United Steel v. Vale Canada Limited, 2014 ONSC 3346

United Steel v. Vale Canada Limited, 2014 ONSC 3346

CITATION: United Steel v. Vale Canada Limited, 2014 ONSC 3346

DIVISIONAL COURT FILE NO.: 4/14

DATE: 20140602

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DAMBROT, R. J. SMITH AND HARVISON YOUNG JJ.

BETWEEN:

UNITED STEEL, PAPER AND FORESTRY, RUBBER MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION (UNITED STEELWORKERS) AND ITS LOCAL 6500 Applicant

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VALE CANADA LIMITED Respondent

COUNSEL:

Brian Shell, for the Applicant

Stephen J. G. Shamie and Sean M. Sells, for the Respondent

HEARD at Toronto: June 2, 2014

ORAL REASONS FOR JUDGMENT

DAMBROT J. (orally)

1The three grievors, Messrs. French, Patterson and Veinot were all long time employees of Vale’s Mining Operations in Sudbury. On July 13, 2009, the employees’ bargaining unit began a lawful strike that would last for many months. By January 2010, the employer had decided to restart smelting operations, a move which required replacement workers and the return of some striking employees. One such employee, Mr. Chretien, who worked as an Acid Plant Operator decided to return to work in December 2009. Without this position filled, the employer could not run its smelting operations.

2Mr. Chretien experienced retaliation from other employees on strike. Fellow employees called him and asked him to reconsider his decision, posters were distributed and were advertising Mr. Chretien as a “scab” and his car was vandalized. Accordingly, the employer’s security personnel were under direction to monitor activity around Mr. Chretien’s apartment building.

3On January, 14, 2010, Mr. French and a fellow striking employee, Mr. Miller, were driving around and stopped at the building in which Mr. Chretien lived. While Mr. Miller was inside, Mr. French became animated in the parking lot because he saw that the employer’s security personnel were present and had identified Frank and Miller as strikers. Mr. French proceeded to “box in” the security personnel and called the police to report that he was being followed. This incident is referred to in the award as the “boxed in” incident.

4On January 19, 2010, a different colour of smoke could be seen coming from the employer’s smokestack, indicating that smelting operations had been resumed. This would not have been possible without the work of Mr. Chretien. The restarting of operations was a concern for the striking employees, and union leaders arranged for a 1:00 p.m. meeting to discuss these events at their Brady Street offices. The meeting time was not relaxed, as it usually was, because one of the members present, Mr. Bertrand, who was in charge of the day-to-day conduct of the strike, had another appointment to attend at 2:00 p.m.

5At 12:45 p.m., the three grievors got into Mr. French’s truck and drove in the opposite direction from the meeting. At 1:00 p.m., after passing near Mr. Chretien’s building, they were driving up Mr. Chretien’s street, several kilometres from the Brady Street location, when they saw Mr. Chretien on the street as he returned home from the job. They turned their truck around and stopped. All three yelled at Mr. Chretien regarding his crossing of the picket line. Mr. French got out of the truck, blocked the victim’s way and instigated a confrontation, attempting to kick the victim. Mr. French physically assaulted Mr. Chretien and neither Mr. Patterson nor Mr. Veinot intervened to stop him in any way.

6When the grievors did not show up to the meeting on time, Mr. Bertrand phoned Mr. Veinot three times to find out where they were.

7The assault was reported to the police and Mr. French was questioned later that day. He gave no explanation for why the three grievors were driving on Mr. Chretien’s street when they were already late for a meeting several kilometres away.

8The employer conducted an investigation into the incident and quickly concluded that it had just cause to dismiss all three employees. Each grievor received an identical termination letter on January 22, 2010, indicating that they were being terminated because they had “engaged in a premeditated effort to harass and intimidate” Mr. Chretien for his decision to exercise his lawful right to return to work. All three terminated employees grieved this termination.

9Mr. French was also charged criminally with assault and all three grievors were charged with criminal harassment in relation to these events. After a trial before Fitzgerald J., Mr. French was found guilty of assault on January 31, 2011. All three were acquitted of the criminal harassment charges.

10After the criminal trial had concluded, the employees’ grievance came before an arbitrator for a determination on the sole issue of whether the events of the assault on January 19, 2010 constituted just cause for the termination. An interlocutory award determined that findings of fact from the criminal trial would be dispositive and that neither the Union nor the employer could lead evidence in the grievance arbitration that would contradict or undermine those findings.

11The Union’s position at the grievance was that Mr. French deserved some lesser form of discipline but Mr. Patterson and Mr. Venoit deserved none. The assault was not premeditated. Rather, the Union maintained that it was a momentary flare-up resulting from the grievors’ coincidental encounter with Mr. Chretien in the context of a tense strike situation. Moreover, Mr. Chretien provoked it by swinging first at Mr. French.

12The employer’s position was that termination was justified on the basis of the grievors’ participation in the assaults alone but that it was even more appropriate given that the assault was premeditated.

13With respect to the January 14 incident, Mr. Miller testified that he and Mr. French stopped at the location in question because he wanted to inquire about rental units.

14With respect to the January 19 assault, the grievors’ evidence was that they did not proceed directly to their 1:00 p.m. meeting because they wanted to first get sandwiches from a store in the opposite direction of the Brady Street location. Then Mr. French decided to show the other two the location of the “boxed in” incident, which, unbeknownst to him, turned out to be at Mr. Chretien’s apartment. As they drove away from that apartment to pick up cigarettes at Mr. French’s house, they happened to spot Mr. Chretien on the street jogging, which triggered high emotion. They stopped to see if the jogger was Mr. Chretien, and then Mr. Chretien yelled at Mr. French and tried to punch him, provoking the assault.

