Maritime Paper Products Ltd. v. Communications, Energy, and Paperworkers' Union, Local 1520

Maritime Paper Products Ltd. v. Communications, Energy, and Paperworkers' Union, Local 1520 Court Supreme Court Date 2008-11-10 Citation 2008 NSSC 329 Docket 296832 Judge/Registrar/Adjudicator Warner, Gregory M. (Honourable Justice) Document Type Decision Relations Library Sheet - Maritime Paper Products Ltd. v. Communications, Energy, and Paperworkers' Union, Local 1520 - 2008 NSSC 329 - 2008-11-10 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Maritime Paper Products Ltd. v. Communications, Energy, and Paperworkers’ Union, Local 1520, 2008 NSSC 329 Date: 20081110 Docket: 296832 Registry: Halifax Between: Maritime Paper Products Limited Applicant v. Communications, Energy and Paperworkers’ Union Local 1520 Respondent Judge: The Honourable Justice Gregory M. Warner Heard: October 21, 2008, at Halifax, Nova Scotia Counsel: Bernadine MacAulay, counsel for the Applicant Gail Gatchalian, counsel for the Respondent By the Court: A. Overview [1] The Employer seeks judicial review of a labour arbitration award because, it says, the arbitrator (a) did not afford the Employer procedural fairness, and (b) carried out a flawed reasoning process in interpreting the collective agreement, resulting in an unreasonable outcome. [2] An employee of Maritime Paper Products Limited (“Employer”) was injured off the job. The Employer’s disability plan paid him 70% of his regular wages while he was totally disabled and unable to perform the duties of any gainful employment. [3] The Employer had unilaterally instituted a Disability Management Policy (“Policy”) to effect rehabilitation and reintegration of employees into the workforce through a modified work program. When on rehabilitation, the Policy provided for wages of up to 80% of pre-injury wages. [4] When the employee’s doctor advised the Employer that he was ready to benefit from transitional work, the Employer directed the employee to return to modified work in a sedentary position in the Quality Room (a non-bargaining unit job). The employee did not ask to return to work, or for accommodation pursuant to any legislation, but returned as directed and was paid 80% of his regular wages for about two months, when he returned to his regular job and wage in the shipping department. [5] The employee filed a grievance complaining that he should have been paid his regular wage. It reads: “Nature of Grievance: Article 3, Article 4, and others. Employee was brought back to work early, receiving 80% of wages.” [6] The grievance was denied and came before a consensual arbitrator, William H. Kydd, Q.C., whose Award upheld the grievance, based on his interpretation of the collective agreement. B. Background [7] The essential facts are not disputed. [8] The Employer and the Union are parties to a collective agreement which governs employees working at the Employer’s factory at Burnside, Dartmouth, Nova Scotia. The Employer is in the business of manufacturing cardboard products. [9] If an employee becomes temporarily disabled from a non-work related illness or injury, he or she is eligible for weekly income disability benefits at a rate of 70% of weekly earnings. In order to maintain eligibility for benefits, the employee must be totally disabled and be unable to “perform the duties of any gainful occupation or work or wage or profit”. [10] In June 2006, the Employer implemented the Policy. Part of the Policy, referred to as “rehabilitative recovery”, contains the following provision: “The modified work program is a rehabilitative recovery process which adjusts the work of employees to allow them to remain at work or return to work in a safe and timely manner. . . . Modified work will include only duties which are within the capacity of the employee as determined after appropriate consultation with the employee, physician(s), and other health care providers. Ideally, modified work is temporary and progressive and may include: . . . 3. placement of an employee in a different position within the company. As part of this program, each employee’s modified work is personalized to suit his or her capabilities. 4. The Policy also provides that if the rehabilitation duties that the employee performs are not his regular work, his/her pay “may be adjusted in accordance with the amount or type of work being performed up to a maximum of 80% of their pre-injury wages”.” [11] When an employee is capable of performing rehabilitation through assignment of work duties within his capacity, the employee is no longer eligible for weekly indemnity benefit (as he is not totally disabled) but is paid wages for work performed. If that work falls within the work of the bargaining unit, the collective agreement provides for a wage rate. If the work is not bargaining unit work, then a bargaining unit employee is paid 80% of his/her regular pay while performing a non-bargaining unit modified/rehabilitation duties, in part as an incentive for employees to return to their regular jobs. Before the Policy, employees who had returned to work by first performing modified duties had been paid at their regular rate. [12] On October 19, 2006, Daniel Yosef, an employee working in the shipping department of the Employer as a unitizer operator, injured his shoulder in a fall at his home. Mr. Yosef received weekly indemnity benefits for a short period of time that paid him 70% of his normal weekly earnings. [13] On November 3, 2006, the Employer’s occupational health nurse wrote to Mr. Yosef’s physician to advise that the Employer might be able to offer modified duties when Mr. Yosef became medically fit to return to work. On November 9, 2006, Mr. Yosef’s doctor replied that he was “medically stable and can benefit from rehabilitation services and transitional work, with consideration of the abilities indicated below”. He advised that Mr. Yosef would be able to return to work in modified capacity on November 14, 2006. [14] Based on this, the