CITATION: Canadian Union of Postal Workers v. Canada Post Corporation, 2012 ONSC 4110
DIVISIONAL COURT FILE NO.: 11-DC-1720
DATE: 2012/08/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
pIERCE r.s.j., SWINTON and tUCKER JJ.
B E T W E E N:
CANADIAN UNION OF POSTAL WORKERS
Applicant
- and -
CANADA POST CORPORATION
Respondent
David Migicovsky, for the Applicant
Hugh McPhail, for the Respondent
HEARD at Ottawa: June 12, 2012
Swinton J.:
Overview
[1] The applicant, the Canadian Union of Postal Workers (“the Union”), seeks judicial review of part of the award of Arbitrator Michel Picher dated January 31, 2011, in which he ordered compensatory and punitive damages against the Union because of illegal strike activity. The Union argues that the arbitrator had no authority to make such a damage award.
[2] For the reasons that follow, I would dismiss the application, as the arbitrator reasonably concluded that he had the authority to award damages against the Union for a contravention of the collective agreement.
Background
[3] On March 5, 2008, Canada Post Corporation (the “Corporation”) filed a grievance alleging contraventions of the collective agreement and the Canada Labour Code, R.S.C. 1985, c. L-2 (the “Code”) by the Union. The grievance expressly sought compensatory and punitive damages, among other relief. It was sent with a covering letter that said it was submitted “in accordance with” Article 9.09 of the collective agreement. Subsequently, Arbitrator Picher was appointed from the national list of arbitrators in the collective agreement to hear the grievance.
[4] The Union does not take issue with the arbitrator’s finding that it had organized illegal strikes in Edmonton, Grande Prairie and Fort McMurray, Alberta in February 2008 and thus contravened the collective agreement. However, it argues that the arbitrator had no authority to award damages against it, because the collective agreement limits the remedial authority of the arbitrator when the Corporation brings a grievance under Article 9.09, allowing him or her to give only a declaratory decision.
[5] The Corporation and the Union are parties to a lengthy and complex collective agreement. It has French and English versions, both of which are regarded as official (see Article 36.04(b)(i)).
[6] The grievance and arbitration provisions of the collective agreement are found in Article 9. Article 9.08 allows the Union to file grievances if it believes employees or the Union have been aggrieved or treated unfairly. Article 9.09 contemplates either the Union or the Corporation filing a policy grievance. It states:
An authorized representative of the Union or a national representative of the Corporation may present a policy grievance in order to obtain a declaratory decision. A policy grievance may be presented in the following cases:
(a) where there is a disagreement between the Corporation and the Union concerning the interpretation or the application of the collective agreement;
(b) where the Union is of the opinion that a policy, directive, regulation, instruction or communication of the Corporation has or will have the effect of contravening any provision of the collective agreement, of causing prejudice to employees or the Union or of being unjust or unfair to them.
[7] Article 9 goes on to deal with time limits on grievances presented by the Union, presentation of grievances, grievance meetings, the Corporation’s reply, withdrawal by the Union, and arbitration. Article 9.40 provides that the national list of arbitrators shall be used for policy grievances, grievances concerning the unit as a whole, and “grievances concerning the Union”, among others.
[8] Article 9.87 allows either party to apply to a national list arbitrator for an interlocutory order to cease and desist. The arbitrator may give such relief if satisfied that there is a prima facie case of a contravention of the collective agreement or that such contravention is about to occur, the situation is urgent, the balance of convenience favours granting the relief, and, without such an order, the consequences would be severe and “could not be eventually corrected or compensated adequately.”
[9] Article 9.99, entitled “General Powers of the Arbitrator”, states,
The arbitrator shall be vested with all the powers that are necessary for the complete resolution of the dispute. Where the arbitrator comes to the conclusion that the grievance is well founded, he or she may grant any remedy or compensation that he or she deems appropriate. More particularly, he or she may:
(a) render a mere declaratory decision;
(b) require the Corporation to rescind a decision which has been contested and to restore the situation as it existed prior to said decision;
(c) evaluate the circumstances surrounding an abandonment of position or a resignation and decide in such a case on the validity of the employee’s consent.
It is understood that the arbitrator shall be vested with all the powers conferred upon him or her by the Canada Labour Code.
[10] Article 9.100 prohibits the arbitrator from modifying the collective agreement. Finally, Article 9.15 provides that a grievance shall not be deemed invalid or defeated by reason of technical irregularity.
