CITATION: The City of Hamilton (Hamilton Street Railway) v. The Amalgamated Transit Untion, Local 107, 2013 ONSC 3360
DIVISIONAL COURT FILE NO.: DC12-414JR
DATE: 2013-06-07
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
MATLOW, LINHARES DE SOUSA AND GORDON JJ.
RE: The City of Hamilton (Hamilton Street Railway), represented by Stephen A. McArthur and Janet M. Callfas
A N D:
The Amalgamated Transit Union, Local 107, represented by Cynthia D. Watson and Lisa Feinberg
Jasbir Parmar, unrepresented and not present
BEFORE: MATLOW, LINHARES DE SOUSA AND GORDON JJ.
HEARD: June 5, 2013
E N D O R S E M E N T
[1] The Applicant, the City of Hamilton (Hamilton Street Railway) (the “Employer”) seeks judicial review of the decision of Arbitrator Jasbir Parmar (the “Arbitrator”), dated February 16, 2012.
[2] The Employer and the Respondent, Amalgamated Transit Union, Local 107 (“Local 107”), are parties to a Collective Agreement. On February 10, 2009 Local 107 filed a grievance alleging the Employer had violated several articles of the Agreement.
[3] The grievance proceeded to arbitration and was heard over the course of 6 days throughout the latter half of 2011 and early 2012. At issue was the interpretation of two provisions of the Collection Agreement. The first was Article 25.01, which provides in part as follows:
Any run that is vacant up to 1:00 pm the day before it is to be operated will be assigned to a spare operator intact … Any run that comes open after 1:00 pm on the day before it is to be operated may be split and assigned to more than one (1) spare operator.
The second was Article 19.14, which provides in part as follows:
[Winddown] Operators may work on the Hamilton Street Railway Spare Board and are only permitted to operate the pieces of work on the Unassigned Board.
[4] The Arbitrator issued her decision on February 16, 2012 and determined that the manner in which the Employer assigned work on the spare board was in violation of the Collective Agreement.
[5] With respect to Article 25.01 of the Collection Agreement, she interpreted it to mean that the phrase “any run that is vacant up to 1:00 p.m.” refers to any run which does not have an operator assigned to it when the clock strikes 1:00 p.m.
[6] With respect to Article 19.14, she found it to be ambiguous, because although it states that wind down operators may work on the spare board, the evidence established that the spare board is used during the quarterly sign up and wind down operators are not entitled to participate in that sign up. Furthermore, Article 19.14 provides that wind down operators are permitted to operate work only on the unassigned board, which is at odds with their being permitted to work on the spare board. To assist in resolving that ambiguity, the Arbitrator considered evidence of past practice to assist in determining the mutual intention of the parties. Based upon uncontested evidence of long standing practice she interpreted this provision to mean that wind down operators may be assigned non-8000 runs, but only when a spare board operator or a day off volunteer is not available.
The Position of the Employer
[7] The Employer takes the following positions:
The Arbitrator exceeded her jurisdiction with respect to her interpretation of the Collective Agreement by amending or changing it or making a decision inconsistent with its terms. In particular, it is alleged that she created a hierarchy of seniority where none existed in the Collective Agreement, and she failed to recognize and uphold the difference between vacant shifts and open shifts.
The Arbitrator erred by failing to give proper consideration to evidence put before her and failed to give sufficient or any weight to the best evidence before her.
The Arbitrator erred in determining that it was ambiguous whether wind down operators could be assigned non-8000 series runs and therefore erred in looking to evidence of past practice to assist her in reaching her decision and improperly relied on such evidence, which was insufficient.
The Position of Local 107
[8] Local 107 takes the position that seniority is the cornerstone of labour rights and the Arbitrator’s decision simply recognized this. It argued that in making her decision, the Arbitrator simply determined how the various provisions of the Collective Agreement worked together and made reasonable findings available to her on the evidence before her.
Standard of Review
[9] It was agreed that the applicable standard of review is reasonableness. As such, it does not fall to us to substitute our version of what we consider to be the appropriate decision. Rather we must determine if the decision under review falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law. In order to interfere, it would be necessary that we find there to be no line of reasoning supporting the decision that could reasonably have led the Arbitrator to reach the decision she made [see Canada (Citizenship and Immigration) v. Khosa 2009 SCC 12, [2009] 1 S.C.R. 339].
Analysis
[10] Given the standard of review to be applied, we are not persuaded that the Arbitrator’s findings were unreasonable. To the contrary, we view her interpretation of the Collective Agreement to have been thoughtful, thorough and balanced. There can be little doubt that her decision falls within the range of possible, reasonable outcomes, defensible on the facts and law.
[11] Specifically, the alleged hierarchy created by the Arbitrator amounts to a reasonable interpretation of the Collective Agreement particularly when regard is had to Article 19 which provides that seniority provisions do not to apply to wind down employees, and thereafter ties seniority to shift selection. We have difficulty with the Employer’s concern of importing “availability” into this aspect of the Arbitrator’s decision. The decision is quite clear: “… the proper interpretation of the collective agreement is that wind down operators may be assigned non-8000 runs. However, this is only permitted where a spare board operator or a day off volunteer is not available.” Thus seniority and availability are both already at play. Indeed it could hardly be otherwise – that is, it seems unlikely that someone with seniority is likely to be assigned a run for which he or she is not available.
[12] Similarly, the Arbitrator’s interpretation of when a shift is vacant as opposed to open is a reasonable interpretation based upon the plain wording of the contract and the evidence which was adduced. If an employee “owns” his or her run and therefore has until 1:00 p.m. on the day before a scheduled run to determine whether he will be present for it, the vacancy of that shift cannot be determined until the clock strikes 1:00 p.m. If by that time the employee has indicated that he will not be present the following day, it is a vacant shift. If an employee an employee has indicated that he will be away for an undetermined number of days, he or she must, in order to reclaim the shift, indicate an intention to return to work by 1:00 p.m. the day before the shift. If he or she does not do so by 1:00, the shift is vacant. If a shift is not vacant, and after 1:00 p.m. an employee indicates that he or she will not be attending his shift, the shift is determined to be open. At the very least, this is a defensible interpretation of the Collective Agreement.
[13] The Arbitrator was free to accept any, all or part of the evidence that was placed before her. She was in the best position to assess the veracity of the evidence and the reliability of the witnesses. It does not lay with us to reassess that evidence and the findings that flow from it.
[14] Lastly, we agree with the Arbitrator that Article 19.14 is ambiguous. We agree that it was appropriate for her to examine evidence of past practice to assist in the interpretation of that section. We are not persuaded that this evidence was improperly admitted and relied upon particularly when there was no objection to its admissibility at the arbitration, no cross-examination on it, and no evidence to the contrary called by the Employer.
Conclusion
[15] The application is dismissed. If the parties are unable to agree on the issue of costs, they make written submissions within the following parameters: Local 107 shall serve and file its submissions, limited to 8 pages, within 45 days; the Employer shall serve and file is submissions within 21 days following service upon it of the submissions of Local 107, limited to 8 pages; Local 107 shall serve and file its reply, if any, within 14 days of service upon it of the Employer’s submissions, limited to three pages.
Released: June 7, 2013 __________________________________
Matlow, J.
Linhares de Sousa, J.
Gordon J.