Employer’s occupational health nurse arranged for sedentary work for Mr. Yosef in the Quality Room of the Employer. This work is not work described as bargaining unit work in the collective agreement. The purpose was to provide Mr. Yosef with duties within his physical capacity while he recovered from his shoulder injury. Mr. Yosef was directed to return to this modified employment on November 14. Mr. Yosef was reluctant to return to work (as he had not recovered sufficiently) but understood he was obliged to return and perform modified duties. He was paid 80% of his normal wages pursuant to the Policy. [15] On December 13, 2006, when Mr. Yosef realized he was paid 80% of his normal wage he grieved the Employer’s decision to pay him the lower wage. The grievance was denied and referred to arbitration in January 2007. [16] In the meantime, on January 2, 2007, Mr. Yosef was cleared for, and returned to, his regular job in the shipping department at his regular wage. [17] By consent, William H. Kydd, Q.C. was appointed Arbitrator. On October 16 and 17, 2007, he conducted a hearing. [18] At the hearing, the Union’s position was that the Employer was not entitled to unilaterally set rates for bargaining unit employees because wage rates for bargaining unit employees were within the exclusive bargaining jurisdiction of the Union. As such, to set a unilateral wage rate would be a breach of the Union’s right to represent employees contrary to the Trade Union Act and Article 3 of the collective agreement which provides: “No employee shall be asked or permitted to make any verbal or written contract with the Employer which may limit, alter, modify, or conflict with the stipulations of this agreement” [19] The Union argued that the setting of wages was a field occupied by the collective agreement, and that payment of less than the regular wage was a breach of the Union’s exclusive bargaining rights. The Union referred to a number of collective agreement provisions dealing with wages, including Article 9 B and 9 C, as evidence that the setting of wages was an occupied field within the exclusive bargaining jurisdiction of the Union. [20] The Employer objected to the Union’s reference, at the opening of the hearing, to potential breaches of Article 9 B, 9 C, and 14 A; at the end of the Hearing, and based on the Union’s closing submission that, the Policy was a violation of the Union’s right to bargain; it violated Article 3 and 4 of the collective agreement; and Article 9 was an example of how wages were a field occupied by, and within the exclusive jurisdiction of, the collective agreement - in effect, the evidence and argument of the Union had not changed from its pre-hearing position, the Employer says that it withdrew its objection to the arbitrator considering Article 9. [21] The Employer’s complaint respecting procedural unfairness was that in the Award the Arbitrator interpreted Article 9 of the collective agreement so as to determine that the employee’s work in the Quality Room was covered by Article 9 C, when that question had not been put before him by either the Union or Employer. The Employer states that it was blind-sided by this decision, as the Union, which had the burden through evidence and argument to prove a breach of the collective agreement, had not asked the Arbitrator to decide that Article 9 set out the applicable wage rate for modified work under the Policy, and the Arbitrator had not put the Employer on notice that he may interpret Article 9 as he did. [22] The Employer’s complaint respecting the outcome was that it did not fall within the range of rational or defensible outcomes, and the analysis was faulty as the Arbitrator did not apply the proper interpretation principles or correct legal test to the facts and collective agreement. C. Arbitration Award [23] The Arbitrator seems to have determined that the Union in fact did put the breach of Article 9 in issue at the opening of the hearing, even if it did not rely on the alleged breach in its final argument. He further wrote (at Page 11): “. . . the general approach in Canadian labour arbitration is to take a liberal view when interpreting the scope of a grievance. This includes generally permitting parties to raise new legal arguments in support of a grievance. If this should result in a party being caught by surprise, it can be remedied by granting an adjournment of the Hearing.” [24] He cited Arbitrator Raynor in Re Electrohome Limited and I.B.E.W., Local 2345 (1984), 16 L.A.C. (3d) 78, who echoed the theme of flexibility in labour arbitration procedure, made by the Ontario Court of Appeal in Re: Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 57 D.L.R. (3d) 199. [25] The Arbitrator decided there had been no change in the factual allegations of the Union and that the grievance did not require specific identification of the Articles allegedly violated; he overruled the Employer’s objection. [26] The Arbitrator did not appear to acknowledge the Employer’s claim that it withdrew the objection to consideration of Article 9 in the context of the Union’s argument, or that neither party made submissions to him as to why the employee’s work in the Quality Room was, or was not, covered by Article 9. [27] The Arbitrator found that Article 2 of the collective agreement recognized the Union as the bargaining unit for all employees at Burnside, Dartmouth, Nova Scotia with some exceptions. The exception provision was directed at a type of employee, not a type of work. The grievor, who did not fall within any of the exceptions, was included in the bargaining unit. Throughout the return-to-work process it was recognized that the grievor’s regular job was as a unitizer operator in the shipping department. Although the Quality Room work (called “office work” by the Arbitrator) was not work normally performed by bargaining unit workers, he characterized it as “ancillary to the employee’s regular work”; therefore, the collective agreement governed the relationship