Court File and Parties

CITATION: TDSB v. CUPE, 2011 ONSC 6270

DIVISIONAL COURT FILE NO.: 2/11

DATE: 20111024

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Toronto District School Board, Applicant

AND:

Canadian Union of Public Employees, Local 4400 and William Kaplan, Respondents

BEFORE: Aitken, Swinton, Hoy JJ.

COUNSEL: Michael Hines, for the Applicant

Cynthia Petersen, for the Respondent

HEARD: October 18, 2011

ENDORSEMENT

HOY, J.

[1] The applicant, Toronto District School Board (“TDSB”), has brought an application for judicial review of a labour arbitration award dated May 31, 2010 issued by William Kaplan (the “Arbitrator”).

[2] Canadian Union of Public Employees, Local 4400 ( the “union”), filed a grievance on behalf of four educational assistants ( “EAs”) who, after a request for volunteers, accompanied special needs students on an overnight camping trip organized by a school.

[3] At issue before the Arbitrator was whether article W. 25 of the collective agreement applied and TDSB was therefore required to pay the EAs for five hours for the overnight visit. He concluded that the EAs were entitled to be paid.

[4] Article W. 25 provides:

Employees who are required to accompany classes on overnight visits shall receive five (5) hours pay at their regular rate of pay for each night of the overnight visit. Such hours shall not be counted towards eligibility for overtime.

[5] TDSB argued that the word “required” in this section signals that it only applies if the employees are compelled by the school to attend and, since the EAs volunteered, they were not entitled to be paid.

[6] TDSB argues that the Arbitrator’s award does not meet the reasonableness standard established by Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 at para. 47:

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 the law.

[7] TDSB’s primary submission is that the Arbitrator’s decision was conclusory and lacked justification and intelligibility.

[8] We are satisfied that the Arbitrator’s decision, read as a whole, provides a line of analysis reasonably leading to its conclusion and provides the requisite level of justification, transparency and intelligibility.

[9] The Arbitrator set out the provisions of the collective agreement that he considered relevant. In addition to article W. 25, this included the provision recognizing the union as the sole and exclusive bargaining agent representing all the employees and article AA.2., entitled “Volunteers”, which provides that volunteers shall not be used “if such use adversely affects the terms and conditions of employment of a bargaining unit Employee or permanently replaces, or is used in lieu of employing a Bargaining Unit Employee.”

[10] The Arbitrator found as facts that the same high student-staff ratio required at the school was required to attend to the needs of the students who were selected for the overnight outing, staff were advised to contact administration if interested in volunteering for the overnight excursion and if no one volunteered the trip could not have taken place.

[11] He also set out the union’s and TDSB’s positions in some detail.

[12] The union’s position included that it was clear that the EAs were “required” in the sense that they were “needed” and “[a]fter all, the EAs spent their entire time looking after their students.” This, the union argued, was the same work the EAs did during the regular school day. Moreover, the collective agreement did not permit volunteers if it would adversely affect the employment entitlements of employees. How, the union argued, could employees be required to volunteer for their own jobs?

[13] In the portion of his reasons under the heading “Decision”, the Arbitrator concluded that it was inconsistent with the terms of the collective agreement that employees “volunteer” to do their own jobs for nothing. They could volunteer, for example at a fun fair, leading a choir or coaching a team, as long as they were not volunteering for their own jobs.

[14] The Arbitrator noted that the EAs worked “from the time they left the school until the time they returned”. Clearly implicit in the Arbitrator’s reasons is that he interpreted the term “required” in article W. 25 as “needed”, consistent with the union’s submissions.

[15] Counsel for TDSB acknowledges that “required” is capable of meaning either compelled or needed.

[16] In our view, the Arbitrator’s interpretation of the collective agreement is within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

[17] In the result, TDSB’s application is dismissed and the union shall be entitled to costs in the amount which we are advised by the parties has been agreed.

Hoy J.

Aitken J.

Swinton J.

Date: October 24, 2011