Toronto Transit Commission v. The Amalgamated Transit Union, Local 113

Local 113, 2011 ONSC 3604

DIVISIONAL COURT FILE NO.: 497/09

DATE: 20110610

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Toronto Transit Commission, Applicant

AND: The Amalgamated Transit Union, Local 113, Respondent

BEFORE: Swinton, Low and Hourigan JJ.

COUNSEL: Roy C. Filion and Deborah Hudson, for the Applicant Joshua Philips and Dean Ardron, for the Respondent

HEARD at Toronto: June 6, 2011

ENDORSEMENT

LOW J.

[1] The respondent union brought a policy grievance dated April 18, 2007 against the Toronto Transit Commission (“the Commission”) as follows:

The Union grieves on behalf of all Union Members (who had a waiting period before receiving workplace safety and insurance act benefits) for all collective agreement benefits they were denied by the TTC during the waiting period/appeal periods – i.e., between the date of their application and eventual receipt of Workplace Safety Insurance Act Benefits. These benefits include but are not limited to wage increases, shift premiums, overtime, pension, comprehensive medical protection plan, dental, vacation pay, statutory holiday pay, birthday/floater, bereavement leave, etc.

The Union requests a declaration, all lost benefits for all members for the period the TTC had a policy of refusing to pay benefits to disabled workers in these situations, interest, damages, human rights training, and all other appropriate remedies.

[2] The arbitration proceeded over the period between November 5, 2007 and June 18, 2009. Only one witness testified, on March 24, 2009, and the parties proceeded upon an agreed statement of facts and a “quasi-willsay” statement. The arbitrator rendered his decision on August 12, 2009.

[3] The award deals with a number of issues raised in the grievance.

[4] The applicant seeks judicial review solely with respect to one aspect of the award. It challenges the award as unreasonable and in breach of the rules of natural justice insofar as it rules that employees placed on “Inactive Status” after six months and who are in receipt of WSIB payments are entitled to statutory and designated holidays “with pay” pursuant to the collective agreement.

[5] With respect to the allegation of breach of natural justice, there is no standard of review analysis. The argument here is not that the arbitrator refused to accord a full hearing but rather that he did not deal with the central argument of the applicant and, therefore, his reasons were inadequate.

[6] With respect to the merits, the standard of review is reasonableness, and is expressed in Dunsmuir v. New Brunswick, 2008 SCC 9 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 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.

[7] The Commission conceded that the arbitrator properly found that certain sections of the collective agreement containing pre-conditions for payment for statutory holidays had been superseded by s. 26(2) of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“the Act”).

[8] However, it is submitted that as the Commission’s prime if not only argument on the issue of entitlement to statutory holiday pay was s. 24(1) of the Act, it was a breach of natural justice that the arbitrator neither mentioned that section of the Act nor dealt with the Commission’s argument, the substance of which was that the payment resulting from application of the formula under s. 24(1) of the Act would amount to zero for the group on whose behalf the policy grievance was brought. Section 24(1) provides:

An employee’s public holiday pay for a given public holiday shall be equal to,

(a) the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20; or

(b) if some other manner of calculation is prescribed, the amount determined using that manner of calculation.

[9] The parties differ as to whether the issue of quantum of payment was before the arbitrator.

[10] The Commission states that the issue of payment was clearly before the arbitrator, and that its argument under s. 24(1) of the ESA was directed clearly to entitlement. If s. 24(1) is applied, inactive employees who do not have regular wages in the four week period preceding the public holiday would have no public holiday pay entitlement.

[11] The union contends that only the issue of entitlement was before the arbitrator and that issues of quantum are matters of implementation over which the arbitrator remains seized in the event that there is disagreement.

[12] On the other hand, the union takes the position that the collective agreement contains a statutory holiday pay benefit that is better than that generated by the formula in the Act and that the award is whole and complete. It is said that the background to the grievance is a practice under which the Commission paid for eight hours of work for a statutory holiday and that “with pay” must mean that.

[13] Unlike the situation with vacation pay where the collective agreement contains, at article 13, a formula for its calculation, there is no provision in the collective agreement that stipulates how statutory holiday pay is to be calculated. The arbitrator did not make a factual finding either affirming the alleged practice or importing it into the collective agreement.

[14] The arbitrator held, at page 30, “All employees covered by this grievance are entitled to statutory and designated holidays under Section 14 of the Collective Agreement but none of the employees are entitled to bereavement leave under Section 20 of the Collective Agreement.” Earlier, at p. 23, he said that employees “who are either awaiting the result of their application or are in receipt of WSIB benefits whether before or after transfer to inactive status or the inactive payroll are entitled to statutory and designated holidays with pay”.

[15] It is difficult to determine from the foregoing language whether the arbitrator intended to award statutory holiday pay on the basis of eight hours of wages or whether he had declined to deal with quantum at all. There is no explicit quantification of the benefit, but in the face of s. 24(1) of the ESA, the payment would be zero under the statutory formula for any employee who had not worked for at least four weeks before the work week in which the holiday occurred. What, then, would “entitled to statutory and designated holidays” mean?

[16] It is uncontroverted that the Commission’s argument before the arbitrator centred on s. 24(1) of the ESA. There is no provision in the collective agreement that provides a formula for the calculation of statutory holiday pay and as there is no factual finding importing the alleged past practice of paying eight hours into the collective agreement, it is, in our view, not possible to discern a line of logic that results in an employee being entitled to payment of money for statutory holidays where he or she has not worked the four weeks referred to in s. 24(1). The decision does not meet the standard of reasonableness in Dunsmuir in that it is lacking in justification and intelligibility.

[17] For the foregoing reasons, we would allow the application and set aside this aspect of the award. The issue of the relevant employees’ entitlement to pay for statutory holidays and/or designated holidays is referred to a new arbitrator for determination.

[18] In light of the reasons for disposition, we make no finding as to whether there has been a denial of natural justice.

[19] The parties have agreed as to quantum of costs. The applicant is awarded costs fixed at $5,000.

Low J.

Swinton J.

Hourigan J.

Date: June 10, 2011