International Longshoremen's Association, Local 269 v. Halifax Employers Association

International Longshoremen's Association, Local 269 v. Halifax Employers Association Court Court of Appeal Date 2004-08-17 Citation 2004 NSCA 101 Docket CA 212732 Judge/Registrar/Adjudicator Bateman, Nancy J. (Honourable Justice) (CA); Cromwell, Thomas A. (Honourable Justice); Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - International Longshoremen's Association, Local 269 v. Halifax Employers Association - 2004 NSCA 101 - 2004-08-17 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: International Longshoremen’s Association, Local 269 v. Halifax Employers Association, 2004 NSCA 101 Date: 20040817 Docket: CA 212732 Registry: Halifax Between: International Longshoremen’s Association, Local 269 Appellant v. Halifax Employers Association Respondent Judges: Bateman, Cromwell and Saunders, JJ.A. Appeal Heard: May 17, 2004, in Halifax, Nova Scotia Held: Appeal allowed per reasons for judgment of Cromwell, J.A.; Saunders, J.A. concurring; Bateman, J.A. dissenting Counsel: Ronald A. Pink, Q.C., for the appellant Brian Johnston, Q.C. and Rebecca Saturley, for the respondent Reasons for judgment: I. Introduction: [1] In this case, an arbitrator used his discretionary power under the Canada Labour Code, R.S.C. 1985, c. L-2 (“Code”) to grant a long extension of time for filing a grievance against a dismissal. He did so because of the serious nature of a dismissal from employment, his finding that the dismissal was prima facie discriminatory on the basis of disability and his conclusion that the Employer would suffer no prejudice as a result of the long delay in proceeding with the grievance. The main question on appeal is whether this decision was patently unreasonable. With great respect to those of a different view, I conclude it was not. [2] Under the Collective Agreement between the parties, grievances must be filed within four (4) days of the occurrence giving rise to the complaint. However, under s. 60(1.1) of the Code, an arbitrator may extend this time limit if satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by it. [3] An employee was discharged under the terms of a Last Chance Agreement (“LCA”) which provided for summary dismissal if he breached any of its provisions. The discharge occurred on October 5th, 1999, but was not grieved by the Union until October 10, 2001. The arbitrator, acting under s. 60(1.1) of the Code, extended the time limits and then went on to consider the grievance on its merits. He ordered reinstatement without back pay and on conditions. [4] The Employer applied to MacDonald, A.C.J. in the Supreme Court for an order quashing the award. The application was successful. The learned Chambers judge was of the view that the arbitrator’s decision to extend the time was patently unreasonable because the arbitrator, in deciding to extend the time, wrongly considered the merits of the grievance and failed to consider the resulting prejudice to the Employer. [5] The Union appeals. The main issue for decision is whether the judge erred by quashing the arbitrator’s award. To resolve that issue, three questions need to be answered: (i) Did the judge apply the appropriate standard of review?; (ii) Did the judge err in finding that the arbitrator committed reviewable error by considering the merits of the grievance?; or, (iii) by failing to consider the prejudice to the Employer which would result from extending the time? [6] For the reasons which follow, I conclude that: (i) the judge was right to apply the standard of patent unreasonableness to the review of the award; (ii) the judge erred by finding that the arbitrator’s award was patently unreasonable. The arbitrator did not improperly consider the merits of the grievance; and, (iii) the judge erred by finding that the arbitrator had failed to consider the issue of prejudice to the Employer. On the contrary, the arbitrator expressly considered and made clear findings on this point. I would, therefore, allow the appeal and set aside the order of the learned Chambers judge. II. The Facts: [7] I will first set out the relevant details of the parties and their Collective Agreement, then turn to the grievance, the decision of the arbitrator and the decision of the Chambers judge. 1. The Parties and the Collective Agreement: [8] The appellant Union is certified under the Code to represent longshoremen in the Port of Halifax. The respondent, the Halifax Employers Association, is an association of employers involved in the transportation of goods through the Port. There is a collective agreement between the parties governing the employment of longshoremen. [9] Michael Cleary is a long time member of the Union employed on the Halifax waterfront, having been a member of the Union since 1991. His dismissal by the Employer on October 5, 1999, led to the grievance before the arbitrator. [10] The Collective Agreement between the parties contains a 3-step grievance procedure, with short time limits, culminating in arbitration. A grievance must be presented within four (4) days following the occurrence giving rise to it. The failure to comply with this time limit, unless the parties otherwise agree, is deemed to be conclusive evidence of the abandoning or non-existence of a dispute or grievance. This flows from Articles 11.02 and 11.03 of the Collective Agreement the text of which I have included in the appendix to my reasons. [11] The Code specifically confers on the arbitrator the power to extend time limits contained in collective agreements, such as this one, entered into under the Code. This power is discretionary and may be exercised where the arbitrator is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by it. This flows from s. 60(1.1) of the Code which provides as follows: 60(1.1) The arbitrator or arbitration board may extend the time for taking any step in the grievance process or arbitration procedure set out in a collective agreement, even after the expiration of the time, if the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension. [12] In addition, the arbitrator has the power to interpret, apply and give relief in accordance with a statute relating to employment matters, whether or not there is a conflict between the statute and the collective agreement: Code, s. 60(1)(a.1). There is no issue on this appeal that the arbitrator had the authority to interpret and apply the relevant provisions of the Code and the Canadian Human Rights Act, R.S. 1985, c. H-6 (“CHRA”) to the grievance before him even if inconsistent with the provisions of the Collective Agreement. [13] This leads me to emphasize a further point. In his award, the arbitrator made two critical findings in relation to the CHRA: first, that the automatic discharge provisions of the LCA were prima facie discriminatory on the basis of disability and further that the Employer had failed to meet its onus of showing that the LCA accommodated the employee’s disability to the point of undue hardship. These findings were not addressed by the Chambers judge or by the parties on appeal to this Court. The reasons of the Chambers judge and the submissions in this Court were restricted to the extension of time issue alone and did not address at all the soundness of the arbitrator’s conclusions respecting the CHRA. The critical point for both the Chambers judge and the respondent is that the arbitrator should not have considered the merits at all, not that he considered them partially or incorrectly. Given the way the case was decided at first instance and argued here, it is not open to me to consider whether the arbitrator’s views on the human rights issue were sound or not. I must assume for the purposes of deciding whether the arbitrator’s decision to extend the time limit was patently unreasonable, that the arbitrator’s conclusions in relation to the human rights aspects of the case were sound. I emphasize, however, that this is simply an assumption which must be made as a result of the way the case has proceeded below and been argued in this Court and that I express no opinion on the soundness of the arbitrator’s decision on the human rights issues which he addressed. 2. The Grievance: [14] As noted, the grievance before the arbitrator concerned Mr. Cleary’s dismissal in October of 1999. However, to understand the issues before the arbitrator, it is necessary to have some additional background of the matters leading up to that discharge. [15] In November of 1998, Mr. Cleary was intoxicated while at work and had a confrontation with a supervisor. His employment was terminated as a result. The Union filed a grievance and, following discussions between the Union and the Employer, the grievance was settled on the basis of a LCA in April of 1999. As this LCA was also the basis of his discharge leading to the present arbitration award, it is necessary to say something more about its terms. [16] The LCA, which was signed by Mr. Cleary, the Employer and the Union, reinstated Mr. Cleary on conditions. Most of the conditions addressed his substance abuse problems. He was to abstain from the use and/or possession of alcohol and non-prescription drugs for two years following the date of his return to work and to provide blood or urine samples so the Employer could check that he was complying with this condition. He was to be on probation for 5 years and, if during that time he reported to work under the influence of drugs or alcohol, verbally threatened or assaulted members of management or fellow employees or violated any of the conditions in the LCA, including the condition that he abstain from the use and/or possession of alcohol and non-prescription drugs for a period of two years, he would be subject to dismissal. The dismissal could be grieved, but the arbitrator would only have jurisdiction to determine whether Mr. Cleary had violated one of the conditions. If he had, the LCA conclusively deemed the dismissal to be for just cause and the arbitrator had no authority to substitute a lesser penalty. [17] Mr. Cleary returned to work in June, 1999 but failed a drug test in September. This was a breach of the LCA and triggered its discharge provisions. He was discharged from employment on October 5th, 1999. [18] Initially the Union did not grieve the discharge. However, in October of 2000, a new president of the Union began exploring with the Employer the possibility of reinstating Mr. Cleary. The Union raised the concern that the LCA and the resulting termination had discriminated against Mr. Cleary on the basis of his disability of drug and alcohol addiction. These discussions, apparently, were not fruitful and a grievance was filed on October 10, 2001. 