CITATION: College Employer Council v. Ontario Public Service Employees Union, 2012 ONSC 6276
DIVISIONAL COURT FILE NO.: 142/12
DATE: 20121108
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, SWINTON AND SLOAN JJ.
B E T W E E N:
COLLEGE EMPLOYER COUNCIL (FORMERLY THE COLLEGES COMPENSATION AND APPOINTMENTS COUNCIL)
Applicant
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Respondent
Christopher Riggs, Q.C. and Alan Freedman, for the Applicant
David Wright and Chris Bryden, for the Respondent
HEARD at Toronto: October 2, 2012
Swinton J.:
Overview
[1] The applicant, the College Employer Council, seeks judicial review of two arbitration awards dated April 27, 2009 and February 14, 2012 dealing with return to work grievances following a strike. At issue is the reasonableness of the conclusion by the majority of the arbitration board (“the Majority”) that certain faculty members were entitled to receive additional compensation arising from altered workloads after the strike. For the reasons that follow, I conclude that the Majority’s decision was unreasonable, and accordingly, I would grant the application for judicial review.
Background
[2] The applicant acts as the bargaining agent for 24 Ontario community colleges in negotiating collective agreements with unionized staff. The respondent, the Ontario Public Service Employees Union (“the Union”), is the bargaining agent for academic staff of the colleges engaged as teachers, counselors and librarians.
[3] On March 7, 2006, academic staff of the colleges commenced a lawful strike that ended on March 24, 2006. The parties entered a memorandum of agreement that included a Return to Work Protocol (“the Protocol”). In 11 paragraphs, the Protocol dealt with adjustments to compensation, specified how certain articles of the collective agreement would be applied, required the Union to withdraw bad faith bargaining charges, and provided there would be no reprisal or discipline arising from strike activities.
[4] Paragraphs 1 through 7 of the Protocol made a number of modifications to Article 11 of the collective agreement, the workload provision. Article 11 is a detailed provision, covering almost 10 pages. It governs the measurement of workload and the determination of compensation through a combination of assigned and attributed hours. More specifically, the workload formula considers teaching contact hours, attributed hours for preparation, attributed hours for evaluation and feedback, and attributed hours for complementary functions. Article 11.01 G2 provides that in atypical circumstances affecting a teacher’s workload, additional hours are to be attributed, after discussion between the teacher and his or her supervisor, on an hour for hour basis. The article also deals with professional development days and overtime and resolution of disputes through a Workplace Monitoring Group and a Workload Resolution Arbitrator.
[5] The first 6 paragraphs of the Protocol dealt with modifications to Article 11 that included the calculation of salary and adjustments to professional development days. Paragraph 7 of the Protocol stated, “For purposes of Article 11.01 G2, the circumstances arising as a result of the work stoppage are deemed not to be atypical”.
[6] In paragraph 12, the Protocol provided for a board of arbitration to deal with grievances “arising out of or related to return to work.” It read:
The parties agree that a board of arbitration will be appointed to hear any faculty grievances arising out of or related to return to work. Faculty grievances related to workload arising from the return to work shall proceed directly to the board of arbitration who shall have the powers referenced in Article 32.
[7] Article 32 of the collective agreement is entitled “Grievance Procedures”. A “grievance” is defined in Article 32.12 C as “a complaint in writing arising from the interpretation, application, administration or alleged contravention of this Agreement.” Article 32.04 D provides that the arbitrator is not authorized to alter, modify or amend any part of the agreement nor to deal with a matter that is not a proper matter for a grievance under the agreement.
[8] In an interest arbitration award dated June 28, 2006, Arbitrator Kaplan ordered:
- Under the Return to Work Protocol a board of arbitration is to be appointed to hear any faculty grievances arising out of the return to work. Should the parties be unable to agree on a chair, I will appoint one.
[9] Approximately 1,200 grievances were filed respecting the return to work following the strike.
The Majority Arbitration Awards
[10] In the interim award dated April 27, 2009, the Majority concluded that workload grievances arising from the return to work would be considered outside the ambit of Article 11 of the collective agreement. Instead, the grievances would be governed by the Protocol and not the collective agreement (Reasons, p. 11).
[11] In the course of their reasons, the Majority observed that a work stoppage “is an atypical circumstance which may affect the workload of a teacher and for which a teacher may be entitled to additional hours being attributed to his or her workload pursuant to the collective agreement”. However, given paragraph 7 of the Protocol, no claim could be made for additional hours based on Article 11.01 G2 (Reasons, pp. 5-6).
[12] The Majority noted that the parties had acknowledged the abnormal nature of the remaining school year through the adjustments they had made in the Protocol (Reasons, p. 7). However, they saw their role as dealing with the unanticipated workload arising from the return to work (pp. 8 and 11). They described paragraph 12 of the Protocol as a “stand alone provision” to deal with issues arising out of the return to work and indicated that they would develop principles on a case by case basis (Reasons, p. 11).
[13] In the second award, the arbitration board dealt with four individual grievances. The Majority ultimately awarded overtime pay at time and one half to two grievors and dismissed the grievances of two others. In their reasons, the Majority now stated that the Protocol had been incorporated into the collective agreement and then went on to expand on the earlier reasons, reiterating that Article 11 of the collective agreement had no application.
[14] The Majority relied on the language of the Protocol, concluding that it “defined the work to be considered as ‘the workload arising from the return to work’ ”. It concluded that the parties’ use of that language “differentiated the work to be considered and assessed as post strike work from the work normally performed during the school year” (Reasons, p. 5).
[15] The Majority relied again on paragraph 12 of the Protocol, noting that the parties had not sent workload disputes to the usual dispute resolution bodies in Article 11 of the collective agreement, the Workload Monitoring Group or the Workload Resolution Arbitrator. The Majority stated (Reasons, p. 6):
The appointment of a separate and distinct board of arbitration to deal with the post strike workload suggests that the parties did not view the post strike workload as being part of the normal pre strike workload under the collective agreement.
[16] Finally, the Majority considered the context or factual background to the dispute, discussing the need for course adjustments following the strike. The Majority stated (Reasons, p. 12):
Viewed in context, and against the background of the pre strike situation and what the parties had originally contemplated because of the changes that were caused by the strike, the parties had incorporated the Return to Work protocol with different and separate criteria into the collective agreement to take into consideration a distinct paradigm shift from what normally occurs. Accordingly, after considering the collective agreement, the language of the Return to Work protocol and the evidence and submissions we determine that the pre strike collective agreement language and concepts under Article 11 are not applicable to the adaptation and changes to the workload made by the various teachers post strike and they are entitled to be compensated for the additional workload that arose as a result of the return to work.
[17] The Majority then set out nine principles that they would apply to resolve the grievances (Reasons, pp. 12-13):
Faculty members cannot unilaterally determine the nature and extent of the work to be performed.
All work arising out of or related to return to work must be authorized by the relevant member of the College which includes Deans or Chairs of departments.
The term authorized above means with express or implied authorization.
Express authorization means that a faculty member is specifically authorized to perform work related to the return to work with the understanding that the member shall be reimbursed for the work.
Implied authorization means that a faculty member may be specifically told to perform work related to the return to work. Where a member is specifically told to perform work related to the return to work, it shall be deemed that the work is authorized and that the member is to be reimbursed for the work.
Where a faculty member is told to do the work but also advised he/she will not be paid for the work, it shall be a rebuttable presumption that the work is authorized but the member may be reimbursed for the work.
Where a faculty member is told not to perform additional work arising out of or related to the return to work and who unilaterally performs work the member shall be deemed to have performed unauthorized work and shall not be reimbursed for the work.
The relief sought is equitable relief – namely that the time spent arising from the strike shall be equitably compensated for all hours worked in excess of forty-four hours in each week at the rate of time and one half.
Notwithstanding the foregoing, this Board may consider if there are exceptional circumstances requiring an equitable payment.
The Board stated that the claim for compensation was based on the equitable remedy of quantum meruit.
Analysis
[18] Reasonableness is the standard of review applied to a decision of a labour arbitrator interpreting a collective agreement (Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 900 (2009), 2009 ONCA 420, 96 O.R. (3d) 668 (C.A.) at para. 28).
[19] The standard of reasonableness is a deferential one. As set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47, it requires a court to consider the reasons given by the tribunal to determine whether they provide justification, transparency and intelligibility and whether the result is within the range of possible, acceptable outcomes, given the facts and the law.
[20] The reasoning of the Majority rests on two important conclusions: first, that Article 11 of the collective agreement is not applicable to workload disputes arising from the return to work, and second, that paragraph 12 of the Protocol confers the power on the Board to adjudicate those disputes and to develop the criteria to resolve them. Relying on the power conferred in paragraph 12, the Majority then developed a number of principles to govern the workload grievances arising from the strike and to provide what they described as “equitable relief.”
[21] There is no question that paragraph 12 of the Protocol sets out a special process for the resolution of disputes arising from the return to work, as it provides for a special board of arbitration to deal with all such disputes arising in all the colleges. However, it is significant that paragraph 12 states that “grievances related to workload arising from the return to work” shall be resolved by this special arbitration board (emphasis added). A “grievance”, as defined in the collective agreement, involves a dispute over the interpretation, application, administration or contravention of the agreement. Thus, paragraph 12 suggests that the role of the arbitration board was to resolve the return to work disputes based on the language of the collective agreement, including the Protocol.