between the grievor and the Employer (pages 15-16). [28] He noted that no specific language in the collective agreement covered return to work for modified duties (page 17), and concluded that the management rights provision of the collective agreement entitled the Employer to require the Employee to return to work and perform modified duties if he was capable of doing so (page 18). [29] He acknowledged the Employer’s submissions that: (a) along with requiring an Employee to perform modified duties, the Employer was entitled to unilaterally establish a rate of pay because the work done pursuant to the Policy in the Quality Room was not bargaining unit work and not specifically covered in the collective agreement; and (b) those Articles relied upon by the grievor, including Articles 9 B and 9 C, were not broad enough to capture a guarantee that an Employee would continue to be paid his regular wages regardless of whether the work was within his regular classification; for this argument the Employer relied on Re: Wire Rope Industries Ltd. and United Steel Workers, Local 3910 (1982), 4 L.A.C. (3d) 323 to the effect that precise language must be found to impose an obligation on an Employer to pay a benefit. [30] The Arbitrator concluded that, on the facts of this case, Article 9 C(2) requires the payment of the normal unitizer operator rate to the grievor while he was performing modified duties. His analysis follows from the bottom of page 18 to page 25. [31] He found that Articles 14 and 8A incorporated the wage schedules for various classes of employees including unitizer operators, and he noted that it was common ground that there was no listing in the schedules for the type of work that was being done by the grievor when he was performing modified duties in the quality room (page 19). [32] The Arbitrator held that Article 9B, which dealt with transfers from one job to another job pursuant to a job posting, did not apply as “the provision is directed at a change from an old job to a new posted position, rather than a change to temporary work”( bottom of Page 20). [33] The Arbitrator found that Article 9 C, which dealt with temporary transfers, “much more on point”. He eliminated the applicability of 9C(3) as referencing posted jobs, then focussed on Article 9 C(2) and 9 C(4) which read as follows: “9 C(2) An employee who is temporarily transferred from his/her regular job to another job with a higher rate shall be paid at the higher rate for all the time worked provided the time worked is one hour or more on such other job, but an employee who is temporarily transferred from his/her regular job to another job with a lower rate shall continue to receive his/her regular rate for all the time worked on such other job if this is done for management convenience. . . . 9C(4) Where an employee is temporarily transferred with the consent of the Employer but at the request of the employee, the employee shall be paid at the rate of pay applicable to the job to which he/she has been temporarily transferred.” [34] The Arbitrator stated: “Article 9 C(2) on the other hand does not refer to posted jobs but transfers from ‘his/her regular job to another job...’ and it guarantees payment of his regular rate ‘for all the time worked on such other job if this is done for management convenience.’ On the other hand articles 9 C(4) provides that where there is a temporary transfer ‘at the request of the employee’, the employee ‘shall be paid at the rate of pay applicable to the job’. It appears to me that Article 9 C (2), on the facts of this case, did impose an obligation on the Employer to continue to pay the grievor at his regular rate as a unitizer operator while he performed the modified duties. Article 9 C(2) applies because the evidence indicates that the decision to have the grievor return to work and perform modified duties was made by the Employer without any request from the grievor, as part of the Employer’s unilaterally imposed return to work policy. As such what happened was ‘done for management convenience’.” (Pages 21-22) [35] After that key analysis, the Arbitrator held that the facts of this case distinguish it from an accommodation of a disabled employee to comply with human rights laws, on the basis that accommodation commences with and arises from a request for accommodation by an employee. There was no request in this case. [36] The Arbitrator wrote: “What happened was really a unilateral exercise of the Employer’s absentee management program and was not done because of any human rights obligation to accommodate. Therefore the Employer’s actions stand or fall, based on the provisions of the collective agreement.” (Page 22) [37] The Arbitrator had determined next that the reclassification principle did not apply to these facts. [38] Finally, beginning at the bottom of Page 24, the Arbitrator wrote: “Under this collective agreement when a temporary transfers is made at the request of an employee, Article C(4) provides that payment is at the rate of pay ‘applicable to the job to which she/he has been temporarily transferred.’ However I find there was no such request made in this case. Reading Article 9 C(2) and (4) together indicates that because it was the Employer’s decision to transfer the grievor to another job, he remained entitled to be paid at the rate for his regular job” (pages 24-25). D. Standard of Review D.1 Dunsmuir [39] In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court set out a new analytical framework for judicial review that seeks to be more workable than the “pragmatic and functional approach”. The three standards of review have been compressed into two. Patent unreasonableness and reasonableness simpliciter have been compressed into a single standard of review of “reasonableness”. The standard of correctness is untouched. Unreasonableness is a new standard. It is unnecessary and not helpful to attempt to describe the new standard in relation to either patent unreasonableness or reasonableness simpliciter. The new standard is defined in the decision as follows: “47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review of reasonableness inquiries in the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 48 The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. In this respect, the concept of deference, so central to judicial review in administrative law, has perhaps been insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference “is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers” (Mossop, at p. 596, per L’Heureux-Dub_ J., dissenting). We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision”: “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per L’Heureux-Dub_ J.; Ryan, at para. 49). 