Court File and Parties
COURT FILE NO.: 73/07
DATE: 20080311
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, KITELEY AND LAX JJ.
B E T W E E N:
NORTHERN COLLEGE OF APPLIED ARTS AND TECHNOLOGY
Applicant
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Respondent
Counsel:
Ian R. Dick, for the Applicant
Roman Stoykewych, for the Respondent
HEARD at Toronto: March 11, 2008
Oral Reasons for Judgment
KITELEY J.: (Orally)
[1] The applicant seeks to quash and set aside the Arbitrator’s Award allowing a grievance on behalf of certain daycare workers as to their entitlement to holiday pay on July 1st.
[2] We agree with counsel that the standard of review is reasonableness based upon Dunsmuir v. New Brunswick, released by the Supreme Court of Canada on Friday, March 7th, 2008.
[3] The Board was required to interpret the Collective Agreement and two Letters of Understanding. In doing so the Board engaged in a classic arbitral function of the interpretation of a Collective Agreement.
[4] The Board determined that Letter of Understanding Number Two did not apply. In our view, that was a reasonable determination because employees in the less than twelve month positions are subject to a different protocol for layoff than the Article 15 employees.
[5] The Board said that Article 10.3 of the Collective Agreement could be interpreted objectively or subjectively. The Board looked at the Collective Agreement and concluded a subjective interpretation should be used.
[6] In coming to this conclusion, the applicant submits that the Board improperly took notice of a fact which was not in the record. We agree with the respondent that the Board made it clear that it was engaged in an interpretive exercise and not an evidentiary one.
[7] We agree that it was reasonable for the Board to use a subjective interpretation in its contextual analysis of Article 10.3 of the Collective Agreement.
[8] On page 13 of the Arbitrator’s Award, the conclusion is found in this paragraph:
“We are therefore driven to conclude that Article 10.3 should be read as making holiday pay conditional on the employee working the day immediately following the holiday that he or she was required (or, perhaps, would normally be required) to work. We do not feel it is necessary or advisable to refine this test any further and examine whether employees not at work for various reasons qualify for holiday pay. It is sufficient that we record our conclusion that, in the case of the grievors, who were laid off at the end of June and not required to work again until August 29, this latter date must be regarded as “the work day immediately following the holidays” (to use the language of Article 10.3)”.
[9] We need only be satisfied that the decision is within “a range of reasonable outcomes” as elaborated on by the Supreme Court of Canada in Dunsmuir.
[10] We are so satisfied. The application is dismissed.
CARNWATH J.
[11] The Application Record is endorsed: “The application is dismissed for reasons orally given by Kiteley J. Costs to the respondent fixed at $5,000 inclusive of fees, disbursements and applicable GST. Partial indemnity payable 30 days”.
KITELEY J.
CARNWATH J.
LAX J.
Date of Reasons for Judgment: March 11, 2008
Date of Release:
COURT FILE NO.: 73/07
DATE: 20080311
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, KITELEY AND LAX JJ.
B E T W E E N:
NORTHERN COLLEGE OF APPLIED ARTS AND TECHNOLOGY
Applicant
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Respondent
ORAL REASONS FOR JUDGMENT
KITELEY J.
Date of Reasons for Judgment: March 11, 2008
Date of Release: