Court File and Parties

COURT FILE NO.: 56/06 DATE: 20090522

SUPERIOR COURT OF JUSTICE – ONTARIO (DIVISIONAL COURT)

RE: Belleville Professional Fire Fighters Association v. The Corporation of the City of Belleville

BEFORE: J. Wilson, Low and Ray JJ.

COUNSEL: Howard Goldblatt, for the Applicant Frank Cesario, for the Respondent

HEARD AT TORONTO: May 19, 2009

Endorsement

[1] This is an application for judicial review of the arbitration award of Arbitrator M.B. Keller dated October 14, 2005.

[2] The award arose out of a grievance originally launched on February 8, 2000 alleging a breach of article 16(a) of the collective agreement between the parties. Article 16 (a) provides:

The Corporation agrees to pay for all employees one hundred percent (100%) of the costs of the Ontario Health Insurance and the Semi-Privatae Coverage Plan, and for all employees except probations up to six (6) months one hundred percent (100%) of the cost of the Group Life Insurance, A.D.&D., Extended Health Care and Dental plans presently in effect. The Corporation agrees to share in the cost of orthodontic coverage, maximum lifetime $2,000 per child (shared 50% employer, 50% employee) effective June 1st, 2001. The Association will be advised in advance of any proposed change in benefit carriers and there shall be no loss in benefits as a result of such action.

[3] The applicant argued that the Plan referred to in the article was the Great-West Plan which had been in effect in 1988 and which was replaced over the years by plans of other carriers. The applicant's position was that the level of coverage that article 16(a) requires the City to provide is that which had been provided under the Great-West plan.

[4] The City's position was that its obligation was to maintain the coverage under the plan in effect at the time the parties entered into the current collective agreement.

[5] The arbitrator held that the language of article 16(a) was clear and that on the clear language, the obligation of the City was to provide the level of coverage in effect at the time the collective agreement was signed, to notify the Association of any change of carriers and to ensure that there was no reduction of benefits resulting from a change of carrier.

[6] The applicant asserts that the arbitrator's conclusion was unreasonable.

[7] A preliminary motion was brought by the City for an order quashing the judicial review application on grounds of delay.

[8] The City argued that there were some 16 months of delay not attributable to the span of time that the parties had agreed to hold the judicial review in abeyance pending the result of interest arbitration.

[9] The application for judicial review was launched and perfected within 6 months following the release of Arbitrator Keller's arbitration award. There was no objectionable slowness in that aspect of prosecuting the application. Following that, there appears to have been consensus between the parties that the application should be held in abeyance pending conclusion of a new collective agreement which went to interest arbitration. It is not asserted that the delay occasioned by the agreement is a reasonable basis for an order to quash for delay. It is argued, however, that after the interest arbitration award was issued, an unjustifiable delay of 5 months passed before the applicant asked the Divisional Court to place the matter on a list for hearing in January 2009, and a further 5 months have now passed before the hearing itself.

[10] We are not persuaded that in all the circumstances the application should be quashed for delay. The only period of delay that is not fully explained is that between the issuance of the interest arbitration and the request to the court to schedule the matter for hearing. It is not an inordinate delay in the totality of the circumstances and there is no prejudice to the respondent in any case. The motion to quash is therefore dismissed.

[11] On the merits of the application, it is agreed that the standard of review is reasonableness. As is set out in Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47:

Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. 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 [page221] 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.

[12] In the context of a labour arbitration, we are also guided by paragraph 58 of Canada Safeway Ltd. V. RWDSU, Local 454, [1998] 1 S.C.R. 1079:

Where labour relations tribunals are called upon to interpret or apply a collective agreement under the umbrella of a privative clause, a reviewing court can only intervene in the case of a patently unreasonable error. (See Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, and Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487). This high degree of curial deference is essential to maintain the integrity of the system which has grown to be so efficient and effective in the resolution of disputes arising in the sensitive field of labour relations. The nature of labour disputes requires their speedy resolution by expert tribunals. The protective clause found in the Trade Union Act is the legislative recognition of the fundamental need for deference to the boards' decisions.

[13] We are not satisfied that the arbitrator's decision fails to fall within a range of possible acceptable outcomes and we are not satisfied that there is no line of reasoning that can lead reasonably to the outcome.

[14] The language of article 16(a) is not ambiguous. The plain and ordinary meaning of the words "presently in effect" is "now in effect". Where there is no ambiguity, extrinsic evidence as to meaning is unnecessary and irrelevant. This is the approach that the arbitrator took in arriving at the decision and in our view, it was reasonable.

[15] Although it is our view that the arbitrator was correct, it was not necessary that the decision be correct in our view to be accorded deference as a reasonable outcome. As expressed by Sopinka J. in United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd. (1993), 2 S.C.R. 316 at para. 40:

Once it has been determined that curial deference to a particular decision of a tribunal is appropriate, the tribunal has the right to be wrong, regardless of how many reviewing judges disagree with its decision. A patently unreasonable error is more easily defined by what it is not than by what it is. This Court has said that a finding or decision of a tribunal is not patently unreasonable if there is [page341] any evidence capable of supporting the decision even though the reviewing court may not have reached the same conclusion (Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, at pp. 687-88), or, in the context of a collective agreement, so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear (Bradburn, supra, per Laskin C.J., at p. 849). What these statements mean, in my view, is that the court will defer even if the interpretation given by the tribunal to the collective agreement is not the "right" interpretation in the court's view nor even the "best" of two possible interpretations, so long as it is an interpretation reasonably attributable to the words of the agreement. Or, as stated by Dickson J. in CUPE, at p. 237:

• ... was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

See also PSAC No. 2 (reasons of Cory J.).

[16] The applicant's position appears in substance to be that based on a mutual understanding of the parties and based on actions of the City in response to the 2000 grievance in which the City tried to resolve the grievance in a way which accorded with the applicant's view, the words of article 16(a) should be given a meaning different from their plain lexical meaning. It is said that the words "presently in effect" should be read to mean "the coverage provided under the Great-West plan in effect in 1988"

[17] If it was the position of the applicant that the language of article 16(a) did not accurately reflect the actual agreement of the parties on the point, it was open to it to grieve for a rectification of the collective agreement to bring it into line with what the applicant asserts was the real agreement, and to adduce evidence before the arbitrator as to what the relevant negotiations were and what conclusions were arrived at. It did not do so.

[18] Based on the issue as placed before the arbitrator, however, which was a question of construction of the existing language of the collective agreement, we are of the view that the applicant has not shown that the arbitrator's decision was not within the range of possible and acceptable outcomes. The language was not ambiguous and the rule against admission of extrinsic evidence was engaged.

[19] For the foregoing reasons, the application is dismissed.

[20] The parties have agreed as to quantum of costs. Costs will be to the respondent, fixed at $8,000 all inclusive.

Low J.

Wilson J.

Ray J.

DATE: May 22, 2009