Cornwall (City) v. Cornwall (Fire Fighters), 2011 ONSC 3922

DIVISIONAL COURT FILE NO.: 60/11

DATE: 20110809

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Corporation of the City of Cornwall, Applicant

AND:

Cornwall Professional Fire Fighters Association, Respondent

BEFORE: Jennings, Aston, Lederer JJ.

COUNSEL: Frank Cesario, for the Applicant

Christopher Rootham, for the Respondent

HEARD: June 20, 2011

ENDORSEMENT

ASTON, J.

[1] This is an application by the City of Cornwall for judicial review of an arbitration award made December 21, 2010 regarding the promotion rights of fire fighter Bryan Ward. The arbitrator determined that Mr. Ward was not qualified to write the Lieutenant exam or to be awarded promotion to Lieutenant.

[2] The applicant and the respondent are parties to a collective agreement. The Fire Department has four divisions. They are: Fire Fighting, Fire Prevention, Mechanical, and Training. On July 22, 1992, Mr. Ward was hired into the Fire Fighting Division. He left this position twelve years later to take the managerial position of Deputy Fire Chief on July 26, 2004. Mr. Ward left the position of Deputy Fire Chief and returned to the bargaining unit in the Fire Fighting Division on September 5, 2005.

[3] In November, 2009, a notice was posted regarding a promotional opportunity for three Fire Fighters to the position of Lieutenant. Fire Fighters eligible to apply were those who qualified under Article 7.05 of the Collective Agreement which states in part:

Examinations will be held at the discretion of the Fire Chief for all Fire Fighters with fifteen (15) years of service within the Fire Fighting Division who wish to qualify to become a Lieutenant.

Mr. Ward was listed as a candidate eligible to write the exam, did so successfully, and began working as a Lieutenant in an acting capacity in March, 2010. Twenty-three grievances were filed by the respondent Association on behalf of Fire Fighters who were allegedly by-passed by Mr. Ward in this promotion.

[4] The issue before the arbitrator was the interpretation of the phrase “fifteen (15) years of service within the Fire Fighting Division”. The arbitrator concluded that “service within the Fire Fighting Division” should be interpreted to mean the same thing as “divisional seniority”. As a result, she found that Mr. Ward was not qualified to write the Lieutenants exam or to be promoted to that position because he did not have fifteen years of continuous service in the Fire Fighting Division.

[5] The parties agree that the appropriate standard of review to be applied to the arbitrator’s interpretation of the Collective Agreement is reasonableness.

[6] Article 7.05 dictates how many years of service in the Fire Fighting Division are necessary but it does not say how to tabulate those years. In particular, the dispute focuses on whether an applicant for promotion to Lieutenant must have fifteen years of continuous service in the Fire Fighting Division or merely fifteen years of cumulative service. The arbitrator looked to other provisions in the Collective Agreement in searching for the answer on how to tabulate those years of service.

[7] The word “service” is used elsewhere in the Collective Agreement without any tie to service within a particular Division. For example, “service” for the purposes of responsibility pay, pensionable service or vacation entitlement is simply cumulative service.

[8] The only Articles in the Collective Agreement specifying “continuous service” are in Articles 6.01 and 6.02 which speak to service as an aspect of “seniority”. Only continuous service counts for “Division seniority” or “Department seniority”. The concept of seniority is incorporated into Article 7, the Article addressing promotion, by Articles 7.08 and 7.09. However, it does so in a specific, narrow and limited context. These provisions merely provide that “seniority” becomes a tie-breaker when two or more candidates for promotion are otherwise equally qualified.

[9] The most obvious purpose of the phrase “fifteen (15) years of service within the Fire Fighting Division” is to ensure that any potential Lieutenant has that minimum of practical experience in fire fighting. Service in the other three divisions cannot count. The arbitrator failed to address this purposive perspective. There is no apparent reason for concluding that interrupted fire fighting experience is any less valuable to the job qualification than continuous experience.

[10] Generally speaking, “service” and “seniority” are not interchangeable terms. They do engage different concepts. For example, under Articles 6.01 and 6.05 of this Collective Agreement “seniority” can be reduced, or lost altogether, in defined circumstances. However, in other contexts years of “service” are never lost or reduced. They simply accumulate. The use of the word “seniority” in Articles 7.08 and 7.09, in contrast to the use of the word “service” in Article 7.05, represents a deliberate choice and distinction. The arbitrator fails to take this distinction into account anywhere in her reasoning process. Obviously, if the parties intended the phrase “fifteen (15) years of service within the Fire Fighting Division” to mean “continuous” service, they could have inserted the word continuous or they could have used the phrase “fifteen (15) years of seniority within the Fire Fighting Division”.

[11] The arbitrator found ambiguity in Article 7.05 where none existed. By effectively inserting the word “continuous”, she gave Article 7.05 a different meaning from what the parties intended on the clear, direct language they employed.

[12] As a result, the arbitrator’s reasons do not meet the requirements of intelligibility, transparency and justification and the outcome is therefore unreasonable. In arriving at this conclusion, we acknowledge the significant degree of deference that a reviewing court owes to an arbitrator in a labour dispute, particularly in the interpretation of a collective agreement. “Reasonableness” does not necessarily mean that only one interpretation or outcome can be correct. It is impermissible for us to quash an award simply because we disagree with the conclusion. However, an interpretation contrary to the clearly expressed intent of the parties is beyond the boundaries of a reasonable outcome, and is therefore unreasonable

[13] The decision of the arbitrator is quashed.

[14] If counsel are unable to agree on costs, brief written submissions may be exchanged and filed within the next 30 days.

Aston J.

Jennings J.

Lederer J.

Date: August 9, 2011