CITATION: Canadian Union of Postal Workers v. Canada Post Corporation, 2015 ONSC 729

DIVISIONAL COURT FILE NO.: 14-2002

DATE: 2015/03/10

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Canadian Union of Postal Workers, Applicant

AND

Canada Post Corporation, Respondent

BEFORE: Aitken, Lederer and Ramsay JJ.

COUNSEL: Jean-Marc Eddie, Counsel for the Applicant

Steven Bird, Counsel for the Respondent

HEARD: January 27, 2015

ENDORSEMENT

AITKEN J.:

Nature of Proceedings

Nature of Proceedings

1This is an application by the Canadian Union of Postal Workers (“CUPW”) for judicial review of the final award of Arbitrator Susan Stewart, dated February 4, 2014, arising from a national policy grievance regarding the calculation of seniority for On Call Relief Employees if and when they become route-holding Rural and Suburban Mail Carriers. On Call Relief Employees are one category of Rural and Suburban Mail Carriers; but they do not have a specific route assigned to them. On Call Relief Employees and route-holding Rural and Suburban Mail Carriers are members of the same bargaining unit. The relationship between that bargaining unit and Canada Post Corporation (“Canada Post”) is governed by the Collective Agreement for Rural and Suburban Mail Carriers between Canada Post Corporation and the Canadian Union of Postal Workers (“the Collective Agreement”).

2The position of CUPW is that seniority for an On Call Relief Employee who subsequently becomes a route-holding Rural and Suburban Mail Carrier should be calculated on the basis of his or her date of hire as an On Call Relief Employee. The position of Canada Post is that seniority for such an employee should, in effect, be calculated on the basis of his or her date of hire as a route-holding Rural and Suburban Mail Carrier.

3The Arbitrator decided in favour of Canada Post and dismissed the grievance. CUPW asks that this award be set aside as being unreasonable.

Terms of the Collective Agreement

Terms of the Collective Agreement

4Pursuant to article 12.03 of the Collective Agreement, when a route becomes vacant, it is first offered to existing Rural and Suburban Mail Carriers, who are qualified route holders, in order of seniority. If the route remains vacant, Article 12.04 provides:

12.04 Vacant Routes Filled by On Call Relief Employees

When the provisions of clause 12.03 have been complied with and a vacant route remains, it shall be filled on the basis of seniority by qualified on call relief employees who have submitted applications in accordance with clause 12.06 and who work in installations that are located within a seventy-five (75) kilometer radius from the installation where the vacancy occurs.

5The subject of On Call Relief Employees was dealt with in interest arbitration and resulted in Appendix “E” being included in the Collective Agreement, and other articles, such as article 12.04, being added or varied within the Collective Agreement. Appendix “E” is entitled “ON CALL RELIEF EMPLOYEES”. Under Appendix “E”, Canada Post was obliged to hire On Call Relief Employees in certain locations across the country according to a time table set out in the Appendix. Canada Post was then to utilize On Call Relief Employees to cover all types of leave recognized under the Collective Agreement for employees in certain urban centres in the country. Appendix “E” went on to state in clause 6:

6. The collective agreement shall apply to on call relief employees, except for the following provisions: Articles 8, 11, 12 (except 12.04, 12.05, 12.06, 12.07, 12.08 and 12.09), 13.02, 14 (except 14.03), 15, 16, 17, 19, 22, 23, 24.03, 33 (except 33.04), Appendices A, F, and I.

6The remainder of Appendix “E” deals with further benefits to which On Call Relief Employees are entitled.

7Of particular significance on this application is the specific provision in clause 6 of Appendix “E” to the effect that article 8 of the Collective Agreement does not apply to On Call Relief Employees. Article 8 deals with the subject of seniority and reads as follows:

SENIORITY

8.01 Continuous Employment

For the purposes of this collective agreement, “Continuous employment” shall mean the length of continuous service of an employee since the date of his or her last hiring as an employee of the Corporation.

8.02 Seniority

Seniority shall be determined by the length of continuous employment of the employee within the bargaining unit since his or her last date of entry in the unit.