3. The Arbitration: [19] The Union’s grievance proceeded to arbitration before Arbitrator Peter Darby. The Employer raised two jurisdictional objections: that the grievance was out of time and, even if time were extended, there was really nothing for the arbitrator to do given that the grievor’s breach of the LCA was admitted and the LCA limited the arbitrator to deciding whether it had been breached. [20] The Union had two responses to these objections. First, it asked the arbitrator to use his authority under s. 60(1.1) of the Code to extend the time. Second, the Union submitted that the LCA could not oust the jurisdiction of the arbitrator to determine whether the Employer had just cause to terminate Mr. Cleary because the LCA constituted unlawful discrimination on the basis of disability under the CHRA. The Union submitted that the onus was on the Employer to show that the automatic discharge provision of the LCA constituted accommodation of Mr. Cleary’s disability up to the point of undue hardship, an onus, the Union said, which the Employer could not meet. [21] The arbitrator, therefore, faced three main questions, the second of which had two parts: first, whether the time limits for filing the grievance should be extended in accordance with s. 60(1.1); second, whether the LCA limited his authority to review the discharge; this required consideration of whether the LCA was prima facie discriminatory and, if so, whether the Employer could establish reasonable accommodation; and, third, (if the LCA were unlawful) whether Mr. Cleary’s discharge should be upheld. By agreement of the parties, all issues were presented and argued concurrently. It bears repeating that the arbitrator, by agreement of the parties, heard all the evidence and full argument on all aspects of the case in one hearing. [22] The parties disagree about the interpretation of the arbitrator’s decision. With deference to those of a different view, I understand the arbitrator to have reasoned this way. He found that the LCA was prima facie discriminatory. In his view, the automatic discharge provision of the LCA was a refusal to continue to employ Mr. Cleary on a prohibited ground of discrimination, namely disability, as set out in s. 7 of the CHRA or an agreement affecting employment that tended to deprive Mr. Cleary of employment opportunities on a prohibited ground of discrimination as set out in s. 10 of the CHRA. The arbitrator concluded that this prima facie case of discriminatory discharge constituted reasonable grounds for extending the time and was satisfied that doing so would not cause undue prejudice to the Employer. [23] In his 37 page award, the arbitrator turned first to the timeliness issue. He noted that the parties had both advanced as relevant the six factors outlined in Re: Greater Niagara General Hospital and Ontario Nurses’ Association (1981), 1 L.A.C. (3d) 1. Those factors are concerned with the nature of the grievance, the timing of, reasons for, length of and responsibility for delay and whether the Employer could reasonably have assumed the grievance had been abandoned. [24] The arbitrator found that while a dismissal is a very serious matter and that this consideration favoured the extension, the other factors favoured the Employer. Without more, he reasoned, consideration of these factors would not provide reasonable grounds for extending the time. [25] The arbitrator determined, however, that the human rights aspect of the matter, coupled with the seriousness of a discharge, were sufficient to override that conclusion. When considering this aspect of the matter, the arbitrator at times expresses the relationship between the human rights aspect of the case and his decision to extend the time in different ways. In some places in his reasons, he quite clearly refers to his finding of discrimination in the sense of a prima facie conclusion that the LCA was contrary to ss. 7 and 10 of the CHRA without going on to consider the accommodation issue. In other places, he refers to the LCA as constituting “unlawful” discrimination or “violating” the CHRA. However, read in the context of his whole decision and in light of the way the case was argued to him, I conclude that all of his discussion of the discrimination issue in relation to timeliness is concerned with discrimination in the prima facie sense. His discussion of accommodation forms a separate and significant part of his reasons later in his decision after he has dealt with the extension of time. [26] The arbitrator noted that the Canadian Human Rights Commission policy on alcohol and drug testing states that disability includes those with a previous or existing dependence on alcohol or a drug. He found that it was clear that the Employer did consider the grievor’s addiction to alcohol and/or non-prescription drugs and that the LCA provided for automatic dismissal in the event of a positive test for alcohol or non-prescription drugs whether on duty or off. He concluded, therefore, that the grievor was at least prima facie discriminated against because of his addiction to alcohol and/or non-prescription drugs. According to this line of reasoning, it was the seriousness of a discharge coupled with the prima facie case of discrimination that combined to provide reasonable grounds to extend the time. [27] As noted, elsewhere in his reasons, the arbitrator appears to make a more robust finding on the issue of discrimination in relation to the extension of time issue. For example, he states in para. 23 of his award that the automatic dismissal provision in the LCA constitutes unlawful discrimination under the CHRA and that this finding in itself justifies relieving against the time limits. I think, however, that read in context, the arbitrator is referring to discrimination in the prima facie sense. At this point in his analysis he has not considered the accommodation issue. While of course a final conclusion on unlawful discrimination cannot be reached without considering the accommodation issue, the arbitrator, having decided to extend the time limits, addressed the accommodation issue at length. This is only consistent with his having considered the question of a prima facie case of discrimination in relation to the extension of time and then having gone on to consider accommodation as part of the issue of whether there was just cause for dismissal. This interpretation of the decision is also consistent with the way in which the Union put its case to the arbitrator. It urged him to find that there was a prima facie case of discrimination which was relevant to the extension of time issue and then to turn to the accommodation issue as part of determining whether there was just cause for dismissal. [28] The arbitrator also considered the question of prejudice to the Employer, which of course is the second part of the statutory test for an extension of time under s. 60(1.1) of the Code. He concluded that there was no substantial prejudice to the Employer by reason of the delay. He referred to the Employer’s submission that it had no ability to gather contemporaneous evidence at the time of discharge but noted that nowhere in its brief or elsewhere had the Employer suggested what contemporaneous evidence it might have needed and lost the ability to acquire. Thus, while the delay in filing the grievance counted against the extension, the arbitrator found it was not a major factor, particularly since the Union was not advancing any claim for back pay or benefits should the grievance ultimately succeed. He found that there was no evidence supporting the Employer’s argument that it now lacked the ability to gather needed evidence. He also took into account the evidence of Stephen Belding, a contract administrator for the Employer, to support the conclusion that the rationale for the four (4) day time limit to grieve did not apply with any force to a grievance of this nature. The arbitrator found that all of the relevant witnesses were still available so that their evidence and all other types of evidence remained available to the Employer. [29] The arbitrator concluded his consideration of the timeliness issue as follows: 24. To sum up then: because this is a dismissal case, because Cleary had worked for the Employer for fifteen (15) years more or less, and because of the violation of the C.H.R. Act through the automatic dismissal provision in paragraph 10 for breach of any of the conditions/requirements set out in paragraphs 2-9, both inclusive of the L.C. Agmt. which outweigh all of the other factors pointing to a refusal to extend time limits, and because the evidence does not establish undue prejudice to the Employer, in the circumstances, I direct that the time-limits in Article 11.02(a) be extended pursuant to Section 60(1.1) of the Code so as to render the Grievance timely because the Union has shown that there are reasonable grounds for so doing and that the Employer will not be unduly prejudiced by the extension. See in support of this conclusion e.g. Consolidated Fastfrate Inc. v. Teamsters Local Union 938 (Bucciochio Grievance), [2001] C.L.A.D. No. 638 (Slotnick). [Emphasis in original] [30] The Consolidated Fastfrate award, to which the arbitrator referred, gave significant weight to the human rights dimension of the grievance. In his award, Arbitrator Slotnick said that the grievance before him concerned a serious matter - “... a termination, with a human rights aspect to the argument ...” and found that “[t]his in itself is a persuasive factor in favour of granting an extension.” [31] Under the heading “RECAPITULATION”, the arbitrator summarized his reasoning with respect to the extending of the time limit in these words: (a) the mandatory time limit in Article 11.02(a) of the Agreement ought to be extended pursuant to s. 60(1.1) of the Code because, primarily, of the seriousness of the case, i.e., the Second Termination and of the violations of the C.H.R.[Canadian Human Rights Act] contained in the L.C. Agmt.; (Emphasis added) [32] The arbitrator then turned to the other issues. He noted that the Employer relied on the LCA, which limited him to determining whether there had been a breach of one of its conditions, whereas the Union argued that the LCA violated the CHRA and, therefore, should be treated as void. [33] The arbitrator recognized that the LCA was not unenforceable simply because its automatic dismissal provisions were prima facie discriminatory. It was open to the Employer to show that the LCA (and/or other steps) constituted an accommodation of the grievor’s disability. On the accommodation issue, the arbitrator found that the Employer did not meet its duty to accommodate the grievor in his disability to the point of undue hardship. He directed the grievor be reinstated without compensation up to the date of his award and on various conditions. I repeat that the soundness of the arbitrator’s conclusions on the prima facie case of discrimination and on the issue of accommodation by the Employer was not addressed by the Chambers judge or argued in this Court. 