. Johnson had been on the list was no more based on speculation that a decision to base the award on his not having been on the list, or on there being no list on which to place him or on there having been a different deal of some kind negotiated. Did Arbitrator Ashley fundamentally misapprehend the evidence when she concluded that the quid pro quo would have been the same if Cst. Johnson had been included? [55] A decision maker must take into account the evidentiary record. The decision must be reasonable in light of that evidence. HRM argues that the arbitrator failed to meaningfully engage with the evidence. The arbitrator had access to an extensive record that included substantial correspondence between the parties as they negotiated Article 44 and the memorandum of understanding. HRP says that there was no room for misinterpretation of the parties’ reasoning, intention and eventual agreement of the names to included on the list in Appendix “A”. If the quid pro quo was intended to include the potential cost of paying for Cst. Johnson for three years the parties would have provided for that in the MOA. [56] Arbitrator Ashley reviewed that evidence. Cst. Johnson’s name was not on the list. That much is entirely clear. As noted by the arbitrator, there could have been several reasons why his name was not on the list. The grievance was ongoing, and his status was unclear. The fact is that the parties did not include him on the list. And the arbitrator found that there was no agreement about what would happen if he were to be successful in his grievance. And she did not accept the HRPA’s argument that the agreement should be rectified to include his name. [57] She was then faced with providing a remedy for the breach of the collective agreement. The issue at that stage was not about what happened in terms of an agreement to place Cst. Johnson on the list, but about the counterfactual of what might have happened had things turned out differently. The question was what Cst. Johnson lost because HRP breached the collective agreement by not placing him on OJI Benefits as of the date of the grievance. He was not on OJI Benefits so it is impossible to know for sure. But what if he had been? [58] HRP argues that had Cst. Johnson been one of the officers receiving OJI Benefits on the effective date of the memorandum of agreement the agreement would have been different because of the cost implications. Either he would never have been placed on the list, or the quid pro quo would have been different. [59] Arbitrator Ashley declined to delve into what could have been or might have been. All other employees who were receiving OJI Benefits, as of the effective date were on the list. That was not disputed. The arbitrator was not able to conclude that Cst. Johnson would have been singled out to be “left behind” and treated differently than the others. And she could not conclude, based on the evidence before her that the agreement itself would have been different. That was not an unreasonable conclusion or one that was unhinged from the evidence. [60] She cited the case of Maple Leaf Meats Inc. and UFCW Local 176 and 633 (Alkin), 2001 CarswellOnt 6006. HRP argues that she unreasonably relied on that case. The case is cited at para. 59 of the Supplemental Award - Remedy. As described by the arbitrator the case dealt with a situation where the parties had executed an MOU by which the employer agreed to provide a lump sum payment to employees on a list. The MOU said that upon ratification of the agreement employees named in the attached list who were still employees would receive the lump sum. All bargaining unit employees as of the date of ratification were on the list. Some employees had been wrongfully terminated and would have been on the list had they not been terminated. The wrongfully terminated employees were awarded the lump sum payment. The arbitrator explained that the purpose of any remedy is to restore the grievors to the positions they would have been in but for the wrongful termination. [61] HRM argues that Maple Leaf Meats is distinguishable on its facts. In Maple Leaf Meats all employees within certain classifications were to receive the payment upon ratification of the collective agreement. In this case, only those employees receiving OJI Benefits on September 1, 2019, and agreed upon, by name and specifically listed in Appendix “A” were entitled to have an additional three years past their earliest retirement date. The parties specifically agreed not to open up the list to any other employees who were later deemed to have been entitled to OJI Benefits prior to September 1, 2019. HRM says that they considered and agreed to specific named individuals because there was a known limit to the cost that HRM was prepared to spend to reach an agreement to move officers to the WCB scheme. The parties did not give the benefit to all employees in the class of OJI employees, regardless of whether other employees could later be determined to OJI Benefits at the effective date. The parties chose language carefully to ensure that only those employees actually receiving OJI Benefits on the effective date of September 1, 2019, and agreed between the parties and specifically named and listed in Appendix “A” would be entitled to receive the three additional years. [62] HRM argues that Maple Leaf Meats has a fundamentally different context and factual scenario. HRM says that at paragraph 59 of the Supplemental Award- Remedy, the arbitrator gives “extensive consideration” to Maple Leaf Meats including the arbitrators order in that case to compensate the wrongfully dismissed employees on the basis that they would have been employed in the bargaining unit on the date of the arbitration but for the breach. [63] Paragraph 59 is an accurate summary of the decision in Maple Leaf Meats. Arbitrator Ashley does not suggest that the case was “on all fours” with this one, or that it was in some way binding authority. It is important to read the immediately following paragraph. Arbitrator Ashley said, at para. 60 of the Supplemental Award - Remedy, This case illustrates the well-accepted principle that Grievors should be put in the position they would have been in, if the collective agreement had not been breached. While it dealt with wrongfully terminated employees, the principles at play apply equally here. [64] There is no dispute about the well-accepted principle from Blouin Drywall Contractors that grievors should be put in the same position they would have been in but for the breach. Maple Leaf Meats was an example of the application of that principle in another context. It was not relied on for any factual similarities but for the general principle. Maple Leaf Meats was by no means a critical part of Arbitrator Ashley’s decision. [65] Arbitrator Ashley did not misapprehend the evidence. She concluded, based on the evidence that there had been no agreement about placing Cst. Johnson on the list in Appendix “A”. She declined to speculate about whether the quid pro quo might have been different if Cst. Johnson had been included and declined to speculate about whether Cst. Johnson would have been singled out for different treatment. Her decision to base damages on what actually did take place was a reasonable one. [66] The application for judicial review is denied. Costs [67] The parties have agreed on the quantum of costs as being $2,500 plus reasonable disbursements. HRPA has been successful on the motion and is entitled to costs in that amount. Campbell, J.