Industrial Union of Marine and Shipbuilding Workers, No. 1 (CAW/MWF) v. Halifax Shipyard

Industrial Union of Marine and Shipbuilding Workers, No. 1 (CAW/MWF) v. Halifax Shipyard Court Supreme Court Date 2005-03-10 Citation 2005 NSSC 56 Docket S.H. 224653 Judge/Registrar/Adjudicator Robertson, M. Heather (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Industrial Union of Marine and Shipbuilding Workers, No. 1 (CAW/MWF) v. Halifax Shipyard, 2005NSSC56 Date: 20050310 Docket: S. H. No. 224653 Registry: Halifax Between: Local 1, Industrial Union of Marine and Shipbuilding Workers of Canada (“CAW/MWF Local 1") Applicant v. Halifax Shipyard, a division of Irving Shipbuilding Inc. Respondent Judge: The Honourable Justice M. Heather Robertson Heard: October 7 and November 18, 2004, in Halifax, Nova Scotia Written Decision: March 10, 2005 Counsel: Ronald Pizzo, for the applicant Brian G. Johnston, Q.C. and Mark Tector, for the respondent Robertson J.: [1] The applicant, Local 1, Industrial Union of Marine and Shipbuilding Workers of Canada, seeks to have the award of Arbitrator Peter Darby rendered on April 26, 2004 set aside and seeks an order reinstating Mr. Lou Tufts to his employment at the Halifax Shipyard or in the alternative an order directing that the matter be remitted for a re-hearing before a differently constituted arbitration board. [2] Mr. Tufts, a 28-year employee at the shipyard was dismissed from his employment for acts of insubordination which allegedly occurred on May 28, 2003. Insubordination is a “major offence” as defined by schedule “B” to the collective agreement and renders the employee subject to immediate dismissal. [3] Arbitrator Darby presided over a 5-day hearing, involving seven witnesses. For the union, the arbitrator heard from Mr. Tufts and four of his former co-workers Messrs. Chaulk, Dorey, McEwen and Shea all ex-employees and members of the same bargaining unit. For the employer, Marc Boudreau, the construction manager and Kevin McCabe, assistant manager of employee relations gave evidence. The written statement of Mr. Tuft’s supervisor Mr. Jim Munn was also in evidence before the arbitrator. The arbitrator found that the grievor Mr. Tufts had been insubordinate and that there was no justification for the insubordination and accordingly dismissed the grievance. [4] The standard of review should be determined by the “pragmatic and functional approach.” Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Voice Construction Limited v. Construction and General Workers Union, Local 92, [2004] S.C.J. No. 2 and Halifax Employer’s Association v. International Longshoremen Assn. Local 269 (Halifax Longshoremen Assn), [2004] N.S.J. No. 316 (C.A.). [5] There are four factors which I must consider. The four factors point to a standard of patent unreasonableness as the appropriate standard of review. (a) The existence of a private clause. [6] The arbitrator Peter Darby was a consensual arbitrator appointed pursuant to the collective agreement. Clause 6.09 of the agreement contained a private clause stating clearly that all decisions of the arbitrator arrived at in accordance with the provisions of the agreement shall be final and binding upon the parties. Further s. 5 h) of the Arbitration Act provides that such an award made by the arbitrator would be final and binding. (b) The tribunal’s expertise [7] It is obvious that this is a specialized tribunal and in particular that Mr. Peter Darby, an experienced arbitrator was performing his duties as an arbitrator as contemplated under the collective agreement and pursuant to the provisions of the Trade Union Act, s. 43(1) (a) & (b). 43 (1) An arbitrator or an arbitration board appointed pursuant to this Act or to a collective agreement. (a) shall determine his or its own procedure, but shall give full opportunity to the parties to the proceedings to present evidence and make submissions to him or it; (b) has, in relation to any proceedings before him or it, the powers conferred on the Board, in relation to any proceedings before the Board by subsections (7) and (8) of Section 16; [8] The expertise of the tribunal is established. The issues raised in this application were well within the jurisdiction of the tribunal. [9] At issue in this arbitration is the receipt of hearsay