4. Judicial Review Decision: [34] The Employer applied for certiorari to quash the arbitrator’s decision. Although the Employer challenged both the extension of time and the arbitrator’s decision on the merits, the learned Chambers judge addressed only the former point. [35] The Chambers judge first determined that the appropriate standard of review was patent unreasonableness. Applying this standard, the judge found that the arbitrator’s decision to extend the time limits was seriously flawed to the point of being patently unreasonable. The judge thought that the arbitrator had essentially decided the grievance on its merits before concluding on the preliminary question of whether time should be extended. As the judge put it, the arbitrator, “having found this strong case on the merits, ... felt compelled to extend the time limits so this meritorious grievance could go forward.” The judge found that this approach was patently unreasonable because it was contrary to both the relevant “case law” and “the true legislative purpose of s. 60(1.1) of the Code.” [36] With respect to the relevant “case law”, the Chambers judge referred to the Greater Niagara award and the six factors mentioned therein. He said that the arbitrator had decided that these six factors would not justify an extension but then overrode these “six established criteria” because he thought the dismissal was unjust. The judge opined that “there is no common law support for superimposing this seventh overriding factor.” The judge was of the view that there was a distinction between the nature of the grievance and the merits of the grievance and that while the former was a “recognized criterion”, the latter is not. The learned judge concluded that “while the issue of discrimination was fully within Arbitrator Darby’s authority when he turned to the merits in the second part of his judgment (sic), he should not have considered it an “overriding” factor in the preliminary s. 60(1.1) application.” [37] The judge concluded that the arbitrator’s decision was contrary to the “true legislative purpose” of s. 60(1.1) because the arbitrator had “clearly failed to properly weigh the respective prejudice” as intended by that section. The judge further found that the arbitrator had ignored the relevant submissions from the Employer with respect to the issue of prejudice. [38] In the result, the Chambers judge quashed the arbitrator’s award and remitted the grievance for arbitration before a different arbitrator. III. Grounds of Appeal and Positions of the Parties: [39] The Union submits that, while the Chambers judge applied the appropriate standard of judicial review, he nonetheless erred in the following respects: (a) the arbitrator was fully entitled to consider the nature of the grievance, including its human rights dimension, in deciding whether there were reasonable grounds to extend time limits; (b) the learned Chambers judge erred in concluding that the arbitrator was bound by what he referred to as the “case law” given that there is no principle of stare decisis applicable to labour arbitrators; (c) the learned Chambers judge erred in law in finding that the arbitrator’s award failed, in a patently unreasonable way, to be consistent with the purpose of s. 60 (1.1) of the Code; and (d) the learned Chambers judge erred in law in finding that the arbitrator had ignored evidence relevant to any prejudice experienced by the Employer as a result of the late filing of the grievance. [40] The Employer, in light of the very recent decisions of the Supreme Court of Canada in Voice Construction Ltd. v. Construction and General Workers’ Union, Local 92, 2004 SCC 23 and Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28, submits that the appropriate standard of judicial review should be reasonableness rather than patent unreasonableness. The Employer further submits that the arbitrator’s award was both unreasonable and patently unreasonable essentially for the reasons given by the learned Chambers judge. [41] I have found it helpful to approach my analysis of this case by addressing four questions: 1. What is the appropriate standard of judicial review? 2. Did the Chambers judge err in law in concluding that the arbitrator’s award was patently unreasonable because he considered the merits of the grievance in determining whether or not to exercise his discretion to extend time for filing the grievance under s. 60 (1.1) of the Code? 3. Did the learned Chambers judge err in law in finding the arbitrator’s award patently unreasonable because of his failure to properly weigh the prejudice suffered by the Employer by virtue of the delay in filing the grievance and thereby take an approach contrary to the legislative purpose of s. 60(1.1)? 4. In light of the answers to these questions, what should be the result of the appeal? IV. Analysis: 1. The Appropriate Standard of Review: [42] As noted, the Employer raised the issue of whether the applicable standard of review ought to have been reasonableness rather than the patently unreasonable standard applied by the learned Chambers judge. This issue was not raised by way of notice of contention and the appellant objects to it being considered now. However, this issue only arose long after the appeal had been filed. As the Employer frankly submits, the issue arises directly as a result of the decisions of the Supreme Court of Canada in Voice Construction and Lethbridge Community College which were only released on April 8th and 29th, 2004 respectively, April 8th being the day after the respondent’s factum on this appeal was filed. [43] In my view, we ought to address this issue. The record before the Court is complete, neither party has been taken by surprise and the point in issue is a pure legal question relating to authorities which are binding on this Court. I would, therefore, conclude that we ought to address the appropriate standard of review in light of these most recent pronouncements from the Supreme Court of Canada. [44] Prior to Voice Construction and Lethbridge Community College, it was widely thought that the standard of judicial review of labour arbitrators interpreting collective agreement provisions was the patently unreasonable standard, even in the absence of a strong privative clause. As this Court noted recently in Nova Scotia Government and General Employees Union v. Nova Scotia (Public Service Commission), 2004 NSCA 55, the importance of mandatory contractually rooted statutory arbitration in the labour relations setting has been seen as an important basis for showing deference to the decisions of labour arbitrators. [45] However, the Supreme Court of Canada has made it clear in a series of judgments that the standard of review of all administrative decision-makers is to be determined by applying the pragmatic and functional approach: see, for example, Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. While the “... wisdom of past administrative law jurisprudence need not be wholly discarded, ... the pragmatic and functional approach demands a more nuanced analysis based on consideration of a number of factors. This approach applies whenever a court reviews the decision of an administrative body.”: Dr. Q., paras. 24 - 25; see also Voice Construction at para. 18. [46] The central inquiry for the reviewing court is whether the legislature intended to leave the question raised by the statutory provision to the exclusive jurisdiction of the administrative tribunal: see Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 1222 at para. 26. Thus, determining the appropriate standard of review is primarily a matter of statutory interpretation. But the task of interpretation requires attention not only to the text of the legislation, but also to several contextual factors indicative of the appropriate level of curial deference, according to what has come to be known as the pragmatic and functional approach. The relevant factors have been divided into four categories and I will address each briefly. (i) Presence or absence of a privative clause: [47] As stated in Pushpanathan, a full privative clause is one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded: para. 30. The presence of a full privative clause is “compelling evidence that the court ought to show deference to the tribunal’s findings, unless other factors strongly indicate the contrary ...”: Pushpanathan, para. 30. [48] In my opinion, the decision of the arbitrator under s. 60(1.1) of the Code is protected by a full privative clause as that term was explained in Pushpanathan. Section 58(1) of the Code provides that every order or decision of an arbitrator or an arbitration board is final and shall not be questioned or reviewed in any court. This is a provision which declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded. The effect of s. 58(1) is re-enforced by the provisions of s. 58(2) of the Code which provides that no order shall be made, process entered or proceeding taken in any court to question or review an arbitrator or arbitration board in any of their proceedings under the Code. [49] Counsel for the Employer noted that the Collective Agreement between the parties does not explicitly contain the final and binding provision which is frequently found in arbitration clauses of collective agreements. However, in my view, this does not in the slightest detract from the strength of the privative clause. Moreover, s. 57(1) of the Code requires that every collective agreement contain a provision for final settlement without stoppage of work by arbitration and s. 57(2) provides that such arbitration shall be a final settlement of the dispute. [50] I, therefore, conclude that the arbitrator’s decision under s. 60(1.1) of the Code is protected by a full privative clause and that this is compelling evidence that the arbitrator’s decision is entitled to deference. [51] In this respect, this case is distinguishable from both Voice Construction and Lethbridge Community College. In those cases, the relevant statute was found by the Court not to extend full privative protection to decisions of the arbitration board: see Lethbridge Community College at para. 16 and Voice Construction at para. 23. (ii) relative expertise of the arbitrator: [52] As Pushpanathan makes clear, expertise must be understood as a relative concept. The evaluation of relative expertise has three dimensions: the court must characterize the expertise of the tribunal in question: the court must consider its own expertise relative to that of the tribunal; and finally, the court must identify the nature of the specific issue before the administrative tribunal in relation to this expertise. In light of this last consideration, it is clear that consideration of relative expertise and of the nature of the problem are closely inter-related: Pushpanathan, para. 33. [53] It has long been recognized that the expertise of labour arbitration boards militates in favour of deference: see Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487 at paras. 