COURT FILE NO.: 61/03

DATE: 20031002

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MCRAE, DUNNET AND JENNINGS JJ.

B E T W E E N:

SYSCO FOOD SERVICES OF ONTARIO

Applicant

• and -

THE NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS UNION OF CANADA (CAW-CANADA), LOCAL 414, AND VICTOR SOLOMATENKO

Respondents

Susan L. Crawford, for the Applicant

Lewis N. Gottheil, for the Respondent CAW-Canada Local 414

HEARD: October 2, 2003

dunnet J.: (Orally)

1This is an application for judicial review of an arbitrator’s decision dismissing the policy grievance brought by the employer alleging that the Union had violated the collective agreement between the parties by maintaining that the bargaining unit employees were not required to work on paid holidays without their consent. Subsection 9.02(e) of the collective agreement sets out a precondition to the employees’ receipt of pay for a paid holiday. The precondition is that an employee reports and performs work if the employee has agreed to work on the paid holiday.

2The arbitrator found that there is nothing in Article 9 which directly addresses the question whether the employer is required to seek the employee’s consent to schedule a paid holiday as part of the regular work schedule or that it is prohibited from doing so.

3We are of the view that there is contractual language to support the decision of the arbitrator.

4There was some evidence before the arbitrator that the employer’s operations were not a continuous operation as defined in the Employment Standards Act, 2000. We are of the view that his finding in this respect was reasonable.

5The arbitrator found that the overriding consideration in this case was the “no contracting out” provision of s. 5(1) of the Act. The applicant argues that this was an extraneous and irrelevant issue that the parties never raised, nor were given the opportunity to make submissions. Consequently, the arbitrator breached the rules of natural justice. The respondent Union disagrees.

6We accept that the Union dealt with the provisions of s. 5(1) in its evidence and indirectly through its citation of re Décor Entry Systems and International Association of Machinists and Aerospace Workers, (2000) 50163 (ON LA), 92 L.A.C. (4th) 53. The Union concedes, however, that the arbitrator erred in his reference to s. 5(1) of Act. In any event, given the arbitrator’s finding that the Union and employer had not agreed to suspend the public holiday guarantee established by s. 26 of the Act, the arbitrator’s reference to s. 5(1), viewed objectively, was not the basis for his decision.

7In all of the circumstances, we find that the arbitrator’s findings were reasonable.

MCRAE J.

8The application record will read: “The application is dismissed. Oral reasons delivered by Dunnet J. Costs to the respondent fixed at $3,500.

MCRAE J.

DUNNET J.

JENNINGS J.

Date of Reasons for Judgment: October 2, 2003

Date of Release: October 10, 2003

COURT FILE NO.: 61/03

DATE: 20031002

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

mcrae, dunnet and jennings jj.