SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: The Ottawa Citizen (a division of Southam Inc.) (Applicant) v. Ottawa Newspaper Guild (Local 30205 of the Newspaper Guild – IWA) and David K.L. Starkman (Respondents)
BEFORE: MacFarland, Then and Caputo JJ.
COUNSEL: Michael A. Hines, for the Applicant
Dougald E. Brown, for the Respondents
HEARD: January 22, 2004
E N D O R S E M E N T
1This is an application for judicial review of the arbitration award of David Starkman.
2The Respondent, Joyce, was a columnist employed full time in the Editorial Department who was laid off for economic reasons and then exercised his seniority to bump into a reporter position at a lower rate of pay. The arbitrator found as a fact that the employer continued to use freelance columnists and freelance reporters and that the continued use of freelancers violated the plain wording of Article 14.6.1 of the Collective Agreement which provides:
14.6.1 It is recognized that the Publisher may use freelancers and contributors, but such use shall not be to the financial detriment of Editorial employees.
3Before the arbitrator the union had argued that there was evidence before him from which he could find that after the Respondent had been laid off the employer used freelancers to write the type of stories which the Respondent would have written. However, the arbitrator did not make a finding of fact in this regard but interpreted what he considered to be the “clear and straightforward” language of article 14.6.1 very broadly concluding as follows:
Mr. Joyce was an editorial employee. Following his layoff, the Employer continued to use freelancers and contributors, and to the extent that, as a reporter, Mr. Joyce was being paid at a lower rate of pay, the continued use of such freelancers and contributors was, and continues to be, to his detriment. To that extent I am satisfied the Employer is in violation of article 14.6.1 of the Collective Agreement.
4It is common ground that the standard of review is patent unreasonableness.
5Counsel for the Union before us submitted that article 14.6.1 is evidently aimed at providing job security to permanent employees and that the interpretation of Arbitrator Starkman which gives effect to the plain meaning of the article and which affords priority to the financial interests of permanent employees over freelancers is not unreasonable.
6Counsel for the Employer submits that the broad interpretation given by the arbitrator requires the employer in the extreme example to potentially sacrifice all of its freelance columnists and reporters to protect the hours of work of each and every member of the Editorial Department staff notwithstanding that these persons do not write as columnists or reporters (category E-2 and E-3 employees) but includes such editorial employees as photographers, photo technicians or even messengers (category E-4 to E-10 employees). This interpretation, the employer submits, leads to an absurd result in the context of the accepted practice in the industry.
7While the precise factual context to which Mr. Hines referred in his submission was not before the arbitrator, Mr. Hines’ argument is nevertheless a reasonable one and his interpretation that article 14.6.1 refers only to circumstances where freelancers perform the specific duties of full time editorial staff makes common sense. However, article 14.6.1 does not specifically contain such a limitation.
8Despite Mr. Hines’ very able argument we are not persuaded that the language of article 14.6.1 cannot bear the meaning given to it by Arbitrator Starkman. The standard of review is a high one and before this court can intervene the decision of the arbitrator must be patently unreasonable. In our view, the interpretation of Arbitrator Starkman of article 14.6.1, based on the plain meaning of the words, is not clearly irrational.
9In so stating we should not be taken as agreeing with the interpretation of Arbitrator Starkman nor should we be taken as holding that another arbitrator would not come to a different conclusion. In this respect we note the difference outlined between courts and tribunals by Iacobucci J. in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 at para. 14:
…Courts must decide cases according to the law and are bound by stare decisis. By contrast, tribunals are not so constrained. When acting within their jurisdiction, they may solve the conflict before them in the way judged to be most appropriate. In labour arbitration, the arbitrator is not bound to follow the decisions of other arbitrators, even when similar circumstances arise.
10In our view, while the decision of Arbitrator Starkman is of limited precedential value even in the factual context in which it was rendered, it remains open to another arbitrator to interpret article 14.6.1 differently, within the standard of patent unreasonableness, if an editorial department employee within the categories E-4 – E-10 seeks to rely on article 14.6.1 of the Collective Agreement.
11Accordingly, for these reasons the application is dismissed.
12If the parties cannot agree as to costs, brief written submissions may be made within 30 days of the receipt of this endorsement.
MacFarland J.
Then J.
Caputo J.
DATE: February 2004