Thames Valley District School Board v. Elementary Teachers' Federation of Ontario Thames Valley Local [Indexed as: Thames Valley District School Board v. Elementary Teachers' Federation of Ontario (Thames Valley Local)]
105 O.R. (3d) 291
2011 ONSC 1021
Ontario Superior Court of Justice,
Divisional Court,
Ferrier, Molloy and Herman JJ.
March 11, 2011
Employment -- Labour relations -- Grievance arbitration -- Employer dismissing grievor for engaging in inappropriate behaviour towards female employee -- Arbitrator allowing union's grievance -- Employer's [page292] application for judicial review of award allowed -- Arbitrator failing to make critical findings of fact and to provide adequate reasons -- Arbitrator erring in failing to apply objective test for harassment -- Arbitrator erring in limiting himself to determining whether harassment had taken place instead of asking whether there was conduct that constituted just cause for dismissal -- Arbitrator's decision unreasonable.
The employer dismissed the grievor, a teacher, for having engaged in inappropriate behaviour towards a female employee. The union grieved that the employer did not have just cause. The arbitrator allowed the grievance and ordered that the grievor be reinstated. The employer brought an application for judicial review of that award.
Held, the application should be granted.
The arbitrator failed to make critical findings of fact and failed to provide adequate reasons for his failure to do so. He made no findings of credibility with respect to some of the complainant's allegations. His failure to make findings of fact amounted to an error going to jurisdiction, and his failure to give reasons amounted to a breach of the duty of procedural fairness. The arbitrator also erred in failing to apply an objective test for harassment. Finally, the arbitrator erred in limiting himself to determining whether harassment had taken place instead of asking whether there was conduct that constituted just cause for dismissal. The arbitrator's decision was unreasonable.
APPLICATION for judicial review of an award of an arbitrator allowing a grievance.
Cases referred to British Columbia (S, complainant) and British Columbia Government Employees' Union (M, G and Z respondents) (Re) (1995), 49 O.A.C. (4th) 193, consd Other cases referred to Boise Cascade Canada Ltd. v. United Paperworkers International Union, Local 92 (September 17, 1987), 405/86 (Ont. Div. Ct.); Bray v. Palmer, [1953] 2 All E.R. 1449, [1953] 1 W.L.R. 1455 (C.A.); Canada Post Corp. v. Canadian Union of Postal Workers (Durand Grievance), [2002] C.L.A.D. No. 193, [2002] C.P.A.S. No. 15 (Lab. Arb.); Canadian Airlines International Ltd. and I.A.M. District 149 (Re), 92 O.A.C. 153 (C.A.); Clifford v. Ontario Municipal Employees Retirement System (2009), 98 O.R. (3d) 210, [2009] O.J. No. 3900, 2009 ONCA 670, 76 C.C.P.B. 184, 312 D.L.R. (4th) 70, 256 O.A.C. 354, 93 Admin. L.R. (4th) 131, 188 L.A.C. (4th) 97; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223; Eurocan Pulp & Paper Co. v. Communications, Energy and Paperworkers Union of Canada, Local 298 (Verde Grievance), [2001] B.C.C.A.A.A. No. 214 (C.A.A.); H. (F.) v. McDougall, [2008] 3 S.C.R. 41, [2008] S.C.J. No. 54, 2008 SCC 53, 61 C.R. (6th) 1, 61 C.P.C. (6th) 1, 297 D.L.R. (4th) 193, 83 B.C.L.R. (4th) 1, [2008] 11 W.W.R. 414, 260 B.C.A.C. 74, EYB 2008-148155, J.E. 2008-1864, 60 C.C.L.T. (3d) 1, 380 N.R. 82, 169 A.C.W.S. (3d) 346, EYB 2008-148155; In re B, [2008] 3 W.L.R. 1, [2008] UKHL 35, [2009] A.C. 11 (H.L.); Kirkland Lake (Town) v. C.U.P.E., Local 26 (Boyce), [2009] O.L.A.A. No. 156, 183 L.A.C. (4th) 74 (Lab. Arb.); Law Society of Upper Canada v. Neinstein (2010), 99 O.R. (3d) 1, [2010] O.J. No. 1046, 2010 ONCA 193, 317 D.L.R. (4th) 419, 259 O.A.C. 313, 186 A.C.W.S. (3d) 836, 1 Admin. L.R. (5th) 1; Stadnyk v. Canada (Employment and Immigration Commission), [2000] F.C.J. No. 1225, 257 N.R. 385, [2001] CLLC Â230-002, 99 A.C.W.S. (3d) 138 (C.A.); Toronto (City) Board of Education