COURT FILE NO.: 111/06 and 112/06
DATE: 20061207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, LOFCHIK AND sWINTON JJ.
COURT FILE NO. : 111/06
B E T W E E N:
DURHAM REGIONAL POLICE ASSOCIATION
Applicant
- and -
REGIONAL MUNICIPALITY OF DURHAM POLICE SERVICES BOARD and OWEN B. SHIME, ARBITRATOR
Respondents
Joshua Phillips, for the Applicant
Glenn P. Christie and Sean M. Sells, for the Respondent Police Services Board
BETWEEN:
DURHAM REGIONAL POLICE ASSOCIATION
Applicant
- and -
REGIONAL MUNICIPALITY OF DURHAM POLICE SERVICES BOARD, ONTARIO POLICE ARBITRATION COMMISSION and THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES
Respondents
COURT FILE NO.: 112/06
Joshua Phillips, for the Applicant
Glenn P. Christie and Sean M. Sells, for the Respondent Police Services Board
Christopher P. Thompson, for the Commission
HEARD at Toronto: November 7, 2006
SWINTON J.:
[1] The applicant Durham Regional Police Association (“the Association”) seeks judicial review of the September 15, 2005 arbitration award of Arbitrator Owen B. Shime, as well as the December 1, 2005 decision of the Ontario Police Arbitration Commission that the Minister of Community Safety and Correctional Services did not have authority to appoint a conciliation officer.
Background Facts
[2] The Association and the Regional Municipality of Durham Police Services Board (“the Board”) signed a Memorandum of Understanding (“MOU”) dated July 22, 2004 in respect of the renewal of the Uniform and Civilian collective agreements. Article 7(a) provided for a Police Seniority Premium to be paid on the basis of a specified number of years of “continuous active service”. The article also stated “Note: ‘Continuous Active Service’ will be jointly defined in the Collective Agreement”.
[3] On October 12, 2004, the Association grieved the Board’s unwillingness to recognize time served as a police cadet in the calculation of “continuous active service” for the purposes of the Premium.
[4] On October 19, 2004, the parties entered into an Addendum to the MOU that defined “Continuous Active Service”, excluding “those being grieved on October 12, 2004” by the Association. The definition included maternity/parental leave, secondments, and leave due to sickness or injury. However, no mention is made of service as a cadet.
[5] The arbitrator dismissed the grievance, stating that the parties had not yet finally determined the meaning of “continuous active service”. He refused the invitation of the Association to give a basic meaning to the term, stating that were he to do so, he would be defining the term for the parties, rather than interpreting it. At p. 5 of the award, he stated:
By including cadet service, I would be defining a term, which the parties themselves have not yet defined, and not interpreting the term which is my only mandate. In all of these circumstances, I am unable to ascertain the intent of the parties since the parties have not as yet expressed that intent and therefore I do not have jurisdiction to define the term.
[6] While the Association invited the arbitrator to act as an interest arbitrator, he refused to do so, on the grounds that he had been appointed to adjudicate a grievance.
[7] Subsequently, the Association asked the Ontario Police Arbitration Commission to appoint a conciliation officer to resolve an interest dispute pursuant to s. 121 of the Police Services Act, R.S.O. 1990, c. P.15 (“the Act”). Section 121(1) states:
The Solicitor General shall appoint a conciliation officer, at a party’s request, if a notice of desire to bargain has been given.
[8] Section 119(1) deals with the giving of a notice of desire to bargain:
If no agreement exists or at any time after ninety days before an agreement would expire but for subsection 129(1) or (2), a majority of the members of a police force may give the board notice in writing of their desire to bargain with a view to making an agreement, renewing the existing agreement, with or without modifications, or making a new agreement.
Following a notice to bargain, the board is obligated to meet with the bargaining committee of the association and to bargain in good faith and make every reasonable effort to reach an agreement.