49 Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. ... In short, deference requires respect for the legislative choices to leave some matters in the hands of the administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.” [40] In Lake v. Canada (Minister of Justice), 2008 S.C.C. 23, the Court, in adopting the Dunsmuir analysis, expressed the standard of review (where the deference factors suggested the reasonableness standard), at ¶ 41 as follows: “[41] Reasonableness does not require blind submission to the Minister’s assessment; however, the standard does entail more than one possible conclusion. The reviewing court’s role is not to re-assess the relevant factors and substitute its own view. Rather, the court must determine whether the Minister’s decision falls within a range of reasonable outcomes. To apply this standard in the extradition context, a court must ask whether the Minister considered the relevant facts and reached a defensible conclusion based on those facts. I agree with Laskin J.A. that the Minister must, in reaching his decision, apply the correct legal test. The Minister’s conclusion will not be rational or defensible if he has failed to carry out the proper analysis. If, however, the Minister has identified the proper test, the conclusion he has reached in applying that test should be upheld by a reviewing court unless it is unreasonable. This approach does not minimize the protection afforded by the Charter. It merely reflects the fact that in the extradition context, the proper assessments under ss. 6(1) and 7 involve primarily fact-based balancing tests. Given the Minister’s expertise and his obligation to ensure that Canada complies with its international commitments, he is in the best position to determine whether the factors weigh in favour of or against extradition.” (Emphasis Added) D.2 Determining the appropriate standard of review [41] Questions of fact, discretion, and policy, and some legal issues, including those that cannot easily be separated from factual issues or those respecting interpretation by specialized tribunals, generally attract a standard of review of reasonableness. (Dunsmuir, ¶¶ 51-54) [42] The correctness standard will generally apply to constitutional questions, to true questions of jurisdiction or vires (that is, in the narrow sense of whether a statutory grant of power gives authority to decide an issue), and to questions of general law “of great importance to the legal system” and outside the area of expertise of the decision-maker. (Dunsmuir, ¶¶ 55-60) [43] There are two steps to determining the appropriate standard of review. The first requires the Court to ascertain whether the degree of deference is well established by the jurisprudence in respect to a particular administrative decision. If it is, there is no need to repeat the analysis (¶ 57). If not, the Court must proceed to a second step of undertaking a contextual analysis of the following factors, all of which were in general application before Dunsmuir (¶ 55): a) the presence or absence of a prohibitive clause; b) the purpose of the tribunal as determined by its enabling legislation; c) the nature of the question; and, d) the expertise of the tribunal relative to the expertise of the Court. [44] It is not necessary to consider all factors in all cases, as some of them may be determinative in their application of the standard of review. [45] Both the Employer and the Union state that the appropriate standard of review is reasonableness. [46] In submitting that the standard is well established in the case law, the Union notes: a) Not only in Dunsmuir, at ¶ 48, but in several Court of Appeal decisions since Dunsmuir, it has been held that decisions of labour arbitrators in interpreting collective agreements attract the reasonableness standard. They include: i) O’Hara v. Nova Scotia (Education), 2008 NSCA 62, ¶ 48; ii) Alberta v. A.U.P.E., 2008 ABCA 258, ¶ 29; iii) Canadian General-Tower Ltd. v. United Steel, Local 862, 2008 ONCA 404, ¶ 17; iv) CAW-Canada v. Bristol Aerospace Ltd., 2008 MBCA 62, ¶ 19; and, v) UFCW, Local 1400 v. Westfair Foods Ltd, 2008 SKCA 60, ¶ 30. b) Courts of Appeal have held that collective agreement interpretation is the raison d’etre of labour arbitration (NSGEU v. Capital District Health Authority, 2006 NSCA 44, ¶ 47; Canadian General-Tower; and Westfair Foods). [47] Alternatively, applying the four contextual factors, the Union submits that the standard of review analysis supports the applicability of the reasonableness standard: a) the Award is protected by three prohibitive clauses: Section 42 of the Trade Union Act, Section 5(h) of the Arbitration Act, and Articles 7 D and E of the collective agreement; b) the purpose of labour arbitration is to bring about a speedy and final determination of workplace disputes; c) the issue in question concerns interpretation and application of a collective agreement; and, d) the labour arbitrator has more expertise than the Court in interpreting and applying a collective agreement. [48] Before Dunsmuir, the Supreme Court held that the appropriate standard of review of an arbitrator’s interpretation of a collective agreement was reasonableness. Voice Construction Ltd. V. CGWU, Local 92, 2006 SCC 23. While Voice and