The Decision of the Arbitrator
[11] The arbitrator rejected the Union’s argument that he could only award declaratory relief when the Corporation has brought a grievance. In reaching that decision, he relied on a decision of the Quebec Court of Appeal, Canada Post Corporation v. C.U.P.W, [1995] R.J.Q. 2402, which held that issues relating to the Union’s violation of a collective agreement because of an illegal strike should be resolved through labour arbitration. As well, he relied on an award of Arbitrator Jolliffe, who held that the Union could be liable for damages for a breach of this collective agreement (Canada Post Corp. v. C.U.P.W. (2006), 86 C.L.A.S. 68 and (2007), 160 L.A.C. (4th) 262).
[12] The arbitrator also looked to the grievance filed by the Corporation, which alleged breaches of named articles of the collective agreement and provisions of the Code. He took note that the grievance sought more than a declaration under Article 9.09, as it specifically asked for compensatory and punitive damages as well. He relied on an arbitration of Arbitrator Burkett (Canada Post Corp. v. C.U.P.W. (1989), 15 C.L.A.S. 50), where the arbitrator held that a union grievance filed under Article 9.09 was, in substance, a broader claim, as it sought monetary relief.
[13] The arbitrator also referred to the Sylvestre award (Canadian Union of Postal Workers v. Canada Post Corporation, Decision 93-203, December 17, 1993), which awarded damages against the Union. He concluded that the parties must have been aware of both the Sylvestre and Jolliffe awards, and their failure to negotiate language stating that the Union could not be liable for damages for an illegal work stoppage meant that such potential liability was an intrinsic part of the collective agreement (Reasons, p. 75).
[14] The arbitrator also relied on the broad language of Article 9.99 of the collective agreement, stating,
If the parties intended that that article, titled “General Powers of the Arbitrator”, should not be available to the Corporation they should be expected to confirm such a counterintuitive result by clear and unequivocal language. No such language is to be found, and I can find no basis, quite apart from the jurisprudence reviewed, in the language of the collective agreement to conclude that the Corporation is without standing to claim the remedies which fall within the Arbitrator’s jurisdiction by the parties’ agreement as reflected in article 9.99 (Reasons, p. 77).
[15] The arbitrator also held that even if the Union is correct, and the collective agreement only permits Corporation grievances under Article 9.09, s. 57 of the Code entitles the Corporation to bring this grievance. Subsection 57(1) requires every collective agreement
to contain a provision for the final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to … a collective agreement, concerning its interpretation, application, administration or alleged contravention.
Article 9.09 expressly permits the Corporation to seek declaratory relief concerning the interpretation or application of the collective agreement, but it fails to mention grievances by the Corporation concerning the “administration or alleged contravention” of the agreement. Therefore, the arbitrator concluded that the Corporation can resort to the Code to grieve the alleged contravention of the collective agreement independently of Article 9.09.
[16] While the arbitrator did not expressly mention s. 57(2) of the Code, that subsection provides for dispute resolution when a difference arises between the parties and the collective agreement does not provide for final settlement of disputes, as required by s. 57(1). One method for resolution is through an arbitrator selected by the parties.
The Standard of Review
[17] The Union argues that the standard of review is correctness, because the arbitrator is said to have determined a jurisdictional question.
[18] I disagree. The question of the remedial authority of the arbitrator was not a “true question of jurisdiction”, as that term is used in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 59. The arbitrator clearly had the jurisdiction under the collective agreement to determine the dispute between the parties and to provide an appropriate remedy. In fashioning the remedy, he had to interpret the terms of the collective agreement and the provisions of the Code that deal with arbitration. These are matters within his jurisdiction and require the application of the special expertise of an arbitrator. Therefore, the standard of review is reasonableness.
Was the Decision Reasonable?
[19] The Union submits that even if the standard of review is reasonableness, the decision is unreasonable because the arbitrator misinterpreted or ignored the relevant jurisprudence and disregarded Article 9.100; he erred in finding that Article 9.09 was contrary to s. 57(1) of the Code; and he failed to have regard to the French text of the collective agreement.
[20] In applying the standard of reasonableness, a court looks closely at the reasons of the decision-maker, to determine the existence of transparency, justification and intelligibility in the decision making process. As well, the court asks whether the decision falls within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, above, at para. 47).
[21] The Union argues that the arbitrator failed to follow other arbitration awards which had held that grievances filed under Article 9.09 permit only declaratory relief. In Canada Post Corp. v. C.U.P.W. (1989), 15 C.L.A.S. 50, Arbitrator Burkett held that a Union grievance seeking compensation fell outside the predecessor to Article 9.09, as only declaratory relief was available under that provision (at para. 9). However, he characterized the grievance as falling within then Article 9.06 (now Article 9.08), despite a reference to a “national policy grievance” on the Union’s transmission report. This award was upheld on judicial review ((1991), 1991 8315 (ON SCDC), 87 D.L.R. (4th) 88 (Ont. Div. Ct.)).
