Court File and Parties

COURT FILE NO.: 426/06

DATE: 20070214

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, HOWDEN AND HIMEL JJ.

B E T W E E N:

THE CROWN IN RIGHT OF ONTARIO (LIQUOR CONTROL BOARD OF ONTARIO) Applicant

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ONTARIO PUBLIC SERVICE EMPLOYEES UNION- LIQUOR BOARD EMPLOYEES DIVISION Respondent

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CROWN EMPLOYEES GRIEVANCE SETTLEMENT BOARD Respondent

COUNSEL:

John D.R. Craig and Stephanie Montgomery-Graham, for the Applicant

Ron Lebi, for the Respondent, Ontario Public Service Employees Union-Liquor Board Employees Division

HEARD AT Toronto: February 14, 2007

ENDORSEMENT

BY THE COURT: (Orally)

[1] On June 22, 2005, the grievor allegedly physically assaulted another employee (the complainant) at the Liquor Control Board of Ontario’s London, Ontario warehouse.

[2] The parties submitted an Agreed Statement of Facts for the purpose of the union’s preliminary objection before the Grievance Settlement Board:

“The Grievor received a four day suspension as a result of an altercation between himself and a co-worker (the complainant) in which the Grievor is alleged to have pushed the complainant into some metal racking. The alleged incident occurred at approximately 5 p.m. on June 22, 2005 and was immediately reported by the complainant to Brian Munroe [sic], Afternoon Shift Supervisor. Mr. Munroe immediately obtained written statements from the complainant and two witnesses, Mike Wilson and Ted Proctor. The complainant wanted to pursue criminal charges against the Grievor and therefore, after Mr. Munroe had obtained the above-noted statements, the complainant called the police to the facility.

A Police officer attended at the facility at approximately 6:30 p.m. The officer first met with the complainant. Mr. Munroe was in the room during this meeting. After finishing with the complainant, the officer asked Mr. Munroe to summon the Grievor so that the officer could speak with him. Mr. Munroe did so and Mr. Munroe also remained in the room while the officer met with the Grievor. The Grievor was not notified in advance of the meeting or its purpose and there was no union representative at the meeting. He was also not advised that he had a right to union representation.

Rob Cote, the General Manager of the facility, made the decision to impose the 4-day suspension on the Grievor. On June 25, 2005, Mr. Cote received a written statement from the complainant. In making his decision to suspend the Grievor for four days, Mr. Cote relied on that statement and the other three statements referred to above (i.e. those obtained immediately after the incident from the complainant, Mr. Wilson and Mr. Proctor).”

[3] The union brought a grievance challenging the discipline imposed by the LCBO. By way of preliminary objection, the union alleged a violation of Article 26.3 of the Collective Agreement arising from the police interview of the grievor.

[4] Article 26.3 of the Collective Agreement provides:

“An employee who is required to attend a meeting for the purpose of discussing a matter which may result in disciplinary action being taken against the employee shall be made aware of the purpose of the meeting and his/her right to Union Representation in advance of the meeting. The employee shall be entitled to have a Union representative at such meeting provided this does not result in undue delay.”

[5] In response to the preliminary objection, the LCBO agreed that it had neither apprised the grievor of the purpose of the meeting nor of his right to union representation at the meeting. However, the LCBO took the position that Article 26.3 was not violated since the provision would not apply to a meeting initiated and run by a third party such as the police.

[6] The hearing before the GSB took place on February 6, 2006. The GSB noted that there was a conflict between the LCBO and the union in respect of the impact of the police interview on the LCBO’s decision to discipline the grievor. The LCBO called Mr. Munroe and Mr. Cote as witnesses. They testified that there was no discussion between them about what was said at the police interview, except that Mr. Munroe reported to Mr. Cote that the police had decided not to lay charges against the grievor. The union took the position that this was not credible. The GSB ruled that it did not need to resolve the conflict between the parties since it was irrelevant whether or not the grievor was actually prejudiced by what took place during the police interview.

[7] The GSB held that the interview initiated by the police in response to the complainant’s call to investigate a crime was a meeting within the scope of Article of 26.3, since a representative of the LCBO was present during the police interview. The LCBO, therefore, should have made the grievor aware of the purpose of the police interview and the right to have union representation at the police interview. In failing to do so, the LCBO violated Article 26.3. As a result, the GSB held that the four day suspension imposed on the grievor by the LCBO was void ab initio.

ISSUES

[8] There are three principle issues in this application for judicial review:

(i) What is the appropriate standard of review?

(ii) Is the decision of the GSB reviewable in light of the appropriate standard?

(iii) Does the GSB’s application of the remedy of automatic voiding constitute a reversible error?

[9] The GSB concluded that Article 26.3 applied. The LCBO asks this Court for an order in the nature of certiorari setting aside the GSB’s decision and an order remitting the grievance back to the GSB with a direction that the grievance be denied or considered anew in accordance with the Court’s reasons. The union takes the position that the GSB’s decision should stand.

STANDARD OF REVIEW

[10] It is necessary to apply the test and consider the factors as set out by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship & Immigration), [1998] 1 S.C.R. 982 and Dr. Q. v. College of Physicians and Surgeons of British Columbia 2003 SCC 19, [2003] 1 S.C.R. 226.