evidence and the reliance of the arbitrator on it. Section 16 (8) of the Trade Union Act provides: 16(8) The Board may receive and accept any evidence and information on oath, affidavit or otherwise as in its discretion it may deem fit and proper, whether admissible as evidence in a court of law or not. (c) The purpose of the legislation. [10] It is well established law that the court recognize the integrity of the arbitration process and are loath to interfere in the decisions of arbitration boards, made pursuant to the terms of collective agreements and the Trade Union Act. [11] In City of Toronto and Canadian Union of Public Employees, Local 79 (1982), 133 D.L.R. (3d) 94, the Ontario Court of Appeal stated the following with respect to the purpose of the arbitration of grievances under collective agreements: The purpose of arbitration of grievances under collective agreements is to provide an expeditious and fair method of settling disputes which experience has demonstrated are much better solved in this fashion than by complex judicial proceedings. Most arbitrators are laymen who bring the benefit of their experience to the practical solution of complex human problems. Courts consistently have recognized the special role of arbitration boards and have been loath to interfere with their decisions or proceedings. It is, therefore, surprising to observe the extent to which arbitration awards purport to deal with complex questions of law. Many arbitration board decisions cited to us contain scholarly dissertations on important substantive and procedural rules applicable to judicial proceedings. They exemplify the extreme legal formalism and adherence to technical rules which overhangs the arbitration process. At best, these elaborate legal studies may be irrelevant because boards are not bound in their procedure by technical rules of law and procedure. At worst, they can cause delay and unnecessary expense and, as the argument in this appeal demonstrated, they could obscure the real issues confronting an arbitration board and confuse it in the performance of its duty. While it may be helpful for arbitration boards to seek guidance by way of analogy from established legal procedures, they risk committing jurisdictional error by rigid adherence to them. (d) The nature of the problem. [12] Counsel agree with me that the matter before Arbitrator Darby, i.e., whether there was justification for Mr. Tufts to refuse to operate the forklift involved considerations of both fact and law, as did his consideration of the evidentiary issue of the hearsay statement of Mr. Munn. These determinations are therefore deserving of a higher degree to deference. [13] Returning now to the arbitration findings and award, Mr. Tufts worked as a rigger at the shipyard. On October 28, 2003, Mr. Tufts between the hours of 6:30 and 7:30 a.m. was asked to work some overtime before the day shift began at 7:30 a.m. Specifically, he was asked to operate a small forklift in transporting some “chalkfast” from the shop to the wharf for a lift onto the ship “Atlantic Osprey.” [14] The arbitrator found that Mr. Tufts twice refused to operate the forklift at the request of his supervisor Mr. Jim Munn and once refused, when ordered to do so by Mr. Mario Boudreau. [15] The arbitrator found that the letter of dismissal dated June 9, 2003 was sufficiently broad “Your actions on that day constitutes an act of insubordination” to encompass the “Boudreau refusal.” [16] The arbitrator accepted the direct evidence of Marc Boudreau as to the events of that day, but did not hear direct evidence from Jim Munn. At paragraph 8 (a) of the award the arbitrator stated his concerns about Mr. Munn’s written statement: the Employer’s prime “witness”,viz., Munn, was a term “managerial” employee whose term expired in, I believe, June, 2003 - after the events in issue here - , who was not re-engaged by the Employer, and whose health, for reasons either unknown to the parties or by their agreement, (I don’t know which), to be kept from me, does not permit him to be a witness at our Hearings. Instead I have his printed statement the date of which is unknown, contains no time lines of assistance and is, frankly, incomplete and generally less than satisfactory. [17] The arbitrator also heard from