Ontario Superior Court of Justice, Divisional Court

Court File No. 371/2001

Date: 2002-07-04

Lane, Meehan and Lax JJ.

Counsel:

Howard Goldblatt, for applicant.

Darrel A. Smith, for respondent.

1Lax J. (Lane J. concurring):—This is an application brought by the Toronto Professional Fire Fighters' Association for judicial review of an arbitration decision. The issue that required determination by the arbitrator was whether the City of Toronto had properly filled the positions of District Chief, Communications under the composite collective agreement that governed the relationship between the City and its firefighters. The arbitrator held that the City, as employer, could rely on the management rights clauses in each of the former six collective agreements ("the siloed agreements") that comprised the composite collective agreement. The Association grieved this decision.

Background

Background

2The City of Toronto was created on January 1, 1998 through the amalgamation of the Cities of Toronto, Etobicoke, North York, East York, Scarborough, and York. Prior to the amalgamation, each of the six cities operated its own fire department. The employees were organized into bargaining units. Each bargaining unit was represented by a separate firefighter association and governed by a separate collective agreement.

3Following amalgamation, the labour relations regime was governed by the Public Sector Labour Relations Transition Act, 1997, S.O. 1997, c. 21, Sch. B ("Bill 136"). It provides for the continued application of multiple collective agreements, (the siloed agreements), notwithstanding a merger of municipalities and bargaining units. Under Bill 136, the six agreements are deemed to form a composite collective agreement until the parties negotiate a first single collective agreement. In the interim, the parties continue to be governed by the terms of the collective agreement that applied to those employees prior to amalgamation.

4After amalgamation, the six former firefighter associations, which had represented the employees, merged to become the Toronto Professional Fire Fighters' Association, Local 3388 of the International Association of Fire Fighters. By Order of the Board, the six former bargaining units were merged into a single bargaining unit and the Association became the sole bargaining agent representing all firefighters in the City of Toronto. As the successor union, it became party to the composite collective agreement and each of the siloed agreements.

5Local 3388 had never been a party to any of the six siloed agreements that existed before amalgamation, but there were two or more collective agreements that applied to employees in a pre-amalgamation bargaining unit. Consequently, s. 25(4) of Bill 136 provides that the employer and the bargaining agent can mutually agree on the applicable seniority provisions and grievance procedures. Failing agreement, either can apply to the Ontario Labour Relations Board for an Order determining which collective agreement's seniority provisions and grievance procedures apply.

6In this case, the parties agreed on a common grievance procedure, but did not agree on common seniority provisions and neither applied to the Board. They also agreed to appoint Martin Teplitsky, Q.C., to resolve through interest arbitration, a new collective agreement to replace the siloed agreements and to make interim rulings on matters having City-wide application. He was not asked to rule on which of the seniority provisions in the six collective agreements applied to the employees in the bargaining unit. Each of the collective agreements contained seniority-related promotion provisions with different language and each also contained management rights clauses with different language. In all cases, the rights available to management under the different management rights clauses, were subject to the other provisions in the agreement, including seniority.

The Grievance

The Grievance

7In October 1998, the City eliminated three positions in the former City of Scarborough as well as positions in other municipalities. These decisions were, grieved and referred to arbitration before Arbitrator Tom Jolliffe. On July 4, 2000 and pending arbitration of the grievances, the City issued a Position Posting for four vacancies in the position of District Chief, Communications and proceeded to fill the positions on the basis of testing for qualifications and without regard to any of the seniority and promotion clauses in any of the siloed agreements. The Association filed grievances.

The Arbitration

8In order to assist the arbitrator in dealing with the various grievances, the parties agreed to have Arbitrator Jolliffe rule on the question of whether the City had contravened the composite collective agreement when it posted and filled the District Chief, Communications positions.

The Arbitration

9The hearing proceeded on the basis of agreed exhibits and facts, which are set out in the decision. The parties disagreed about whether the District Chief, Communications positions were new or whether they had existed prior to amalgamation. The parties advised the arbitrator of this dispute and informed him they would not be leading evidence on this. Nevertheless, the arbitrator found that because these positions had city-wide responsibilities that did not exist before, it presented a significant enough departure from previous organizations, that management rights should apply. On this basis, he upheld the City's posting and filling of the positions.

Analysis

Analysis

10On the hearing before us, the parties did not agree on the standard of review, the function performed by the arbitrator or the relative protection afforded the award of the arbitrator by the privative clause in s. 53(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4. In all relevant respects, this provision is identical to the privative clause found in s. 48(1) of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A.