8The parties are in agreement that, by virtue of clause 6 of Appendix “E” to the effect that article 8 of the Collective Agreement does not apply to On Call Relief Employees, seniority does not accrue for an On Call Relief Employee while he or she is employed in that capacity. Also, the parties agree that, despite the use of the word “seniority” in article 12.04 of the Collective Agreement in regard to the order in which On Call Relief Employees will be considered to fill a vacant route, it is not seniority that is used in this regard but, instead, a separate ranking system of On Call Relief Employees.

9The only issue which the Arbitrator had to decide, and which remains in dispute, is whether the seniority of an On Call Relief Employee who becomes a route-holding Rural and Suburban Mail Carrier includes the period of time the employee was in the position of On Call Relief Employee. It is common ground that an employee who is hired as an On Call Relief Employee and then becomes a route-holding Rural and Suburban Mail Carrier is not rehired at the point of transition. It is also common ground that an employee remains a member of the same bargaining unit throughout his or her employment in either category of Rural and Suburban Mail Carrier.

10Pursuant to article 8.03 of the Collective Agreement, Canada Post is obliged to post updated seniority lists showing each employee’s name, seniority date, and work location. In doing this, Canada Post shows the seniority date of any employee, who started as an On Call Relief Employee and then becomes a route-holding Rural and Suburban Mail Carrier, as being the date the employee became a route holder.

11Canada Post also provides employees with documentation confirming their employment details. Employees can use this documentation for a variety of purposes, such as seeking a loan. In that documentation, Canada Post shows the date of hire of a route holder who started employment as an On Call Relief Employee as the date the employee was originally hired by Canada Post, not the date the employee became a route holder.

Award of the Arbitrator

Award of the Arbitrator

12After identifying the issue and summarizing the terms of the Collective Agreement and other relevant facts just referred to, the Arbitrator went on to review various decisions to which she had been referred.

13The Arbitrator noted the important principle set out in Tung-Sol of Canada Ltd. (1964), 1964 1021 (ON LA), 15 L.A.C. 161 (Reville) at para. 4 that: “… arbitrators should construe the collective agreement with utmost strictness wherever it is contended that an employee’s seniority has been forfeited, truncated or abridged under the relevant provisions of the collective agreement”. As counsel for Canada Post observed, in the Award of the Arbitrator, the seniority of former On Call Relief Employees was not being forfeited; it simply was not being expanded.

14The Arbitrator also referred to several cases standing for the proposition that the meaning of a collective agreement is to be found in its express provisions and in the plain meaning of its words (Amtec and USW, Local 4054 (2012), 226 L.A.C. (4th) 396 (Marcotte), DHL Express (Canada) Ltd. and Canadian Auto Workers (2004), 2004 94640 (CA LA), 124 L.A.C. (4th) 271 (Hamilton), and Corporation of the County of Essex and Canadian Union of Public Employees (2003), 2003 89538 (ON LA), 115 L.A.C. (4th) 316 (Freedman)).

15The Arbitrator went on to consider three cases which CUPW argued were particularly on point, namely: Re Falconbridge Ltd. And CAW (2000), 61 C.L.A.S. 378 (Brown), Black Diamond Cheese and Black Diamond Cheese Employees’ Independent Union 2000 CarswellOnt 4063 (Brent), and Canada Pose Corporation and CUPW (unreported decision of Lavery dated August 22, 2005), about which more will be said shortly. She also referred to Imperial Oil Strathcona Refinery and Communication, Energy and Paperworks Union (2004), 2004 94735 (AB GAA), 130 L.A.C. (4th) 239 (Elliot), upon which Canada Post relied for the principle that the provisions of a collective agreement must be read harmoniously in their entire context because “what is said in one place will often be qualified, modified or excepted in some fashion, directly or indirectly” in another place in the agreement (para. 43).

