CITATION: Ontario Public Service Employees Union v. Humber College Institute of Applied Arts and Technology, 2015 ONSC 1963

DIVISIONAL COURT FILE NO.: 475/13 DATE: 20150410

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Swinton, Harvison Young and Lederer JJ.

BETWEEN:

ONTARIO PUBLIC SERVICE EMPLOYEES UNION Applicant

– and –

HUMBER COLLEGE INSTITUTE OF APPLIED ARTS AND TECHNOLOGY Respondent

Richard A. Blair, for the Applicant William J. Hayter, for the Respondent

HEARD at Toronto: March 18, 2015

Swinton J.:

Overview

[1] The Ontario Public Service Employees Union (“the Union”) brings this application for judicial review seeking to quash the majority decision of an arbitration board dated August 13, 2013, which held that the board did not have jurisdiction to determine a union policy grievance. The Union argues that the decision is unreasonable because the reasons are inadequate, while the respondent, Humber College Institute of Applied Arts and Technology (“the College”), argues that the outcome was reasonable.

[2] For the reasons that follow, I would grant the application for judicial review and set aside the decision.

Factual Background

[3] The Union is the bargaining agent for academic and support staff of the Colleges of Applied Arts in the province. It filed a policy grievance under Article 32.09 of the academic collective agreement, stating that the College had allowed probationary faculty to enter and remain in overtime situations in violation of the collective agreement, including Articles 11.01 J 4, 11.01 J 1 and 11.01 E 4. Article 11 of the collective agreement is a detailed provision that deals with assigned workloads for faculty members.

[4] The grievance was referred to arbitration, where the College raised a preliminary objection to the jurisdiction of the board, arguing that the Union could not pursue a policy grievance relating to the workload of individual employees. Instead, the dispute must be addressed by way of an individual grievance pursuant to Article 11.02 A 6(a), which provides that “in the event of any difference arising from the interpretation, application, administration or alleged violation of 11.01, 11.02, or 11.09”, a teacher shall discuss such difference as a complaint with the teacher’s supervisor. Failing settlement, the complaint can be referred to the Workload Monitoring Group (“WMG”) of the college. If the matter is not resolved by the WMG, it can be resolved by a Workload Resolution Arbitrator (“WRA”), whose decision has no precedential effect.

[5] Article 11.02 A 6(b) deals with other grievances arising under Article 11, stating:

Grievances arising with respect to Article 11, Workload, other than 11.01, 11.02 and 11.09 shall be handled in accordance with the grievance procedure set out in Article 32, Grievance Procedures.

[6] The Union argued before the arbitration board that the grievance was arbitrable under Article 32.09, which deals with union grievances. It states:

The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by-passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees.

The Majority’s Reasons

[7] The majority reasons consist mainly of a recitation of the submissions made by counsel for the Union and the College. However, the clarity of the recitation leaves much to be desired. Indeed, the majority’s description of the Union’s argument is incomprehensible.

[8] The Union had argued that the arbitration board had jurisdiction under Article 32.09, despite the fact that an individual employee could have grieved the work assignment, because the three conditions precedent for a policy grievance had been met: an employee had not grieved an unreasonable standard, the standard is patently in violation of the agreement, and the standard adversely affects the rights of employees. However, the majority did not clearly describe the Union’s argument. Rather, the majority stated that the Union relied on the “individual SWF [Standard Workload Form] on his layoff and the application of the SWF at this period.” The majority then referred to an arbitration award by arbitrator Howard Snow (George Brown College, 2001 O.L.A.A. No. 765), stating that “it was submitted that while on a lengthy layoff the employee cannot be expected to deal with a grievance issue which is the situation in the Snow award ...”. The majority then stated that the Union argued that “the issue did not simply relate to a single employee”, and the Union sought “jurisdiction” to proceed with the grievance under Article 32 “as an ongoing problem with the bargaining unit”.