v. O.S.S.T.F, District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487, [1997] S.C.J. No. 27, 144 D.L.R. (4th) 385, 208 N.R. 245, J.E. 97-570, 98 O.A.C. 241, 44 Admin. L.R. (2d) 1, 25 C.C.E.L. (2d) 153, 97 CLLC Â220-018, 69 A.C.W.S. (3d) 221, D.T.E. 97T-306; [page293] United Food and Commercial Workers Union of British Columbia, Local 1518 v. 55369 BC Ltd. (c.o.b. Shoppers Drug Mart No. 242) (Harassment Grievance), [2007] B.C.C.A.A.A. No. 130, 90 C.L.A.S. 94, LAX/2007-330 (C.A.A.); Wm Scott & Co. (Re), [1976] B.C.L.R.B.D. No. 98, [1977] 1 Can. LRBR 1 (L.R.B.) Statutes referred to Human Rights Code, R.S.O. 1990, c. H.19 [as am.], s. 10(1) [as am.]
Roy C. Filion, Melanie McNaught, for applicant. Victoria Réaume and Adam Beatty, for respondent.
The judgment of the court was delivered by
[1] HERMAN J.: -- The applicant, the Thames Valley District School Board, seeks judicial review of a labour arbitration award by Arbitrator David Starkman, dated September 13, 2010.
[2] The employer Board discharged the grievor, a teacher, for having engaged in inappropriate behaviour towards a female employee. The union grieved that the employer did not have just cause. The arbitrator allowed the grievance, ordered that the grievor be reinstated without loss of seniority and with compensation.
[3] The Board submits that the arbitrator made three errors: (i) he failed to make findings of fact and credibility; (ii) he applied the wrong test for harassment; and (iii) he focused on whether the conduct constituted harassment instead of whether the conduct gave rise to just cause for dismissal.
Background
[4] The Board sent the grievor a discharge letter, dated May 26, 2009, indicating that the recommendation to terminate his employment for cause had been accepted. The Board was aware of inappropriate behaviour towards a female educational assistant (the "complainant"). The Board determined that the behaviour was totally inconsistent with the expectations of a teacher.
[5] The letter indicates that the Board's primary concerns were that the grievor had
-- engaged in a pattern of serious and inappropriate misconduct towards the complainant; [page294]
-- engaged in conduct and commentary towards the complainant outside of school hours which was disturbing and intimidating. For example, parking outside her home and following her in his vehicle;
-- made derogatory personal comments about the complainant to others at school;
-- made the complainant uncomfortable at the workplace with comments and behaviour;
-- followed the complainant at and around school property, stared at her while close behind her, such as in the parking area, while she fulfilled her obligations monitoring students being loaded onto special vans;
-- told her on at least one occasion that she should post out of the school, otherwise he would make her life difficult.
Standard of Review
[6] The parties agree that generally the appropriate standard of review of the decision of a labour arbitrator is reasonableness (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, at para. 54).
[7] However, they part company with respect to the appropriate standard of review that applies to the failure to assess credibility and make findings of fact. The Board submits that such a failure is an error of jurisdiction to which either the standard of correctness or no standard applies. The union disagrees and submits that the reasonableness standard applies throughout. This issue will be discussed in more detail, below.
Failure to make findings of fact and credibility
[8] The Board submits that the arbitrator failed to make findings of fact with respect to a number of instances where the evidence conflicted. The Board submits further that a failure to assess credibility and make findings of fact is a failure to exercise jurisdiction. Alternatively, its position is that this failure is unreasonable, within the test set out in Dunsmuir, because it affects "the existence of justification, transparency and intelligibility within the decision-making process" (Dunsmuir, at para. 47).