16Ultimately, the Arbitrator reasoned as follows:

In my view, the explicit agreement of the parties in Appendix E to the effect that Article 8 does not apply to [On Call Relief Employees] constitutes a specific qualification to the more general language of Article 8 providing for the determination of seniority on the basis of continuous employment in the bargaining unit. While I accept the Union’s submission as to the significance of seniority and the care which must be taken in approaching such an important matter, to interpret Article 8 in accordance with the Union’s position would be to ignore the very clear limitation that the parties have imposed on seniority accrual in Appendix E. In the absence of Appendix E there is considerable force to the Union’s position as to the effect of a plain reading of Articles 8.01 and 8.02, however the provisions of the Collective Agreement must be read and considered together as a whole. When they are read together in this manner, the Employer’s position that Article 8 cannot be construed as providing for seniority during the time that a route holder was employed as an OCRE is compelling.

Standard of Review

Standard of Review

17There is no dispute that the applicable standard of review of the Arbitrator’s Award is that of reasonableness. As stated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47:

A Court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

18CUPW submits that the Arbitrator’s Award was unreasonable because: (1) she ignored the clear wording of articles 8.01 and 8.02 of the Collective Agreement setting out how seniority for route holders is to be determined; and (2) she modified the Collective Agreement by providing a way to calculate seniority for route holders who had formerly been On Call Relief Employees that differed from the provisions of article 8. CUPW takes the position that the only reasonable way in which to interpret the provisions in the Collective Agreement is that Appendix “E”, and more particularly clause 6 therein, is spent and no longer relevant once an On Call Relief Employee becomes a route-holding Rural and Suburban Mail Carrier.

19Canada Post submits that Appendix “E” does not become irrelevant to the calculation of seniority once an On Call Relief Employee becomes a route holder. On the contrary, clause 6, in specifically denying any accumulation of seniority for an employee during the period he or she is an On Call Relief Employee, carves out that period from the calculation of seniority under article 8 once that employee becomes a route-holding Rural and Suburban Mail Carrier. Canada Post submits that the Arbitrator understood the issue, correctly summarized the facts, considered the arguments made by counsel, reviewed relevant case law, and rendered a decision that was clear and understandable. As a specialized tribunal, her decision was entitled to considerable deference. It met the standard of review of reasonableness.

Analysis

Analysis

20This grievance related to the rights of all route-holding Rural and Suburban Mail Carriers across the country who previously had been On Call Relief Employees. Under article 9.14 of the Collective Agreement, Canada Post and CUPW agreed that a national policy grievance of this nature has to be decided by one of only two national arbitrators acceptable to both parties, Arbitrator Stewart being one. It is well-recognized that labour arbitrators are entitled to considerable deference due to their special expertise (Dunsmuir, at paras. 55, 68) and it is arguable that this is especially so when the parties have agreed in their collective agreement that there are only two such arbitrators in the country to which they will entrust national policy grievances. (See Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53, 59 B.C.L.R. (5th) 1 where the Supreme Court of Canada recognized that deference is owed to decision-makers chosen by the parties presumably either based on their expertise in the area which is the subject of dispute or based on their being otherwise qualified in a manner that is acceptable to the parties.)

21As stated in Dunsmuir, at para. 48:

Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law.

22There is no question that the Arbitrator understood the issue before her. She also had a clear understanding of the relevant facts.

23The starting point in the Arbitrator’s analysis was that article 8 of the Collective Agreement, dealing with seniority, had to be interpreted in the context of the agreement as a whole, in a way that gave effect to all relevant provisions, including Appendix “E”, and that respected the plain meaning of the words used. This approach is unassailable.

24The Arbitrator carefully considered the arguments, and jurisprudence, advanced by the parties. She explained why she considered the cases relied on by CUPW distinguishable from the case at hand. In my view, it was reasonable for the Arbitrator to distinguish these cases.

25In Re Falconbridge Ltd. and CAW, Local 599, the arbitrator had to interpret the provision in a collective agreement to the effect that seniority meant “the relative status of the persons in the bargaining unit employed by the Company in accordance with the length of continuous (i.e. unbroken) service since the date of last hiring as shown on Company records …” The union claimed that only an employee in the bargaining unit at the date of the ratification of the collective agreement had seniority prior to the date the agreement was ratified, due to the presence of the following sentence found later in the same clause: “For employees hired prior to date of ratification their seniority will be shown on the seniority list provided by the Company on the date of ratification”. In other words, the union’s position was that any employees of the company who transferred into the bargaining unit subsequent to the date of ratification of the collective agreement would only gain seniority from the day of transfer forward. The arbitrator in Falconbridge, after considering the wording of these provisions in the context of the collective agreement as a whole, concluded that the last sentence only applied to employees in the bargaining unit as of the date of ratification; it had no application to others who were employees of the company as of the date of ratification, but not yet members of that bargaining unit. He noted that there was no provision in the agreement that specifically and clearly denied the accumulation of seniority to these employees when they subsequently joined the bargaining unit. He refused to read in any such provision.

