COURT FILE NO.: 28/07

DATE: 20090414

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

lederman, karakatsanis and tulloch jj.

B E T W E E N:

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79

Applicant

• and -

CITY OF TORONTO and ROBERT J. HERMAN

Respondents

Douglas J. Wray, for the Applicant

Robert Fredericks, for the Respondent, City of Toronto

HEARD at Toronto: April 14, 2009

lederman J.: (Orally)

1The applicant Union applies for judicial review and an order quashing the decision of Arbitrator Robert J. Herman dated October 31, 2006, in which he dismissed its grievance pursuant to its Collective Agreement with the City of Toronto in relation to post-65 retirement benefits.

2Prior to amalgamation of the new City of Toronto, full-time employees in the municipalities were governed by twenty-three different collective agreements.

3Most collective agreements governing employees of the predecessor municipalities prior to amalgamation did not provide for benefit coverage beyond age 65 with two exceptions – the City of North York and the old City of Toronto. The North York collective agreement provided retirement benefits to employees who retired at age 50 or older and continued to provide them after he or she turned 65. The old City of Toronto provided retirement benefits to employees with ten years of credited pensionable service at retirement, and continued to provide these beyond age 65. City of Toronto employees were also required to be 50 years old at retirement in order to receive these benefits.

4The following provision was included in the new Collective Agreement:

“NOTE: Any employee who is eligible for retiree benefits at the time that this Collective Agreement is ratified shall continue to be eligible for said benefits.”

5The Union’s grievance giving rise to this Application arose out of the parties’ conflicting interpretations of which employees of the City of North York and the old City of Toronto could receive post-65 retirement benefits under this clause.

6The Union interprets the post-65 benefits clause as providing post-65 retirement benefits for all employees of the City of North York or the old City of Toronto as of amalgamation, and for all employees who replaced them prior to ratification of the Collective Agreement.

7We agree with the parties that the standard of review is reasonableness.

8The applicant has submitted that the Arbitrator acted unreasonably in rejecting the extrinsic evidence introduced by the applicant. In addition, it submits that the Arbitrator acted unreasonably in his interpretation of the Note that ‘eligibility’ for post-65 retirement benefits required that at the time of ratification of the Collective Agreement that the person be an employee of the former City of Toronto or City of North York, and that he or she was at least age 50 and additionally, in the case of the old City of Toronto, that he or she had at least 10 years of credited pensionable service.

9With respect to the findings regarding the extrinsic evidence, we are satisfied that the Arbitrator analyzed carefully each category of extrinsic evidence and reasonably concluded that, at the time of the Collective Agreement, the parties each ascribed different meanings to the Note, and each failed to appreciate the very different interpretation held by the other party. As a result he found that the extrinsic evidence had no probative value in resolving the meaning of the word “eligible” in the Note. We conclude that the evidence before the Arbitrator could reasonably support his findings of fact.

10With respect to the interpretation of the Note, on the language of the Note itself, and based upon a comparison of the language used in other grand-parenting provisions of the Collective Agreement, we are satisfied that the Arbitrator reasonably concluded that, as of the date of ratification, the employee of the former City of Toronto or City of North York had to have met all the eligibility requirements for post-65 retirement benefits (including that the employee was at least age 50 and, additionally for old City of Toronto employees, had at least 10 years of credited pensionable service).

11The application is therefore dismissed.

COSTS

12The record will be endorsed: “For oral reasons delivered, the application is dismissed. As agreed by the parties, the respondent City of Toronto shall have its costs fixed at $4,000.00.”

LEDERMAN J.

KARAKATSANIS J.

TULLOCH J.

Date of Reasons for Judgment: April 14, 2009

Date of Release: April 21, 2009

COURT FILE NO.: 28/07

DATE: 20090414

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

lederman, karakatsanis and tulloch jj.