15The employer pointed to evidence that contradicted this version of events, including the testimony of Mr. Chretien who gave evidence to the grievors confronted him violently without any provocation.

16The Arbitrator did not accept the grievors’ narrative. With respect to the grievors’ claim that Mr. French and Mr. Miller coincidentally stopped at Mr. Chretien’s apartment on January 14, 2010, leading to the “boxed in” incident, the Arbitrator held that:

It would require the complete suspension of disbelief to accept the accounts of Messrs. French and Miller that they just happened to arrive at this apartment … I cannot conclude that it was a coincidence that they ended up at the Chretien residence.

17This finding led the Arbitrator to question the veracity of the grievors’ story that they only ended up in Mr. Chretien’s neighbourhood again several days later because Mr. French wanted to show Mr. Patterson and Mr. Veinot the location of the “boxed in” incident. Considering the evidence that the grievors’ route to the 1:00 p.m. meeting took them in the opposite from the Brady Street location, made them late for the 1:00 p.m. meeting which had to start promptly because of Mr. Bertrand’s appointment, and happened to include a visit to see the unremarkable location of the “boxed in” incident which coincidentally was Mr. Chretien’s apartment, the Arbitrator held that the January 19, 2010 assault was premeditated:

On balance, none of the grievors were truthful in their evidence about the visit to the location of the “boxed in” incident. The evidence establishes that there was premeditation. There was nothing to see at the location of the “boxed in” incident. They had to be looking for someone.

18Beyond the finding of premeditation, the Arbitrator went on to find that Mr. Chretien did not provoke the assault and that, while Mr. French was the only person that physically assaulted Mr. Chretien, the other two grievors yelled at Mr. Chretien and did nothing to stop Mr. French:

On the evidence, there was no provocation. This was planned. The grievors had no reason to be where they were unless they were out looking for Mr. Chretien. In describing their participation, the grievors were not truthful and, on balance, the only conclusion that can be fairly drawn is that not only did Mr. French physically and verbally assault Mr. Chretien, but that Messrs. Patterson and Veinot joined in with their verbal taunts. Mr. French was, even though he denied it, in using his own terminology, on a ‘scab hunt’ while the other grievors made a bad situation worse by yelling ‘fucking scab’. Significantly, they did nothing to interrupt or interfere with the physical assault. The specific participation of the three grievors, and their dishonesty in their evidence about it, justifies termination on a just cause standard.

19The grievors’ participation in the assault, coupled with their dishonesty in the proceedings and their lack of remorse (they claim to be the victims of these events) led the Arbitrator to conclude the terminations would be justified even if he had not found the assault was premeditated:

[E]ven if for some reason the events of January 19th were found not to be premeditated, their actual participation in those events, as described in this award, without provocation, and without any subsequent acknowledgement and demonstration of remorse or accountability, justify maintaining the penalty … I can only conclude, carefully examining the discharged letters, that the employer has demonstrated just cause for termination on the basis of premeditation and, independently, on the basis of participation in the assault. Given the complete absence of any acknowledgement or responsibility, any expression of genuine contrition, and dishonesty in these proceedings, it is hard to see how this could be an appropriate case for reduction of the penalty.

20There is only one issue in this application: is the Arbitrator’s finding of premeditation essential to the award, and if so, is it based on unreasonable findings of fact? The specific findings of fact that are said to be unreasonable are:

(i) that the grievors’ route to the Brady Street location which passed by Mr. Chretien’s building and made them late for the 1:00 p.m. meeting, was an “extended excursion”;

(ii) that the grievors were “looking for” Mr. Chretien’s building; and

(iii) that the 1:00 p.m. meeting was important.

21The standard of review for the Arbitrator’s findings of fact, and his decision as a whole, is reasonableness. Determining the appropriate discipline for an employee-on-employee assault in the context of a workplace strike is a factually driven exercise that falls within the core of a labour arbitrator’s expertise. The Arbitrator’s findings of fact and assessments of credibility are owed the highest level of deference.

22The Arbitrator reached his conclusions of fact, including with respect to the three inferences specifically challenged by the applicant, in a thorough, balanced, carefully reasoned, fourteen-page analysis in the course of his seventy-three-page decision. He made findings of credibility and drew factual inferences that were open to him on the evidence. Each of the three impugned findings of fact was reasonable. His overall analysis provided a reasonable basis for its ultimate conclusions, and is sufficient to satisfy the criteria of justification, transparency and intelligibility. Overall, his decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law.

23For these reasons, the application is dismissed.

COSTS

24I have endorsed the Application Record, “For oral reasons delivered in Court, this application is dismissed. As agreed by the parties, costs to the respondent fixed at $10,000.”

DAMBROT J.

R. J. SMITH J.

HARVISON YOUNG J.

Date of Reasons for Judgment: June 2, 2014

Date of Release: June 27, 2014

CITATION: United Steel v. Vale Canada Limited, 2014 ONSC 3346

DIVISIONAL COURT FILE NO.: 4/14

DATE: 20140602

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DAMBROT, R. J. SMITH AND HARVISON YOUNG JJ.

BETWEEN:

UNITED STEEL, PAPER AND FORESTRY, RUBBER MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION (UNITED STEELWORKERS) AND ITS LOCAL 6500 Applicant

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