26The Arbitrator, in this case, distinguished Falconbridge on the basis that the collective agreement under consideration in that case did not include any qualification to the general rule that seniority was based on length of continuous service with the company, whereas, in this case, clause 6 of Appendix “E” does deny the accumulation of seniority for On Call Relief Employees.

27In Black Diamond Cheese, the preamble to Appendix “A” to the collective agreement stated: “All matters relating to On-Call employees including their wages, hours and working conditions shall be only as set out in this Appendix.” Article 14.01 in the Appendix stated: “An On-Call employee shall acquire seniority after completing a probationary period of forty-five (45) shifts worked or three hundred and sixty (360) hours in any nine (9) consecutive month period. … It is further understood that any On-Call employee shall not be subject to Article 14.01 a) of the main body of the Agreement, probationary period, if successful on a permanent job posting and has completed the On-Call probationary period.” Article 20 of Appendix “A” reiterated that: “An On-Call employee who has completed the On-Call probation period and who becomes a full time employee will not be required to complete the full time probation period.”

28Article 14.01 a) of the main body of the Collective Agreement stated:

14.01 a) All employees shall be on probation until they have completed forty-five (45) days of work for the Company in any nine (9) consecutive month period, following which they shall become regular employees and will be given plant seniority credit for 45 days prior to the date on which they become a regular employee. [emphasis added]

29It was agreed that an on-call employee who had completed the on-call probationary period and who had subsequently been hired for a permanent position did not have to complete an additional 45-day probationary period referred to in article 14.01 a) of the main agreement. The issue was whether an on-call employee, who had not yet completed a mandatory 45-day probationary period while on-call, received any credit for that portion of the probationary period already served if hired for a permanent position, or whether that employee had to start from scratch to complete the 45-day probationary period required for regular employees.

30The arbitrator in Black Diamond Cheese found that the only reasonable way to interpret the terms of the collective agreement (including Appendix “A”) was that there was only one probationary period of 45 days expected of employees, whether on-call or regular, and all employment with the company in any nine consecutive month period went toward satisfaction of that probationary period. The arbitrator noted that, when the employee was an on-call employee, the terms of employment were governed by the separate and distinct code contained in Appendix “A” to the agreement, and when the employee became a full-time employee, the terms of employment were no longer governed by Appendix “A”, but were governed by the main body of the collective agreement. That is the interpretation which CUPW, in this case, argues that the Arbitrator here was bound to adopt when considering Appendix “E”. However, when one looks at the decision rendered by the arbitrator in Black Diamond Cheese, it is clear that he considered articles 14.01 and 20 of Appendix “A” to trump article 14.01 a) of the main agreement in circumstances where an on-call employee who had completed his or her on-call probationary period became a full-time employee.

31Furthermore, the arbitrator in Black Diamond Cheese noted that the parties themselves had recognized in Appendix “A” that 45 days of on-call work was the equivalent of 45 days of work for the company [the requirement under article 14.01 a)] and, therefore, there would be no logical reason to differentiate between days of work counted toward the acquisition of seniority as an on-call employee and days of work counted toward the acquisition of seniority as a full time employee. Additionally, any such distinction could lead to illogical results.

32The facts in this case can be distinguished from those in Black Diamond Cheese in two important respects. First, there is nothing in the Collective Agreement which explicitly states that work as an On Call Relief Employee is comparable to work as a route-holding Rural and Suburban Mail Carrier. To the contrary, article 6 of Appendix “E” specifically provides that work in the first capacity cannot attract seniority. Second, no reference was made in this case to any illogical or absurd results flowing from the interpretation of the Collective Agreement advanced by Canada Post, whereas such was present in Black Diamond Cheese.