[9] The Commission administers the conciliation and mediation-arbitration process under the Act. Its general responsibilities are set out in s. 131(5) of the Act and include maintaining a register of arbitrators available for appointment under s. 124, assisting arbitrators by making administrative arrangements, fixing the fees of arbitrators appointed under s. 124, and sponsoring publication and distribution of information about awards and agreements. While conciliation officers are appointed by the Minister, the Commission administers their appointment under the Act.
[10] The Commission refused the Association’s request on December 1, 2005, stating:
… it is our opinion that the Minister does not have the authority to make the requested appointment. The request for conciliation does not relate to the renewal of the current collective agreement that expires on December 31, 2005 but rather to certain terms that were agreed to during negotiations and finalized in a Memorandum of Settlement and are, therefore, not covered by Section 121 of the Act.
The Issues
[11] There are four issues in these two applications:
The appropriate standard of review of the arbitration award;
The appropriate standard of review of the decision of the Commission;
Whether the arbitration award was patently unreasonable; and
Whether the Commission’s decision was unreasonable.
Issue No. 1: The Standard of Review of the Arbitration Award
[12] The Association submits that the standard of review is reasonableness, while the Board submits that the standard is patent unreasonableness.
[13] To determine the appropriate standard of review, a court must apply the pragmatic and functional approach and consider four factors: the presence or absence of a privative clause, the expertise of the tribunal relative to that of the reviewing court on the issue in question, the purposes of the legislation and the provision in particular, and the nature of the question (College of Physicians and Surgeons of British Columbia v. Dr. Q, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 26).
[14] Section 128 of the Act provides that awards under Part VIII “bind the board and the members of the police force”. While this is a weak privative clause, it suggests some deference by the courts.
[15] Most important here is the expertise of the arbitrator. The arbitrator, appointed under a special labour relations regime under the Act, has specialized expertise in police labour relations. Moreover, in determining this grievance, the arbitrator was required to interpret and apply the collective agreement. This is the primary role of the arbitrator. Therefore, considerable curial deference is warranted (Voice Construction Ltd. v. Construction and General Workers’ Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609 at paras. 27, 29).
[16] The purpose of the arbitration provisions in the Act is to create a labour relations scheme that provides easy access to arbitration. While the Association submits that the question before the arbitrator was jurisdictional in nature, the issue was whether the grievance raised a question that was arbitrable under the parties’ collective agreement. To resolve that dispute, the arbitrator was required to interpret the provisions of the collective agreement. On a matter of arbitrability, the Supreme Court of Canada has held that the standard of review is patent unreasonableness (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 (2003), 2003 SCC 42, 230 D.L.R. (4th) 257 (S.C.C.) at p. 267).
[17] When all these factors are considered, it is apparent that considerable deference is owed to the arbitrator. In Lakeport Beverages v. Teamsters Local Union 938 (2005), 2005 29339 (ON CA), 77 O.R. (3d) 543, the Court of Appeal held that patent unreasonableness is the standard of review of an arbitrator’s decision interpreting a collective agreement. Lakeport was decided under the Labour Relations Act, 1995, S.O. 1995, c. 1, which has a stronger privative clause than that found in the Police Services Act. Nevertheless, the factors of arbitral expertise, the legislative purpose and the nature of the question lead me to conclude that the same standard of patent unreasonableness is to be applied in the review of an award of an arbitrator appointed under the Police Services Act when the arbitrator is interpreting a collective agreement.
Issue No. 2: The Standard of Review of the Commission’s Decision
[18] The Applicant submits that the standard of review is correctness, while the Board submits that it is reasonableness.
[19] There is no privative clause. However, the Commission is a tribunal with specialized knowledge of police labour relations. It is composed of representatives of both police boards and police associations, and the Minister appoints the chair only after consultation with both police boards and police associations. The purpose of the conciliation and interest arbitration provisions of the Act is to create a system for the resolution of labour relations disputes in an effective and the least disruptive manner. Finally, the determination whether there is a basis to justify the appointment of a conciliation officer is a question of mixed fact and law. All these factors taken together suggest some deference to the decision of the Commission. Therefore, the standard of review is reasonableness.
Issue No. 3: Was the Arbitration Award Patently Unreasonable?
