COURT FILE NO.: 209/08

DATE: 20090115

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

A.C.J.S.C. CUNNINGHAM, JENNINGS AND JANET WILSON JJ.

B E T W E E N:

UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1000A

Applicant

• and -

NATIONAL GROCERS CO. LTD

Respondent

Jeffrey M. Andrew and Amanda J. Pask, for the Applicant

Morton G. Mitchnick, for the Respondent

HEARD at Toronto: January 15, 2009

a.c.j.s.c. cunningham: (Orally)

1This is an application for judicial review of the decision of Labour Arbitrator Marilyn Nairn, concerning the interpretation and application of human rights legislation.

2The question before the Arbitrator was whether it was discriminatory to deny a collective agreement severance benefit to employees terminated for absenteeism (cause) arising from a disability.

3The provision in the collective agreements (there were several) states as follows:

8.11 In the event of a lay-off, employees shall receive notice of lay-off or pay in lieu of notice as set out in the Employment Standards Act of Ontario as follows:

(g) full-time employees with three (3) or more years of continuous service, if terminated for reasons other than cause will be provided with a severance allowance of one (1) week’s pay for each year of service to a maximum of five thousand dollars ($5,000); this provision is in addition to any entitlement for notice of lay-off in the Employment Standards Act of Ontario.

4The Union argued that to deny these disabled workers the additional severance benefit was discriminatory within the meaning of the Human Rights Act. If discriminatory, the provision would not only offend the Code but also it would be in violation of Article 18 of the Collective Agreement, which essentially provides there will be no discrimination in the agreement, contrary to the Code.

5In our view, the arbitrator correctly determined that the denial of the additional benefit was not discriminatory. We are unable to add more to her thorough, thoughtful and well-reasoned decision, wherein she concluded that Article 8.11(g) did not exclude those with a disability; rather those with a disability dismissed for non-culpable cause did not meet the conditions for entitlement.

6The Arbitrator correctly concluded that the provision was designed to benefit those employees who are subject to permanent lay-off. Comparing disabled persons to other persons terminated for cause, the arbitrator in our view correctly found that the provision did not violate the Code.

7Contrary to the applicant’s submission, the arbitrator correctly identified the rationale and purpose of Article 8.11(g) that is, to provide an additional benefit to employees caught in a lay-off. Article 8.11(g) does not provide a broad benefit to all terminated employees.

8We would add that we agree with the Arbitrator’s view of the Mount Sinai case and that her reasons for distinguishing it from the present case are eminently reasonable. While the standard of review here is correctness, given that labour arbitrators are intimately connected with not only the Labor Relations Act, but also human rights legislation, some significant deference ought to be accorded them.

9The exclusion in Mount Sinai rested on the fact that the employee was disabled and thus was direct discrimination. The Divisional Court and indeed the Court of Appeal found that s.58(5)(c) of the Employment Standards Act by singling out the disabled and denying them an employment benefit violated s.15 of the Charter.

10That is not the case here and Arbitrator Nairn clearly understood the distinction. Indeed if the grievors in the present case had been caught in a lay-off, they would have qualified for the additional benefit.

11The application is dismissed.

COSTS

12The parties have agreed on the matter of costs.

A.C.J.S.C. CUNNINGHAM

JENNINGS J.

JANET WILSON J.

Date of Reasons for Judgment: January 15, 2009

Date of Release: February 3, 2009

COURT FILE NO.: 209/08

DATE: 20090115

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT