Toronto Transit Commission v. Amalgamated Transit Union, Local 113
DIVISIONAL COURT FILE NO.: 511/09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, DAMBROT AND SWINTON JJ.
B E T W E E N :
TORONTO TRANSIT COMMISSION
Applicant
– and –
AMALGAMATED TRANSIT UNION, LOCAL 113
Respondent
Christopher G. Riggs Q.C. and F. Cesario for the Applicant
Barrie Chercover and D. Ardron for the Respondent
HEARD at Toronto: March 22, 2010
BY THE COURT:
1This is an application by the Toronto Transit Commission ("the Commission") for judicial review of the arbitration award of Maureen Saltman (the "arbitrator"), dated September 24, 2009, in which the arbitrator allowed a group/policy grievance by the Respondent, Amalgamated Transit Union, Local 113, ("the union") with respect to balance and deposit time for collectors on overtime shifts.
2The Commission argued that the arbitrator breached the rules of natural justice and reached an unreasonable decision because she based her decision on a June 22, 2006 Memorandum of Settlement reached by the parties concerning travel time for collectors. Paragraph 6 of the Memorandum of Settlement provides:
This Settlement does not constitute any admission of liability as between the parties, and is without prejudice or precedent to any other matter between the parties and shall not be referred to in any other matter between the parties.
3We are of the view that the arbitrator erred in law in admitting and relying on this Memorandum of Settlement in light of paragraph 6 of the settlement.
4However, we do not agree with the submission of the Commission that this error amounted to a denial of natural justice of the kind discussed in Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471 at p. 491, where Lamer C.J. stated:
For my part, I am not prepared to say that the rejection of relevant evidence is automatically a breach of natural justice. A grievance arbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirable for the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice.
5In that case, the Court concluded that an arbitrator had breached the rules of natural justice by excluding relevant evidence that was crucial to the respondent's case, resulting in a disposition of an extremely important point in the case without having heard any evidence from the respondent on that point. The exclusion of the respondent's evidence had a clear impact on the fairness of the proceedings.
6In our view, there was no such breach here, and the application falls to be decided as a question of reasonableness. The reasonableness standard was articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47, as follows:
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.
7In our view, the arbitrator relied on two lines of reasoning to support the conclusion she arrived at. First, she rejected the Commission argument that the settlement contained in a letter dated November 7, 2003 was a final agreement because of the Commission's conduct in subsequently settling the travel aspect of the grievance. As we have said, she should not have relied on the evidence of the travel settlement to reach her conclusion.
8However, she also based her decision on the wording of the November 7 letter. She stated:
Rather, as the Union submitted, the November 7th letter settled the claims for travel, balance and deposit time for shifts for 2003 (as the letter dated December 6, 2002, settled the analogous claims for 2002), which is clear from the face of the November 7th letter. However, it did not address the claims for balance and deposit time from January 1, 2004, which, I conclude, must be settled according to the parties' own agreement (as set out in the Memorandum of Settlement of March 6, 2001 and the memorandum of July 10, 2001, among others), i.e., added to the crew values of Collectors who did the work on overtime and special shifts and deducted from the crew values of those who did not. (Emphasis added.)
9In her lengthy award, the arbitrator reviewed extensively the unchallenged evidence of Kevin Morton given on behalf of the union. It was his evidence that the November 7, 2003 agreement settled the claims up to the end of 2003 only. Indeed in a letter dated November 19, 2003, he put the Commission on notice that overtime shifts were to be paid manually as of January 1, 2004 with regard to all bonuses. On the other hand, the Commission called no evidence before the arbitrator.
10We are of the view that the arbitrator's decision fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. The arbitrator had to decide whether the November 7, 2003 letter settled the claims for the collectors for all time, or resolved claims only to December 31, 2003. Based on evidence that was not contradicted and the wording of the November 7, 2003 letter, the arbitrator concluded that there was no permanent settlement and that the parties should be held to their March 6, 2001 agreement. This is a reasonable conclusion, and this Court need look no further.
11Accordingly, the application is dismissed. Counsel agreed that costs should follow the event, and should fall within a range of $4,000 to $5,000. In accordance with this agreement, costs are awarded to the respondent, fixed at $4,500 all in.
FERRIER J.
DAMBROT J.
SWINTON J.
RELEASED:
CITATION: Toronto Transit Commission v. Amalgamated Transit Union, Local 113, 2010 ONSC 1731
DIVISIONAL COURT FILE NO.: 511/09
DATE: 20100329
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, DAMBROT AND SWINTON JJ.
B E T W E E N :
TORONTO TRANSIT COMMISSION
Applicant
– and –
AMALGAMATED TRANSIT UNION, LOCAL 113
Respondent
REASONS FOR JUDGMENT
DAMBROT J.
RELEASED: March 29, 2010