11The Association submits that it was the arbitrator's role to interpret and apply the provisions of Bill 136, and therefore, the decision is reviewable on a standard of correctness. We were referred to relevant appellate authorities. The Association acknowledges that there is an exception to the general rule and the correctness standard gives way where the arbitrator is interpreting "outside" legislation that is "intimately connected with the mandate of the tribunal and is encountered frequently as a result": Toronto (City) Board of Education v. O.S.S.T.F, District 15 (1997), 1997 378 (SCC), 144 D.L.R. (4th) 385 (S.C.C.) at 398. The applicant's position is that the interpretation and application of Bill 136 does not come within the exception and therefore, the arbitrator must be right.

12The City submits that the arbitrator's function was to interpret the composite collective agreement, a matter within the expertise of an arbitrator, and as such, the standard of review is patently unreasonable. We were referred to relevant appellate authorities. It further submits that even if the decision can be construed as one of statutory rather than contractual interpretation, Bill 136 is employment-related legislation and the exception applies. Therefore, the same deference is owed to the arbitrator as if he were hearing a grievance arbitration and thus, the standard of review remains that of patently unreasonable.

13In our view, the resolution of this application does not require a determination as to whether the arbitrator was required to be correct. The decision cannot stand even on the more deferential standard of patently unreasonable.

14Bill 136 is transitional legislation, which governs labour relationships in the broader public sector until the parties agree to new arrangements. As the parties did not agree to a new first single collective agreement, s. 25(4) of Bill 136 deems them to be governed by a composite collective agreement. The siloed agreements are part of a single collective agreement to which the Association as bargaining agent and the City as employer are parties. Section 15(1) of Bill 136 specifically provides that a collective agreement that applies to employees before the changeover date (in this case, January 1, 1998) continues to apply after the changeover date. Under s. 15(3), the successor employer stands in the shoes of its predecessor as if a party to the predecessor collective agreement.

15The arbitrator correctly concluded that the jobs in question fell within the bargaining unit of the new City. It follows that the jobs were to be filled in accordance with the composite collective agreement. It was for the arbitrator to determine which part of the collective agreement applied. The arbitrator concluded that none of the promotion and seniority clauses in any of the collective agreements applied to the positions, and that the City could rely on management rights clauses to fill the positions. The arbitrator did not specify the collective agreement from which management derived its management rights. Nor did he explain why management was able to apply the management rights clauses in the collective agreements (each of which was subject to other provisions), but not the seniority and promotion provisions of the same agreements.

16In effect, the arbitrator found that the seniority provisions in the composite collective agreement did not apply to the "new" positions, but that the management rights clauses did. This is a patently unreasonable interpretation of the composite collective agreement as Bill 136 expressly provides that all provisions of the composite collective agreement apply. If all provisions of the agreement apply, management rights clauses can only apply to the extent that the composite collective agreement does not have seniority provisions. However, each of the siloed agreements comprising the composite collective agreement has seniority and promotion provisions.

17None of the predecessor agreements gave management the right to fill positions without regard to seniority. No previous employer could rely on a management rights provision in any of the agreements to fill a position without regard to seniority. Although Bill 136 expressly continues the rights previously bargained for, the arbitrator's decision gives the employer rights it never previously enjoyed. This is a patently unreasonable interpretation of the composite collective agreement and an irrational interpretation of Bill 136.

18The arbitrator was concerned with the "chaos" and "stalemate" that could result if multiple seniority and promotion regimes continued to apply. He did not think that the employer should be required to choose among them. The arbitrator failed to appreciate that Bill 136 expressly provides for the transitional continuation of multiple regimes, recognizes that this can give rise to disruption and difficulty and provides a mechanism for addressing this. The City could have raised the issue of competing seniority provisions before the Teplitsky interest arbitration. It also could have applied to the Labour Board for an Order to determine which seniority provisions applied. Although the problem that arose in this case was two years post-amalgamation, the City had taken no steps to address it. This presented a difficult problem for the arbitrator, but a problem of the City's own making. It is true that the City was not required to obtain an Order from the Board to determine which seniority provisions applied and it is also true that it was equally open to the Association to do this. However, unlike the City, the Association had no knowledge that the employer would post and fill the positions when and in the manner it did.