35 -37. This deference is appropriate not only to an arbitrator when interpreting provisions of a collective agreement but may also extend to an arbitrator’s interpretation of the constituent legislation intimately connected with the arbitrator’s mandate. Section 60(1.1) of the Code in issue in this case is such a provision: see, for example, Lethbridge Community College, supra at para. 17 and Toronto (City) Board of Education, supra, at para. 39. [54] It has also been recognized that collective bargaining law and grievance arbitration are specialized areas and that labour arbitrators have acquired both expertise in this specialized field and sensitivity to this unique context. Moreover, as I shall discuss in the next section of my reasons, the statutory provision in issue here confers a discretion upon an arbitrator. Thus, the decision to be made by the arbitrator is essentially one of making a choice among various results, all of which may be legally acceptable. This choice by statute has been entrusted to the arbitrator. Thus, both the general context of collective agreement grievance arbitration and the specific context of the discretionary decision entrusted to the arbitrator under the provisions of s. 60(1.1) of the Canada Labour Code favour deference. (iii) purpose of the Act as a whole and the provision in particular: [55] As noted in Pushpanathan at para. 36, the purpose of the statute and the question of expertise frequently overlap. And so it is in this case. Underlying the whole collective bargaining scheme is a comprehensive and exclusive regime of mandatory arbitration. Even in the absence of a strong privative clause, the importance of this scheme in the labour relations context has been seen as an important reason for judicial deference: United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316 at 337-338. [56] It is true that the legislative scheme in issue here does not confer on the arbitrator the authority to resolve disputes which are highly polycentric in nature: see Pushpanathan, para. 36. While calling for labour relations expertise and sensitivity and the exercise of discretion, the scheme of the Code for grievance arbitration and the provision most directly in issue, s. 60(1.1), relate more to so-called bipolar disputes based on fact determination than to a policy-laden balancing of a multitude of interests and considerations. However, the specialized context of labour relations and the discretionary nature of the power conferred by s. 60(1.1) both support considerable curial deference. [57] That said, the nature of the balancing of interests required under s. 60(1.1) seems to me to lie at the heart of the industrial relations expertise of labour arbitration boards. In my respectful view, when considering such questions as whether an extension of time is likely to destabilize labour/management relations or to undermine the parties’ confidence in the finality of their agreements, a court should be slow to substitute its view for that of an expert tribunal operating in a highly specialized area such as this. (iv) the nature of the problem: [58] The immediate question before the arbitrator under s. 60(1.1) is whether to exercise his or her statutory discretion having regard to the broadly phrased statutory requirements set out in the section. As noted earlier, both the discretionary nature of the decision and the fact that the discretion is specifically entrusted to the arbitrator whose decision is protected by a full privative clause, support judicial review on a deferential standard. Even in the context of appeals to appellate courts from judges exercising discretion, considerable deference is shown to the judge at first instance: Exco Corporation Ltd. v. Nova Scotia Savings & Loan et al. (1983), 59 N.S.R. (2d) 331. The case for deference on judicial review of a specialized and expert tribunal whose decision is protected by a full privative clause is considerably stronger. Moreover, both of the statutory requirements - that reasonable grounds for the extension exist and the other party would not be unduly prejudiced by an extension - are mainly matters of fact to be assessed by the arbitrator in the particular circumstances of each case. The essentially factual and case specific nature of the issue before the arbitrator under section 60(1.1) also support curial deference to the initial decision-maker. (v) conclusion on standard of review: [59] Taking all of these considerations into account, in my view, the learned Chambers judge was right to apply the patently unreasonable standard of judicial review to the decision of the arbitrator under s. 60(1.1) of the Code. (vi) what is patent unreasonableness? [60] It is hardly necessary to say that the patently unreasonable standard calls for a very high level of deference on the part of the reviewing court. A decision will be patently unreasonable if it borders on the absurd (Voice Construction, para. 18), if it is clearly irrational or evidently not in accordance with reason: see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 52. [61] Where, as here, the court is not reviewing the decision for its correctness, it must not simply ask itself what the correct result would be and assess whether the tribunal has stayed within an acceptable “margin of error” from that result: see Ryan at para. 50. As Sharpe, J.A. put it in Huron (County) Huronview Home for the Aged v. Service Employees’ Union, Local 210 (2000), 50 O.R.(3d) 766 (Ont. C.A.) at 775, applying the patent unreasonableness standard is not simply a matter of measuring the extent of the deviation by the tribunal from what the court thinks is the right result. Rather, the focus must be on the reasons given by the tribunal. [62] Not every element of the reasoning given by the tribunal is to be independently assessed on the patently unreasonable standard. To paraphrase what was said in Ryan in the context of review on the reasonableness standard, a decision will be patently unreasonable only where there is no line of analysis within the given reasons that could rationally lead the tribunal from the evidence before it to the conclusion at which it arrived: see Ryan at para. 55. [63] The hallmark of a patently unreasonable decision is that the defect, “... once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective.” : Ryan at para. 52. [64] To repeat, the judge did not err, in my view, in selecting the patently unreasonable standard as the appropriate one in this case. 2. Did the judge err in finding that the arbitrator had reached a patently unreasonable decision on the extension of time because he considered the merits of the grievance? [65] As noted, the hallmark of a patently unreasonable decision is that once the defect has been identified, it can be explained simply and easily. In my respectful view, the reasons of the learned Chambers judge fail to identify a defect, let alone explain it simply and easily. I turn, therefore, to an analysis of the judge’s reasons. [66] The Chambers judge found the arbitrator’s decision was patently unreasonable because “... his entire approach to this case was flawed, and this led [the arbitrator] down the wrong path. ... [The arbitrator] essentially decided the grievance on its merits before concluding the preliminary time extension issue. ... [T]his approach is contrary to both (a) the relevant case law, and (b) the true legislative purpose of s. 60(1.1).” (para 15) [67] The components of the judge’s reasoning in support of his finding of patent unreasonableness therefore are, first, that it is patently unreasonable to consider the merits of the case in deciding whether to hear it; second, that this is what the arbitrator did; third, that the arbitrator was bound to follow the decisions of other arbitrators and that failure to do so contributes to his decision being patently unreasonable; and, fourth that the arbitrator failed to carry out the balancing of interests required by s. 60(1.1) because he failed to consider prejudice to the Employer if the extension of time were granted. [68] In my respectful view, each component of the learned Chambers judge’s reasoning is erroneous. In my view, (1) It is not invariably or necessarily patently unreasonable to consider the merits of the grievance in deciding whether to extend time for hearing it; (2) In any event, the arbitrator here did not “decide the case on the merits before concluding the preliminary extension issue”; (3) The arbitrator was not obliged to follow “the relevant case law” consisting of the decisions of other arbitrators and in any event, he did not depart from considerations thought relevant by other arbitrators; and, (4) The arbitrator did not fail to perform the balancing of interests contemplated by s. 60(1.1) of the Code. I will address each of these points in turn. I will deal with points 1 - 3 in this section of my reasons and point 4 in the next. [69] To begin, I am aware of no authority for the view that it is necessarily or invariably wrong, let alone patently unreasonable, to consider the strength of the case when deciding to extend a time limit for hearing it. Of course, it may often be impossible to do so because the merits of the case have not been fully explored at the time the extension issue must be decided. As well, there need to be limits on how far into the merits a party seeking an extension should be permitted to go; it would be pointless to have a time limit if the request for an extension leads inevitably to a full hearing on the merits in any event. But here, by agreement, the whole case was before the arbitrator, he ultimately formed the opinion (which is not challenged in this Court) that the grievor had been the victim of unlawful discrimination and that the Employer had suffered no prejudice by the delay. Even had the arbitrator taken his ultimate view of the merits of the grievance into account in deciding to extend the time limits for hearing it, I fail to see, with respect, how his decision to extend time in this case would be patently unreasonable on that account. [70] The respondent cites no authority for the broad proposition that it is patently unreasonable to consider the strength of the case in deciding whether to hear it on its merits. I am aware of no such authority. The Chambers judge referred to Re Queensway General Hospital and Ontario Nurses’ Association (1996), 57 L.A.C. (4th) 194 as an example of an arbitration board confirming that the merits ought not to be considered during a preliminary application to extend time limits. With respect, however, the decision does not stand for that proposition. In the Queensway case, the preliminary objection was argued at