NSGEU v. Capital District Health predate Dunsmuir, their analysis of the four contextual factors enumerated in Dunsmuir for determining the standard of review, combined with the post-Dunsmuir appellate decisions cited in ¶ 46(a), as well as UFCW Local 401 v. Real Canadian Superstore, 2008 ABCA 210, and CUPE Local 882 v. Art Hauser Centre Board Inc., 2008 SKCA 121, are persuasive. The case law clearly supports the reasonableness standard. It makes any further contextual analysis of the Dunsmuir factors superfluous. [49] I therefore accept the parties’ common submission to this effect, and apply the reasonableness standard of review. [50] I adopt the analysis in Casino Nova Scotia v. Nova Scotia (Labour Standards Board, 2008 NSSC 251, where, at ¶ 14 Murphy J. states that the review court must consider: “(1) the tribunal’s process in articulating its reasons and the route to the outcomes of those reasons; (2) whether the tribunal’s decision is justified, transparent and intelligible; (3) whether the tribunal’s decision falls within an acceptable range of outcomes that are defensible in respect of the facts and the law; (4) whether the tribunal’s reasons support the decision.” [51] Where deference is to be shown, Murphy J. states at ¶ 15 that the review court should: “(1) recognize that there may be more than one reasonable result for the issues which were before the Board; (2) examine the reasoning path of the Board to determine whether there is any line of analyses that reasonably support the conclusion of the Board and assess whether its conclusions are defensible in respect to the facts and the law; and (3) not re-weigh the evidence which was before the tribunal.” E First Issue: Procedural Fairness [52] The Employer says that the grievance filed and the issue before the Arbitrator was not whether Article 9 C applied to the facts of this case. While it recognizes that the Arbitrator had the right to reject the submissions of either party and to decide the matter on his interpretation of the collective agreement, it was procedurally unfair for the Arbitrator not to direct counsel’s attention to the issue upon which the Award was determined. [53] The problem with considering this submission is that the account of the proceeding set out in the Award is at a variance with the affidavits, pre-trial briefs and hearing submissions made before this Court and no transcript of the arbitration proceedings exist. [54] The Employer submits that the issue in play before the Arbitrator was whether; (1) the unilateral imposition of the Policy by the Employer in June 2006 was not covered in the collective agreement but rather a proper exercise of “management rights” in setting a wage rate for non-bargaining unit work, and therefore not covered by the collective agreement; or (2), as submitted by the Union, wage rates were a field fully occupied by the collective agreement, and the Employer breached the collective agreement - not by transferring the employee pursuant to the Policy, but by paying a wage other than the employee’s regular wage. [55] The Employer submits that when the Union made reference on the eve of, or at the opening of, the hearing to its reliance upon Articles 9 B and C, the Employer objected to consideration of these Articles. The ruling on this preliminary objection was deferred until the end of the hearing. After the Union’s closing arguments, during which it reiterated its opening submission that the Employer breached Articles 3 and 4 in paying a wage rate in conflict with the collective agreement, and during which the Union’s counsel referred to Articles 9 B and C only as examples of how the field was occupied, the Employer says that it withdrew its objection. Counsel for the Union appears to acknowledge this in its submissions before this Court. [56] Both counsel acknowledge that in closing argument, the Arbitrator questioned the Union’s counsel about the applicability of Article 9 C(2) to the facts before him. The Employer’s counsel says that the question and the answer were in the context of the Union’s “occupied field” argument and not in the context of the separate issue of whether the wage due to Mr. Yosef was set out in Article 9 C(2). [57] In the Award the Arbitrator characterized the events during the arbitration hearing differently. At Pages 10 to 13, the Arbitrator reviewed and analysed the Employer’s preliminary objection and dismissed it. He does not refer to the objection being withdrawn. [58] The discrepancy is disconcerting. That, however, does not end the analysis. [59] The Respondent submits that the Dunsmuir standard of review analysis is not engaged in reviewing the issue of procedural fairness. CUPE v. Ontario, 2003 SCC 29, ¶¶ 100 &102. Instead the criteria for determining the duty of procedural fairness is as set out in Baker v. Canada [1999] 2 SCR 817, ¶¶ 23-27. [60] It further submits that the issue identified by the Arbitrator (at page 13 of the Award) and decided by him accurately reflects the grievance filed. The grievance did not limit itself to a particular Article, and was not required to be so limited. The Arbitrator was bound by the grievance, which, per the approach in Re Blouin Drywall (approved in Parry Sound Social Services Administration Board v. OPSEU Local 324, 2003 SCC 42), and mandated by s.42(1) of Nova Scotia’s Trade Union Act, was to be liberally construed to ensure that the “real” complaint was dealt with and remedied. [61] The Employer says that it presented no evidence and made no submissions on how Article 9 C(2) should be interpreted. It submitted that the Union’s argument relied on 9C to support its argument that the collective agreement “occupied the field” of wage rates, including transfers, and that the Employer’s unilateral imposition of the Policy breached the collective agreement. The Respondent acknowledges that to be true, but submits that Article 9C was clearly before the Arbitrator throughout the hearing, noted by the Arbitrator, and therefore in issue. This