ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, KITELEY and swinton jj.
B E T W E E N:
GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD
Applicant
- and -
OSSTF DISTRICT 9 (EDUCATIONAL SUPPORT STAFF)
Respondent
Leonard P. Kavanaugh, Q.C. for the Applicant
Maurice A. Green for the Respondent
HEARD at Toronto: June 20, 2008
INTRODUCTION
1The Greater Essex County District School Board (the “Board”) seeks judicial review of the award of Randy Levinson (the “arbitrator”) dated March 27, 2007, in which he determined that the Collective Agreement between the Board and OSSTF District 9 (the “Union”) obliges the Board to pay a 6 week “top up” to Union employees on pregnancy leave following the birth of their child at any time during the calendar year.
2The Union represents the Educational Support Staff employed by the Board. Members of the Educational Support Staff are not teachers. They are employed for 10 months of the year at an hourly rate of pay. They are laid off for the months of July and August in each year. They do not receive wages when laid off.
3The arbitrator determined that the employee did not have to be working and in receipt of a regular wage at the time of the birth of the child in order to qualify for “top up” pay.
4For the reasons which follow I find the decision of the arbitrator is unreasonable. I would allow the application for judicial review and quash the award.
the collective agreement
5The sub-articles of the Collective Agreement, relevant to the issues raised on this appeal, are as follows:
12.05 The arbitrator shall not be authorized to make any decision inconsistent with the provisions of this Agreement, nor to alter, modify or amend any part of this Agreement.
18.04 The Board shall provide for employees on pregnancy leave, a supplementary employment insurance benefit plan approved by Human Resources Development Canada. For each week of the two-week mandatory waiting period, the plan will pay a sum equal to 95% of the employee’s rate of pay including in lieu of vacation pay. The supplementary employment insurance benefit plan payable during the employee’s mandatory waiting period shall be paid whenever the waiting period falls in their Employment Insurance claim.
18.05 In addition to the supplementary employment insurance benefit plan and for pregnancy leave only, the Board will pay a “top-up” amount for a maximum 6-week period immediately following the birth of a child.
18.06 The “top-up” pay will be the difference between what an employee received from the Employment Insurance (EI) and her regular wage for the 6 weeks.
18.11 An employee on pregnancy/adoption/parental leave shall be entitled to accumulation of credit for seniority and the Board’s contribution to benefits for the maximum weeks allowable, in accordance with the Employment Standards Act.
26.11 All applicable premiums for ten (10) month employees shall be paid by the Board during the two (2) month period of scheduled inactive employment.
The arbitrator’s decision
6Before dealing with the issues raised in the arbitration, the arbitrator reviewed a number of authorities cited to him “…pertaining to the payment of compensation by employers to teachers on pregnancy leave during non-teaching months” (Decision – paragraph 3). The arbitrator gave as his reason for doing so that “… the cited arbitral authorities provide a useful backdrop against which to interpret the collective agreement. While the authorities pertain to teachers, the applicable principles that they establish can be usefully applied here to ascertain the parties’ intention regarding the top up for educational support staff”. (emphasis added) (Decision, paragraph 11)
7In paragraph 13 of his decision the arbitrator concluded “An objective review of the collective agreement compels the conclusion that the parties intended the “top-up” amount in article 18.05 to be a pregnancy benefit topping up Employment Insurance Benefits and intended that it be payable throughout the calendar year for a maximum 6-week period immediately following the birth of a child.”
standard of review
8The parties prepared their facta prior to the release of the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9. Counsel agreed at the hearing that the standard of review is reasonableness.
the applicant’s position
9The applicant submits that the arbitrator gave to sub-articles 18.04, 18.05 and 18.06 interpretations that they cannot reasonably bear. The sub-articles are clear and unambiguous in defining two discrete benefits and in the face of the clear and unambiguous language the arbitrator erred in attempting to ascertain the intention of the parties by reference to factors other than that language.
the respondent’s position
10The respondent submits that the arbitrator’s interpretation was one that the Collective Agreement could reasonably bear as it was based on the wording of the Agreement and the application of established principles and was consistent with arbitral jurisprudence.
analysis
11Following his detailed review of arbitral authorities dealing with payment of compensation by Boards to teachers on pregnancy leave during the summer months when they are not teaching, the arbitrator at paragraph 11 of his decision turned his attention to the matter before him. He began his analysis with the observation that the parties “agree that the collective agreement is clear and unambiguous”. That being so, in my opinion it was unnecessary and inappropriate for him to consider that the arbitral decisions provided “a useful backdrop against which to interpret the collective agreement”, so as to “… ascertain the parties’ intention regarding the top up amount for educational support staff.” The language being clear and unambiguous, it speaks for itself as to the parties’ intention. It was not reasonable for him to consider outside aids to the interpretation of the language.