the first stage of a bifurcated hearing and no evidence relating to the merits of the case was heard. In deciding to extend the time for hearing the grievance, the majority of the Board observed that the grievor alleged that she had been dealt with contrary to the collective agreement because of her handicap and disability. The fact that the grievance raised this important issue was one reason the Board decided that there were reasonable grounds for extending the time. In the passage of the case relied on by the Chambers judge, the Board simply observes that, in relying on the importance of the issue to extend the time, no opinion about the ultimate merits of the case was being expressed, as indeed it could not have been, given that the merits had not been heard. There is no discussion in the case of whether, having heard all of the evidence and arguments concerning the merits of the case, such could be considered in deciding whether or not to extend the time for proceeding with the grievance. [71] Of course, there are many procedural and related practical issues as well as issues concerning the proper functioning of the grievance arbitration process involved in deciding the extent, if any, to which an arbitrator may properly look at the merits of a time-barred grievance in deciding whether to extend the time for hearing it. None of those kinds of issues were raised or relied on here. The Chambers judge’s decision is premised on the notion that, where the arbitrator has heard the whole case on the merits, it is necessarily patently unreasonable to take the strength of the case into account in deciding whether to extend the time. In my view, that broad assumption is wrong and that, in the circumstances of this case and on the submissions that we have heard, it would not have been patently unreasonable for the arbitrator to consider the strength of the case of discrimination as an aspect of his decision to extend the time. In saying this, of course, I do not intend to suggest that arbitrators are obliged to take this approach or that it could not be patently unreasonable to take it in other circumstances. What I am rejecting is simply the broad proposition that it will always be patently unreasonable to take the strength of the case on its merits into account as a relevant factor in deciding whether or not to extend a time limit. [72] I would add, for reasons which I will set out later, that even if the arbitrator failed to follow the Queensway case, the failure to follow a decision of another arbitrator does not make the decision patently unreasonable. [73] In any event, it is my respectful opinion that the judge erred in finding that the arbitrator “decided the grievance on its merits before concluding the preliminary time extension issue.” [74] The grievance complained of unjust dismissal and therefore invoked the arbitrator’s usual authority to determine whether just cause for discipline existed and, if so, to review the penalty imposed. However, there were two objections to the authority of the arbitrator which he had to address before he was entitled to exercise his usual authority to review the just cause and penalty issues. First, there was the issue of timeliness because the grievance had been filed late. Second, there was the issue of whether the LCA ousted the arbitrator’s authority to review just cause and the appropriateness of the penalty in the usual way because the LCA provided for the unreviewable penalty of discharge if the grievor breached its terms as he admittedly had. [75] For the reasons I have set out in my discussion of the arbitrator’s decision, I conclude that the arbitrator, as part of his consideration of the timeliness issue, found that there was a prima facie case of discrimination in the sense that the LCA, on its face, imposed disadvantages on the grievor on the basis of his disability. In doing this, the arbitrator was not addressing the ultimate merits of the grievance, properly understood. [76] This is clear, in my view, from the arbitrator’s award. Having decided to extend the time, he then commenced his discussion of the other issues under the heading “THE MERITS”. He made clear that his decision to extend the time and his conclusions that the LCA is on its face discriminatory did not resolve the grievance. The arbitrator put it this way: 25. The conclusion set forth in paragraph 24 [i.e that the LCA was prima facie discriminatory and that the time limits should be extended] does not end matters. It can still be argued - and the Employer does - that the Employer, the Union and the Grievor have precluded me from going any further than determining whether a breach of the L.C. Agmt. had occurred, (which is admitted by the Union and Cleary). This breach was that Cleary failed a drug test on September 30, 1999 and, consequently, was terminated on October 5, 1999 pursuant to Section 10 of the L.C. Agmt. which mandated dismissal, automatically, for, inter alia, violating one of the conditions (found in Section 8) of the L.C. Agmt. The Union’s position, disputed by the Employer, is that because the L.C. Agmt. violated the C.H.R. Act, it ought to be treated by me as entirely void or, if I will not accept this, the “fact” (conclusion) that such a violation did occur ought to be one of many factors leading me to conclude that the Employer failed to accommodate the Grievor to the point of undue hardship. [77] The merits of the grievance were whether there was just cause for discipline and whether discharge was an appropriate penalty. Before the arbitrator was entitled to rule on those issues, he had to consider the timeliness point and the question of whether the LCA barred him from reviewing the discharge in the usual way. He addressed the timeliness point and the question of whether the LCA was on its face discriminatory first, and then turned to the question of the impact of the LCA on his authority to hear the grievance by considering whether the Employer had accommodated the grievor’s disability. [78] Even granting the Chambers judge’s assumption that it would have been reviewable error for the arbitrator to address the merits at the same time as the extension issue, that is not an error that the arbitrator made in this case. He simply determined that there was a prima facie case of discrimination contrary to the CHRA and that the prima facie case of discrimination, coupled with the seriousness of a discharge from employment, constituted reasonable grounds for extending the time even though other relevant factors pointed the other way. [79] While some may not find this reasoning convincing or the result wise, that is not the issue for the reviewing court. The arbitrator’s decision that these considerations constitute reasonable grounds is rational. His decision should therefore not be disturbed on judicial review for patent unreasonableness. [80] I would add that even if the arbitrator’s reasons support more than one interpretation, it is wrong to fasten on one that is considered to be patently unreasonable when the reasons fairly support another, rational interpretation. The standard of review is not to be applied to every line of reasoning: the question for the reviewing court is whether the reasons of the tribunal disclose any line of reasoning that rationally supports the result. The arbitrator reasoned that the seriousness of the penalty and the fundamental importance of the protection of human rights constitute a reasonable basis for extending time in the circumstances of this case. There can surely be no reviewable error in his taking into account that the grievance related to the most serious workplace penalty – dismissal – and that it was based on an arguably discriminatory and unlawful agreement. That line of reasoning is rational and does not depend on any final determination of what the learned Chambers judge refers to as the merits of the grievance. It is, therefore, a sustainable line of reasoning which does not suffer from the patent unreasonableness identified by the judge, if such it be. [81] The Chambers judge found that the arbitrator’s approach to the case was patently unreasonable in part because it was “contrary to the relevant case law” and departed from “recognized criter[ia]” and lacked “common law support.” By this, the judge meant that the award considered a factor that had not been considered by other arbitrators. [82] With respect, the arbitrator was not obliged to follow “the relevant case law” developed by other arbitrators or to limit himself to “recognized criteria” or to act only on the basis of propositions for which there is “common law” support in the awards of other arbitrators. There is no principle of stare decisis in labour arbitration: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 per Iacobucci, J. dissenting but not on this point at para. 14; Nova Scotia Government Employees Union v. Civil Service Commission (N.S.) et al., (1992), 112 N.S.R. (2d) 444; N.S.J. No. 303 (Q.L.)(A.D.) per Chipman, J.A. at para. 12; Calgary (City) v. International Association of Firefighters, Local 255, [2003] A.J. No. 496 (Q.L.)(C.A.) at para. 27, application for leave dismised [2003] S.C.C.A. No. 304. The arbitrator’s duty is to apply the statutory test to the facts, not to adhere to what other arbitrators in other contexts have said or done. Departures from other awards do not, in themselves, make the arbitrator’s award patently unreasonable. [83] In any event, the arbitrator did not, in my view, depart significantly from the considerations taken into account by other arbitrators in deciding whether to extend the time for hearing a grievance. Other awards, notably Consolidated Fastfrate and Queensway General Hospital have given significant weight to the fact that the late grievance raised an important human rights issue. In Consolidated Fastfrate, this was referred to as a “persuasive factor”. It is not, in my view, a significant extension of this line of reasoning to find, as the arbitrator did in this case, that a prima facie case of discrimination strongly supports the extension of time. Moreover, other awards have interpreted the consideration of the nature of the grievance as being concerned with the impact on the grievor of a refusal to grant relief against the time limits: see, e.g. Re Pacific Forest Products Ltd. (Sooke Logging Division) and International Woodworkers of America, Local 1-118 (1984), 17 L.A.C. (3d) 435. The strength of the case is surely relevant to the question of the impact of the time limit on the grievor. [84] I would conclude, respectfully, that the learned Chambers judge erred in finding that the arbitrator’s award was patently unreasonable on the basis that he had wrongly considered the merits of the grievance as part of his decision to extend the time. 3. Did the arbitrator fail to assess prejudice to the Employer by virtue of the delay in