33In Canada Post Corp. v. CUPW, the issue was whether Canada Post was failing to give “priority consideration” to candidates from eligibility lists when it was applying the external hiring process to hire Rural and Suburban Mail Carriers. The arbitrator decided that Canada Post was not obliged to hire from the eligibility list created for existing replacement workers or helpers, in order of seniority, when considering external hires. One of the reasons why he arrived at this conclusion was that the parties had not included a specific provision to this effect in the collective agreement, and could easily have done so, had that been their joint intention – reasoning which the Arbitrator in this case also relied on in rejecting CUPW’s grievance.

34However, CUPW, in the case at hand, points to the following comments of the arbitrator in Canada Post Corp. v. CUPW, regarding articles 8.01 and 8.02 of the collective agreement (which are the same as those in the Collective Agreement under consideration here), and article 8.04 (the substance of which is not in the current Collective Agreement) as directly contradicting the conclusion arrived at by the Arbitrator in this case:

… In fact, replacement workers and helpers on the eligibility list do not even accumulate seniority within the meaning of article 8 of the collective agreement. It is only when they are offered employment in the bargaining unit and become employees in the bargaining unit that the period during which they worked in the duties of a rural and suburban mail carrier is included for the purpose of establishing a ranking (clauses 8.01, 8.02 and 8.04). This is not to say that there cannot be any ranking among the workers on the eligibility list based on the length of the period during which they have worked in the duties of a rural and suburban mail carrier. In other words, I am not saying that there cannot be a senior employee among the replacement workers and helpers on the eligibility list but the length of service of a worker on that list does not qualify as “seniority” within the meaning of article 8 of the collective agreement and does not grant him any right under the collective agreement until he is offered employment in the bargaining unit and he becomes an employee included in said unit. [emphasis added.]

35What CUPW’s argument ignores is that article 8.04, as it then was, dealt specifically with the issue. It read:

8.04 Establishing Initial Seniority List

(a) The period during which a person has worked in the duties of a rural and suburban mail carrier before becoming an employee of the Corporation shall be included for the purposes of establishing a ranking among employees hired under the conditions of the Memorandum of Agreement.

36No similar provision dealing with the rights of On Call Relief Employees after they become route-holding Rural and Suburban Mail Carriers made its way into the Collective Agreement under consideration in this case. Therefore, as the Arbitrator here concluded, Canada Post Corp. v. CUPW is readily distinguishable.

37The Arbitrator’s task was to decide the interface between articles 8.01 and 8.02 and Appendix “E” of the Collective Agreement. The Collective Agreement applies to all members of the bargaining unit, in other words, all Rural and Suburban Mail Carriers, unless otherwise provided. Appendix “E” limited the terms of the Collective Agreement that are to apply to the category of Rural and Suburban Mail Carriers known as On Call Relief Employees. More specifically, by virtue of clause 6 of Appendix “E”, the benefit of the provisions of article 8 of the Collective Agreement dealing with seniority are denied to this category of employee. It does not run afoul of general principles regarding the interpretation of collective agreements for the Arbitrator to have concluded that the specific provisions of clause 6 relating to one category of Rural and Suburban Mail Carriers trumps the more generic provisions in article 8 relating to Rural and Suburban Mail Carriers generally.

38I reject CUPW’s position that the Arbitrator’s decision necessarily means that she ignored the plain wording in article 8 or that she modified article 8, contrary to article 9.20 of the Collective Agreement, which prohibits her from doing so.

39The Arbitrator’s decision can be interpreted as meaning that seniority for all Rural and Suburban Mail Carriers is calculated on the basis of continuous employment within the bargaining unit since the last date of entry in the unit, as mandated under articles 8.01 and 8.02, subject to the subtraction of any period of continuous employment as an On Call Relief Employee, as a result of the impact of clause 6 of Appendix “E”. This allows article 8 and clause 6 of Appendix “E” to stand side by side, it respects the plain meaning of the words in both provisions, and it requires no modification to either provision.