circumstance differs factually from NSGEU v. Capital District Health, wherein the issue decided was not before the arbitrator. [62] It is not appropriate for this Court to determine the “procedural fairness” issue on a record inconsistent with that contained in the Award, absent a transcript of the hearing. In the Award, the Arbitrator states that the Employer did not withdraw the objection, but that he ruled on it. I therefore decline to set aside the Award because of procedural unfairness. [63] If I did determine the issue on the basis of the factual submissions to this court, I would dismiss it for the reasons in the Respondent’s pre-hearing brief (¶¶ 101- 129). I would give great weight to the following considerations: a) The grievance clearly identified the real complaint. It did not need to identify all Articles relied upon, but in the circumstances of this case was not misleading. Because grievances must be filed within seven days, they cannot reasonably be expected to be as precise as pleadings in civil litigation. b) The Arbitrator decided the real complaint in the grievance and no more. c) The simple factual issue did not change from the date that the grievance was filed. d) Arbitrators are given broad mandates to decide the issue before them. e) Article 9C was before the Arbitrator throughout the hearing. He specifically asks about its applicability in closing argument. Even if it was not the focus of the Union’s argument, given the informal nature of the arbitration process, it should have been obvious that it could be a factor in the Award. f) While the Arbitrator’s Award may have suffered from the lack of imput by either party on the issue he decided, he was not bound by the parties’ arguments. OPSEU v. Ontario [2008] O.J. No.1163 (O.Div.Ct) ¶¶ 9-12, and Saskatchewan Wheat Pool v. Grain Services Union [1997] S.J. No.429 (SQB) ¶¶ 9-12, affirmed on appeal. g) Arbitrators are entitled to considerable flexibility and deference in respect of procedures followed. F. Second Issue: Whether the reasoning process and Award were reasonable? F.1 The law [64] When an arbitrator misses a step in analysing or applying a legal principle, the decision is patently unreasonable. So concluded Justice MacAdam in a pre-Dunsmuir decision - Trenton Works Ltd. v. USWA, Local 1231 (1999) 180 N.S.R. (2d) 97 (N.S.S.C.). An arbitrator, in finding that an employer had failed to appropriately assign overtime on the basis of the principles of promissory estoppel, failed to apply the first of four elements required for estoppel (clear representation by words or conduct). Had the Arbitrator examined the first step, he would have found there was no evidence to support the element of the test for promissory estoppel. Failure to make the inquiry, and the absence of evidence to support a clear and unequivocal representation, resulted in a patently unreasonable decision. MacAdam J.’s decision was upheld by the Court of Appeal at (2000) 182 N.S.R. (2d) 198. [65] Similarly in Real Canadian Superstore, the Alberta Court of Appeal allowed an appeal from an arbitrator’s decision on the basis that he failed to consider the issue in the context of the entire collective agreement and in accordance with recognized principles of interpretation. At _ 15, it stated: “First principles require that the Arbitrator interpret the salient provisions in the context of the Agreement as a whole and in a manner that avoids conflicts or internal inconsistencies within the Collective Agreement.” [66] Important to this case is the applicability of _ 19, which reads: “The further consideration that warrants appellate intervention is the flaw (mindful of the standard of appellate review) in the reasoning process of the Arbitrator’s decision. Here, the focus of analysis is the process of reasoning as opposed to the conclusion reached. The relevant inquiry is whether the reasoning is rational and, accordingly, reasonable. It would be insufficient for an adjudicator to simply say “there are two reasonable conclusions here - a. and b. I choose b.” The path of reasoning is not thereby disclosed and, accordingly, one cannot say that the process of reasoning is, indeed, reasonable.” [67] The substance of the Arbitrator’s decision was a comparison of Article 9 C(2) and 9 C(4), and the conclusion that, because it was the Employer’s decision to transfer the grievor to another job without any request from the grievor [thereby eliminating 9C(4)], the transfer came under 9 C(2) and the grievor was entitled to be paid at the rate for his regular job. He did not appear to have addressed the phrase “for management convenience” for its ordinary meaning, its use in Article 9 or in the context of the purpose or totality of the collective agreement, or in the context of any findings of fact. [68] As noted in Real Canadian Superstore, arbitrators are obligated to follow established rules of construction. [69] The background to the interpretation, application and administration of collective agreements is set out in the seminal text, Canadian Labour Arbitration, Fourth Edition, by Donald J. M. Brown, Q.C. and David M. Beatty (Canada Law Book: Looseleaf to Release 7, June 2008). [70] After reviewing the form and contents of collective agreements, and the interplay between rule-making as an exercise of management’s prerogative in the context of collective agreements, the writers state, commencing at 4:2000: “In most arbitrations the main task is to construe words, phrases, sections and groups of sections in a collective agreement and this task is no different than that faced by other adjudicators in applying statutes, private contracts and “other authoritative directives”.” [71] Brown and Beatty discuss the interpretative principles as follows: a) The fundamental objective is to discover the intentions of the parties. §4:2100. b) In searching for the parties’ intention, words generally should be viewed in their normal or ordinary sense unless to do so would lead to some absurdity or