[9] The union's position is that the arbitrator made no error. Rather, he was not satisfied that the Board had established its case by clear and cogent evidence. This determination by the arbitrator is subject to the standard of review of reasonableness. [page295]
[10] The arbitrator found that the grievor and the complainant had an on-and-off again relationship beginning in February 2006 and continuing throughout the 2006/2007 school year.
[11] The arbitrator further found that the following occurred after the end of the relationship: the grievor suggested to the complainant that she should transfer to another school or he would make her life difficult; the grievor made an inappropriate comment to two witnesses about the complainant's husband; the grievor may have discussed the complainant's personal life with a witness; and the grievor called the complainant on at least two occasions outside of work and visited her on one occasion at her classroom after she had asked him not to have contact with her.
[12] However, the arbitrator stated that he was unable to reach a conclusion with respect to a number of the complainant's allegations:
-- the nature or frequency of the grievor following the complainant when their paths crossed;
-- whether the grievor had blocked the complainant's exit from a parking space;
-- whether the grievor was responsible for keying the complainant's car; and
-- whether the staring at the vans took place and, if it did, the nature or duration of the staring;
[13] The Board submits that an arbitrator cannot decline to make findings merely because he does not know whose story to believe. The Board pointed to the English Court of Appeal case in Bray v. Palmer, [1953] 2 All E.R. 1449, [1953] 1 W.L.R. 1455 (C.A.). In that case, Jenkins L.J. indicated that it was a denial of justice for the judge to conclude that he was unable to decide which story was true -- the defendant's or the plaintiff's -- and therefore decline to grant relief.
[14] In an unreported decision of the Ontario Divisional Court, Gray J. held that in failing to make a finding of credibility as between two divergent versions of an event, the arbitrator had erred in law and declined to exercise his jurisdiction (Boise Cascade Canada Ltd. v. United Paperworkers International Union, Local 92 (September 17, 1987), 405/86 (Ont. Div. Ct.)).
[15] That does not mean that an arbitrator who is left in doubt as to what occurred cannot resolve the matter on the basis of which party has the burden of proof. In [page296] H. (F.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, [2008] S.C.J. No. 54, at para. 44, Rothstein J., in discussing the issue of what burden of proof applied, cited the following statement by Lord Hoffmann in In re B, [2008] 3 W.L.R. 1, [2008] UKHL 35 (H.L.):
If a legal rule requires a fact to be proved (a "fact in issue"), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are zero and one. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of zero is returned and the fact is treated as not having happened. If he does discharge it, a value of one is returned and the fact is treated as having happened.
[16] Rothstein J. went on to address the kind of evidence required to satisfy the test, at para. 46: "[E]vidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test."
[17] In the case of Kirkland Lake (Town) v. C.U.P.E., Local 26 (Boyce), [2009] O.L.A.A. No. 156, 183 L.A.C. (4th) 74 (Lab. Arb.), at p. 83 L.A.C., the arbitrator was faced with two equally plausible explanations of what had occurred. He decided the case on the basis of who had the burden of proof:
The implication of the burden of proof is not that I must select which of the two versions of truth is the more likely; I must decide if Town has proved, on the balance of probabilities, that its version is the correct one.
[18] Similarly, in Canadian Airlines International Ltd. and I.A.M. District 149 (Re), 92 O.A.C. (4th) 153 (C.A.), a case involving allegations of sexual harassment against an employee, the arbitrator found that it was "more probable than not" that an incident of sexual harassment had occurred. In reaching that conclusion, he considered that his job was to assess and weigh the evidence to determine if the employer had discharged his onus. He cited the following:
If the evidence is such that the tribunal can say: "We think it more probable than not", the burden is discharged, but, if the probabilities are equal, it is not. [Miller v. Minister of Pensions, [1947] 2 All E.R. 372 (K.B.) at p. 374]
[19] It is not the job of a panel on judicial review to microscopically examine each finding or lack of finding. Rather, it is our job to consider the reasons and decision as a whole against a standard of reasonableness or correctness. In my view, the arbitrator failed to meet either standard when he declined to assess credibility and make factual findings.