[9] One of the problems with this recitation of the Union argument lies in the fact that the reference to layoff is an error. There was no evidence led with respect to a layoff situation. Moreover, the Snow award did not deal with a layoff situation.

[10] The majority came to its decision on p. 6 of the award, where it stated, without any analysis of the language of the collective agreement or the relevant cases that have interpreted it, “The Board finds that the issues in this grievance should have been referred to the Workload Monitoring Group (WMG) pursuant to Article 11.02A 6(a).”

Analysis

[11] Both parties are agreed that the standard of review is reasonableness, requiring the Court to determine whether there is justification, transparency, and intelligibility in the reasoning process and whether the decision falls within a range of possible and acceptable outcomes (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).

[12] Both parties rely on the Supreme Court of Canada’s decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. The Union argues that the reasons of the majority are inadequate, as there is no way to understand the path by which the majority came to its conclusion. The Union relies on the words in para. 16 of Newfoundland Nurses,

... if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

In contrast, the College emphasizes that the adequacy of reasons is not a stand-alone basis to quash an arbitration award (citing para. 14), and a reviewing court can look to the record in assessing the reasonableness of the outcome (citing para. 15).

[13] The Union submits that this Court cannot determine how the majority came to its conclusion because of the total lack of analysis of the Union’s argument and the unwarranted reference to layoff when the majority described the Union’s position. The Union had relied on the exception found in Article 32.09 to support its position that the policy grievance was arbitrable, even though the subject of the grievance might otherwise be brought by an individual. It relied on two cases where other arbitrators have held that a policy grievance was available to deal with a workload grievance: Ontario Public Service Employees Union v. Seneca College (unreported, June 5, 1998) (Devlin) and Fanshawe College v. Ontario Public Service Employees Union (unreported, March 29, 1989) (Burkett). The latter decision was upheld on judicial review ([1994] O.J. No. 3697 (C.A.)) and relied on in Seneca College.

[14] In Seneca College, Arbitrator Devlin rejected a preliminary objection to jurisdiction in a case where the employer had scheduled a probationary faculty member into overtime. At p. 26, she wrote for the majority:

The issue before the Board concerns the right of the College to assign workloads in excess of 47 hours per week, including overtime. As indicated previously, there is a prior award in which this issue was determined in favour of the interpretation advanced by the Union. Moreover, although Article 11.02 provides a procedure for individual teachers to refer workload complaints to a Workload Resolution Arbitrator, the award of such an Arbitrator has limited effect. Furthermore, as noted in the Fanshawe College award of the Burkett Board, if the objection advanced by the College were to prevail, the Union would have no means to [sic] either enforcing or ensuring consistent application of the standards set out in Article 11.01. We also agree with the Burkett Board that this could not have been the intention of the parties, particularly as Article 11.01 A provides that each Professor shall have a workload which adheres to the provisions of the Article.

[15] Arbitrator Devlin then went on to consider whether the Union could properly proceed under what is now Article 32.09. She concluded that the Union had met the three conditions precedent to allow it to proceed with a policy grievance, stating

... to the extent that the Union alleges that workload assignments in excess of 47 hours per week, including overtime, must be the subject of agreement between the College and the Union, it may be said that the grievance involves a difference directly between the parties concerning the interpretation of the agreement in respect of which an individual employee would not be personally entitled to grieve. (Seneca pp. 27-28)

Arbitrator Devlin also accepted the Union’s submission that the College’s assignment of workloads exceeding 47 hours “could constitute an unreasonable standard within the meaning of Article 32.10” [now Article 32.09] and could give rise to a patent violation of the agreement (Seneca p. 28). She also accepted that the issue did not appear to be confined to the individual professors who were the subject of the grievance (at p. 30).

