Hydro Ottawa Ltd. v. International Brotherhood of Electrical Workers, Local 636, 2005 CanLII 47753 (ON SCDC)

COURT FILE NO.: 04-DV-1039

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISONAL COURT)

RE: HYDRO OTTAWA LIMITED V. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 636

BEFORE: Brockenshire, Platana and Crane JJ.

COUNSEL: Jennifer E. Birrell, for the Applicant Daria Strachan, for the Respondent

HEARD: October 17, 2005 at Ottawa, Ontario

E N D O R S E M E N T

Brockenshire J.

1This application for judicial review was brought regarding one of a contemplated series of arbitral decisions relating to a general policy grievance on contracting out by Hydro Ottawa. The particular hearing resulting in the impugned decision was on the issue of whether two "contractors", one independent and one provided by an agency, were really employees of Hydro Ottawa.

2The Arbitrator found the independent "contractor" was a Hydro Ottawa employee; and found the Union had failed to meet the onus on it to prove that the other "contractor" provided by an agency, was a Hydro Ottawa employee and accordingly could only do work for Hydro Ottawa for a maximum of two weeks. Hydro Ottawa seeks judicial review of this latter decision.

3The person in question worked full time in the accounts payable section of the finance department of Hydro Ottawa from January 0f 2002 to September 5, 2003. He was paid by the outside agency. Before the factual decisions of the Arbitrator were delivered, the Union had argued that should the agency person be found not to be a Hydro Ottawa employee, the Arbitrator should find "by analogy" that article 6 of the Collective Agreement (which dealt with temporary work by employees) be applied to limit the work by such a worker to a two-week period. Counsel for Hydro Ottawa opposed that submission by Union counsel. The Arbitrator concluded his decision by finding that the arrangement between Hydro Ottawa and the contractor from the agency was "more in common with the assignment of bargaining work to a non-unit employee of Hydro Ottawa than with true contracting out". He then found that if this worker was in fact and in law employed by an agency, he could not work for Hydro Ottawa for more than two weeks.

4In our view, this finding amounts to a re-writing of article 6 of the Collective Agreement.

5The Collective Agreement creates a union shop, in which all employees of Hydro Ottawa below the rank of supervisor, (except for a few described key employees, casual employees, students and persons hired for less than 24 hours work) constitute the bargaining unit.

6Article 6 is the definition section of the Collective Agreement. It defines "casual employee" as a person hired for a period of two weeks or less for a particular job and/or in the case of an emergency. A "temporary employee" means a person hired for a specific period of time without the intent of continuous employment. Fundamental to the definition of both temporary and casual employees is that they are employees of Hydro Ottawa, hired by it. By definition, a temporary employee whose initial term of employment is two weeks or more is a member of the bargaining unit. Article 15 of the Collective Agreement specifically provides that temporary employees may be employed for up to six months, and may be extended for a period of an additional six months. They are on probation. Temporary employees are hired for more than two weeks. They become members of the bargaining unit upon appointment, but with limited rights. Casual employees, per article 6, are not members of the bargaining unit but are persons hired for a period of two weeks or less.

7Article 21 of the Collective Agreement specifically provides that:

"Hydro Ottawa may contract out work; however the performance of work by outside contractors will not cause the lay-off or demotion of any employee."

This section clear covers workers, whether self-employed or employed by an agency or other body, doing work for Hydro Ottawa while not in an employee – employer relationship with it. That Article speaks of "work", not "bargaining unit work", which latter term does not appear in the Collective Agreement.

8Article 21 does not prohibit the assignment of "bargaining unit work" to non-unit employees – in fact it specifically contemplates it by limiting such assignments to those not causing the "lay-off or demotion of any employee" and further providing that "an employee whose job is eliminated because of contracting out may request to be laid off".

9In our view, the Collective Agreement clearly provides for bargaining unit work being done by persons contracted by Hydro Ottawa and persons provided through contracts with an employment agency. In our view, the Arbitrator fell into error when, unable to define this particular worker as an employee, he decided that his position had "more in common with the assignment of bargaining unit work to non-unit employees of Hydro Ottawa than with true contracting out", leading to the conclusion that the Collective Agreement did not permit that person to be working for Hydro Ottawa for more than two weeks.

10The conclusion of the Arbitrator in effect amends the Collective Agreement by creating a third class of worker – a person who is "like" a bargaining unit employee. The Collective Agreement specifically provides in article 10.5.2 that:

"An arbitrator shall not have the power to add to or subtract from or otherwise change the provisions of this Collective Agreement."

In our view, the Arbitrator exceeded his jurisdiction. Clearly, if the terms and conditions of the Collective Agreement are to be amended, that is to occur through collective bargaining between the parties and not through an arbitral decision.

11The Arbitrator quoted from the decision of Arbitrator Sychuk in County of Athabasca v. Alberta Teachers' Association (1978), 19 L.A.C. (2d) 1 who wrote:

"It may be appropriate to comment as to the possible reasons why the arbitration jurisprudence to date does not reflect a trend on the part of arbitrators to imply terms in a collective agreement. It is a fundamental principle of law that an implied term cannot conflict with an express provision to the contrary."

12On the standard of review, we follow the pragmatic and functional approach mandated by the Supreme Court; apply the four tests and conclude that the decision of the Arbitrator here, in interpreting the Collective Agreement is to be accorded great deference. However where, as here, the Arbitrator exceeds his jurisdiction on a principle of law (paragraphs 10 and 11 herein) the standard of review is of lesser deference. We apply, without accepting, the standard of review in Ontario of an arbitrator's decision as patent unreasonableness, in accordance with the principles and analysis of the Ontario Court of Appeal in Teamsters' Union, Local 938 v. Lakeport Beverages,[2005] O.J. No. 2488.

13In our view, it was patently unreasonable for the Arbitrator, after quoting the law as above, to rule that a worker, not found to be hired by Hydro Ottawa and not an employee of Hydro Ottawa, could by some application of "implication" belong to a class specifically limited to employees. This conclusion was made without considering, and somehow interpreting, the wording of article 21 of the Collective Agreement (which specifically authorizes the contracting out of work) so as to be consistent with the wording of Article 6 and of the entire Collective Agreement. Without such an interpretation, Article 21 is an express provision to the contrary of the Arbitrator's decision.

14This application is granted and the decision of the Arbitrator is quashed and the award set aside.

15Costs, as agreed between counsel, to the applicant in the amount of $5,000.

Brockenshire J.

Platana J.

Crane J.

DATE: December 22, 2005

COURT FILE NO.: 04-DV-1039

SUPERIOR COURT OF JUSTICE ONTARIO

(DIVISONAL COURT)

RE: HYDRO OTTAWA LIMITED V. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 636