19The composite collective agreement is not an ordinary collective agreement. It is a statutorily constructed collective agreement fashioned by the will of the legislature and not the will of the parties. The parties did not negotiate an agreement giving the employer the rights given to it by the arbitrator. The parties never agreed to live with a process that undermines seniority rights. The legislature did not intend the parties to live with a process that undermines seniority rights. These have been recognised as one of the most important benefits that the trade union movement has been able to secure for its members by virtue of the collective bargaining process: Brown & Beatty, Canadian Labour Arbitration, 3rd ed. (Aurora: Canada Law Book, 2000) at section 6.0000, p. 6-1.

20The arbitrator fundamentally erred in interpreting and applying the legislation as he did. He erred in law in granting to management under the composite collective agreement greater rights than the predecessor employers had under the previous collective agreements by enabling the City to use the management rights clause of some unspecified collective agreement while ignoring the seniority provision of the same agreement. As it was impossible for the City to rely on its management rights without applying the seniority provisions, to which the management rights are subject, the arbitrator's decision was clearly irrational and must be set aside.

21The arbitrator's decision that there was no promotion mechanism which was capable of being jointly applied across the six siloed agreements rests on a finding that the new positions with their cross-boundary responsibilities was a significant enough departure from the previous organizations in the municipalities, that management rights applied. The Association disputed that the cross-boundary application of the job altered the fundamental duties and responsibilities that had been performed by the predecessor municipalities. The arbitrator acknowledged the dispute and acknowledged the agreement of the parties that they would lead no evidence on this. Despite this, he concluded that the positions of District Chief, Communications were new positions. It is true that the positions were city-wide, and in this sense, they were "new". However, there was no evidence one way or another that there were significantly different responsibilities or that the job operated any differently than it had before. This finding, arrived at in the absence of any evidence, was essential to the arbitrator's decision. This constitutes a jurisdictional error and is an additional reason that the decision of the arbitrator must be set aside.

22For these reasons, the decision of the arbitrator is quashed. If costs are not agreed, they are to be addressed in writing within 30 days.

Dissenting Reasons of Meehan J.

23Meehan J. (dissenting):—This is an Application for Judicial Review of a decision of an Arbitrator dated December 7, 2000 (Application Record, 2B). In that decision, the Arbitrator found in favour of the City of Toronto ("City" or "employer"). The Arbitrator decided that none of the seniority/promotion provisions of various collective agreements applied to positions created by the amalgamated City. As a result, the Arbitrator concluded that management rights should apply to the positions.

Background

Background

24The City of Toronto was created on January 1st, 1998 by the City of Toronto Act, 1997, S.O. 1997, c. 2, and amalgamated several former municipalities.Prior to the amalgamation, each of the six cities, but not the Municipality of Metropolitan Toronto, operated its own fire department. The firefighters employees of each department were organized into bargaining units, each represented by a separate firefighters' association and governed by a separate collective agreement.

25Following amalgamation, the labour relations was governed by the Public Sector Labour Relations Transition Act, 1997, S.O. 1997, c. 21, Sch. B ("Bill 136"). It provided for the continued application of multiple collective agreements, (the siloed agreements), notwithstanding a merger of municipalities and bargaining units. Under Bill 136, the six agreements were deemed to form a composite collective agreement until the parties were able to negotiate a first single collective agreement. In the interim, the parties would continue to be governed by the terms of the collective agreement that applied to those employees prior to amalgamation.

26After amalgamation, the six former associations merged to become The Toronto Professional Fire Fighters' Association, Local 3388 of the International Association of Fire Fighters. As a successor union, it became a party to the composite collective agreement and each of the predecessor or siloed agreements which continued to govern labour relations.

27On December 2nd, 1998, by Order of the Ontario Labour Relations Board, pursuant to Bill 136, the six bargaining units were merged into a single bargaining unit with the Association becoming the official sole bargaining agent representing all of the firefighters.

28Section 25(4) of Bill 136 provided that if there were two or more collective agreements which applied to employees in a bargaining unit prior to amalgamation, but the bargaining agent representing the employees had not been a party to any of these predecessor agreements, the employer and the bargaining agent could mutually agree as to which collective agreement's seniority provisions would apply to the employees.

29Failing agreement, either party could apply to the Ontario Labour Relations Board (OLRB) for an Order determining what collective agreement's seniority provisions ought to apply.

30The parties did not reach any agreement on a common seniority provision which would apply to the employees and which would be applicable in cases of promotion. They did, however, agree on a common grievance procedure, which would be applicable to the employees.