filing the grievance and thereby take an approach contrary to the legislative purpose of s. 60(1.1)? [85] The learned Chambers judge found that the arbitrator had ignored the Employer’s submissions concerning prejudice and had therefore failed to address the requirement of s. 60(1.1) that time should be extended only if “... the other party would not be unduly prejudiced by the extension.” In this way, reasoned the judge, the arbitrator failed to perform the balancing of interests intended by s. 60(1.1). [86] With respect, the learned Chambers judge was in error on this point. It is apparent from the arbitrator’s award that he considered and made clear findings of fact on this aspect of the case. [87] The arbitrator had before him the evidence of Stephen Belding, a contract administrator employed by the Employer. His evidence supported the arbitrator’s conclusion that the rationale for the 4-day time limit did not extend with any force to a grievance like the one before him. The arbitrator also found as a fact that all of the relevant witnesses were still available and that all other types of evidence remained available. He took into account that the Union was not seeking back pay in the event the grievance should succeed. He also found as a fact that there was no evidence supporting the Employer’s argument that it now lacked the ability to gather needed evidence. Although the arbitrator at one point in his decision said that his conclusion concerning prima facie discrimination in the dismissal would of itself justify his extending the time limits, he in fact did not rest his decision on that basis but went on, as the statute requires, to consider the issue of undue prejudice to the Employer. [88] In finding that the arbitrator had ignored the impact of the extension on the Employer, the learned Chambers judge referred to the Employer’s submissions before the arbitrator. In my respectful view, the Chambers judge erred by equating these submissions with evidence of prejudice, particularly in view of the clear finding by the arbitrator that “the evidence does not establish undue prejudice to the employer.” [89] I would, therefore, conclude that the learned Chambers judge erred in law in his conclusion that the arbitrator’s decision was patently unreasonable because it failed to consider prejudice to the Employer. The arbitrator appreciated the balancing of interests required by s. 60(1.1) and his reasons disclose that he considered the necessary factors. 4. What Order should the Court make on appeal? [90] As noted, the Employer’s application to quash Arbitrator Darby’s award challenged both his decision on the extension issue and also on the merits of the dismissal. The learned Chambers judge addressed only the first of these arguments and decided that while Arbitrator Darby’s award must be quashed, the grievance should be submitted to a new arbitrator for new consideration. [91] On appeal to this Court by the Union, only the extension issue was raised as that is the sole ground on which the Chambers judge decided to quash the award. The Employer did not seek to uphold the Chambers judge’s decision on the basis that the arbitrator’s decision was also patently unreasonable on the merits and, in fact, no argument was addressed to this Court on the subject of the learned arbitrator’s conclusions concerning the impact of the CHRA on the LCA. In other words, the Employer’s challenge to the award on its merits was not adjudicated on by the Chambers judge or renewed before us by way of contention on appeal. [92] I would conclude that the decision of the learned Chambers judge must be set aside because he erred in concluding that the decision of the arbitrator to extend the time limits for the grievance was patently unreasonable. In doing so, however, I wish to emphasize again that, given the way the case has come before us, I am not expressing an opinion on the arbitrator’s decision respecting the human rights aspects of this grievance. V. Disposition: [93] I would allow the appeal and set aside the order of the learned Chambers judge quashing the award. The appellant is entitled to its costs which I would fix at $2,000.00 plus disbursements. Cromwell, J.A. Concurred in: Saunders, J.A. Appendix 11.02 a) Step 1: Any complaint concerning the application of this agreement will be taken up verbally by the Business Agent with the Company’s representative on the dock and the local manager of the H.E.A. within four (4) days following its occurrence. A reply will be given verbally within four (4) days following receipt of the complaint from the Business Agent or the Assistant Business Agent. Step II: If the grievance is not resolved at Step I, it may be submitted to the Grievance Committee referred to in 11.01 above by written notice to this effect sent to the other party within four (4) days following receipt of the reply at Step I. Such notice must include a statement of the grievance, together with the adjustment desired, if applicable. The Grievance Committee will meet every Wednesday, unless otherwise agreed to, and will deal with all grievances submitted at this step, as of the preceding Friday. ... A written reply to the grievance will be sent to the other party within four (4) days following the last Step II meeting dealing with the grievance. ... Step III: If a grievance is not resolved at Step II, it may be submitted to arbitration by so notifying the other party in writing within one (1) week following receipt of the written reply issued after the last Step II meeting dealing with the grievance. 11.03 Failure to follow the above shall be conclusive evidence of the abandoning or non-existence of a dispute or grievance. The time limits set forth in 11.02 exclude Saturdays, Sundays and holidays and may be extended by mutual agreement between the Union and the Halifax Employers Association. If, at any step, a reply is not received within the time limits, the other party shall consider this to be a negative reply and must process the grievance accordingly, unless it is abandoned.2 Dissenting reasons for judgment [94] I respectfully disagree with the conclusion reached by my colleague Cromwell, J.A. It is my view that the arbitrator’s decision to extend the time limits for the filing of the grievance is patently unreasonable and cannot stand. [95] Where we depart is in the characterization of the arbitrator’s decision. I do not agree that the validity of the Last Chance Agreement (“LCA”) was a preliminary issue and properly incorporated into the question of extension of time. The merits of the Union’s case rested entirely upon its attack on the LCA as in contravention of the Canada Human Rights Act, R.S.C. 1985, c. H-6 (“CHRA”). The LCA called for Mr. Cleary’s dismissal should he continue or resume his substance abuse. It was the Union’s position that the LCA agreement was unenforceable because it contravened the CHRA. Only if so, could the dismissal be challenged. [96] The facts are set out in the decision of Justice Cromwell. I would elaborate on a few. The workplace incident which precipitated the original firing of Michael J. Cleary in December of 1998, was described by the arbitrator as “. . . a violent and serious incident at work on November 27, 1998 when Cleary threatened to beat up and kill and assaulted Michael Maher, . .”. Mr. Maher was the Marine Superintendent of one of the Employer’s member companies. Mr. Cleary, in explaining his own conduct, said he was under the influence of alcohol at the time of the assault. [97] The Union filed a timely grievance of the dismissal. The factual elements resulting in that first discharge were not in dispute. It was the Union’s position that the dismissal could not stand because Mr. Cleary was addicted to alcohol which addiction is a disability under the CHRA. The Union said he was entitled to reinstatement because, before dismissing Mr. Cleary, the Employer was bound to provide reasonable accommodation of his addiction to the point of undue hardship. [98] In support of that first grievance the Union filed a letter from a health care caseworker with Drug Dependency Services of the Capital District Health Authority. The author of the letter confirmed that Mr. Cleary had been a long-standing client of Drug Dependency. The letter stated that Mr. Cleary had, over the past years, attended several five day programs and, in October of 1997, had completed a 28 day program. He had had several relapses over the years. His substance of choice was not specified in the letter but was assumed by all to be alcohol. There was nothing in that letter linking his violent behaviour at work to his addiction. [99] It was in response to learning of Mr. Cleary’s substance abuse problem that the Employer worked with the Union and with Mr. Cleary to create the LCA. Mr. Cleary was reinstated on his agreement that he would take additional steps to deal with his addiction and abstain from abusing substances. The LCA was specifically crafted to assist Mr. Cleary in conquering his substance abuse. It provided that: (i) he was not to return to work until declared fit to do so by his drug abuse counsellor; (ii) he was to report to the Employee Assistance Program Co-ordinator for assessment and referral; (iii) he was obliged to undertake any recommendations of the EAP Co-ordinator for treatment, including anger management, psychiatric or psychological counselling or drug or alcohol treatment; (iv) he was to join or renew his membership in Alcoholics Anonymous or a similar organization; (v) he committed to the employer to abstain from substance abuse, not indefinitely, but for a five year period; and, (vi) for the first two years of that time, to submit to random drug testing to evidence his sobriety. It is a fair inference that all parties to the agreement thought it reflected the reasonable accommodation required of the Employer (see CHRA ss. 7 and 15). [100] Mr. Cleary returned to work on June 1, 1999. The dismissal, which was the subject of the arbitration now on appeal, results from him testing positive for crack cocaine on his first drug test (September 30,1999) after returning to work. While Mr. Cleary maintained that this was his first “slip” after reinstatement, the arbitrator found that such was not the case. Mr. Cleary had resumed abusing substances prior to discovery by the Employer through the random drug test. No grievance was filed until two years after the dismissal. As stated above, it was the Union’s position that Mr. Cleary’s dismissal could not stand because the LCA is discriminatory. [101] Article 11 of the Collective Agreement (included in the Appendix to my colleague’s reasons) requires the filing of a grievance within four days of the occurrence of the event in question, here, the dismissal. Once a grievance is filed, the Agreement dictates short time frames within which the necessary steps are to be taken to resolve the issue. All of this is in the interests of promoting the stability of labour relations through the speedy resolution of labour/management disputes. The Collective Agreement further provides that a failure to follow the specified process is conclusive evidence of abandonment or non-existence of a grievance. [102] Section 60(1.1) of the Canada Labour Code, R.S.C. 1985, c. L-2 (“CLC”) permits the extension of a collective agreement’s time limits: 60(1.1)The arbitrator or arbitration board may extend the time for taking any step in the grievance process or arbitration procedure set out in a collective agreement, even after the expiration of the time, if the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension. [103] It was under this provision of the CLC that Mr. Cleary, supported by his Union, applied for relief. The arbitrator, before extending the time limits under s. 60(1.1), must be satisfied that: (1) there are reasonable grounds for extending the time limits dictated by the agreement; and, (2) that the other party would not be unduly prejudiced by any extension. This was the preliminary issue before Arbitrator Darby. Only if he extended the four day period for filing the grievance did the arbitrator have jurisdiction to deal with its merits. [104] Under the LCA the arbitrator was limited to determining whether Mr. Cleary had violated one of its conditions. If so, the dismissal was lawful. While technically that question would be before the arbitrator if he extended the time limits, it was not disputed that Mr. Cleary had violated the LCA. This issue was not the focus of the grievance. As I have already noted, it was the Union’s position that the LCA could not stand because it violated the CHRA. The extension of the time limits and the validity of the LCA were the only live issues before the arbitrator. The arbitrator could not consider the Union’s argument that the LCA violated the CHRA unless he extended the time limits. [105] I would agree with the conclusion reached by Justice MacDonald (decision reported at (2003), 220 N.S.R. (2d) 218; N.S.J. No. 439 (Q.L.)) that Arbitrator Darby’s decision to extend the time limits here is patently unreasonable. In effect, the arbitrator confused the question of extending the time limits with the merits of the grievance. This produced an irrational result. [106] At the hearing before Arbitrator Darby, both counsel urged, and the arbitrator accepted, the six factors endorsed in Re Greater Niagara General Hospital and Ontario Nurses' Association (1981), 1 L.A.C. (3d) 1(Schiff) as providing the appropriate framework for analyzing the reasonableness of the grounds for extension of the time limit. Those factors are: (I) The nature of the grievance. (ii) Whether the delay occurred in initially launching the grievance or at some later stage. (iii) Whether the grievor was responsible for the delay. (iv) The reasons for the delay. (v) The length of the delay. (vi) Whether the employer could reasonably have assumed the grievance had been abandoned. [107] Greater Niagara involved an application to extend the time for filing a grievance under a similarly-worded section of the Ontario Labour Relations Act, R.S.O. 1970, c. 232. Since the decision in Greater Niagara, applications to extend time limits have often been resolved using these criteria. [108] Applying the factors from Greater Niagara to Mr. Cleary’s circumstances Arbitrator Darby concluded that reasonable grounds for the extension of time had not been made out. The only factor favouring the extension was the serious nature of the grievance in that it involved dismissal. Weighing against extension of the time limits, said the arbitrator, was the fact that the delay occurred at the very outset of the process; the extreme length of the delay (2 years); there was no reasonable explanation offered for the delay; there was no evidence that Mr. Cleary had pushed for timely pursuit of the grievance; and the Employer could reasonably have assumed the grievance had been abandoned. The arbitrator concluded, however, that because the LCA violated the CHRA, that factor provided sufficient grounds to extend the time under s. 60(1.1). In this regard he wrote: 21. Thus, the seriousness of the Second Termination to the Grievor and the expectation any employer would hold of a rapid-response grievance being filed if the Union intended any action, and apart from the human rights aspect to this matter, I would have no choice but to refuse to relieve against the mandatory time limits under Article 11.02(a) of the Agreement because, on balance, there would not be reasonable grounds for so doing. However, overriding all of these six (6) [Greater Niagara] factors in my opinion, is the fact that, under the L[ast] C[hance] Agreement, Cleary was discriminated against because of his disability. ... 23. In light of my conclusion that the consequence of automatic dismissal set out in paragraph 10 for breaching paragraph 8, both of the L[ast] C[hance] Agreement, constitutes unlawful discrimination under the C.H.R. Act, this fact, per se justifies my relieving against the time-limits in Article 11.02(a) of the Agreement pursuant to s. 60(1.1) of the Code. I so find. It may be, consequently, unnecessary for me to consider whether the Employer would be “unduly prejudiced” by the extension. ... (Emphasis added) [109] Despite the able analysis of my colleague I respectfully but strongly disagree with his characterization of this as a “prima facie” finding of discrimination. There can be no serious dispute here that the arbitrator, on the question of the extension of time to file the grievance, had decided that the LCA violated the CHRA. In his own words, but for this, he would not have extended the time for filing the grievance. No where in his decision does he suggest that this is a “preliminary” or “prima facie” finding. [110] Nor, I say respectfully, is it correct to suggest that the “discriminatory” nature of the LCA was a second “preliminary” issue to be decided by the arbitrator - and he was, therefore, left to decide “the merits” being: (1) whether the Employer had reasonably accommodated Mr. Cleary’s disability; and (2) whether the dismissal could stand. It was the Employer’s submission that the LCA did not violate the CHRA in that the existence of the agreement itself, its content and the fact that it was developed to respond to Mr. Cleary’s addiction, represented reasonable accommodation, the original dismissal having been reversed when Mr. Cleary’s addiction was disclosed. Mr. Cleary had undergone many programs calculated to free him of his addiction prior to his assault on the supervisor, which precipitated the first dismissal. Those efforts, submitted the Employer, were to be taken into account in the context of the safety-sensitive nature of the workplace when determining the extent of accommodation required. Accommodation by the Employer was central to the main issue, which was whether the LCA was unenforceable because it violated the CHRA. As the matter was argued before the arbitrator, the only issue was whether the LCA was in contravention of the CHRA. If so, the termination of Mr. Cleary’s employment under its terms could not stand. The question of accommodation by the Employer could not, in these circumstances, be divorced from the main question which was whether the LCA was discriminatory. [111] I would agree with my colleague that Arbitrator Darby was not bound to follow the direction in Greater Niagara. He did, however, elect to apply those six criteria and found the grievor’s case for extension wanting. He was entitled to consider additional criteria bearing on the reasonableness of the grounds to extend the time limits. Any such criteria, however, must be considered in a context relevant to the extension of time. The arbitrator did not do this. Instead of limiting himself to the preliminary issue of reasonable grounds for the extension of the time limits, he undertook a superficial review of the merits of the grievance, decided it was a grievance that would succeed, and, for that reason, extended the time limits. I repeat the arbitrator’s conclusion, using his own words: “ . . . overriding all of these six (6) [Greater Niagara] factors in my opinion, is the fact that, under the L[ast] C[hance] Agreement, Cleary was discriminated against because of his disability ...”. [112] I agree, as well, that the standard of review is one of patent unreasonableness. As noted by authors Donald J.M. Brown and The Honourable John M. Evans in Judicial Review of Administrative Action in Canada, (Toronto: Canvasback Publishing, 1998) (looseleaf updated to April, 2004), the standard selected must be applied flexibly and with due regard to the statutory context, in particular, the overall statutory objectives and the interests that the legislation was designed to protect (vol. 3 at p. 15-2222). [113] The legislation in question here is the CLC. Its preamble encourages “free collective bargaining” and “the constructive settlement of disputes” by the parties in an effort to promote harmonious industrial relations. The power to extend time frames under s. 60(1.1) of the CLC must, in my view, be exercised sparingly, taking into account the Collective Agreement’s provision for short time frames leading to finality and the CLC’s stated objectives of respecting agreements and promoting the parties’ settlement of disputes. To do otherwise would have a de-stabilizing effect on labour/management relations and work against these objectives. The parties would have no confidence that a deal is a deal and, therefore, no incentive to efficiently and quickly settle disputes. [114] The question of extending the time limits here was not one which turned upon the arbitrator’s findings on disputed facts nor on his interpretation of the wording of the Collective Agreement. It required him to interpret s. 60(1.1) of the CLC. Was his interpretation of that statute patently unreasonable? In Pointe‑Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015; S.C.J. No. 4 (Q.L.), Lamer, C.J.C. said, for the majority: ¶ 29 Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., supra, is the leading decision on the standard of review based on a patently unreasonable error. In that case, Dickson J. stated that when the interpretation of a legislative provision lies at the heart of an administrative tribunal's jurisdiction, the standard that applies to justify judicial review is not mere error but unreasonable error, at p. 237: Did the Board here so misinterpret the provisions of the Act as to embark on an inquiry or answer a question not remitted to it? Put another way, was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? This test has been consistently applied in subsequent cases. ... (Emphasis added) [115] The arbitrator’s resort to the merits as decisive on the question