witnesses, Messrs. Chaulk, Dorey, McEwen and Shea whose evidence supported Mr. Tufts’ version of events and at para 8 (b) the arbitrator stated: all four (4) of Tufts’ witnesses, whilst supportive of his “case” - too much so to be entirely credible, in my judgement - were discharged from employment, had a lesser penalty substituted, I believe by an arbitrator or arbitrators, and have not been permitted to resume employment by the Employer which has sought certiorari in respect of these arbitral awards. [18] In the absence of the direct evidence of Jim Munn, the applicant says there has been a denial of natural justice as he was denied the right to test the evidence of Mr. Munn. The applicant claims a lack of procedural fairness as defined by the doctrine of audi alteran partem, Administrative Law (2001) David J. Mullan, Chapter 13, Section A. p. 1 and the requirements of the Trade Union Act, s. 43(1)(a). [19] The applicant also submits that from the face of the award, it is clear that findings of credibility were based upon conjecture and speculation, in the acceptance of the Munn statement over the oral evidence of Messrs. Tufts and Shea. [20] At issue before the arbitrator was the nature of the refusal to operate the forklift and whether this refusal was justified in Mr. Tufts exercising both a common law right and a statutory right under s. 43(1) of the Occupational Health and Safety Act RS NS 1996 - c7 to refuse the work. [21] It was argued that Mr. Tufts “had reasonable grounds for believing” that by operating the forklift he would endanger his health and safety. Mr. Tufts had a medical history of osteorarthritic knees; a history known to the employer. The arbitrator outlined this history in pp. 1-4 of his decision and made findings in pp. 10-11 of his decision. [22] The arbitrator found on all of the evidence before him that Tufts’ arguments on medical grounds failed, health and safety considerations being a “safe haven” and a “camouflage” to hide the real reason Tufts had for refusing the work which, Tufts’ status as a “pre 84 man.” [23] The term “a pre 84 man” arises out of a collective agreement of September 17, 1984 creating for Tufts a category of seniority which would restrict his duties and not require him to perform incidental work, while there were other pre 84 men whose work it was, who were on site or on layoff. [24] The requests by Messrs. Munn and Boudreau to operate the forklift constituted overtime work that the arbitrator noted would comprise any work Tufts performed after 4:00 p.m. and before 7:30 a.m. of his regularly scheduled shift where he had agreed to perform overtime work. [25] The evidence before the arbitrator, i.e., the written statement of Munn and the testimony of Boudreau was that Tufts said he would operate the forklift during his regular scheduled day shift, but would not do so on overtime, because he was a “pre 84 man.” [26] The arbitrator found that the operation of the forklift was not the work of a particular trade, but was work of any member of a trade who is certified to operate it. Tufts was so certified. [27] The arbitrator also found that the proposition that Tufts was on restricted duty was not supported by the facts. [28] At page 11 of his decision he stated: Let me be clear on this issue of Retricted Duty: firstly, Tufts knew, I find, of the rule prohibiting a person on restricted duty from performing overtime. Secondly, the last time Tufts had been placed on restricted duty was either by a physician, Dr. William Stanish, M.D., (“Stanish”) or by the Employer’s nurse, Emily Bryden, R.N., (“Bryden”). It was for the period November 20, 2002 to November 27, 2002. Thirdly, an employee can only be put on Restricted Duty by a physician or by Bryden, and, in either case, only with consent of the Employer, as McCabe testified and no evidence contradicted this. Fourthly, in light of the above and the fact that the “Light Duty List” for 2003 of the Employer (exhibit S-18), does not have Tufts’ name on it. I find that at all materials times, Tufts’ was not on Restricted Duty and therefore, was eligible to perform overtime. [29] In short, in consideration of all of the evidence before him, the arbitrator rejected the union’s explanations for the justification of the refusal. The arbitrator’s acceptance of the hearsay statement