12By the plain language of sub-articles 18.04 and 18.05 two benefits are provided to employees:
For each week of the two week mandatory period … a sum equal to 95% of the employee’s rate of pay including in lieu of vacation pay. (18.04)
In addition to that benefit, a “top up” amount for a maximum 6 week period immediately following the birth of a child. (18.05)
13The first benefit of 95% of the employee’s rate of pay is, pursuant to sub-article 18.04, payable for the waiting period “…whenever the waiting period falls in [the employee’s] Employment Insurance claim.”
14That must be contrasted with the payment provisions for the second benefit. By sub-article 18.06, the “top up” pay for the maximum 6 week period immediately following the birth will be the difference between what the employee received from the employee’s Employment Insurance benefit “… and her regular wage for the 6 weeks”.
15The plain language clearly indicates that the parties intended the waiting period payment to be paid whenever that period fell, whereas the top up payment, being calculated as the difference between EI and the employee’s regular wage for the 6 weeks following birth, could not by definition be paid if the employee was not in receipt of a wage for the 6 weeks.
16Obviously, ten month employees annually laid off for the months of July and August are not, during those months, in receipt of a wage. My opinion that the parties put their minds to the question of whether laid-off employees are to receive the second benefit is reinforced by the provisions of sub-articles 18.11 and 26.11 which make provision for the continuation of some other benefits during that time when the employee is laid off and not receiving wages. No such provision is made for the “top up” benefit.
17The effect of the arbitrator’s decision is to expand sub-article 18.05 to include language similar to that contained in sub-article 18.04, such as “whenever the birth falls in [the employee’s] employment insurance claim.” Further, sub-article 18.06, according to the arbitrator, must be taken to read that “regular wage for the six weeks” means “the employee’s rate of pay including in lieu of vacation pay if the employee had been working for the 6 weeks.”
18In my opinion, by putting this Collective Agreement into the “backdrop” of other irrelevant collective agreements, the arbitrator failed to address the distinction between the two benefits conferred by the sub-articles to which I have referred. His decision creates a benefit for which the Collective Agreement did not provide. His decision is not within a range of reasonable outcomes on the language of this Collective Agreement.
19It is trite to say that the issue is not whether the reviewing court agrees with the decision of the arbitrator, but rather whether that decision is one to which the arbitrator could reasonably come upon the material before him. In my opinion, the arbitrator created difficulties for himself when he began his work by undertaking a review of decisions of collective agreements between annually employed teachers who are paid for 12 months of the year, although not required to be in the classroom in the months of July and August, and support staff who are employed on an hourly basis for 10 months of the year, in order to obtain a backdrop against which to determine the parties’ intentions. That exercise was not required given the plain language of the sub-articles before him. That exercise led the arbitrator to reach a decision as to the effect of the sub-articles based on other, different agreements which the plain language of this agreement could not support. Furthermore, that exercise caused the arbitrator to ignore the plain language of sub-article 18.04 that the employee have a “regular wage for the six weeks”.
20In reading in to sub-articles 18.05 and 18.06 language not used by the parties, the arbitrator contravened the provisions of sub-article 12.05. That lead to a conclusion that in my opinion was simply unreasonable.
conclusion
21I would quash the award of the arbitrator.
22Counsel have agreed that the successful party on this application should receive costs of $4,000 inclusive of disbursements and GST and I would so order.
RELEASED:
JENNINGS J.
KITELEY J.
23The standard of review of the arbitrator’s decision is reasonableness. As stated in Dunsmuir, supra (at para. 47):
Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
24The Supreme Court described deference as “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (at para. 48). It also expressed agreement with Professor David Dyzenhaus, who stated that “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision” (at para. 48, citing David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in M. Taggart, ed., The Province of Administrative Law (1979) 279 at p. 286).
25In this case, the arbitrator examined a number of arbitral awards pertaining to benefits paid to teachers on pregnancy leave during non-teaching months (a period when they were not in receipt of salary payments). He was of the view that they provided a “useful backdrop” against which to interpret this collective agreement, although he was quite aware that they pertained to teachers and he was dealing with educational support staff.
26The arbitrator noted that the language of Article 18.04 expressly provided that an employee would receive the supplementary employment insurance benefit (“SEB”) whenever her waiting period occurred in the calendar year. He went on to consider Article 18.05, which provides that “in addition” to the SEB and “for pregnancy leave only”, the Board would pay a top-up amount for a maximum six week period immediately following the birth of a child. He noted that there were no temporal restrictions on when a top-up amount is payable.
27The arbitrator then considered the Board’s argument that the top-up payment was an income replacement program, payable only if the grievors would be paid a regular wage for the period in issue. He observed that arbitrators have generally rejected the notion that this type of pregnancy benefit is an income replacement benefit, and that they have generally held that the top-up benefit is a top-up to EI benefits and not to wages.