[22] The Union also relies on other decisions reaching the same conclusion about the scope of remedial relief under now Article 9.09, each time in the context of a grievance brought by the Union: for example, Canada Post Corp. v. C.U.P.W. (1993), 1993 16737 (CA LA), 35 L.A.C. (4th) 300 (Christie); Canada Post Corp. v. C.U.P.W. (2005), 80 C.L.A.S. 465 (Swan) at para. 29. Counsel submits that the arbitrator erred in failing to follow these decisions, as required by Article 9.103. That article provides that a final decision of an arbitrator is binding “in all cases involving identical and/or substantially identical circumstances.” As well, the arbitrator is said to have erred in following the 1993 decision of Arbitrator Sylvestre, as that arbitrator was interpreting a different collective agreement between the Corporation and the Letter Carriers Union of Canada.
[23] Even if the arbitrator failed to appreciate that the Sylvestre award related to different parties, there is still a reasonable line of analysis that explains and justifies the outcome he reached. The arbitrator followed the more recent decision of Arbitrator Jolliffe, made under this collective agreement, which stated that damages could be awarded against the Union.
[24] The earlier cases on which the Union relies are not directly on point. They were cases in which the Union had brought a grievance, and the arbitrators had to determine the scope of relief available in a union policy grievance, given that there are other provisions in the collective agreement dealing with individual and group grievances and the time limits governing those grievances.
[25] Moreover, the arbitrator’s conclusion that Article 9.99 gave him broad remedial powers was eminently reasonable, both in the context of the language of other parts of the collective agreement and in light of the important role of grievance arbitration in resolving workplace disputes. Article 9.48 of the collective agreement allows an arbitrator from the national list to deal not only with policy grievances, but also grievances concerning the Union.
[26] Notably, Article 9.87, which deals with interim relief, sets out criteria for a cease and desist order that suggest there must be a forum for the Corporation to obtain damages. Specifically, that article requires the arbitrator to determine if any loss would be compensable in damages before he or she can order interim relief. The wording suggests that the Corporation can seek damages against the Union for a breach of the collective agreement.
[27] I note, as well, that Article 9.99 gives broad remedial powers to the arbitrator. Those powers are consistent with the long established policy that labour disputes arising during the life of a collective agreement are to be resolved without stoppage of work. Normally, those disputes will be resolved through labour arbitration (Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929 at paras. 54 and 58).
[28] Moreover, the arbitrator reasonably relied on the language of s. 57(1) of the Code. He held that the Union’s reading of Article 9.09 contravened the Code, as it would restrict a Corporation grievance to a dispute relating to the interpretation or application of the collective agreement and prevent a grievance concerning the Union’s alleged contravention of the collective agreement.
[29] While the Union argues that the arbitrator erred in failing to consider the French language version of the collective agreement, there are two problems with this argument. First, Union counsel conceded in oral argument that the French language version was not raised in argument at the arbitration hearing. Second, the French language version, in my view, does not lead to a different interpretation of Article 9.09 from that reached by the arbitrator. Article 9.09 states in part, “Un grief d’interprétation peut notamment être présenté dans les cas suivants...” (emphasis added). In paragraph (a), the article then speaks of a dispute “sur l’interprétation ou l’application de la convention collective.” The Union argues that this language shows that a policy grievance may be filed in cases of interpretation or application, among other situations, and that a Corporation grievance in Article 9.09 is not restricted to interpretation and application. However, the word “notamment” precedes both paragraphs (a) and (b), which were quoted earlier in these reasons. The use of that term does not suggest that the word “contravention” is to be read into (a) - particularly, in light of the fact that there is an express reference to a contravention in (b) and a failure to include “contravention” in paragraph (a). Therefore, I would not give effect to the Union’s argument that the French version renders the arbitrator’s interpretation of Article 9.09, as well as his interpretation of the Code, unreasonable.
Conclusion
[30] There are a number of lines of analysis in the arbitrator’s award that justify his conclusion that he had the authority to award damages against the Union for a breach of the collective agreement. The decision falls within a range of possible, acceptable outcomes, given the words of the collective agreement and the Code. Therefore, the application for judicial review is dismissed.
[31] The Corporation shall have costs of the application. If the parties cannot agree on quantum, they may make brief written submissions in writing, to be sent to Registrar for the Divisional Court in Ottawa within 30 days of the release of this decision.
Swinton J.
Pierce R.S.J.
Tucker J.
Released: August 14, 2012
CITATION: Canadian Union of Postal Workers v. Canada Post Corporation, 2012 ONSC 4110
DIVISIONAL COURT FILE NO.: 11-DC-1720
DATE: 2012/08/14
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
pierce r.s.j., swinton and tucker jj.
B E T W E E N:
CANADIAN UNION OF POSTAL WORKERS
Applicant
- and -
CANADA POST CORPORATION
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: August 14, 2012