[20] With respect to the allegation that the grievor had followed the complainant when their paths crossed, the arbitrator [page297] did not give reasons for not accepting the complainant's version of what took place. He stated: "There was no other evidence presented concerning this matter, and I am therefore unable to conclude with any degree of certainty the nature or frequency of this behaviour or whether it in fact occurred at all."
[21] It is unclear from the reasons why the arbitrator was unable to reach the conclusion. He might have been of the mistaken view that he could not make a finding in favour of the complainant in the absence of testimony from another witness. Alternatively, he might have been of the view that he could only make a finding if there was "a degree of certainty". He did not, however, refer to the burden of proof as his reason for declining to make a finding.
[22] The arbitrator took a similar approach to the allegations that the grievor had blocked the complainant's car and keyed her car. He merely indicated that the grievor denied the incidents had occurred and he could not conclude that they had occurred. Again, it is unclear whether he reached this conclusion because he was of the view that a witness, other than the grievor and complainant, was required, he was applying the burden of proof or he simply could not decide.
[23] There were, however, witnesses who testified with respect to the allegation of the staring at the vans. In that case, although one witness supported the complainant's testimony, the grievor denied the incident and two other witnesses said they saw nothing inappropriate. The arbitrator concluded that he was "unable to conclude with any degree of certainty if such staring took place and, if it did, the nature or duration of the staring".
[24] The arbitrator gave no reasons for not accepting the testimony of the complainant and the other witness. He did not make findings of credibility. He did not refer to the burden of proof although he did refer on two occasions to being unable to conclude that something had occurred "to any degree of certainty". In so doing, was the arbitrator effectively applying a burden of proof that was higher than a balance of probabilities?
[25] In summary, it is unclear whether the arbitrator failed to make findings with respect to these allegations because he was of the opinion that he required corroborative evidence when he was faced with a "he said/she said" situation; the Board had not satisfied the burden of proof; he was applying a burden of proof of "certainty"; or he simply "threw up his hands" because he could not decide who was telling the truth in the face of contradictory versions. The arbitrator was [page298] mandated to make findings of fact. His failure to do so amounted to an error going to jurisdiction.
[26] In providing reasons for a decision, a decision-maker must explain both what is being decided and why it is being decided (Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1, [2010] O.J. No. 1046 (C.A.)). The obligation to give reasons -- to explain why it has reached the decision it has -- is part of the duty of procedural fairness. A breach of the rules of procedural justice is a sufficient ground, standing alone, to quash the decision (Clifford v. Ontario Municipal Employees Retirement System (2009), 98 O.R. (3d) 210, [2009] O.J. No. 3900, 2009 ONCA 670, at para. 22).
[27] The arbitrator did not make factual findings with respect to material allegations. It is not clear from his reasons why he did not do so. This failure satisfies neither a standard of reasonableness nor correctness.
Test for Harassment
[28] The arbitrator determined that the evidence had not demonstrated that the grievor had harassed the complainant. He therefore concluded that the Board had not established just cause for discharge.
[29] The Board submits that the arbitrator applied the incorrect test to determine whether there was "harassment". In particular, the Board maintains that the test is an objective one and the arbitrator incorrectly considered the intentions of the grievor.
[30] The union agrees that the test is objective and submits that the arbitrator applied an objective test.