40I note that no argument was advanced that this interpretation leads to nonsensical, and obviously unintended, results so as to make the interpretation unreasonable (which would have been the case in Black Diamond Cheese had the arbitrator accepted the company’s argument). As well, we were not referred to any evidence to the effect that continuous employment as an On Call Relief Employee is directly comparable to continuous employment as a route-holding Rural and Suburban Mail Carrier. Such evidence might support the conclusion that, once a former On Call Relief Employee is assigned a route and is entitled to seniority under article 8, the only reasonable way to calculate seniority is that advanced by CUPW; namely, to consider Appendix “E” of no further relevance and to retrospectively confer seniority back to the date of initial hiring as an On Call Relief Employee. Evidence analogous to this type of evidence was available in Black Diamond Cheese and, understandably, impacted the result. No such evidence, or argument, was advanced here.

41The Arbitrator’s Award only has to meet the standard of reasonableness, and it is entitled to considerable deference. The Award gives meaning to all relevant provisions in the Collective Agreement, in accordance with their plain meaning, and without adding to or modifying any. The Award is defensible in respect of the facts and the law. Its logic is accessible. The outcome it produces is not clearly unreasonable. In short, it meets the standard of reasonableness.

Disposition

Disposition

42I would dismiss the application for judicial review, with costs in the amount of $3,500, as agreed by the parties.

Aitken J.

I agree

Ramsay J.

LEDERER J. (DISSENTING):

Dissenting Reasons

43I have reviewed the reasons prepared by Madam Justice Aitken and supported by Mr. Justice Ramsay. I accept the principles on which their analysis relies. It is the result with which I disagree.

44I begin with deference. As the reasons of my colleagues observe, labour arbitrators are to be accorded considerable deference. This is in recognition of their special expertise. I acknowledge the presence, in the reasons of my colleagues, of the following quotation which I repeat and extend:

Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference ‘is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers’.¹ We agree with David Dyzenhaus where he states that the concept of ‘deference as respect’ requires of the courts ‘not submission but a respectful attention to the reasons offered or which could be offered in support of a decision’.^{2 3}

(Citations omitted, see footnotes 1 and 2 below)

45This is an important passage. It makes clear that, while deference plays a significant role in the consideration by the court of the decisions of administrative bodies to which the government has delegated authority, it is not without limits: respect, but not subservience or submission.

46In the circumstances of this case, it should not matter that the Arbitrator is one of only two in the country who are entrusted with national policy grievances.⁴ This should not add to the deference offered to this or any arbitrator. Recently, in another case, I made the following observation which I re-state here:

Deference is not applied based upon a consideration of the experience and background of individual members of a tribunal or a panel. It arises from the understanding that the limited mandate and narrower focus to which administrative tribunals are directed leads to a level of specialized expertise the courts cannot be expected to maintain….⁵

47So far as I am aware, there is no precedent for the idea that the level of deference changes in response to the experience of the particular decision-maker or delegate. To adopt such an approach would take us down a dangerous road of individual analysis and assessment. It could happen at any time, in any case. It would be hard to manage and difficult to employ a consistent standard. It would detract from the idea that it is the tribunal that is specialized. It would privilege an individual deference over the respect owed to the institution.

48I understand that “…the meaning of a collective agreement is to be found in its express provisions and in the plain meaning of its words.”⁶ I accept that the provisions of such an agreement “…must be read and considered together as a whole”.⁷

49In this case, it is plain from a reading of the collective agreement that an On-Call Relief Employee does not, as a result of the application of clause 6 of Appendix E, attract seniority while he or she remains in that capacity. The problem is what happens when an On-Call Relief Employee obtains (or is awarded) a route and becomes a full-time Rural and Suburban Mail Carrier.

50The provisions of the collective agreement that deal with seniority are equally clear. Seniority is measured against continuous employment from the last date of entry into the bargaining unit.⁸ “Continuous employment” is defined by the length of continuous service since the date of the employee’s last hiring by Canada Post Corporation.⁹ It is accepted that, when an On-Call Relief Employee takes on a route and becomes a full-time employee, he or she is not re-hired and does not re-enter the bargaining unit. In such a case, the last date of hiring by the corporation and last date of entry into the bargaining unit is when the employee was last hired to be an On-Call Relief Employee.

