Court File and Parties

Citation: The Corporation of the City of St. Catharines v. The St. Catharines Professional Fire Fighters’ Association, 2015 ONSC 6046

Divisional Court File No.: 15-639-JR

Date: 2015-10-01

Superior Court of Justice – Ontario

Divisional Court

Re: The Corporation of the City of St. Catharines, Applicant

And: The St. Catharines Professional Fire Fighters’ Association, Respondent

Before: Swinton, Mullins and Fregeau JJ.

Counsel: Frank Cesario, for the Applicant Sean McManus, for the Respondent

Heard at Hamilton: September 29, 2015

Endorsement

[1] The City of St. Catharines seeks judicial review of an interest arbitration award that imposed a 24-hour shift schedule for the City of St. Catharines’ suppression firefighters for a two-year trial period.

[2] The Arbitration Board (“the Board”) concluded that,

…the principles of replication and comparability support the awarding of a two-year trial period for the 24-hour shift in this service. We reach this conclusion in the absence of any definitive evidence that established a need for the change because of the significance of the comparative data and the absence of sufficient evidence to establish that the 24-hour schedule will cause health, safety or operational problems.

[3] The parties are agreed that the standard of review of the decision is reasonableness. In our view, the decision was a reasonable one.

[4] The Board rested its decision primarily on the principles of comparability and replication, which is a well-established and accepted approach in interest arbitration. The City argues that the Board unreasonably relied on the fact that 82% of firefighters in Ontario work a 24-hour shift, rather than use data showing that one third of fire services have adopted the 24-hour shift. We do not agree. The Board explained its reasoning as follows (Award at pp. 35-36):

It is true that the largest six services account for nearly three quarters of the comparator data. However, the St. Catharines community falls squarely within the grouping of services between 45-350 fire fighters. But the most persuasive data remains that over 82% of fire fighters, from services of all sizes, including many with no evidence of differences in size, geography or structure to St. Catharines, have adopted and/or adapted to the 24-hour shift. Therefore, no matter how the province is looked at, the totality of evidence leads to the conclusion that the vast majority of firefighters in this province now work 24-hour shifts, either on a permanent or a trial basis. Further, the vast majority of fire fighters in the U.S.A. also work this way. Finally, the Divisional Court [in Town of Ajax v. Ajax Professional Firefighters Association, 2013 ONSC 7361] itself characterized the 24-hour shift as the ‘norm’ in Ontario based on the extent of implementation in municipalities in Ontario and elsewhere, even when the evidence did not include services that have implemented such a schedule between then and now. Therefore, it must be concluded that the tide of collective bargaining, followed by arbitral replication in Ontario, supports the notion that the 24-hour shift is what one would likely have expected the St. Catharines fire fighters to have achieved in negotiations if they were free to engage in negotiations that involved the potential of economic sanctions.

[5] The choice of the Board to focus on the percentage of individual firefighters in Ontario working 24-hour shifts, as opposed to one third of fire services, was not unreasonable. Given the Board’s labour relations expertise, this Court must show deference to its choice of comparator.

[6] Having analyzed the comparator data as it did, the Board went on to consider and analyze the City’s concerns about health and safety risks and operational considerations. The Board concluded that the City raised “unsubstantiated predictions of ‘potential’ problems” and, absent evidence to establish actual problems, the concerns could not override the replication and comparability factors. It was reasonable for the Board to find the evidence from other fire services to be anecdotal and to have discounted the evidence, given how it was collected and presented.

[7] The Board also gave careful and detailed reasons as to why it did not find the expert evidence of Dr. Lockley to be persuasive. It explained why it was not persuaded by Dr. Lockley’s new model and noted the absence of studies with respect to the experience of firefighters working 24-hour shifts rather than other professions and the absence of any evidence of health and safety problems arising from a 24-hour shift for firefighters. While the Board may have drawn an unwarranted inference as to the extent to which St. Catharines firefighters have uninterrupted sleep over their night shifts, this did not materially impact the Board’s overall assessment of Dr. Lockley’s evidence, which it did not find persuasive.

[8] The City also argues that the Board acted unreasonably in awarding the 24-hour shift schedule given the municipality’s statutory authority over the Fire Department and the delivery of fire services in the Municipal Act, 2001, S.O. 2001, c. 25 and the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4. The Board reasonably rejected this argument, concluding that there is nothing in the legislation that removes hours of work from the scope of collective bargaining or interest arbitration except maximum hours, which were not in contention before the Board. Moreover, the Board reasonably concluded that to accept the City’s argument would be an abdication of the Board’s responsibility to set the terms and conditions of employment in the parties’ collective agreement (Award at p. 43).

[9] While the Board was “mindful of the honest concern” that City Council had about the risks of the 24-hour shift, the Board reasonably concluded that the resolution of City Council, in opposition to the 24-hour shift proposal, could not “trump the evidence presented in the hearing.” That evidence did not satisfy the Board, on a balance of probabilities, that there were unacceptable health and safety risks or operational or efficiency problems that could not be reasonably addressed (Award at p. 46).

[10] The Board made its decision on the evidence and submissions before it, giving careful and detailed reasons for the decision. The award of the 24-hour shift on a two year trial basis was within the range of possible, acceptable outcomes, given the principles of comparability and replication and the evidence before the Board. Accordingly, the application for judicial review is dismissed. Costs to the Association are fixed at $3,750, an amount agreed upon by the parties.

Swinton J.

Mullins J.

Fregeau J.

Date: October 1, 2015