COURT FILE NO.: 432/02
DATE: 20030218
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: Thompson Products Employees' Association v. TRW Canada Ltd.
BEFORE: Blair R.S.J., Lang and C. Campbell, JJ.
COUNSEL: Paul J.J. Cavalluzzo, for the Applicant
Roy C. Filion, Q.C., for the Respondent
HEARD: February 6, 2003
E N D O R S E M E N T
LANG J.:
[1] This is an application for judicial review of an arbitrator's decision that dismissed an employee's discharge grievance.
[2] The employee, Mr. Caroselli, had worked for the employer for nine years, for seven of which he was also a union representative. At the time of the event, Mr. Caroselli had no prior discipline record. One year before the event, the employer promulgated an Employee Code of Conduct notifying employees that "in all probability" acts of "harassment, intimidation, coercion or physical violence" would result in immediate dismissal.
[3] The altercation, the occurrence of which is admitted, arose from shift assignments on August 9, 2001. Mr. Caroselli was displeased that another more senior employee, Mr. Morasiewicz, had been assigned to a particular machine to which Mr. Caroselli thought he had a prior claim. Mr. Caroselli reacted, not by going to his supervisor, but by expressing his displeasure directly to Mr. Morasiewicz. Four altercations ensued over the next few hours, mostly verbal. During the second altercation, in addition to his verbal comments, Mr. Caroselli moved very close to Mr. Morasiewicz and "bumped" him. Mr. Morasiewicz fell onto a skid of hot parts and suffered a small first-degree burn to his arm. On two later occasions that day, Mr. Caroselli again confronted Mr. Morasiewicz with verbal comments.
[4] The employer suspended Mr. Caroselli that day and terminated his employment a few days later. The union grieved. After a three-day hearing, the arbitrator concluded that the discharge was appropriate and dismissed the grievance.
[5] In this case, the applicant argues that:
The arbitrator breached the principles of natural justice by refusing to address the applicant's objections at the hearing, and by demonstrating a failure to consider the case fairly.
The arbitrator's decision could not be supported on the evidence.
The arbitrator failed to substitute a lesser penalty because she failed to take into account proper considerations and took into account improper considerations.
[6] It is agreed that the standard of review is one of patent unreasonableness with respect to collective agreement issues within the arbitrator's jurisdiction: Pezim v. BC (Superintendent of Brokers), [1994] 2 S.C.R. 557 at 589-590 and Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at 956-957. As Cory J. said in Canada (Attorney General) v. Public Service Alliance of Canada, supra, at 964:
…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.
A "correctness" standard of review applies to matters other than the interpretation of the collective agreement when the arbitrator is interpreting a statute or the common law, as these are generally not matters within the expertise of the arbitrator. An arbitrator must ensure that the rules of natural justice are met in a manner appropriate to the context: Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 at 211 (S.C.C.). This is particularly so when an individual's employment is at risk: Kane v. Board of Governors of the University of British Columbia (1980), 110 D.L.R. (3d) 311 at 322.
[7] On the first issue, the applicant argues that the arbitrator, on more than one occasion, dealt with counsel in a dismissive manner and with a sweep of her hand, in particular, when applicant's counsel objected to certain evidence. In support of this submission, the applicant submitted three affidavits, two of which were from the applicant's counsel at the arbitration. The respondent filed two responding affidavits by the respondent's counsel at the arbitration. In contrast to the affidavit evidence of the applicant, the respondent's evidence stated that the arbitrator listened to objections and made rulings appropriately. Although the applicant's evidence characterizes the arbitrator's conduct as shocking, it apparently was not sufficiently so for the applicant to bring it to the attention of the arbitrator on any of the three hearing days spread over a five-week period. It was also apparently not of sufficient concern for the applicant to raise the matter between the conclusion of the arbitration on December 14, 2001 and the release of her decision on January 16, 2002. Considering the evidence before us on this issue, we are not satisfied that the arbitrator breached a duty of fairness to the applicant during the hearing.
[8] As a second branch of the natural justice argument, the applicant asks the court to consider the arbitrator's factual findings cumulatively to establish a failure on her part to keep an open mind. This argument is more appropriately considered in the applicant's second submission about the absence of evidence to support the arbitrator's findings. The applicant's and respondent's affidavits also spoke to this issue. Parties are entitled to file affidavit material to support an argument that the arbitrator based her findings on an absence of evidence on an essential point: Re Keeprite Workers' Independent Union and Keeprite Products Ltd. (1980), 114 D.L.R. (3d) 162 (Ont. C.A.); Re Securicor Investigations & Security Ltd. and Ontario Labour Relations Board (1985), 50 O.R. (2d) 570 at 573 (Ont. Div. Ct.). The extensive affidavits filed, particularly those of the applicant, went well beyond adducing evidence to demonstrate unfair findings, a matter that we will address on the issue of costs.