51Once an On-Call Relief Employee becomes a full-time Rural and Suburban Mail Carrier, Appendix “E” no longer applies. The seniority provisions of clause 8 do. Without going further, a plain reading of the words of the contract are clear. Seniority begins, as prescribed by words present in the contract, when the employee was last hired by the corporation and last entered the bargaining unit. On such a reading, when the seniority provisions begin to apply, the actual calculation of seniority reaches back to the last hiring and last entry into the bargaining unit as an On-Call Relief Employee.

52There are no words in the contract that allow for seniority to be calculated from the time an On-Call Relief Employee takes on responsibility for a route and becomes a full-time Rural and Suburban Mail Carrier. To make this finding, the Arbitrator had to read in something that is not there. To my mind, this is inconsistent with the principles: first, of relying on the plain and ordinary reading of the words; and second, reading the contract as a whole. The words in the collective agreement say that seniority begins with the last hiring and last entry to the bargaining unit. It does not say that an On-Call Relief Employee is re-hired or re-enters when awarded a route. It is conceded that these things do not happen. There is no suggestion that they can be implied.

53On its own, this analysis does not allow for the decision of the Arbitrator to be set aside. Deference is owed. The standard of review is reasonableness. Despite what I may feel, the question remains: Was the decision of the Arbitrator reasonable? Reasonableness is explained as:

In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.¹⁰

54As I see it, it is not reasonable to allow an arbitrator to impose terms to an agreement that fall outside what is specifically expressed. To do this turns from deference to submission and subservience. It presumes that the Arbitrator, because of her expertise, can divine what the parties to the contract really intended apart from what the words actually say. There is no circumstance the agreement does not cover if only the words that are present are relied on. There is nothing intrinsically wrong or offensive with calculating seniority from the time that an employee was last hired and last entered the bargaining unit, even if it was as an On-Call Relief Employee. In a sense, this perspective demonstrates a reason why individual arbitrators should not be accorded a broader, deeper deference. It would allow for the prospect of a small number of arbitrators (in this case, two) to interpret contracts, not based on what the words say, but as they believe the parties intended. It would permit them to re-shape these collective agreements based on their experience and understanding of what good labour practice dictates the parties must have meant.

55The reasons of my colleagues propose that article 8 and clause 6 of Appendix E can stand side by side. This is based on their view that, within the words of the contract, is the idea that, to calculate seniority, the parties are to subtract any period of continuous employment as an On-Call Relief Employee.¹¹ To me, the difficulty is apparent. The words calling for this subtraction are not present. Article 8 and clause 6 of Appendix E work perfectly well together without such words. They just take you to a different result.

56There is the further proposition that the decision of the Arbitrator is shown to be reasonable by reference to the cases she relied on in coming to her decision. I do not agree that this is so. In Black Diamond Cheese v. Black Diamond Cheese Employees’ Independent Union, Local 555¹², the terms of the collective agreement made clear that the any period served as a probationary employee, while employed as an on-call employee, would be counted towards completing the 45-day requirement in circumstances where the employee had become full-time. The agreement said:

All employees shall be on probation until they have completed forty-five (45) days work for the company…¹³

[Emphasis added]

57The words “all employees” made clear who this article was to apply to and the words “work for the company” made clear it was any work, not just full-time work. Nothing needed to be added or read in to apply the agreement as determined by the arbitrator.