[22] Despite the statement of the majority that the Protocol contained “different and separate criteria”, paragraph 12 does not set out any criteria for the resolution of disputes concerning the return to work, nor does it expressly confer a power on the arbitration board to set its own criteria. Nevertheless, the Majority concluded that Article 11 of the collective agreement, the workload provision, did not apply. As a consequence, they developed their own principles to award compensation to certain grievors.
[23] In my view, the Majority’s interpretation of paragraph 12 of the Protocol is fundamentally flawed, as it confuses process with substance. Paragraph 12 created a special arbitration process to deal with workload disputes so that one arbitration board would deal with disputes across all the colleges – no doubt to avoid different outcomes in different colleges. However, the arbitration board’s task was to interpret the parties’ agreement, as reflected in the language of the collective agreement and the Protocol. Nowhere in paragraph 12 is there language indicating that the arbitration board was being given the power to set criteria to compensate for adjustments to workload following the strike, a task that would be equivalent to an interest arbitration, rather than a rights arbitration.
[24] I turn now to the question whether it was reasonable for the Majority to conclude that Article 11 of the collective agreement had no application, and they could, therefore, determine criteria to compensate employees for workload arising from the return to work.
[25] The Majority reasoned that Article 11 did not mention that it would apply to disputes about workload arising from the return to work, which it could easily have done. While that is true, it is noteworthy that almost half of the Protocol deals with Article 11, setting out the modifications to that article for the period following the return to work after the strike. In particular, the parties agreed that the atypical circumstances provision in Article 11.01 G2 would not apply to workload arising as a result of the work stoppage, even though the return to work adjustments would normally be considered “atypical circumstances”. This wording suggests that the Protocol and Article 11 were meant to be read and applied together to workload disputes.
[26] Moreover, if the parties had intended that Article 11 would not apply to workload issues following the strike, as the Majority concluded, there was no need for them to specifically state that Article 11.01 G2 would not apply. The fact that they made particular reference to that provision suggests that the parties intended that Article 11 would apply to workload disputes post-strike, as modified, while circumstances arising from the work stoppage would not be treated as “atypical.”
[27] The Union argues that the Majority reached a just and reasonable decision, as the Majority were sensitive to the teachers’ argument that they should not be required to perform additional work arising as a result of the return to work without compensation for that work.
[28] However, the Protocol sets out no criteria for awarding such compensation. Instead, the Majority established a set of principles for additional compensation that have no foundation in the Protocol or the collective agreement. They had no jurisdiction to do so, as Article 32.04 D makes it clear that the arbitration board could not amend or add to the collective agreement.
[29] While the Union argues that the Majority were just creating a remedy, as they were entitled to do, that is not what the Majority did here. In order to fashion a remedy, the Majority had first to find a violation of the collective agreement or the Protocol. They did not do so. Rather, they created a set of principles to govern disputes, rather than applying the criteria in the parties’ agreement.
[30] The result of the application of these principles is to compensate at time and a half for individual work and preparation when the workload exceeds 44 hours a week. That approach is inconsistent with the way the parties have dealt with the determination of workload under the collective agreement, where hours are attributed for preparation and evaluation on a formula basis (unless there are atypical circumstances). That allocation is not based on a “time spent” model, where one would consider the work of a particular individual, who may spend more or less time than the attributed amount.
[31] The parties here are sophisticated. Their collective agreement contains a detailed code for the determination of workload and compensation. Following the strike, they negotiated a detailed Protocol for the return to work that included numerous changes to the workload provision. Given the language of the collective agreement and the Protocol, it is not a reasonable conclusion that the parties intended to give an unlimited discretion to the arbitration board to develop a new workload and compensation scheme to apply to the return to work after the strike on a case by case basis and to have that system operate in conjunction with the rules in Article 11 applicable to the “normal workload”.
Conclusion
[32] Accordingly, the application for judicial review is granted. The awards are quashed, and the grievances are referred back to a different arbitration board.
[33] The applicant shall have costs fixed at $7,500.00, an amount agreed to by the parties.
Swinton J.
Pardu J.
Sloan J.
Released: November 8, 2012
CITATION: College Employer Council v. Ontario Public Service Employees Union, 2012 ONSC 6276
DIVISIONAL COURT FILE NO.: 142/12
DATE: 20121108
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
pardu, swinton and sloan jj.
B E T W E E N:
COLLEGE EMPLOYER COUNCIL (FORMERLY THE COLLEGES COMPENSATION AND APPOINTMENTS COUNCIL)
Applicant
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: November 8, 2012