COURT FILE No.: 07-426-JR
DATE: [20081024]
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J.S.C.J., HACKLAND R.S.J., THOMSON J.
B E T W E E N:
The Hamilton Street Railway Company
Stephen McArthur & Janet Callfas, for the Applicant
Applicant
- and -
The Amalgamated Transit Union, Local 107 and Ian Springate
J. Ivan Marini, for the Respondents
Respondents
HEARD at Hamilton: October 21, 2008
BY THE COURT:
[1] This is an application for judicial review brought by the Hamilton Street Railway Company (“the Applicant”) of arbitrator Ian Springate’s (“the arbitrator”) decision to reinstate a bus driver (“the Grievor”) following a collision occasioned by her carelessness. The Applicant asks this court to quash the arbitrator’s decision and to reinstate the termination of the Grievor’s employment.
FACTS
[2] On December 22, 2006, the Grievor, a bus operator for the Applicant was involved in a rear-end collision with another bus while on duty in her capacity as a bus operator. Both the Grievor and the operator of the other bus sustained injuries from the collision and both buses were damaged.
[3] As a result of this incident, and in light of two other “preventable accidents” in the preceding four months, albeit of lesser degree, the Applicant terminated the Grievor’s employment for cause pursuant to Article 4.03 of the Collective Agreement, which provides:
4.03 Without limiting the generality of the foregoing provisions it is expressly understood and agreed that reporting for work with an alcoholic breath, drunkenness or drinking intoxicants while on duty or on the property, or while in the City (HSR) uniform, or habitually gambling after being duly warned, improper collection of passenger fares through negligent operation, or intentionally allowing passengers to ride the City (HRS)’s vehicles free, or by private contract, or by abuse of Employees’ passes; retaining all or any portion of the fare offered by a passenger, irregularities in the operation of the fare box or in the handling of passengers’ change or fares contrary to the operators’ instructions, irresponsible behaviour with or misuse of City (HSR) funds or ticket supplies, unsatisfactory attendance or punctuality after being duly warned, accidents through carelessness, negligence or disregard of ordinary safety precautions, shall conclusively be deemed to be sufficient cause for the dismissal of an Employee, provided that nothing herein contained shall prevent an Employee from taking a discharge case through the Grievance procedure to determine whether or not the act complained of was committed.
(underling added)
[4] The arbitrator found that this was an accident that occurred as a result of the Grievor’s carelessness, negligence or disregard of ordinary safety precautions. That finding is not challenged. However, he held that the Grievor’s conduct did not involve the type of “flagrant” carelessness, negligence or disregard of ordinary safety precautions contemplated by Article 4.03. He wrote:
The evidence does not suggest that the grievor adopted a non-caring attitude towards her job or her driving. What it does indicate is that when she followed Mr. Pocock as they headed to the start of their routes she did not assess her distance from his bus in the context of the speed they were traveling and the condition of the wet road. As a relatively new employee she may have not had the type of experience referred to by Mr. Dhillon that enables an operator to know the safe distance to travel behind another vehicle. Nevertheless, she had been taught the technique of counting four seconds in training but did not use this approach. She also failed to take additional precautions because of road conditions. I do not, however, view her conduct as having involved the type of flagrant carelessness, negligence or disregard of ordinary safety precautions contemplated by Article 4.03 such as to conclusively be deemed to be sufficient cause for dismissal. In the result I conclude that I have the jurisdiction to relieve against the penalty of dismissal.
[5] The arbitrator was of the view that a common sense interpretation of Article 4.03 of the Collective Agreement required as a condition of its application, a flagrant or serious degree of negligence or carelessness. He stated that a different interpretation would have the result that all preventable accidents involving some degree of carelessness, negligence or disregard of ordinary safety precautions could result in automatic discharge. He also noted that, on the evidence, it was the Applicant’s practice to pursue a policy of progressive discipline in most cases.
