CITATION: Communications v. IKO Industries, 2012 ONSC 2276
DIVISIONAL COURT FILE NO.: 439/11
DATE: 20120612
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
The Honourable Mr. Justice Kent
The Honourable Mr. Justice Jennings
The Honourable Madam Justice Pepall
BETWEEN:
COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA, LOCAL 333
Douglas Wray, for the Applicant
Applicant
- and -
IKO INDUSTRIES LTD. MADOC and MARILYN A. NAIRN
Matthew Certosimo and James Fu, for the Respondent Iko Industries Ltd.
Respondents
HEARD: March 29, 2012
REASONS FOR JUDGMENT
Kent, J.
Issue:
[1] Should an employee’s entitlement to paid bereavement leave pursuant to a collective agreement be counted as part of that employee’s leave entitlement pursuant to the Employment Standards Act, 2000[^1]?
Background:
[2] The applicant, the Communications, Energy and Paperworkers Union of Canada, applies for judicial review of an award of an arbitrator sitting pursuant to the Labour Relations Act, 1995. The applicant grieved that the respondent, IKO Industries Ltd. Madoc, violated the collective agreement and s. 50 of the Employment Standards Act by counting absences for paid bereavement leave as part of the 10 “emergency leave” days per year that the Employment Standards Act provides to employees. The arbitrator dismissed the union’s grievance(s) finding that the employer’s actions did not violate the collective agreement or the Employment Standards Act.
[3] The two grievances at issue asked, in essence, whether the employer could count bereavement leave under Article 19 of the Collective Agreement as part of the (minimum) 10 emergency leave days provided for under Sec. 50 of the Employment Standards Act. One grievor had taken 4 days of paid bereavement leave under Article 19 of the collective agreement, which the employer counted towards his 10 emergency leave days. The union grieved that the employer could not count these 4 days towards the 10 emergency leave days. The grievor was not denied any emergency leave pursuant to the Employment Standards Act, nor was he denied any paid bereavement leave under Article 19 of the collective agreement.
[4] The broader issue for the grievance was whether the employer would be entitled to count days of paid bereavement leave as part of the minimum 10 days emergency leave granted by Sec. 50 of the Employment Standards Act, on the theory that paid bereavement leave was a form of emergency leave and a “greater benefit” under Sec. 52 of the Employment Standards Act, which therefore could be considered as part of the 10 days.
[5] The applicant sought an order of this court quashing the award of the arbitrator and (a) substituting its decision, or (b) remitting the matter to another arbitrator.
Legislative and Collective Agreement Provisions:
[6] The relevant provisions of the Employment Standards Act as follows:
No contracting out
- (1) Subject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void.
Greater contractual or statutory right
(2) If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.
Personal emergency leave
(1) An employee whose employer regularly employs 50 or more employees is entitled to a leave of absence without pay because of any of the following:
A personal illness, injury or medical emergency.
The death, illness, injury or medical emergency of an individual described in subsection (2).
An urgent matter than concerns an individual described in subsection (2).
Same
(2) Paragraphs 2 and 3 of subsection (1) apply with respect to the following individuals:
The employee’s spouse.
A parent, step-parent or foster parent of the employee or the employee’s spouse.
A child, step-child or foster child of the employee or the employee’s spouse.
A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse.
The spouse of a child of the employee.
The employee’s brother or sister.
A relative of the employee who is dependent on the employee for care or assistance.
Advising employer
(3) An employee who wishes to take leave under this section shall advise his or her employer that he or she will be doing so. 2000, c. 41, s. 50 (3).
Same
(4) If the employee must begin the leave before advising the employer, the employee shall advise the employer of the leave as soon as possible after beginning it.
Limit
(5) An employee is entitled to take a total of 10 days’ leave under this section in each calendar year.
[7] The relevant article of the Collective Agreement provides:
Article 19 – BEREAVEMENT PAY
19.01 (a) An employee will be allowed five (5) consecutive calendar days leave of absence in the event of the death of their spouse or children. The first of these days shall be the day of notice of death. One (1) of these days may not be consecutive when it is to attend the funeral whenever it occurs or in the case of a spring internment.
(b) An employee will be allowed three (3) consecutive calendar days leave of absence in the event of the death of their mother, father, brother sister, mother-in-law, father-in-law, step children, step mother or step father. The first of these days shall be the day of the notice of death. One (1) of these days may not be consecutive when it is to attend the funeral whenever it occurs or in the case of a spring internment.
(c) On the day of the funeral, provided the employee attends, the employee will be allowed one (1) day leave of absence to attend the funeral of a grandparent, grandchild, brother-in-law and sister-in-law.
(d) The employee will be paid at their regular rate for the days provided in paragraphs (a), (b) and (c) only if such day or days would otherwise have been regular working days for the employee.