of extending the time limits cannot be defended here on the basis that it was plain and obvious that the LCA violated the CHRA. The law on this issue is complex. Last chance agreements are permissible and are not universally found to be unenforceable or discriminatory. The assessment of an agreement’s legality requires a detailed factual review of the circumstances leading up to the development of the LCA and an analysis of the terms of the agreement. Arbitrator Darby, in reaching his conclusion on the preliminary motion that the agreement was discriminatory, did not conduct such a review. He summarily decided that the LCA violated the CHRA without considering the agreement in its full context. Thus, even were it appropriate to rule on the validity of the agreement in the context of the application to extend the time limits, the arbitrator failed to conduct the required analysis. The question is not whether arbitrator Darby was ultimately correct in ruling that the LCA violated the CHRA, but whether, it was irrational to make a perfunctory finding of invalidity in order to extend the time limits and to then purport to decide that same issue again when dealing with the merits. It is my view that in doing so he erred. [116] The arbitrator’s decision, is, unfortunately, wordy, rambling and poorly organized. It does not display a logical approach to the questions before him. The decision is constructed in a way such that it appears, superficially, that he considered the extension of the time limits before moving to the merits of the grievance. On reading the decision it is clear, however, that the arbitrator failed to conceptually separate these issues. For example, in his analysis on the extension of the time limits he states his intent to consider the question of reasonable accommodation by the Employer under the s. 60(1.1) analysis. As I have said above, the extent of accommodation by the employer is central, here, to the lawfulness of the LCA. On this issue arbitrator Darby wrote: . . . in determining whether I should relieve against the mandatory time limits of the Agreement, one consideration seems to be whether there was proper accommodation to the point of undue hardship by the Employer under it. . . . [117] However, it is apparent from his reasons on this preliminary issue that he did not address reasonable accommodation by the Employer, before concluding that the LCA was discriminatory. He did not follow his own stated process but, rather, left the question of reasonable accommodation to be determined as a component of what he termed “the merits”. On this there is no doubt. He later wrote, in “the merits” section of his decision: . . . In any event, to get to the position where I could deal with the issue of "proper" accommodation by the Employer, it was necessary to apply Section 60(1.1) of the Code to extend the otherwise mandatory time limit under the Agreement and to treat Section 11 of the L.C. Agmt. as unenforceable . . .[Section 11 of the LCA limited the arbitrator’s jurisdiction to determining whether a breach had occurred.]. This is reflective of the confused approach to the issues exemplified throughout the decision. [118] The irrationality of this analysis is evident. A last chance agreement is not in violation of the CHRA where the Employer has adequately accommodated the employee (CHRA, ss. 7 and 15). The LCA could not be found to have violated the CHRA until the question of reasonable accommodation has been determined. Yet the arbitrator extended the time limits under s. 60(1.1) because the LCA, in his view, violated the CHRA. He then turned to a consideration of reasonable accommodation. [119] There were many other relevant factors which bore upon the LCA’s validity, none of which were considered by the arbitrator before declaring that the agreement violated the CHRA: Mr. Cleary’s assault of his supervisor, which conduct precipitated the development of the LCA, warranted dismissal; Mr. Cleary voluntarily entered into the LCA rather than pursue arbitration on the question of his first dismissal, notwithstanding that a grievance had been filed and was being pursued by the Union; neither Mr. Cleary nor the Union took any timely steps to grieve the dismissal resulting from the breach of the LCA; they provided no acceptable reason to the arbitrator for not doing so; the arbitrator did not consider the extent of accommodation required by the Employer in the context of Mr. Cleary’s many failed attempts over a number of years to address his addiction, the provisions of the LCA which were directed at his rehabilitation and taking into account the danger to others presented in the workplace by Mr. Cleary’s continuing substance abuse. Had the arbitrator considered the LCA in this context he could not have summarily concluded that it clearly violated the CHRA, which violation, he said, warranted the extension of the time limits. I raise these factors, not to suggest that he was ultimately wrong on the question of whether the LCA offended the CHRA, but to illustrate that the agreement’s invalidity could not be summarily determined. The Employer had argued before Justice MacDonald, in the alternative, that the arbitrator was wrong on the merits. Justice MacDonald did not find it necessary to decide that point, having determined that the decision could not stand on the basis of the arbitrator’s treatment of the extension of the time limits. I express no opinion on the ultimate merits of the grievance, as that issue was not before this Court. [120] A further undisputed fact highly relevant to the question of extending the time limits was that Mr. Cleary, with the assistance of his Union, had launched a human rights complaint under the CHRA. That complaint had been acknowledged and was proceeding through the system. This was in evidence before the arbitrator. Under the CHRA (s. 53) the tribunal hearing the complaint has the power to reinstate and compensate the worker. The arbitrator was clearly mistaken in assuming that if he refused to extend the time limits Mr. Cleary would be without recourse. His failure to consider that this alternative avenue of redress was open to Mr. Cleary and, indeed, being pursued by him, is apparent from the following remarks: . . . in determining whether I should relieve against the mandatory time limits of the Agreement, one consideration seems to be whether there was proper accommodation to the point of undue hardship by the Employer under it. Why? Because a refusal to extend the time-limits could mean that a “disabled” employee was discriminated against and yet no evidence and argument could be heard to prove or disprove this. (Emphasis added) [121] I respectfully disagree with my colleague (at ¶ 31 above) that the decision in Consolidated Fastfrate lends support to the approach taken by Arbitrator Darby. The facts of that case are strikingly different from those here. There, the grievor, a twenty year employee of the company, was summarily dismissed for excessive absenteeism without being first warned that his employment was in jeopardy. The company was ordered to reinstate him. After reinstatement the employee’s absenteeism continued. He received several warnings from the employer. His employment was again terminated. The employee filed a grievance the next day challenging the termination. The timeliness dispute centered around the referral of the grievance to arbitration. Under the agreement, the party wishing arbitration must so inform the other party in writing within fourteen days of the failure to informally resolve the grievance. The arbitrator found that throughout the, so-called, 5 month delay the company was aware that the union was pursuing the employee’s grievance. The union had simply not given formal written notice of arbitration, as was required by the terms of the collective agreement. The arbitrator elected not to deal with the union’s argument that, in these circumstances, the employer had waived the right to raise timeliness, and, instead, extended the notice period under s. 60(1.1) of the CLC. In so doing the arbitrator noted that the grievance was of a serious nature and involved a human rights aspect. Key to extending the time limits were the arbitrator’s findings that the employer had been aware from the outset of the union’s intention to pursue arbitration of the grievance; that the parties had continued to discuss issues relating to the grievances; that the delay had occurred at the end of the grievance process; that the grievor acted quickly to file the grievance; and that the company could not have assumed the grievance was abandoned. None of these features are present here. [122] It is my view that the defect in Arbitrator Darby’s decision is obvious, as is required for a finding of patent unreasonableness. In Law Society of New Brunswick v. Ryan, [1997] 1 S.C.R. 247, Iacobucci, J., writing for the Court, said: 52 The standard of reasonableness simpliciter is also very different from the more deferential standard of patent unreasonableness. In Southam, supra, at para. 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. (Emphasis added) [123] While the arbitrator’s flawed approach to the questions before him defies clear categorization it is akin to “asking the wrong question” (see ¶21, above). I find guidance in the following discussion from Canadian Broadcasting Corporation v. Canadian Wire Guild (1999), 173 D.L.R. (4th) 385; N.J. No. 106 (Q.L.)(C.A.), per Green, J.A. for the Court: [23] Accordingly, viewed in the light of the development of the concept of patent unreasonableness in Canada as the justification for judicial review, the notion of "asking the wrong question" as a basis for intervention in a circumstance where the decision‑maker has jurisdiction "in the narrow sense" should be viewed as limited to situations where the result of asking the wrong question has the effect of making the decision patently unreasonable. The asking of the wrong question must therefore be a significant or fundamental part of the reasoning process leading to the impugned result and the decision cannot otherwise be justified on the existing record by the proper application of appropriate principles. (Emphasis added) [124] Whether the error here is viewed as the arbitrator’s failure to properly separate the preliminary issue from the merits of the grievance, or his patently unreasonable interpretation of s. 60(1.1) of the CLC, it is my view that his wrong approach was central to the ultimate result and the decision cannot otherwise be justified. (See also Haché v. Lunenburg County District School Board, [2004] N.S.J. No. 120 (Q.L.), Cromwell, J.A. for the Court at ¶ 96.) I do not agree that his reasons fairly support another rational interpretation. [125] I would dismiss the appeal from the decision of Justice MacDonald remitting the matter to arbitration. Bateman, J.A.