STANDARD OF REVIEW
[6] The standard of review of a labour arbitrator’s decision has been recently discussed by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The Court held that unless the arbitrator is embarking on a true question of jurisdiction or vires, which will be reviewed on a correctness standard of review, the normal standard of review will be one of reasonableness. “Jurisdiction” in this context is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdictional questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction. All other questions are subject to review on a standard of reasonableness.
[7] In this case, the arbitrator was performing one of his core functions, interpreting the provisions of the Collective Agreement in the context of the arbitral jurisprudence. The standard of review in this context is reasonableness, as was the case in Dunsmuir.
ANALYSIS
[8] With due defence to the arbitrator’s analysis we are, however, of the opinion that he was in error by reading into Article 4.03 of the Collective Agreement a requirement that the negligence, carelessness or disregard of ordinary safety precautions must be “flagrant” or very serious, failing which he has the power to substitute a lesser penalty.
[9] In our opinion, Article 4.03 clearly gives the employer the discretion to dismiss an employee once the factual determination has been made that an accident has occurred through carelessness, negligence or disregard of ordinary safety precautions on the part of the employee. Article 4.03 specifically restricts the scope of the grievance procedure to determining “whether or not the act complained of was committed.” The employer’s exercise of its discretion to proceed under this Article is not, in the absence of bad faith, open to arbitral review.
[10] This conclusion is supported by Article 7.05 of the Collective Agreement which provides that arbitrators have no jurisdiction, “to alter or change any of the provisions of [the] agreement or to substitute any new provisions for any existing provisions, nor to give any decisions inconsistent with the terms and provisions of [the] agreement.” By inserting the “flagrant” standard the arbitrator has changed the Collective Agreement and has therefore acted unreasonably.
[11] Furthermore, sub-section 48(17) of the Labour Relations Act, 1995 deprives an arbitrator of the jurisdiction or power to substitute a lesser penalty where the Collective Agreement provides for a specific penalty for an infraction. This sub-section provides:
Where an Arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject matter of the arbitration, the Arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the Arbitrator or arbitration board seems just and reasonable in all the circumstances.
[12] While it may be observed that Article 4.03 of the Collective Agreement does not make dismissal mandatory when a finding is made that an accident occurred through carelessness or negligence or disregard of ordinary safety precautions, under sub-section 48(17) of the Labour Relations Act, 1995, the reference to dismissal in Article 4.03 is nevertheless a “specific penalty” so as to invoke sub-section 48(17) and to thereby deprive the arbitrator of the power to substitute a lesser penalty, see: Re Colonial Cookies and United Food and Commercial Workers, [1986] 57 O.R. (2d) 464 (Div. Ct.) and Re Hamilton Street Railway Co. and Amalgamated Transit Union, Division 107, [1972] 1 O.R. 270 (H.C.J.).
[13] In conclusion, we are of the opinion that the arbitrator employed an unreasonable and legally incorrect analysis when he wrongly concluded that he had the power, on a common sense basis, to substitute a lesser penalty than dismissal in the circumstances of an accident involving a Grievor’s carelessness, negligence or disregard of ordinary safety precautions within the meaning of Article 4.03 of the Collective Agreement. His approach violated the clear wording of the Collective Agreement and sub-section 48(17) of the Labour Relations Act, 1995.
[14] Accordingly, we are of the opinion that the arbitrator’s decision must be set aside and the Grievor’s discharge reinstated.
[15] If the parties are unable to agree on costs they may submit brief written submissions to the court within 14 days of the release of these reasons.
Released: October 24, 2008
Cunningham, A.C.J. S.C.J
Hackland R.S.J.
Thomson J.
COURT FILE NO.: 07-426-JR
DATE: 20082024
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
B E T W E E N:
The Hamilton Street Railway Company
Applicant
- and –
The Amalgamated Transit Union, Local 107 and Ian Springate
Respondents
REASONS FOR JUDGMENT
CUNNINGHAM A.C.J.S.C.J,
HACKLAND R.S.J., THOMSON J.
Released: October 24, 2008