[20] The standard of patent unreasonableness is a very strict one. A decision will be held to be patently unreasonable only if it is “clearly irrational” and evidently not in accordance with reason (Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941 at paras. 44-46)
[21] In order to determine whether cadet service formed part of “continuous active service” for the purposes of the Premium, the arbitrator had to determine whether the grievance was arbitrable.
[22] The terms of the MOU stated that the parties would jointly define “Continuous Active Service”. The parties’ Addendum of October 19, 2004 defined “continuous active service” without reference to cadet service.
[23] The arbitrator stated that his role was to interpret the collective agreement that the parties had reached by looking for the intent of the parties. His conclusion that he had no jurisdiction to define “continuous active service” was not patently unreasonable, given the clear wording of the Memorandum of Understanding. Indeed, the decision was a reasonable one. Therefore, the application for judicial review of the arbitration award is dismissed.
Issue No. 4: Was the Commission’s Decision Unreasonable?
[24] In order for the Minister to appoint a conciliation officer under s. 121 of the Act, there must be a notice of desire to bargain under s. 119(1) of the Act. The Association relied on the notice provided on September 11, 2003. However, this notice was related to the collective agreement which expired on December 31, 2003. Subsequent to that notice, the parties entered into an MOU on July 22, 2004. Therefore, the September 11, 2003 notice is spent, and s. 119(1) is not satisfied.
[25] Furthermore, the role of the conciliation officer is to confer with the parties and endeavour to effect an agreement (s. 121(2)). Here, there already is a valid collective agreement in effect between the parties.
[26] The Association relied on Re Kenora Police Services Board and Kenora Police Assn. (2001), 2001 61982 (ON LA), 102 L.A.C. (4th) 439 (Knopf). In that case, the parties had reached an agreement which contained a provision that failing an agreement on severance benefits by a specified date, the matter was subject to arbitration as provided in the Act. In her reasons, the arbitrator stated (at p. 447):
Therefore, it must be concluded that the parties in this case were able to resolve all the issues in dispute during their bargaining except for the specific terms of what severance benefit should be in place in their collective agreement. They retained some leeway for themselves to try to resolve this, but also agreed to refer the issue to arbitration under the Act in the event that resolution could not be reached within the time they allotted to themselves. In essence, the terms of the severance provision remained in dispute after bargaining and are therefore arbitrable under s. 122 of the Act.
[27] That case is distinguishable from the present one. While the parties in this case agreed to negotiate a definition of “continuous active service”, they did not agree to refer the matter to arbitration if they could not agree. Moreover, on October 19, 2004, they reached an agreement on a definition, although without reaching a consensus to include cadet service.
[28] The Commission was acting within its jurisdiction when it determined whether a conciliation officer should be appointed under s. 121 of the Act. It reasonably decided that a conciliation officer should not be appointed, given that a collective agreement was in effect and no notice of a desire to bargain had been given by the Association for that agreement. Therefore, the application for judicial review is dismissed.
Conclusion
[29] Both applications for judicial review are dismissed. The Commission does not seek costs, and none are awarded to it. Costs to the Board are fixed at $5,000.00 payable by the Association.
Swinton J.
Chapnik J.
Lofchik J.
Released: December , 2006
COURT FILE NO: 111/06 and 112/06
DATE: 20061207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
COURT FILE NO: 111/06
B E T W E E N:
DURHAM REGIONAL POLICE ASSOCIATION
Applicant
- and -
REGIONAL MUNICIPALITY OF DURHAM POLICE SERVICES BOARD and OWEN B. SHIME, ARBITRATOR
Respondents
COURT FILE NO: 112/06
B E T W E E N:
DURHAM REGIONAL POLICE ASSOCIATION
Applicant
- and -
REGIONAL MUNICIPALITY OF DURHAM POLICE SERVICES BOARD, ONTARIO POLICE ARBITRATION COMMISSION and THE MINISTRY OF COMMUNITY SAFETY AND CORRECTIONAL SERVICES
Respondents
REASONS FOR JUDGMENT
SWINTON J.
Released: December 7, 2006