Cornwall Community Police Services Board v. Cornwall Police Association
CITATION: Cornwall Community Police Services Board v. Cornwall Police Association, 2016 ONSC 7733
COURT FILE NO.: 132/16
DATE: 2016-12-09
SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT
RE: Cornwall Community Police Services Board, Applicant
AND:
Cornwall Police Association, Respondent
BEFORE: MOLLOY, SACHS and RAMSAY JJ.
COUNSEL: Mark D. Contini and Sarah E. Smith, for the Appellant
Steven Welchner for the Respondent
HEARD: December 7, 2016 in Toronto
ENDORSEMENT
MOLLOY J.
Introduction
[1] The Cornwall Community Police Services Board (“the Board”) seeks judicial review of a decision of Arbitrator Snow dated March 10, 2016. The Arbitrator found that:
(1) Article 1.08(a) of the collective agreement between the Board and the Cornwall Police Association (“the Association”) required a payment of 12% in lieu of benefits to all part-time employees, regardless of whether those part-time employees had previously been full-time employees of the Board who were now also receiving benefits from the Board as retirees; and,
(2) Five part-time officers who had only been paid 4% on top of their regular pay were entitled to the full 12% going back to 2007 ( a period of time that covered five collective agreements).
[2] Three issues are raised:
(1) Was the Arbitrator’s interpretation of Article 1.08(a) reasonable?
(2) What is the standard of review with respect to the Arbitrator’s determination that he had authority to order a remedy for breaches of collective agreements that preceded the current agreement and had now expired?
(3) Depending on that standard of review, was the Arbitrator’s decision to take jurisdiction correct, or alternatively, reasonable?
[3] At the conclusion of the argument for the applicant, we advised that the application was dismissed for oral reasons to follow. In our view, the standard of reasonableness applies to both the interpretation of Article 1.08(a) and the Arbitrator’s power to order a remedy retroactive to 2007. Further, for the reasons that follow, we find the Arbitrator’s decision to be reasonable on both points.
Background
[4] The Board operates the Association and is the employer of police officers who are members of the Association. In August 2003, the parties’ collective agreement was amended to include part-time employees. The amended collective agreement provided for part-time employees to be paid a percentage of their wages in lieu of vacation pay and other benefits. That provision was included in all subsequent collective agreements and is now contained in Article 1.08(a) of the current collective agreement, which states:
In lieu of benefits enjoyed by full-time employees under this Agreement, part-time and temporary employees shall receive twelve percent (12%) of their hourly rate of pay, added to their hourly rate of pay.
[5] In May 2015, the Association initiated a grievance relating to five employees who had been full-time police officers with the Board and who were rehired on a part-time basis. The Board paid those employees an additional 4% of their hourly rate (on account of vacation pay), but did not pay the additional 8% on account of benefits. The Board’s reasoning was that the benefits these officers received upon retirement were the same as those paid to full-time employees, with the exception of coverage for dependent children and that paying them the additional 8% in lieu of benefits would constitute double-dipping.
[6] The Board did not communicate this position to the retirees who were rehired part-time. The discrepancy was not discovered by the Association or the employees until 2015, and the grievance was filed shortly thereafter. However, the non-payment of benefits goes back to 2007 and the Association claimed retroactive payment for the entire period.
Issue One: Interpretation of the Collective Agreement
[7] It is clear on the case law, and conceded by the parties, that the Arbitrator’s interpretation of Article 1.08(a) of the collective agreement is reviewable on a standard of reasonableness.
[8] The Arbitrator held that the 12% payment in lieu of benefits applied to all part-time employees and was not affected by whether those employees were receiving pensions already, regardless of the source of such pensions.
[9] The Arbitrator provided cogent reasons for this interpretation. He relied upon the plain wording of the provision and on the theory that all part-time employees should be paid on the same basis in the absence of language to the contrary. Part-time officers receiving retirement benefits from some other police force, for example, would be treated the same way as part-time officers receiving retirement benefits from this Board. The Arbitrator found that this did not constitute “double dipping” because the retiree benefits are deferred compensation for work previously done by them as full-time employees and have nothing to do with their part-time work.