[11] Where labour tribunals are called upon to interpret or apply a collective agreement under the umbrella of a “final and binding” clause, a reviewing court can only intervene in the case of a patently unreasonable error. The patently unreasonable standard continues to apply to labour arbitrators protected by a “final and binding” clause when engaged in the task of interpreting and applying the terms of a collective agreement: see Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454, [1998] S.C.J. No. 47; Teamsters Union Local 938 v. Lakeport Beverages, [2005] O.J. No. 3488 (C.A.); C.A.W.- Canada, Local 27 v. London Machinery Inc., [2006] O.J. No. 1087 (C.A.).

[12] Here, all of the relevant factors point to the patently unreasonable standard: The Board’s decision enjoys privative protection under the Crown Employees Collective Bargaining Act and is not subject to appeal; the issue before the Board was uniquely a labour law problem and one that required the Board to draw on its expertise in interpreting the Collective Agreement and applying established labour law principles; the purpose behind the statutory grant of jurisdiction in respect of collective agreement disputes is to provide for the speedy resolution of disputes with minimal judicial intervention; and the nature of the question before the Board is one of mixed fact and law. The question before the Board goes to the core of the Board’s expertise.

[13] In our view, the standard of review in this case is that of patent unreasonableness.

[14] The patently unreasonable test is a strict one that sets a high standard of review. If the Board’s decision is not “clearly irrational”, that is to say, “evidently not in accordance with reason” then it cannot be said that there was a loss of jurisdiction: see Attorney General of Canada v. Public Service Alliance of Canada (1993), 1 S.C.R. 941. As noted in this case, it is not enough that the decision of the Board is wrong in the eyes of the Court; it must, in order to be patently unreasonable, be found by the Court to be “clearly irrational”.

[15] “A definition of patently unreasonable is difficult, but it may be said that the result must almost border on the absurd”: see Voice Construction Ltd. v. Construction & General Workers’ Union Local 92 2004 SCC 23, [2004] S.C.J. No.2 ; Teamsters Union Local 938 v. Lakeport Beverages, supra.

[16] A decision is not patently unreasonable because it is “difficult to swallow”, nor is it so because an arbitrator could have approached the matter differently and arrived at what some would consider to be a more palatable and sensible result. The fact that a reviewing Court considers a decision to be incorrect or even unreasonable is of no moment. Rather, a patently unreasonable decision is one that is “so flawed that no amount of curial deference can justify letting it stand”: see Canada Post Corporation v. Canada Union of Postal Workers, [2001] O.J. No. 4412 (C.A.); Law Society of New Brunswick v. Ryan 2003 SCC 20, [2003] S.C.J. No. 17.

WAS THE DECISION THAT THE AGREEMENT WAS BREACHED PATENTLY UNREASONABLE?

[17] The GSB concluded that Article 26.3 applied. The Board held that it did not matter that the meeting was initiated or controlled by a third party, the police officer. The supervisor was present at the meeting, the meeting was related to the altercation between the grievor and the complainant and there was the potential that inculpatory statements might be elicited or volunteered. It is not necessary to show that prejudicial information was actually obtained from the meeting. It is not necessary to show that the meeting was part of the employer’s formal investigation or disciplinary procedure. The Board held that the grievor was entitled to be informed of his right to have union representation.

[18] The Board held:

“As a result, I conclude that the meeting between the police officer, Mr. Munroe, and the grievor, was one that attracted the protection of Art. 26.3, and I find that the employer failed to extend the protections of that provision to the grievor, by failing to advise him in advance about the purpose of the meeting, and about his right to have a union representative attend with him.”

[19] In our view, the Board’s interpretation and application of Article 26.3 of the Collective Agreement is not patently unreasonable.

WAS THE APPLICATION BY THE GSB OF THE REMEDY OF AUTOMATIC VOIDING PATENTLY UNREASONABLE?

[20] The Board applied a precedent which has been long-standing with the Lahay, GSB No. 809/94 decision in 1995. That decision has been followed in cases between the same parties and involving collective agreements containing the same language, as in the case at bar.

[21] In interpreting the agreement, where there has been a consensus developed with respect to a particular issue, we are of the view that it is relevant to consider prior decisions as forming part of the context in which this agreement was negotiated. In such circumstances, it is reasonable to draw the conclusion that a similar disposition of the issue was intended by the parties: see Brown and Beatty, Canadian Labour Arbitration (4th) at para. 1:3200.

[22] In the Lahay decision, the Board determined that the rights affected by Article 26.3 are substantive in nature and that a breach of the Article is a substantive breach calling for a voiding of the discipline process. Two decisions in this Court did not depart from such a determination and result: see Medis Health & Pharmaceutical Services (2001) 156 (O.A.C.) 161; Re Toronto (City) and C.U.P.E. Loc. 7 [1997] O.J. No. 2071.

[23] In deciding that a breach of the Article was a substantive breach warranting a vitiation of the discipline proceeding ab initio, the Board’s determination was consistent with several earlier decisions of the Board. Good policy reasons support the Board’s consistent and informed approach to the consequences of a breach of Article 26.3. In interpreting the rights granted by the Article, we cannot say that such a conclusion is clearly irrational.

[24] Accordingly, we find that there is no reason to interfere with the decision of the GSB and the application for judicial review is dismissed. Costs have been agreed at $3,000.00.

FERRIER J.

HOWDEN J.

HIMEL J.

Date of Release: March 13, 2007