28He concluded that the parties in this collective agreement have indicated their intention that the top-up amount is a pregnancy benefit by their use of the words “for pregnancy leave only” in Article 18.05, as well as the requirements for entitlement in Article 18.07. That article specifies that an employee must provide proof of receipt of EI maternity benefits in order to receive top-up pay. In his view, Article 18.06 indicates how the parties intended the top-up amount to be calculated. It was not a further qualification for benefits, as the Board had submitted.
29The arbitrator rejected the argument that the reference to a percentage of the employee’s rate of pay in Article 18.04 was helpful to the interpretation of Article 18.06. He concluded that the reference did not assist, because the parties in Article 18.06 were addressing the difference between two amounts – the EI benefits received and the regular rate of pay times the hours normally worked by the employee.
30The fact that the employees were laid off during the summer did not affect his interpretation. In light of the arbitral jurisprudence, the parties must make their intention clear with respect to the nature of the top-up and when it is payable if they wish to impose a temporal limitation on receipt of pregnancy benefits. Here, they had not expressly limited the payment of the benefit to a period when an employee would actually have been in receipt of wages.
31The arbitrator did not find the other provisions of the collective agreement dealing with other benefits for this group of employees of assistance in interpreting the provision relating to pregnancy benefits. Those provisions (Articles 26.11 and 26.19) are found under the heading “Employee Benefits” and require the employer to pay premiums for ten month employees during the two months of layoff and provide for the accumulation of sick leave credits.
32In my view, there is a line of analysis evident throughout these reasons, and the conclusion is within a range of reasonable outcomes, given the language of the collective agreement between the parties.
33It is true that the parties stated to the arbitrator that the language of the collective agreement was clear and unambiguous. As a result, there was no need to resort to extrinsic evidence to assist in interpretation. However, it is also clear that there were two strongly held views as to the interpretation of the agreement. In this context, it was perfectly reasonable for the arbitrator to consider the language used in the collective agreement against the backdrop of existing arbitral jurisprudence dealing with pregnancy benefits for teachers. That jurisprudence provided a context within which the parties negotiated their agreement (see, for example, Mistahia Health Region v. United Nurses of Alberta, Local 64, [2003] A.J. No. 1491 (C.A.) at para. 24).
34There is no question that the arbitrator was required to examine closely and apply the language of this particular collective agreement. He did so: he noted that the SEB was payable throughout the calendar year, and the top-up was “in addition to” this payment and had no limiting time reference.
35The arbitrator found that the parties’ language clearly made this a pregnancy benefit, rather than an income replacement program, and that Article 18.06 was the calculation mechanism, not a further qualification. The reference to “regular wage for the six weeks” in Article 18.06 provides the figure to be used for calculating the top-up, based on an employee’s weekly hours of work and hourly wage rate. According to the arbitrator, receipt of a wage during that period is not a qualification for entitlement, given the nature of the pregnancy leave benefit and the language used elsewhere in Article 18.
36In my view, that is a reasonable interpretation of the language of this collective agreement. The premise that clear and unequivocal language is required to temporally restrict entitlement to a pregnancy leave benefit is consistent with other arbitral decisions addressing entitlement to top-up pay during a pregnancy leave (see, for example, Hastings and Prince Edward District School Board and E.T.F.O. (2006), 152 L.A.C. (4th) 343 (Davie) pp. 5 and 7; Greater Essex County District School Board v. E.T.F.O., [2005] O.L.A.A. No. 680 (Dissanayake), upheld on judicial review, [2006] O.J. No. 2604 (Div. Ct.)). The arbitrator was not using these awards as evidence, as the Board submitted, but rather as a principled backdrop against which to interpret the collective agreement. It was perfectly appropriate for him to use them for this purpose.
37The arbitrator was clearly aware of the differences in the characteristics of the grievors’ employment and that of teachers. However, he was of the opinion that those differences were not so significant that the principles from the arbitral jurisprudence were inapplicable. That is not an unreasonable conclusion for him to draw, given the nature of the pregnancy benefit with which he was dealing and the language of the collective agreement.
38His interpretation of the word “maximum” in Article 18.05 was consistent with its literal meaning. It does not necessarily result in all employees receiving the maximum benefit for the reasons set out in paragraph 33 of the respondent’s factum.
39This is not a case where the arbitrator has ignored the language of the collective agreement, nor has he added to or amended it as the Board argues. His interpretation falls within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law”, to use the words of Dunsmuir, supra at para. 47.
40Therefore, I would dismiss the application for judicial review with costs to the union of $4,000.00.
RELEASED:
SWINTON J.
COURT FILE NO.: 311/07
DATE: 20080704
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, KITELEY and swinton jj.
B E T W E E N:
GREATER ESSEX COUNTY DISTRICT SCHOOL BOARD
Applicant
- and -
OSSTF DISTRICT 9 (EDUCATIONAL SUPPORT STAFF)
Respondent
REASONS FOR JUDGMENT
JENNINGS J. and KITELEY (Concurring)
SWINTON J. (Dissenting)
RELEASED: July 4, 2008