[10] This is an issue squarely within the expertise of the Arbitrator. His reasons are cogent and articulate and his reasoning process is transparent. The result is within the range of reasonable outcomes described in Dunsmuir[^1] as being entitled to deference. The conclusion of the Arbitrator is reasonable and there is no basis for this Court to intervene.
Issue Two: Standard of Review on Retroactive Remedy
[11] The Board argues that the Arbitrator’s jurisdiction was limited to granting a remedy for the current collective agreement and that he exceeded his jurisdiction by awarding retroactive payments back to 2007, which covered four additional previous agreements, all of which had expired and been replaced by the subsequent collective agreements. The Board argues that this is a true question of jurisdiction to which the correctness standard of review applies. I do not agree.
[12] Since Dunsmuir, the Supreme Court of Canada has clarified that true issues of jurisdiction, attracting the correctness standard, will be exceptional. When an expert tribunal is determining its own powers under its home statute or related legislation, it is entitled to deference. Likewise, an arbitrator’s decision as to whether an issue is arbitrable is reviewed on a standard of reasonableness, not correctness. In Alberta Teachers,[^2] Rothstein J. (for the majority) noted that the category of true questions of jurisdiction was “narrow indeed” and that the Court had not seen an example of such in the 3 ½ years since Dunsmuir. He stated (at para. 34):
Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review.
[13] I note that The Supreme Court has also not recognized any example of a true question of jurisdiction since Alberta Teachers, which is another five years of jurisprudence. Decisions of this Court and of the Ontario Court of Appeal have applied the same principles.[^3]
[14] In determining his jurisdiction in this case, the Arbitrator was required to consider provisions of the Police Services Act, the terms of the collective agreement and a range of arbitral jurisprudence at the tribunal and all appellate levels. These are all principles squarely within his area of expertise. These issues, while perhaps not commonplace, are certainly not unusual or exceptional in the field of labour arbitrations. On the contrary, these are the types of decisions labour arbitrators are called upon to decide frequently.
[15] I see no basis upon which to find this is a “true” question of jurisdiction to which the correctness standard would apply. The applicable standard of review is reasonableness.
Issue Three: Reasonableness of the Award
[16] The Board argues that the Arbitrator erred in failing to follow established arbitral jurisprudence that his jurisdiction was limited to the period of the collective agreement under which he was appointed (which in this case would be between 2013 and 2015) and that he had no jurisdiction or authority to grant a remedy arising under a prior expired collective agreement. The Board relies upon Goodyear Canada Inc. v. U.R.W., Local 232[^4] and numerous decisions which have followed and applied it.
[17] The Arbitrator found that he had jurisdiction for two reasons: (1) based on his interpretation of the Police Services Act; and (2) based on the Supreme Court of Canada’s decision in Dayco.[^5] In my view, his decision is reasonable on both points.
[18] This matter did not proceed before the Arbitrator on a grievance under the Labour Relations Act. Rather, when the employer rejected the grievance, the Association requested conciliation and then arbitration under ss. 123 and 124 of the Police Services Act. The relevant provisions of that Act state:
(1) The Solicitor General shall appoint a conciliation officer, at a party’s request, if a difference arises between the parties concerning an agreement or an arbitrator’s decision or award made under this Part, or if it is alleged that an agreement or award has been violated.
(1) If the conciliation officer reports that the dispute cannot be resolved by conciliation, either party may give the Solicitor General and the other party a written notice referring the dispute to arbitration.
(2) The procedure provided by subsection (1) is available in addition to any grievance or arbitration procedure provided by the agreement, decision or award.
[19] Under this scheme, a request for conciliation under s. 123 is a precondition to a referral to arbitration under s. 124. The Arbitrator noted that s. 123 refers to a dispute under “an” agreement, and interpreted that to mean “any” agreement, not just the current collective agreement. Applying the principles in Dunsmuir that is an interpretation that is reasonable on the law and the language used in the legislation. There is no basis to interfere.
[20] Section 124(2) stipulates that the arbitration procedure under the Act is “in addition to” any grievance or arbitration procedure set out in the collective agreement itself. It would therefore not make sense to require that ss. 123 and 124 be interpreted in a manner that does not go beyond the rights of arbitration stipulated in the collective agreement. The arbitration procedure under the Act was meant to be in addition to other rights under the agreement. It also makes no sense to interpret the use of the words “the dispute” in s. 124(1) as restricting the Arbitrator to remedies under the current collective agreement, as argued by the applicant. That would not fit within the language of ss. 123(1) and 124(2).