inconsistency with the rest of the collective agreement, or unless the context reveals that the words were used in some other sense. §4:2110. c) It should be presumed that all of the words used were intended to have some meaning and that they were not intended to be in conflict. If only one permissive construction leads to that result, resolution of the resulting conflict may be resolved by applying further presumptions that are identified in §4:2120. These presumptions include that a clear expression of intention is required to confer a financial benefit. d) Headings, preambles and general purpose clauses in a collective agreement may be referred to in order to explain a section or sections that fall under them. §4:2130. e) Grammatical cannons of construction, developed in civil cases, such as ejusdem generis and expressio unius may be applied. §4:2140. f) The context in which words are located is critical to their meaning. Words should be read in the context of the sentence, section and agreement as a whole. §4:2150. g) In construing a collective agreement, an arbitrator is entitled to use his own experience and understanding of how words and phrases commonly found in a collective agreement should be interpreted. §4:2200. In doing so, he may reference dictionaries (§4:2210), prior awards and judicial decisions (§4:2220), statutes (§4:2230) and extrinsic evidence of past collective agreements and past practice (§4:2250). An important limitation is in respect of extrinsic evidence which cannot be resorted to unless the agreement is ambiguous. A second limitation is that the fact that the extrinsic evidence must be before the arbitrator. [72] Arbitrators are obligated to apply the purposeful approach to determine the meaning intended by the parties (§ 4:2300). This includes recognition of management’s traditional right to manage the business, direct the work force, and establish wage rates as it sees fit subject to any duty to act fairly and in good faith, and subject to the terms of the collective agreement (§§ 4:2310 to 4:2326). F.2 Application and analysis [73] The Arbitrator in this case does not explain how “office work”(his term) in the quality room was ancillary to the job of a unitizer operator in the shipping department (top of Page 16, Award). [74] He acknowledges that the parties agreed that the wage schedules in the collective agreement did not list the type of work being done by the grievor in the quality room (middle of Page 19, Award). [75] Nowhere in his analysis does the Arbitrator explain how the modified work in the quality room was bargaining unit work, and therefore how the collective agreement pertained to the work performed by the grievor in the quality room. [76] At Page 18, the Arbitrator concludes that 9 C(2) required payment of the normal unitizer operator wage rate while the grievor was performing modified duties in the Quality Room. [77] His only analysis to get to that conclusion was a review of, and the elimination of, other Articles in the collective agreement that might cover the grievor’s modified duties. In effect, it was application of an elimination process without first dealing with the issue that both the Employer and the Union asked the Arbitrator to decide: whether the modified work carried out under the Policy, which Policy was unilaterally imposed by the Employer, was, with respect to the setting of wages, a proper exercise of management’s prerogative to manage the workplace in any bone fides manner not expressly covered in the collective agreement, or was a breach of the collective agreement. [78] Jumping into the default analysis of eliminating articles in the collective agreement that did not cover the work assignment, without first answering in a transparent and rational manner the question of whether the collective agreement contained the wage rate for the modified work, was an error in the analytical process. [79] The Arbitrator’s only justification for characterizing the modified work duties under Article 9 C(2) was that it did not fit into any other Article he reviewed, and that it was carried out at the Employer’s request. In this process, he did not, for example, in a transparent or logically-explained manner, look at the phrase “for management convenience”, for its normal or ordinary meaning, or if he determined that to assign this phrase its ordinary meaning would lead to an absurdity or inconsistency with the rest of the collective agreement, how it should otherwise be interpreted. He did not transparently address the interpretative principle that all words used are intended to have some meaning. Nor does he address in a transparent way, how that phrase should be read in the context of the collective agreement as a whole, and most importantly, in the context of the issue which the parties focussed on during the arbitration process. [80] It is not the function of this Court to determine possible, rational, defensible conclusions or outcomes. It is possible that there exists more than one rational and defensible outcome. Any such outcome must be explained and the reasoning process to reach it must be transparent and logical and must be related to both the findings of fact and the relevant legal principles - in this case, the generally accepted legal principles respecting the interpretation and application of collective agreements identified by Brown and Beatty. [81] In this case neither party appears to have argued that a proper interpretation of Article 9C(2) includes an entitlement of the grievor to his regular wages while performing the modified duties in the quality room. The Employer argued that the work was non-bargaining unit work and governed by management perogative to arrange that work and pay rates for that work in accordance with its Policy, and, furthermore, that the collective agreement could not confer a benefit to be paid at the regular rate unless the collective agreement clearly and expressly so provided. The Union appears to have agreed that the work