[31] In his discussion of what constitutes harassment, the arbitrator cited, with approval, the comments of Arbitrator Laing in British Columbia (S, complainant) and British Columbia Government Employees' Union (M, G and Z respondents) (Re) (1995), 49 O.A.C. (4th) 193, at 242-43. Of particular relevance to this issue is the following excerpt from the quote:
I do not think that every act of workplace foolishness was intended to be captured by the word "harassment". This is a serious word, to be used seriously and applied vigorously when the occasion warrants its use. It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts or foolish words, where the harm, by any objective standard, is fleeting. Nor should it be used where there is no intent to be harmful in any way, unless there has been a heedless disregard for the rights of another person and it can be fairly said "you should have known better". (Emphasis added)
[32] The comments of Arbitrator Laing have been cited with approval in several arbitration decisions: [page299] Eurocan Pulp & Paper Co. v. Communications, Energy and Paperworkers Union of Canada, Local 298 (Verde Grievance), [2001] B.C.C.A.A.A. No. 214 (C.A.A.); Canada Post Corp. v. Canadian Union of Postal Workers (Durand Grievance), [2002] C.L.A.D. No. 193, [2002] C.P.A.S. No. 15 (Lab. Arb.), para. 90; United Food and Commercial Workers Union of British Columbia, Local 1518 v. 55369 BC Ltd. (c.o.b. Shopper's Drug Mart No. 242) (Harrassment Grievance), [2007] B.C.C.A.A.A. No. 130, 90 C.L.A.S. 94 (C.A.A.).
[33] The Board asserts that Arbitrator Laing's definition of harassment should not be applied because it focuses on the person's intention and is subjective. The Board points to the objective definition of harassment in the Ontario Human Rights Code: "a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome" (R.S.O. 1990, c. H. 19, s. 10(1)).
[34] In order to establish harassment under human rights legislation, it is not necessary to prove an intention to harass. Rather, the test is an objective one (Stadnyk v. Canada (Employment and Immigration Commission, [2000] F.C.J. No. 1225, 257 N.R. 385 (C.A.), at para. 11).
[35] The parties' collective agreement does not have a definition of harassment. However, it provides for the right to equal treatment with respect to employment without discrimination on the basis of various grounds, including sex. The terms are as defined in the Human Rights Code (art. 5.04).
[36] The definition of harassment in the harassment policy of the Board is similar to that in the Human Rights Code: it includes "unwanted attention of a persistent or abrasive nature by a person . . . who knows or ought to know that such attention is unwanted".
[37] In my opinion, the correct definition of harassment is an objective one, consistent with the definition [in] the Human Rights Code. The Code definition was incorporated into the collective agreement between the parties and is well recognized in jurisprudence. That definition is an objective one. It does not involve a consideration of the person's intent. To the extent that the qualification of "heedless disregard" in Arbitrator Laing's definition imports an objective component, it is not the equivalent of the Code's "ought to have known" that the conduct was unwelcome. While "you should have known better" is arguably closer to "ought to have known" in the Code definition, it does not solve the problem given the definition's focus on "intent to be harmful".
[38] However, the more important question for the purpose of this review is not whether Arbitrator Laing's definition is correct. [page300] Rather, the question is what definition the arbitrator applied in this case and whether that definition incorporated a requirement that the harassment was intended.
[39] The union submits that, regardless of what definition the arbitrator cited in his decision, he did not base his decision on the grievor's intentions. Rather, he based his conclusion on an objective assessment of the evidence taken in context and in its totality.
[40] It appears from the reasons that the arbitrator did not apply an objective definition of harassment. In discussing the two calls and one visit that the grievor made after the complainant asked him not to contact her, the arbitrator concludes that the grievor's conduct occurred but it was not harassment:
I appreciate that, from the perspective of the complainant, the behaviour of the grievor towards her amounted to a pattern of abuse and harassment. I also appreciate that, from the perspective of the grievor, he may have believed the complainant was sending him mixed messages, or at the very least he wanted to believe that to be the case because he continued to have affection for her, even if such affections were not reciprocal.
It is not possible for me to be the judge of the feelings or motivations of the grievor or the complainant, as this is rarely possible, and particularly difficult in the context of two married persons with children who worked in close proximity in a public school and had a friendship/sexual relationship over a number of months/years.
[41] The union's position is that the arbitrator did not reach his conclusion that there was no harassment on the basis that the grievor did not intend to harass the complainant. It points to the Arbitrator's statement: "It is not possible for me to be judge of the feelings or motivations."