[16] In the present case, there is no examination of the Devlin and Burkett awards, and so there is no explanation why they were not persuasive. The College argues that there was an implicit rejection of the Union’s argument and an acceptance of its argument that the subject matter of the grievance must be pursued under Article 11. In support of its argument, the College relies on a series of cases where a workload grievance pursued by the Union was held not to be arbitrable. It submits that these cases, read in light of the clear wording of Article 11.02 A 6(a), show that the majority decision fell within a range of reasonable outcomes. For example, George Brown College of Applied Arts and Technology v. Ontario Public Service Employees Union (2003), 68 O.R. (3d) 161 (C.A.) and George Brown College v. Ontario Public Service Employees Union, [2004] O.L.A.A. No. 529 (Kaplan) held that the Union cannot refer an individual workload dispute to the WRA under Article 11. However, I note that Arbitrator Kaplan left open the possibility that the Union might be able to purse a grievance under what is now Article 32.09 if the Union had alleged “a special deal with an individual teacher in stark violation of the workload provisions of the collective agreement” (at para. 11).

[17] The College also points to Cambrian College (unreported, October 28, 1988) (Teplitsky) and two cases decided after the present case which have held that a grievance respecting an individual’s workload could not be pursued under the equivalent to the present Article 32. In La Cité Collégiale v. Ontario Public Service Employees Union (unreported, August 6, 2014), Arbitrator O’Neil held that a group grievance cannot be pursued under Article 32 with respect to Articles 11.01, 11.02 or 11.09. See, also, Humber College v. Ontario Public Service Employees Union (unreported, December 4, 2014) (Shime).

[18] It is true that a court, on judicial review, can look to the record to determine whether the outcome is reasonable. However, it is not the role of the court to make the decision that the arbitrator should have made. Here, the Union relied on the exception in Article 32.09. The majority never engaged with the Union’s argument nor explained why the exception would not apply in the present circumstances. It never discussed cases such as Seneca College (Devlin) and Fanshawe College (Burkett) or made any attempt to distinguish them on their facts. Indeed, the reference to layoff in the description of the Union’s argument leaves the impression that the majority did not adequately appreciate the Union’s argument that it was required to assess.

[19] The words of Aston J. in Fanshawe College of Applied Arts and Technology v. Ontario Public Service Employees Union, 2013 ONSC 595 (Div. Ct.) at para. 7 can appropriately be repeated here:

Judicial review, when it demands deference, is only a meaningful process if there is some way of ascertaining how and why the decision-maker reached the conclusion that it did. In this case the reasons are not merely inadequate, they are incomprehensible and fail the minimum requirements that would require us to afford deference. Moreover, it is not appropriate for this Court to engage in a process of deciding the issue de novo or speculating about what the arbitration board considered or failed to consider.

[20] In the present case, the majority reasons are also incomprehensible, and they fail to explain in the most minimal way how the decision was reached. It is not for this Court to determine whether the three conditions precedent in Article 32.09 have been met, or even whether Article 32.09 can be invoked in the circumstances of this workload grievance. It was the task of the arbitration board to address the issue and explain its conclusion. The reasons provided do not allow us to determine why the majority made its decision or to determine whether the decision was within the range of reasonable outcomes.

Conclusion

[21] Accordingly, the application for judicial review is granted, the arbitration award is quashed, and the matter is referred to an arbitration board differently constituted for determination. As agreed by the parties, costs to the Union are fixed at $5,000.00 all inclusive.

___________________________ Swinton J.

Harvison Young J.

Lederer J.

Released: April 10, 2015

CITATION: Ontario Public Service Employees Union v. Humber College Institute of Applied Arts and Technology, 2015 ONSC 1963

DIVISIONAL COURT FILE NO.: 475/13 DATE: 20150410

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Harvison Young and Lederer JJ.

BETWEEN:

ONTARIO PUBLIC SERVICE EMPLOYEES UNION Applicant

– and –

HUMBER COLLEGE INSTITUTE OF APPLIED ARTS AND TECHNOLOGY Respondent

REASONS FOR JUDGMENT

Swinton J.

Released: April 10, 2015