COURT FILE NO.: 153/05

DATE: 20060330

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

GRAVELY, JARVIS AND WILSON JJ.

B E T W E E N:

BILTRITE RUBBER (1984) INC.

Applicant

• and -

UNITED STEEL WORKERS OF AMERICA, LOCAL 526

Respondent

David I. Wakely and Melanie D. McNaught, for the Applicant

Paula Turtle, for the Respondent

HEARD at Toronto: March 30, 2006

WILSON J.: (Orally)

NATURE OF PROCEEDING

1The applicant, Biltrite Rubber (1984) Inc., seeks judicial review of the decision of the Arbitrator Stanley Schiff, dated February 9, 2005. In that decision, the Arbitrator determined that the applicant lacked just cause to suspend the grievor, Courtney Mortlock. The Arbitrator reversed the two week disciplinary suspension that the applicant had imposed upon the grievor.

BACKGROUND

2The applicant, Biltrite, manufactures rubber products used by the automotive, mining and textile industries. The respondent Union represents approximately 130 of Biltrite’s employees at its Etobicoke plant.

3Biltrite has a policy of zero tolerance for workplace violence or any conduct that could reasonably lead to violence. A notice of this policy was issued to all employees with their pay cheques on April 15, 2003.

4I turn to consider this incident. The grievor is a lineman who works on the conveyor belt. The day before the incident the grievor complained to his supervisor that the mixer, who is located some three stories above him, was making it difficult for the grievor to take a break. The supervisor spoke to the mixer and the reporting of the incident to the mixer angered him.

5With respect to the incident that transpired the next day, the Arbitrator believed the grievor that he did not make obscene gestures when trying to communicate with the mixer, nor did he climb to the stairs to have a fight with the mixer.

6After a verbal exchange, the mixer pushed the grievor in the chest while the grievor was still on the stairs. The grievor was holding onto the stairs and did not fall. The grievor alleges that the mixer pointed a knife at the grievor’s chest and threatened to kill him. The pulling of the knife was confirmed by an independent third party. The grievor then retreated down the stairs.

7Biltrite’s production manager investigated the matter and decided to suspend both employees for two weeks. He had gathered written and signed incident reports from the relevant witnesses.

8The Notice of Suspension states as follows in part:

“On September 2, 2004, afternoon shift, you were involved in a fight with Paul Turner in the plant. This is in direct violation of the Collective Agreement, Article XII, 12:04 #1, #7 and #12.”

9The hearing on the grievor’s suspension took place before the Arbitrator on January 27, 2005. In that hearing the production manager and the grievor testified. The written incident reports were introduced at the hearing through the evidence of the production manager on behalf of the applicant. The Union did not object to the admissibility of these reports at any time. The Arbitrator admitted these reports for the truth of their contents. The grievor testified in person.

10The Arbitrator allowed the grievance. The Arbitrator found that the grievor was not involved in a fight and thus Biltrite did not have just cause to impose any discipline against him.

THIS COURT’S JURISDICTION

11Pursuant to s.21 of the Judicial Review Procedure Act, R.S.O. 1990, c.J-1, the Divisional Court has jurisdiction to grant the relief that the applicant requests.

STANDARD OF REVIEW

12The Ontario Court of Appeal has upheld the standard of patent unreasonableness for decisions made by Labour Arbitrators acting under the Ontario Labour Relations Act in Teamsters Union, Local 938 v. Lakeport Beverages, a Division of Lakeport Brewing Corp., 2005 29339 (ON CA), [2005] O.J. No. 3488 (C.A.). The Ontario Court of Appeal considered the Supreme Court of Canada decision in Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92 (2004), 2004 SCC 23, 1 S.C.R. 609, which considered comparable Alberta legislation. Our Court of Appeal distinguished the Voice Construction case, and concluded that the appropriate test for judicial review is that of patent unreasonableness. The parties do not disagree that this is the correct test in law, and we therefore proceed on that basis.

THE ISSUES

12The following sections are in issue:

(i) Did the Arbitrator err in finding that the grievor had not been involved in a fight?

(ii) Did the Arbitrator err in finding that Biltrite had no just cause for discipline?

(iii) Did the Arbitrator fail to properly consider all of the evidence?

(iv) Did the Arbitrator deny Biltrite procedural fairness?

CONCLUSIONS

13(i) We conclude that the Arbitrator did not err in concluding that the griever had not been involved in a fight. He accepted the evidence of the grievor on this issue. This factual finding and the interpretation of fight to include a physical element is supportable in the context.

(ii) We conclude that the Arbitrator did not err in finding that Biltrite had no just cause for discipline. The Notice of Suspension enumerated a single basis for discipline, that is, fighting. We note that the Notice confirms that fighting is in breach of three provisions of the Collective Agreement, that is, Clause 12:04, #1, #7 and #12, violation of safety, disorderly conduct and endangering his life or that of a fellow employee. The Arbitrator concluded after considering the evidence that the grievor had not been in a fight. The focus of the hearing before him was the role played by the grievor and whether or not his role in that incident constituted a fight.

The Arbitrator declined to find that the grievor was guilty of disorderly conduct.

The approach of the Arbitrator conforms with the principles enunciated in the decision Re United Steelworkers of America and Aerocide Dispensers Ltd. (1965), 1965 980 (ON LA), 15 L.A.C. 416. Cause should not be reformed into something different if the evidence presented does not support the cause alleged. I refer to page 427 of the decision:

“The board is justified in a case of challenged discharge to hold the employer fairly strictly to the grounds upon which it has chosen to act against an employee who consequently feels himself aggrieved. This is not to say that the board should be overly technical in assessing an assigned cause of discharge but it does mean that it ought not to permit an assigned cause to be reformed into one different from it merely because the evidence does not support the assigned cause but rather one something like it.” [emphasis added]

(iii) The applicant objects to the Arbitrator’s findings of fact wherein he preferred the viva voce evidence of the grievor to the written statements of fellow Union representatives filed. The applicant suggests that it would be rare in labour cases to require “Union brothers to testify against brothers”. That may be the case however, the applicant company may choose to file statements as they wish or may choose to call viva voce evidence when the facts are in dispute.

We conclude, in this case, that the Arbitrator properly considered the evidence before him. On the disputed facts, he was entitled to accept the viva voce evidence of the grievor who had been subject to cross-examination in preference to the written statements filed on behalf of the applicant. Preferring the viva voce evidence on the disputed facts to the filed statements was not a denial of procedural fairness.

14We therefore conclude that the applicant has failed to establish that any aspects of the Arbitrator’s decision breached the relevant standard for judicial review. For these reasons, the request for judicial review of the Arbitrator’s decision is dismissed. Costs are fixed at $4,000.00, payable by the applicant to the respondent.

GRAVELY J.

JARVIS J.

WILSON J.

Date of Reasons for Judgment: March 30, 2006

Date of Release: April 5, 2006

COURT FILE NO.: 153/05

DATE: 20060330

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT