DIVISIONAL COURT FILE NO.: 118/05

DATE: 20060220

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, JENNINGS AND LAX JJ.

B E T W E E N:

SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION, LOCAL 47

Jerry Rasso, for the Applicant

Applicant

• and -

ONTARIO SHEET METAL AND AIR HANDLING GROUP

Michael Kerr, for the Respondent

Respondent

HEARD at Toronto: January 24, 2006

LAX J.:

ENDORSEMENT

1This is an application for judicial review of an award of an arbitrator dated February 24, 2005 denying a grievance that turns on the interpretation of a collective agreement. The applicant is one of ten local unions represented by the Sheet Metal Workers’ International Association and the Ontario Sheet Metal Workers’ and Roofers Conference. The respondent represents the companies across Ontario who employ sheet metal workers. The effect of the arbitrator’s award is to deny the members of the local union in Ottawa the provincially negotiated increase for room and board under the collective agreement.

2The parties are agreed and we accept that where Ontario labour arbitrators are called on to interpret provisions of a collective agreement, their decisions are reviewed on a standard of patent unreasonableness.

3The collective agreement consists of two parts; (1) a general part that applies to all ten local unions province-wide; and (2) separate local union appendices that specifically apply to each local union. Appendix E of the collective agreement applies to the local union in Ottawa.

4The collective agreement is negotiated in two stages. First, the local union representatives engage in negotiations with the local employers for their own respective appendices. Second, a full committee of the local union representatives negotiates on a provincial level.

5In March 2004, the local union in Ottawa entered into a Letter of Understanding with the Ottawa Mechanical Contractors Association respecting Appendix E for the period May 1, 2004 to April 30, 2007. The previous Appendix E stated: “Room and Board shall be paid for at $75.00 per day worked for each day reported for work”. The previous collective agreement provided that the room and board allowance negotiated provincially would not apply to the local union in Ottawa. The March 2004 Letter of Understanding amended the previous Appendix E only in relation to the amount to be paid for parking and states: “Both parties agree that all other clauses in Appendix “E” shall remain status quo.”

6In April 2004, the representatives of the local unions and the group representing the employers entered into a Memorandum of Settlement renewing the provincial collective agreement. Pages 6 to 7 of the collective agreement address “Monetary Items” and include an increased amount of $2.50 for room and board (referred to as “Board Allowance”) in each year of the three-year agreement. The Board Allowance clause on page 7 provides: “Any change of board allowance is not applicable to areas that have already negotiated increases to local appendices notwithstanding any agreed equalization payment”. (emphasis added).

7The Memorandum of Settlement provides in clause 4:

The parties herein agree that the said collective agreement shall include the terms of the previous collective agreement which expires on April 30, 2004 provided, however, that the following amendments are incorporated:

a) All local appendix issues settled and agreed to by the parties prior to the date hereof.

b) …

c) Monetary items, attached hereto. Pages 6 to 7 inclusive.

8The arbitrator states at p. 6 of the award:

… Were it not for the explicit provisions of clause 4(a), and of the letter of understanding made in respect of Appendix “E” then it would have appeared that the $2.50 annual increase negotiated in the provincial agreement would apply to the area of Appendix “E”. The provisions and effect of clause 4(a), are however, clear, as I have said and certainly the “later clause” (clause 4(c) of the memorandum of settlement) does not “clearly spell out” that it is intended to override the specific provisions of the local agreement, incorporated in the collective agreement by clause 4(a) of the memorandum.

9In our view, the arbitrator interpreted the Memorandum of Settlement contrary to its plain words. It gave all members of the union the provincially negotiated increase in Board Allowance unless the local union had already negotiated an increase that applied to a local area. The local union in Ottawa had not negotiated any increase from the previous collective agreement and its members were therefore entitled to the increase of $2.50 that applied provincially.

10The arbitrator recognized that he was to determine the real intention of the parties. In the paragraph immediately preceding the passage that is referred to above, the arbitrator rejected the proposition that more importance should be given to clause 4(a) because it comes first, but he then appears to have interpreted the agreement in this way. He amended the collective agreement by failing to give any meaning to the language of the Board Allowance provision on page 7, which, by virtue of clause 4(c) is incorporated into the collective agreement.

11These errors in interpretation produced a result that is patently unreasonable: see, Teamsters Union, Local 938 v. Lakeport Beverages, a Division of Lakeport Brewing Corporation, (2005), 2005 29339 (ON CA), 258 D.L.R. (4th) 10 (Ont. C.A.) at p. 21; [2005] O.J. No. 3488 (C.A.) (QL) at para. 41.

12The award of the arbitrator is quashed. The parties have agreed to costs of $5,000, which are to be paid to the applicant within 30 days.

Lax J.

O’Driscoll J.

Jennings J.