[21] The interpretation given to these provisions by the Arbitrator is consistent with general principles of statutory interpretation, the statutory language used, and principles of labour law. The Arbitrator’s decision that he had jurisdiction under these provisions to provide remedies under the five collective agreements set out in the referral was reasonable. The fact that only the current collective agreement was attached to the request for referral is irrelevant. The referral request, on its face, makes it clear that remedies are sought under all of the agreements going back to 2007. It was common ground between the parties that the particular provision at issue dealing with pay in lieu of benefits had not changed through all of those agreements. In these circumstances, appending all five agreements would have been superfluous.
[22] Even if the Police Services Act was not sufficient to confer jurisdiction to award a remedy going back to 2007, I am satisfied that the Arbitrator made reasonable findings as to his jurisdiction to do so based on arbitral and Supreme Court of Canada jurisprudence.
[23] It is clear from the Supreme Court of Canada’s decision in Dayco, that an arbitrator has jurisdiction to grant a remedy under an expired collective agreement, provided that the right to the remedy has already accrued prior to the expiry of the agreement. Counsel for the applicant before us conceded that the Association could have proceeded to arbitration under five separate grievances under five separate collective agreements and claimed in each of them the additional 8% in pay that had been denied during the currency of that collective agreement. However, he argued, each arbitrator could then only grant a remedy under the particular agreement under which he or she had been appointed. He also argued that the arbitrations could not be joined and heard together by a single arbitrator absent the consent of the parties.
[24] That was not the view taken by the Arbitrator. He held that it made “no labour relations sense” for the parties to have to proceed through multiple arbitrations before multiple arbitration boards to pursue essentially the same remedy. The Board had clear notice that all five agreements were before this Arbitrator and that remedies were being sought under all of them. Any issues that the Board could have raised in respect of each agreement in multiple arbitrations could have been raised before Arbitrator Snow in this arbitration. The Arbitrator’s finding that five separate arbitrations made no sense from a labour relations perspective is at the core of his expertise and entitled to deference.
[25] The Arbitrator considered the 1989 labour arbitration decision in Goodyear and he considered the 1993 Supreme Court of Canada decision in Dayco (which itself refers to Goodyear). He recognized that some, but not all, arbitrators have chosen to follow the Goodyear reasoning rather than that of the Supreme Court in Dayco. He considered the criticism of the rationale in Goodyear as expressed by other labour arbitrators, with which he agreed. He noted, correctly, that he was not bound to follow Goodyear. He concluded that the principles in Dayco were more applicable and made sense from a labour relations perspective. He then held that he would not follow Goodyear, but rather found that he had jurisdiction to grant a remedy under all five collective agreements based on Dayco and general principles of labour relations. Cogent reasons were provided. This is a finding solidly within the Arbitrator’s area of expertise and is a finding that is entitled to deference. I find the decision easily meets the reasonableness standard.
Conclusion and Order
[26] The decision of the Arbitrator was reasonable. Accordingly the application of the Board is dismissed. The parties agreed that $4500 was an appropriate quantum of costs for this appeal. Costs of $4500 are therefore payable to the respondent.
MOLLOY J.
I agree:
SACHS J.
I agree:
RAMSAY J.
Date: December 9, 2016
[^1]: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9
[^2]: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, [2011] 3 S.C.R. 654, 2011 SCC 61 at paras. 33-42
[^3]: See in particular Toronto (City) Police Assn. v. Toronto (City) Police Services Board, 2013 ONSC 4511 (Div.Ct.) at paras. 24-28, aff’d 2015 ONCA 188 at paras. 36-38; Izzett v. Toronto (City) Police Service, 2010 ONSC 2262 (Div.Ct.).
[^4]: Goodyear Canada Inc. v. U.R.W., Local 232 (1980), 1980 3971 (ON LA), 28 L.A.C. (2d) 196.
[^5]: Dayco (Canada) Ltd. v. C.A.W., 1993 144 (SCC), [1993] 2 S.C.R. 230