was non-bargaining unit work; it argued that the Employer did not have the right to set a wage rate for any member of the bargaining unit contradicted the collective agreement which “occupied the field”, and payment of 80% of the regular wages to the grievor was a breach of the collective agreement. [82] Having noted that the parties agreed that the schedules to the collective agreement did not contain a listing of a wage rate for modified duties in the quality room, the arbitrator does not explain how the modified work was covered by Article 9 C(2). [83] The arbitrator eliminated accommodation, reclassification, transfers to a posted job, and transfers at the request of the employee, as provisions in the collective agreement that could apply to the facts of this case. He further determined that the transfer was a temporary transfer at the request of the Employer, pursuant to a unilaterally imposed Policy. By elimination, and without directing his mind to the phrase “for management convenience” (or, if he did direct his mind to it, without explaining in a transparent and rational manner how the phrase applied to the fact situation in this case), he reached his conclusion. [84] He did not appear to have decided that: a) the work was listed in the schedules to the collective agreement as bargaining unit work; or, b) the Employer had breached the collective agreement by unilaterally imposing the Policy; or c) the implementation and application of the Policy was not a proper exercise of management’s prerogative to do what was not specifically covered in the collective agreement. [85] The Arbitrator appears to have attempted to put a square peg in a round hole because the peg did not fit into any other hole, and the closest fit was Article 9 C(2). [86] In failing to address the question raised by the parties, he failed to explain his view of the intention of the parties in construing the collective agreement. [87] In failing to interpret the phrase “for management convenience”, the Arbitrator failed to apply the interpretative principle that all words used are intended to have some meaning, and if the meaning is ambiguous, to address the ambiguity. [88] If he found the phrase to be ambiguous - which he did not expressly do, he failed to analyze extrinsic evidence that may have been relevant to his conclusion that Article 9 C(2) covered the circumstances of the grievor in this case. [89] Per _ 47 in Dunsmuir, a Court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to the outcomes. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process, as well as with whether the decision falls within a range of possible, defensible outcomes. [90] In the case at bar, the analysis, primarily at pages 18 to 25, does not indicate the application of the relevant principles of interpretation of collective agreements, nor, in a transparent manner, a logical basis for the conclusion. [91] It is not possible to determine whether the outcome is a reasonable or defensible outcome. Because the Award did not show findings of fact or an application of the principles of interpretation that could explain an outcome that, on its face, appears to ignore the ordinary meaning of the phrase “for management convenience” in Article 9 C(2), the outcome is not defensible on the facts and law. [92] It may be that the evidence heard during the arbitration could form a factual basis for a reasonable conclusion that, assuming that the wage rate payable on the transfer was not a breach of the collective agreement (contra the Union’s argument) or a proper exercise of management’s prerogative (contra the Employer’s argument) but was covered by Article 9 C(2) of the collective agreement, the transfer was made “for management convenience”. Any such evidence is not apparent in the Award. [93] It may be that a contextual analysis; that is, application of the principles of interpretation in a specialized labour arbitration context, could justify the outcome. Any reasoning process or rationale by which the Arbitrator, exercising expertise that does not exist in a civil court, could have concluded that the phrase “for management convenience” should not convey its ordinary meaning, is not apparent in the Award, and therefore not transparent. [94] In summary, the Arbitrator did not explain how the direction to the employee to return to work on modified work outside bargaining unit work pursuant to the Policy constituted a temporary transfer for management convenience under Article 9 C(2). He did not explain the apparent conflict with the ordinary meaning of the phrase, or make factual findings that would support an interpretation in apparent conflict with the ordinary meaning, or how the work was office work ancillary to his regular work. He did not apply the interpretative principles outlined in Brown and Beatty. His reasoning process is not transparent or rational, and does not justify the outcome. G. Result [95] The Award is set aside. [96] It is not the role of this Court to interpret the collective agreement. That is the role of an arbitrator. Furthermore, no transcript of the evidence before the arbitrator exists, and the evidence is an essential element of the interpretation and application process. [97] The Arbitrator has already made his determination of the proper interpretation and application of the collective agreement. This is not a situation where a tribunal would be asked to apply the evidence to the “law” as stated by this court. It would be unreasonable to expect Arbitrator to rethink his analysis. It is therefore unfair to the Applicant to direct that the grievance is returned to the same arbitrator for reconsideration, even though it would be more efficient and less costly to do so. [98] Therefore, the Court orders that the matter be remitted to another arbitrator for rehearing and redetermination. [99] Based on my understanding of the practice as stated in both Counsels’ representations, costs are awarded to the applicant in the amount of $2,000.00. J.