58Re: Falconbridge Ltd. and CAW, Local 599¹⁴ dealt with employees who, at the time the contract was ratified, were employed by the company, but were not part of the bargaining unit. The question was how their seniority was to be assessed when, at a later date, they were transferred to positions within the bargaining unit. It was the union’s position that seniority could only accumulate from when the employee joined the bargaining unit. The employer was of the view that, once in the bargaining unit, seniority should reach back through the earlier employment with the company. At first, this would seem to sustain the view of the Union in this case and allow for On-Call Relief Employees to go back through that phase of their employment when calculating seniority. As noted by Madam Justice Aitken, the Arbitrator distinguished this case from that one on the basis that, in Falconbridge, there was no provision in the agreement that qualified the general rule that seniority is based on the length of continuous service where, in this case, there is, being clause 6 of Appendix E. As I see it, this fails to properly account for what I believe is the important point. Madam Justice Aitken notes, in Falconbridge, the arbitrator refused to read in a provision that would have denied the accumulation of seniority to employees when they subsequently joined the bargaining unit. In this case, that is precisely what the Arbitrator has done. She has read in a provision that allows for seniority, accumulated during the service as an On-Call Relief Employee, to be denied to an employee who has taken on a route and become full-time.

59Finally, I refer to Canada Post v. CUPW.¹⁵ In that case, the arbitrator made comments to the effect that, under article 8 of the collective agreement, seniority did not accrue to what were referred to as “replacement workers” and did not grant such a worker any right under the collective agreement until he or she was offered employment in the bargaining unit. The Arbitrator distinguished this case on the basis that clause 8.04, as it was at the time, dealt specifically with the issue. To me, clause 8.04 did not deal with the question raised here. It is a given that, as a result of clause 6 of Appendix E, seniority does not accumulate while, and as long as, an employee remains an On-Call Relief Employee. Accordingly, seniority cannot play a role in deciding which of these employees should be offered full-time employment (a route). During the submissions, reference was made to a ranking that is utilized by Canada Post for this purpose. As I read it, clause 8.04 did not deal with seniority after an On-Call Relief Employee has obtained full-time employment as a Rural Suburban Mail Carrier, but with employees who were not yet so employed. It has been quoted by my colleagues.¹⁶ It refers to those who have carried out the duties of a rural and suburban mail carrier before becoming an employee of Canada Post and before any seniority provisions could apply, but allows that the time involved can be used for the purpose of establishing a ranking among employees under the conditions of the Memorandum of Agreement. I take from this that it was not the seniority of those who had become full-time workers that was being dealt with, but the manner in which those who had not yet obtained such a position were to be evaluated.

60A decision which is based on a reading-in of words or provisions that are not present when the words that are lead to a plain, clear and implementable interpretation does not fall within any range of possible or acceptable outcomes. Moreover, a decision-making process that reflects a consideration of cases that does not point clearly to the end or conclusion arrived at lacks the required justification, transparency and intelligibility to satisfy the standard of reasonableness.

61Left to myself, I would grant the application.

Lederer J.

Footnotes

1. 1Canada (Attorney General) v. Mossop, 1993 164 (SCC), [1993] 1 S.C.R. 554, at p. 596, per L’Heureux-Dubé J., dissenting.
2. 2The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per L’Heureux-Dubé J.; Ryan, at para. 49.
3. 3Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190; 2000 46957 (NB KB), 229 NBR (2d) 1; 291 DLR (4th) 577; 372 NR 1; 69 Admin LR (4th), 164 ACWS (3d) 727, at para. 48.
4. 4Reasons of the Majority, at para. 20.
5. 5Skeene v. Cohen, 2014 ONSC 7315, at para. 5.
6. 6Reasons of the Majority, at para. 14.
7. 7Ibid, at paras. 16 (quoting from the Award of the Arbitrator, at para. 9) 23, 25 and 28.
8. 8Collective Agreement for Rural and Suburban Mail Carriers, clause 8.02, quoted in Reasons of the Majority, at para. 7.
9. 9Ibid, at clause 8.01, quoted in Reasons of the Majority, at para. 7.
10. 10Dunsmuir v. New Brunswick, supra, at para. 47.
11. 11Reasons of the Majority, at para. 39.
12. 12[2000] L.V.I. 3144-5, 2000 CarswellOnt 4063.
13. 13Ibid, at para. p. 3 of 4 quoting article 14.01(a) of the Collective Agreement.
14. 1461 C.L.A.S. 378, 2000 CarswellOnt 9184.
15. 15Canada Post Corp. v. CUPW (2005), 82 C.L.A.S. 281, 2005 CarswellNat 2534.
16. 16Reasons of the Majority, at para. 35.