31The parties appointed an arbitrator, Martin Teplitsky, Q.C., to resolve through interest arbitration a new collective agreement to replace the previous siloed agreements and they asked him to make interim rulings. They did not ask him to rule on the question of which of the seniority provisions in the six collective agreements ought to apply to the employees in the new bargaining unit.

32Thus, employees were covered by different seniority provisions depending on their home agreement since each of the collective agreements contained different language respecting seniority-related promotion processes. Each agreement contained different management clauses applicable to the employees.

33In October, 1998, the City eliminated three positions which had been established by the Fire Department at the former City of Scarborough, i.e. directors of communication, training and fire prevention. The City also deleted other positions in the former municipalities. The Association filed several grievances, including grievances claiming that these positions in the former City of Scarborough should be filled in accordance with the siloed Scarborough collective agreement. Those were referred to arbitration before Arbitrator Tom Jolliffe.

34Pending arbitration of those agreements in approximately July, 2000, the City issued a position posting for four vacancies in the position of District Chief, Communications Division. The individuals hired into those positions were to be responsible for planning, development and implementation of assigned projects for a new consolidated communication center, which was to be constructed and located in the former City of North York.

35In the interim, the jobs were to be located in East York. The City proceeded, after some correspondence with the Union, to post and fill the positions on the basis of testing for qualifications only and without regard to any of the seniority and promotion clauses in any of the siloed agreements.

36All employees, however eligible for this position, would have had to have been qualified for the position of District Chief under each old siloed agreement. In other words, the position was not available to anyone who had not pre-qualified by way of seniority and presumably, testing of qualifications for such a position in each former city.

The Arbitration

The Arbitration

37The hearing proceeded on the basis of agreed upon exhibits and facts, most of which are set out in the decision. There was a dispute between the parties concerning whether the District Chief Communications' position was new or whether it had existed prior to amalgamation. The City maintained that the position was a brand new one because it included responsibilities across the entire amalgamated fire service. The Association agreed that the responsibilities had now cross-border effect in the new City but insisted the position was not new because it comprised duties, which have been previously performed by bargaining unit members in the six fire departments. No viva voce evidence was led on the issue. The Arbitrator had before him the details of the posting of this position and qualifications necessary.

38The City contended that none of the seniority and promotion clauses of the collective agreements should apply because they did not contemplate or deal with city-wide positions. Thus, it was the employer's submission that it was free to rely on all the various management rights clauses in the siloed collective agreements and post and fill the positions unilaterally without regard to seniority between the applicants.

39The Association took the position the employer could not ignore the seniority and promotion provisions of those siloed agreements but rather the employer should have either (1) reached an agreement as to which provision should apply, or failing that, (2) should have had the matter determined by the Ontario Labour Relations Board; or (3) it could have had the issue placed before interest Arbitrator Teplitsky, Q.C., along with other issues. Since the employer failed to do any of these things, its only recourse, according to the Association, was to fill the position in line with the seniority provisions in the collective agreement, which was most closely connected to the vacancy in question.

The decision

The Decision

40The Arbitrator's decision was issued on December 7, 2000. He acknowledged that the jobs in question were bargaining unit positions, which came within the terms of the new composite collective agreement as a whole. He also acknowledged that the employees' previous seniority rights continued to exist but he expressed his view that since each of the siloed agreements contained different seniority rights, that would only serve to create chaos and uncertainty.

41He also found that the District Chief Communications positions, because they contained cross-border responsibilities, presented a significant enough departure from the previous organizations where there had been no cross-border jobs that management rights should apply.

42He found as well that a hearing should proceed to determine whether the employer had acted arbitrarily or in bad faith in filling the positions in question and entitled his finding as "interim".

The Law — Standard of Review

The Law — Standard of Review

43Grievances such as this must be referred to final and binding arbitration pursuant to s. 53(1) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, Bill 84, which is in all relevant respects identical to s. 48(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A.

44I am satisfied that in the interpretation of a collective bargaining agreement, deference is owed to the arbitrator in situations such as this.

45I am satisfied that applying the criteria set out in Toronto Catholic District School Board v. Ontario English Catholic Teachers' Assn. (Toronto Elementary Unit) (2001), 2001 8597 (ON CA), 55 O.R. (3d) 737 (C.A.), and its review of the Supreme Court of Canada decisions in Toronto (City) Board of Education v. O.S.S.T.F, District 15 1997 378 (SCC), [1997], 1 S.C.R. 487, 144 D.L.R. (4th) 385, and Pushpanathan v. Canada (Minister of Citizenship and Immigration) 1998 778 (SCC), [1998], 1 S.C.R. 982, 160 D.L.R. (4th) 193, that keeping in mind the nature of the subject, the expertise of the decision maker and the purpose of the provision in issue and as well, the fact that there is a privative clause that the standard of review in relation to the collective bargaining agreement is patently unreasonable.