of Munn was within his jurisdiction and was done so with caution, Yeung v. Registered Nurses’ Assn. of British Columbia, [1994] B.C.J. No. 3348 (S.C.). [30] He did not solely rely on Mr. Munn’s notes. In particular, in concluding that the real reason for Tufts’ refusal was his “pre 84" status, the arbitrator considered Mr. Tuft’s own testimony and Mr. Boudreau’s testimony and stated: In relevance to our situation is that both Munn in his statement and Boudreau in his testimony assert that the reason first given by Tufts to Munn and later by Tufts to Boudreau for not taking the keys to and to operate the Forklift was that he - Tufts - was a “pre 84 man” and would not perform this work while there were other pre 84 employees, whose work it was, on sit or on layoff. In short, to use Boudreau’s phrase, Tufts believed that because he was a “pre 84", he was “trade restricted” which meant that there has no trade flexibility within the meaning of Article 20.01(a) because there were storesmen on layoff - and Tufts believed that the work of operating a forklift was, (Tufts’ said in this testimony), the work of storesmen and not the work of a rigger. This last proposition the Employer denies. [31] The arbitrator carefully analyzed all of the explanation for refusal advanced by the union and rejected them. He could find no evidence or even argument why Munn, Boudreau and McCabe would manufacture the “pre 84" explanation. The arbitrator made clear findings with respect to the lack of credibility of the union witnesses, who supported the Tufts’ version of event and spent considerable time analyzing the inconsistencies arising from their evidence. [32] The arbitrator put the employer to a severe test and cautioned himself as to the weight he should give Mr. Munn’s written statement. He was aware of Mr. Tuft’s age and the importance of the arbitration to his life stating that it was tantamount to “industrial capital punishment.” Requiring “clear cogent evidence that Tufts committed insubordination”, he stated: I believe this test has been met by the employer even though, under arbitral jurisprudence, such a standard is not ordinarily required of it. I say this because, in my judgment, health and safety considerations were simply a safe haven or a sort of camouflage in which to hide the real reason Tufts had for refusing the work, which in my opinion, involves Tufts’ status as a “pre 84 man.” [33] Arbitrator Peter Darby’s decision is only reviewable if I find that his decision will achieve a patently unreasonable result. Halifax Employers Assn. v. International Longshoremen Assn, Local 269 (Halifax Longshoremen Assn.), supra. [34] The arbitrator’s award is a thoughtful and cogent decision based on all the evidence before him. The result though serious is not unreasonable nor can it be said that his acceptance of the Munn statements has given rise to a denial of natural justice. The receipt of hearsay evidence is allowed pursuant to s. 43 of the Trade Union Act and this statement alone did not form the entire basis of the decision rendered. Had that been the case, the fairness of the hearing might more legitimately have been challenged following the line of authorities relied on by the applicant, each of which can be distinguished on their facts. Bond v. New Brunswick (Board of Management) (1992), 95 D.L.R. (4th) 733 (N.B.C.A.); Re Girvin et. al. and Consumers’ Gas Co. (1973), 40 D.L.R. (3d) 509 (Ont. H.C.); Khaliq-Kareemi (Re), [1988] N.S.J. No. 211 (QL); Universite du Quebec a Trois-Rivieres v. Larocque (1993), 101 D.L.R. (4th) 494 (S.C.C.); Re McInnes and Simon Fraser University et. al. (1984), 3 D.L.R. (4th) 708 (BCCA); Better Beef Ltd. And U.F.C.W. Local 175 (2003), 119 LAC (4th) 361; Les Suites Hotel and Hospitality and Service Trade Union, Local 261 (2003), 119 LAC (4th) 122; and Ridge Meadows Hospital and H.E.U. (2003), 120 LAC (4th) 205. [35] In this case the applicant has failed to demonstrate on the facts that there has been any violation of the principles of natural justice. The arbitrator Peter Darby properly exercised his discretion in the receipt of hearsay evidence and in the circumstances of this case its use did not give rise to a breach of natural justice and thus an error in law. This application is dismissed. Justice M. Heather Robertson