Court File and Parties

COURT FILE NO.: 804/2001 DATE: 20020923

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: George Brown College of Applied Arts and Technology v. Ontario Public Service Employees Union

BEFORE: Then, Thomas and MacLeod JJ.

COUNSEL: Christopher G. Riggs, Q.C. for the Applicant Timothy G.M. Hadwen for the Respondent

HEARD: September 16, 2002

ENDORSEMENT

[1] The College seeks to quash an award made by a Workload Resolution Arbitrator (WRA) on the ground he had no jurisdiction under the Collective Agreement to arbitrate teacher workload issues initiated and referred to him by the Union. The workload complaints related to and affected some 30 teachers from various departments within the College.

[2] It is the position of the College that under Article 11 of the Collective Agreement only teachers are permitted to arbitrate their workload complaints before a WRA.

[3] Thus, the issue for judicial review is whether or not the Collective Agreement in Article 11 provides access to a WRA only for teachers or does it also permit access to a WRA for workload issues raised by the Union.

[4] It should be noted that counsel agreed before the arbitrator that Article 32.10, which contemplates a grievance procedure for the Union before a tripartite arbitration board, is not engaged in this case because the criteria outlined in Article 32 were not met. (See: Fanshawe College of Applied Arts and Technology, Kevin Burkett, Chairman, January 12, 1989; Fanshawe College of Applied Arts and Technology v. O.P.S.E.U., unreported endorsement of the Court of Appeal dated June 8, 1994 allowing appeal from (1990), 70 D.L.R. (4th) 494 (Div. Ct.)). It is not disputed that all workload issues raised by the Union in this case were matters which could have been raised by the individual teachers.

[5] Article 11 envisages that initially an individual teacher, a supervisor or the Union may bring a complaint involving an individual teacher before the Workload Monitoring Group (“WMG”). This group consists of four union representatives and four management or college representatives who discuss workload assignments of teachers.

[6] Article 11 gives a teacher the right to proceed to a WRA if the majority decision of the WMG is unacceptable to the teacher.

[7] Article 11 specifically provides that if the teacher does not refer the matter to the WRA the complaint is deemed to be settled. An individual teacher is the only person specifically given the right to proceed to a WRA.

[8] It is the position of the Union that although Article 11 by its terms gives no right to the Union to pursue or refer a union-initiated matter to a WRA, a right to a WRA arbitration should be read into Article 11 by virtue of a consideration of the Collective Agreement as a whole.

[9] In this respect, the Union’s position mirrors the arbitrator’s reasoning in granting himself jurisdiction. At page 45 of the award decision, the arbitrator said the following:

I return to the collective agreement. Based on the analysis above, and especially because the result of no Union access to arbitration is not compatible with the Act, because the agreement makes it clear that these Union complaints can come before the workload monitoring group, because the agreement also permits these Union complaints to come before that group without providing any express language as to how that is to happen, because the agreement implies that these disputes are then resolved by workload resolution arbitration, and because the agreement expresses a desire to have workload issues dealt with expeditiously, I conclude that the parties intended that Union initiated workload complaints under Articles 11.01 and 11.02 should be dealt with through workload resolution arbitration. Of the possible interpretations of the agreement, this is the interpretation which fits best with the language of the collective agreement. I therefore find that as workload resolution arbitrator I have jurisdiction over these Union complaints. (our emphasis)

[10] It is the position of the College that the Collective Agreement is very specific in Article 11 to limit the participation of the Union to requesting a hearing before the WMG for workload issues the Union raises.

[11] The College submits that pursuant to Article 11 access to a WRA is explicitly granted to teachers only and thus the intent of the parties is manifest. Accordingly, the College maintains, it is not necessary to glean the intention of the parties from the Collective Agreement as a whole. Indeed, if the terms of the Collective Agreement as a whole are taken into account, it will be evident that a union-initiated complaint under Article 11 can be the subject of a WRA arbitration only if the individual teacher chooses to pursue that course on his or her own behalf.

[12] It therefore cannot be maintained that an adverse finding by the WMG with respect to a complaint initiated by the Union is without remedy. The remedy simply requires the teacher to pursue the complaint. If the individual teacher does not pursue the remedy of WRA with respect to the union-initiated complaint, the complaint is deemed settled, as would a complaint made initially to the WMG by the individual teacher.

[13] The College maintained that, in reading into Article 11 the right of the union to pursue a union-initiated complaint to a WRA, the arbitrator acted in excess of his jurisdiction and that his decision was patently unreasonable.

[14] Alternatively, even if the Union can be said to have a right to arbitration notwithstanding the silence of s. 11 on that issue, the College submits that s. 46(2) of the Colleges Collective Bargaining Act, R.S.O. 1990, c. C. 15, provides a complete answer as the access of the Union to arbitration would be before a tripartite board as the section requires. Accordingly, the College submits that the single arbitrator was without jurisdiction to act as an arbitrator in the instant case, and indeed in his reasons for decision recognized that “there is no possibility that these parties have appointed me as an arbitrator under section 46 of the Act.”

[15] In our opinion, Article 11 is very clear in limiting access to a WRA solely to the individual teacher. It does not allow a union-initiated workload complaint relating to an individual teacher to proceed to arbitration before a WRA unless the affected individual teacher is prepared to invoke this remedy. If the teacher does not pursue arbitration within a specified period of time, the complained is deemed settled.

[16] We are not persuaded that s. 46(1) of the Colleges Collective Bargaining Act, R.S.O. 1990, c. 15 imports into Article 11 a requirement that union-initiated complaints relating to individual teachers be subject to a WRA at the request of the union. The remedy for an unsuccessful union-initiated individual complaint is not lost at the WMG phase under Article 11. It must simply be invoked by the individual teacher who has the exclusive right to pursue arbitration by a WRA.

[17] We also accept the College’s alternative submission that if the union does have a right to arbitration in the circumstances of this case pursuant to s. 46(1) of the Colleges Collective Bargaining Act, the scope of that arbitration is governed by s. 46(2) of that Act, and not by Article 11 of the Collective Agreement. (See: Re Sudbury Mine, Mill and Smelter Workers Union, Local 598 and International Nickel Co. of Canada Ltd. (1962), 35 D.L.R. (2d) 371 (C.A.) per Aylesworth J.A. at pp. 374-5).

[18] In our view, the arbitrator has re-written the Collective Agreement and assumed jurisdiction on the basis of that revision. In assuming jurisdiction based on the re-written Collective Agreement, the arbitrator has exceeded his jurisdiction. By adding terms or reading in terms to an entirely clear and specific provision in Article 11 of the Collective Agreement, the arbitrator’s interpretation of the Collective Agreement so as to grant himself jurisdiction is patently unreasonable. (See: Sisters of St. Joseph of the Diocese of London v. Service Employees Union, Local 210 (1997), 155 D.L.R. (4th) 674 (C.A.)).

[19] In the result, the application for judicial review is granted and the award of the arbitrator is quashed.

[20] The parties have agreed that costs to the successful party should be fixed in the amount of $3,500.00. Therefore, we award costs to the applicant fixed in the amount of $3,500.00.

Then J.

Thomas J.

MacLeod J.

DATE: September 2002