46If it can be said that the Arbitrator was interpreting the provisions of Bill 136, it is my view, in the circumstances, that the provisions of Bill 136 were so intertwined with the collective bargaining agreement in this case that it could be said that it fits in the exception set out by Mr. Justice Cory in Toronto (City) Board of Education at p. 506 S.C.R.:

An exception to this rule may occur where the external statute is intimately connected with the mandate of the tribunal and is encountered frequently as a result.

Analysis

Analysis

47It is the submission of the Association that the Arbitrator was either incorrect in his application of the provisions of Bill 136 or he wrongly failed to apply its terms. As set out earlier, the Bill contemplates that seniority provisions will continue and that if there is a conflict, there is a mechanism provided for their resolution.

48Bill 136 set out a specific process by which an employer can obtain a Labour Board or arbitrary order concerning any difficulties, which arise during the transition.

49The Arbitrator, at pp. 11-12 of his decision reviewed the position of the parties and, as well, reviewed decisions of other arbitrators dealing with similar problems. He dealt with the management rights' question and referred to such cases as Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Police Association (1981), 1981 1689 (ON CA), 124 D.L.R. (3d) 684 (Ont. C.A.); Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 43 (1991), 1991 13494 (ON LA), 19 L.A.C. (4th) 287 (Davis); and Re Corporation of the City of Toronto and Canadian Union of Public Employees, Local 79 (1996), 1996 20385 (ON LA), 58 L.A.C. (4th) 309 (Brunner). He, as well, referred to Re Veratec (Canada) Inc. and United Steelworkers, Local 8505 (1991), 1991 13333 (ON LA), 20 L.A.C. (4th) 16 (Barrett). At p. 18, he indicated:

The present circumstances are not something the parties could have contemplated at the time the six siloed contracts were negotiated and are not adequately resolved by the legislation in the event of there being no agreement or reference to the Labour Board prior to Section 25(1) removing that option.

50He then came to the conclusion that the District Chief, Communications positions:

present a significant enough departure from the previous organizations in Scarborough and elsewhere, it being agreed that the siloed contracts covering the former municipalities had no positions that went outside of their particular jurisdictions, that management rights should apply.

51The record disclosed that in its letter of July 8th, 2000, the Association itself described the positions as "new".

52Examples of those Managements Rights can be found in the Scarborough Agreement and the City of Toronto Agreement.

Scarborough:

The Association acknowledges that it is the exclusive function of the Corporation to maintain order, discipline and efficiency and to manage its offices and departments, subject to the provisions of this Agreement.

The Corporation has the exclusive right to hire, promote, lay off, demote, transfer, discipline or discharge fire fighters for just cause, subject to the provisions of this Agreement.

The Corporation shall have the right to make rules necessary to the efficient operation of the department and not inconsistent with the terms and conditions of this Collective Agreement and the Fire Departments Act, provided that such rules are posted in writing in all fire halls and a copy thereof is delivered to the Association.

and

City of Toronto:

(a) That Local 113 acknowledges that it is the exclusive function of the City to:

(i) maintain order, discipline and efficiency.

(ii) hire, discharge, direct, classify, transfer, promote, demote, lay-off and suspend or otherwise discipline any member of Local 113, subject to the provisions of this Agreement provided that a claim of discriminatory promotion, demotion or transfer or a claim that any such member has been discharged or disciplined without reasonable cause may be the subject of a grievance and dealt with as provide [sic] for in this Collective Agreement and further provided that the City has the exclusive and unlimited right to discharge any employee of the City coming within the 113 Unit at any time within a period of six (6) continuous months from the date of commencement of his/her employment with the Fire Department of the City.

(iii) generally to manage the operations and undertakings of the City and without restricting the generality of the foregoing to select, install and require the operation of any equipment, plant and machinery which the City in its uncontrolled discretion deems necessary for the efficient and economical carrying out of the operations and undertakings of the City.

(b) That the City agrees that it will not exercise the function set out in subclause (a) hereof in a manner inconsistent with the provisions of this agreement and the Fire Departments Act, R.S.O. 1990 and its successor, the Fire Protection and Prevention Act, 1997, as amended.