Decision of the Arbitrator:
[8] The union argued before the arbitrator that bereavement leave under Article 19 did not provide a greater benefit than the Employment Standards Act minimum standard of 10 days of emergency leave, such that it became a violation of the Employment Standards Act to count the bereavement days as part of the 10 emergency leave days guaranteed under Sec. 50. It submitted that there was no direct relationship between the Article 19 benefit and the Sec. 50 benefit, the latter of which covered a much broader set of circumstances involving a wider range of dependents.
[9] The employer argued that there was no inconsistency between Article 19 of the Collective Agreement and Sec. 50 of the Employment Standards Act and that, in effect, Article 19 simply provided a right to employees to be paid in bereavement circumstances for leaves that were protected under Sec. 50 of the Employment Standards Act.
[10] The arbitrator found that, in this instance, the benefit under Article 19 was directly related to the benefit under Sec. 50. Sec. 50 provides for leave for, among other things, bereavements, and Article 19 provided for enhanced bereavement benefits (specifically for payment) on terms that were substantially the same as those imposed by Sec. 50.
[11] The arbitrator concluded that it was not permissible to add the Employment Standards Act minimum on top of the Article 19 entitlement. The purpose of the statutory entitlement was to bring the lesser collective agreement entitlement up to the minimum standard. It was the observation of the arbitrator that the fact that an employee might utilize 10 emergency days for purposes of bereavement, rendering it unavailable for other emergency leave purposes was of no consequence. In that instance, the arbitrator found the employee would simply receive paid bereavement leave for the days that qualified under Sec. 50 and under Article 19. In so doing the employee would receive both the Sec. 50 and the Article 19 benefit.
Standard of Review:
[12] In oral argument, counsel for both the applicant and the respondents submitted that the appropriate standard of review is reasonableness. We agree. In addition we note that deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190 at para. 54. Is the arbitrator’s interpretation that the employer’s counting the 4 bereavement days as part of the grievor’s emergency leave entitlement a reasonable interpretation of the combined effect of the Employment Standards Act and the collective agreement?
Considerations:
[13] Counsel for the applicant submits that the arbitrator used an inappropriate analysis to reach the decision she did. He also points out that the arbitrator’s interpretation can result in different outcomes for various employees, depending upon when emergency leave is taken and whether a bereavement day is needed after all emergency leave days have been utilized. Counsel submits that, if happenstance or timing might result in various employees receiving different entitlements, the arbitrator’s interpretation must be unreasonable. He refers to the arbitration decisions: Burlington Technologies Inc. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, (CAW-Canada), Local 525 (Saunders Grievance), [2006] O.L.A.A. No. 710 (Kennedy) and Hartman Canada Inc. v. United Steelworkers of America, Local 1-500 (Emergency Leave Grievance), [2006] O.L.A.A. No. 79 (Brown).
[14] While those decisions may be distinguished on their facts, it is clear that Arbitrator Brown in the Hartman decision specifically indicated he was not asked to decide whether a day of leave taken under a collective agreement would be counted as one of the 10 days of statutory emergency leaves. See: Hartman at paragraph 43.
[15] The policy and interpretation manual published by the Ministry of Labour provides as follows at section 18.7.6:
Note that if an employer offers a benefit plan for sick days, bereavement days, etc., and the employee opts to claim benefits under the plan, it is Program policy that the employee has in effect designated the absence as a personal emergency leave day. The same approach applies with respect to workplace injuries. For example, if an absent employee claims WSIA benefits, the employee is, in effect, designating the absences as personal emergency leave.
[16] Although not binding, administrative guidelines may be of assistance in interpreting a statutory scheme.
Decision:
[17] An interpretation that might result in different outcomes for various employees is not necessarily unreasonable. The Ontario Court of Appeal has observed that in many cases involving the interpretation of the language of collective agreements and employment statutes, there is more than one possible interpretation. See: National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 222 v. Johnson Controls Inc., 2010 ONCA 131, [2010] O.J. No. 645.
[18] That there may be other plausible interpretations does not make the arbitrator’s interpretation and decision in this instance unreasonable. The award was an interpretation and decision that was clearly within a reasonable range of outcomes. It is logical, considered and intelligible.
[19] For all of the above reasons and considerations the application is dismissed.
Costs:
[20] Counsel agreed that an appropriate quantum for costs was $4,000. Accordingly, the applicant is ordered to pay the respondent’s costs fixed in an all inclusive amount of $4,000 on a partial indemnity scale.
Kent, J.
Jennings, J.
Pepall, J.
Released:
CITATION: Communications v. IKO Industries, 2012 ONSC 2276
DIVISIONAL COURT FILE NO.: 439/11
DATE: 20120612
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
The Honourable Mr. Justice Kent
The Honourable Mr. Justice Jennings
The Honourable Madam Justice Pepall
BETWEEN:
COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA, LOCAL 333
Applicant
and –
IKO INDUSTRIES LTD. MADOC and MARILYN A. NAIRN
Respondents
REASONS FOR JUDGMENT
Released: June 12, 2012
[^1]: S.O. 2000, c.41.