[42] However, in his review of certain allegations, the arbitrator states that the evidence did not establish "that the grievor engaged in these conducts at all, or at least as part of a pattern of behaviour that was intended to intimidate or harass the complainant" (emphasis added). Given this statement and considering the reasons as a whole, I conclude that the arbitrator improperly applied a non-objective test for harassment that required an intention to harass.
The wrong inquiry
[43] The Board submits that the arbitrator asked the wrong question. He asked whether harassment had occurred, instead of asking whether the grievor was responsible for conduct that gave rise to just cause for dismissal.
[44] The union submits that the Board's position is "form over substance" in that the case has always been about harassment. [page301] Indeed, in the Board's own factum it states that "This case is about sexual harassment."
[45] It is clear from the reasons that the arbitrator considered it his task to determine whether harassment had occurred and, if it had, whether it constituted just cause for discharge. He concluded his decision as follows:
Every case of harassment is ultimately determined on its particular facts, and on the facts of this case I have determined that the evidence has not demonstrated with sufficient cogency that the grievor harassed the complainant and I have therefore concluded that just cause for discharged has not been established.
[46] The determination of whether there was "just cause" for dismissal has several steps. The first step is to determine whether the employee was responsible for the alleged misconduct. The second step is to determine whether the misconduct gave rise to just cause for some form of discipline. The third step is to determine whether the disciplinary measure selected by the employer is appropriate in light of the misconduct and other relevant circumstances. If it is not appropriate, the final step is to consider whether an alternative measure should be substituted (Toronto (City) Board of Education v. O.S.S.T.F. District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487, [1997] S.C.J. No. 27, at para. 49; Wm. Scott & Co. (Re), [1976] B.C.L.R.B.D. No. 98, [1977] 1 Can. LRBR 1 (L.R.B.)).
[47] The letter of discharge to the grievor indicates that his employment was being terminated for cause due to inappropriate behaviour and "behaviour [that is] totally inconsistent with the expectations of a teacher". The letter sets out specific allegations. The arbitrator found that the Board had established some of its allegations. He further found that there had been inappropriate behaviour. However, he concluded that this inappropriate behaviour did not constitute harassment. He ended his inquiry at that point.
[48] The arbitrator's task was not, however, to determine whether harassment had occurred. Having found that some of the Board's allegations had been made out and that the grievor had engaged in inappropriate conduct, the arbitrator should have gone on to consider whether this conduct gave rise to just cause for discipline. If it did, the arbitrator should have considered whether dismissal was the appropriate response. If he considered discharge an excessive response, the arbitrator should then have considered whether there was an appropriate alternative measure. [page302]
Summary and Conclusions
[49] In my opinion, the arbitrator made several fundamental errors: he failed to make critical findings of fact and failed to provide adequate reasons for his failure to do so; he incorrectly considered whether the conduct was intentional in determining whether there had been harassment; and he limited himself to determining whether harassment had taken place instead of asking whether there was conduct that constituted just cause for dismissal.
[50] Some of these errors can be said to be jurisdictional and therefore subject to a correctness standard. In other respects, it can be said that the failure to provide adequate reasons was a breach of natural justice, also a stand-alone basis upon which this decision can be set aside.
[51] However, even if approached on a reasonableness standard of review, the decision cannot stand. Reasonableness is concerned with "the existence of justification, transparency and intelligibility within the decision-making process . . . [and] with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, at para. 47).
[52] The arbitrator limited his inquiry in two ways: by requiring intent in order to find harassment and by ending his inquiry having found there was no harassment. In so doing, the arbitrator did not carry out the task that was before him, that is, to determine whether the grievor's conduct gave rise to just cause for dismissal. Furthermore, the failure to make crucial findings of fact taints the decision as a whole. It cannot be determined whether the result would have been the same if those factual findings had been made, if the proper question had been considered and if the correct test for harassment had been applied. The rationality of the conclusion cannot be tested. As a result, the decision cannot be said to fall "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, at para. 47).
[53] I would therefore set aside the decision and remit the matter to be heard by another arbitrator.
[54] The parties agreed that a costs award of $5,000 to the successful party would be reasonable. Costs are therefore awarded to the applicant in the amount of $5,000, inclusive of disbursements and HST.
Application granted.