(c) That the word "discriminatory" as used herein shall refer to discrimination based upon race, creed colour, national origin, political or religious affiliation, sex, sexual orientation, age, marital status, family relationship, handicap or membership in a labour union.

53Management rights clauses are usually considered as residual. Brown and Beatty, Canadian Labour Arbitration, at para. 4:2310 outlines the generally accepted view and goes on to specify various items, which have been found to be included in residual management rights:

Perhaps the most pervasive and significant example of the application of the foregoing, has been where the issue involves and pertains to management's traditional right to manage the enterprise, direct the work force, and establish wage rates. Traditionally, it was said that management is free to do as it sees fit subject to any express terms providing otherwise, and subject to any estoppel which may arise, and so long as it acts in good faith and in a manner which does not jeopardize the integrity of the bargaining unit.

54He went on to deal with the submissions that nothing should be done until a new agreement is negotiated as follows:

It is no answer to the problem at hand to say that inasmuch as there has been no agreement or Labour Board order we are at a stale mate brought about by the chaotic situation of not knowing whose conflicting promotion language to apply, if any, where all provisions are otherwise found applicable. I do not see that the Employer is somehow required to declare which promotion language should apply. Nor do I conclude, once the job is identified as having city wide duties and needing to be filled on that basis, that the Employer is required to indefinitely hold off posting and filling it for there being no agreement or declaration on what promotion language should apply, if any.

55The Arbitrator correctly concluded that the jobs in question fell within the bargaining unit of the new city. He, in my view, also correctly found that it was impossible to apply the various conflicting seniority and promotional sections of the six siloed contracts. In my view, there was nothing patently unreasonable in him so doing.

56It was suggested in argument that the City could have raised the issue of competing seniority provisions before the Teplitsky interest arbitration. It could have also applied to the Labour Board for an order to determine which seniority provision applied. That submission applies equally, of course, to the Association. Neither side chose so to do and the Arbitrator was left to solve the problem.

57Mr. Justice MacPherson for the Ontario Court of Appeal in the Toronto Catholic District School Board v. Ontario English Catholic Teachers' Assn. stated at para. 34:

There is an aura of serious rebuke around the label "patently unreasonable": see Essex, supra, at para. 36. In a long line of cases, the Supreme Court of Canada has cautioned courts against easy resort to the label in the exercise of their judicial review function. As expressed by Cory J. in Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941 at pp. 963-64, 101 D.L.R. (4th) 673:

"It is said that it is difficult to know what 'patently unreasonable' means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary 'patently', an adverb, is defined as 'openly, evidently, clearly'. 'Unreasonable' is defined as '[n]ot having the faculty of reason, irrational ... Not acting in accordance with reason or good sense'. Thus, based on the dictionary definition of the words 'patently unreasonable', it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test."

58In my view, his finding is a reasonable response to the problem. Suggestions made to him as to how to act to the contrary in providing each applicant with their own specific seniority and promotion criteria when there was a conflict amongst the six siloed provisions would seem to be unrealistic. Grievances had already been filed from Etobicoke and Scarborough claiming violation of past practices.

59Suggestions, as I indicated, that the seniority provisions of the place where either the temporary office was to be or the permanent office would be would also, in the circumstances, probably not be as acceptable as the solution proposed by the Arbitrator. It is important once again to remember that all persons qualifying for this position had credit for their earlier promotions and seniority thereto which allowed them to enter the class eligible for this position.

60As I indicated to counsel during the argument of this Application, I thought it questionable that by consent they could turn what was entitled "an interim finding" into a decision which would be subject to judicial review in the same fashion as if it was a final award.

61The Arbitrator, in his Reasons, stated:

The remaining issue to be explored here and what I feel safe to call unique circumstances, is whether the promotion format conceived by the employer, whatever it might have been, was the proper and/or reviewable exercise of its management rights. Is it a matter of recognizing that the "good faith" standard is dependent only on the nature and scope of the management rights reserved under all six siloed agreements or is that standard somehow capable of being influenced by the existence of the conflicting promotion language? Is there a reasonable requirement in these circumstances all things considered and if so, what is nature of that requirement? These are issues, which remain unanswered and at this point, I invite the parties to consider them in the event no resolution is forthcoming to reconvene the hearing for further evidence and argument pertaining to this exercise of management rights.

62This last issue not being dealt with before us, I make no decision on that question.

63In the circumstances, the Application for Judicial Review should be dismissed and if counsel are unable to agree as to costs, the matter may be brought forward for argument.

64Application granted; decision set aside.