[9] The filing of affidavit evidence from counsel before the arbitrator is not helpful to the court unless restricted to the narrow grounds of the relief sought, namely"no evidence" before the arbitrator, or "failure of natural justice". Affidavits that contain contested issues of fact and argument are not appropriate for the court to consider in an application for judicial review.
[10] Dealing with the "absence of evidence" argument, the applicant submitted that, considering cumulatively, the arbitrator both demonstrated a closed mind to the applicant's position and rendered a decision that was patently unreasonable. The applicant submits that the arbitrator based her decision on findings that Mr. Caroselli deliberately "bumped" Mr. Morasiewicz, that Mr. Morasiewicz was intimidated by Mr. Caroselli, that Mr. Caroselli had a history of bullying others and that he exercised his union position inappropriately. On the record, there was evidence before the arbitrator about the exchanges between the two employees during the morning in question and Mr. Caroselli's physically aggressive stance culminating in Mr. Morasiewicz' fall. There was also evidence about Mr. Caroselli's union position and the exchanges about reporting incidents to union representatives. The arbitrator accepted Mr. Morasiewicz' evidence. She did not accept Mr. Caroselli's evidence and gave clear reasons why she did not do so. During cross-examination, Mr. Caroselli denied any violation of the Code of Conduct, minimized the verbal exchanges leading up to the event, and blamed many of the events of the morning on Mr. Morasiewicz. The arbitrator found that Mr. Caroselli's physical approach to Mr. Morasiewicz was not accidental, that Mr. Caroselli did engage in bullying conduct, that his conduct was likely to recur in the future and that Mr. Morasiewicz showed "remarkable restraint" on August 9. Taking the record before her and the evidence as a whole, there was evidence upon which the arbitrator could make these findings. Further, the arbitrator is entitled to draw reasonable inferences from her factual findings. Accordingly, it cannot be said that there was no evidence to support the arbitrator's findings. There are no grounds to overturn the arbitrator's decision on this issue.
[11] On the third point, the arbitrator accepted that discharge is a severe penalty warranted only upon "the most serious misconduct". She appreciated that the purpose of discipline was to rehabilitate employees and give them an opportunity to regain the trust of their employer. The arbitrator also considered that for similar conduct after imposition of the Code of Conduct, the employer had given another employee only a five-day suspension. In that case, however, she also noted that at the time of the discipline for insubordination, the "management was unaware of any threat". On the facts of the case before her, on the other hand, she found verbally and physically aggressive behaviour. She noted that Mr. Caroselli did not demonstrate any admission of "his harassing and intimidating conduct, did not demonstrate true remorse and resolve not to do it again". Rather than showing any conciliatory behaviour after the incident, Mr. Caroselli "yelled at" and called the injured employee "a baby and a squealer". This, found the arbitrator, demonstrated "the opposite of remorse". It was Mr. Caroselli's failure to admit any wrongdoing, his minimizing of the event, his belief that it was Mr. Morasiewicz who should apologize, his "inconsistencies and fantasies" that identified a man who "would likely continue bullying people he doesn't like, in particular Mr. Morasiewicz". The arbitrator did not act on improper considerations or fail to consider mitigating circumstances. The arbitrator declined to exercise her remedial jurisdiction to impose a penalty less than discharge. The arbitrator has a broad discretion on remedy that is entitled to significant deference. Even if we disagreed with the arbitrator's disposition, she was entitled to reach the result she reached on the evidence before her.
[12] In the result, the application for judicial review is dismissed. On the question of costs, as noted, the applicant filed extensive affidavit evidence. It was not limited to stating facts to establish there was "no evidence" before the arbitrator or to define incidents where the arbitrator demonstrated a lack of appreciation for natural justice. The applicant's affidavits strayed well into the area of argument. Concern about such affidavits and the additional burden they place on a judicial review is reflected in our decision on costs. Costs are awarded to the respondent fixed at $6500 payable within 30 days.
BLAIR, R.S.J.
LANG, J.
C. CAMPBELL, J.
DATE: February 18, 2003