The Corporation of the City of St. Catharines v. The St. Catharines Professional Fire Fighters’ Association

CITATION: The Corporation of the City of St. Catharines v. The St. Catharines Professional Fire Fighters’ Association, 2017 ONSC 7638

Divisional Court File No.: 223/17

DATE: 20171221

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: Lederman, M.G.J. Quigley and Matheson JJ.

COUNSEL: Frank Cesario, for the Applicant

Howard Goldblatt, for the Respondent

HEARD at Toronto: December 19, 2017

ENDORSEMENT

[1] The Applicant, The Corporation of the City of St. Catharines (the “City”), seeks judicial review of the award of Arbitrator Diane Brownlee dated February 14, 2017. The City seeks an order quashing the portion of the award that rescinded the temporary demotion of two fire fighters and substituted a two day suspension with back pay.

[2] The two employees, Peter Clifford and Donald Nesbitt, are First Class Fire Fighters represented by the Respondent, the St. Catharines Professional Fire Fighters’ Association (the “Association”). At the time of the events at issue, they had 25 and 26 years of service respectively, and clear disciplinary records.

[3] In separate incidents in the summer of 2015, while off-duty, these employees were arrested and charged with impaired driving. Both employees subsequently pled guilty. They were ordered to pay fines and received drivers’ licence suspensions. Following their suspensions, they were each required to drive a vehicle equipped with an ignition interlock device for a period of time. Ignition interlock devices are not installed on fire trucks and, as a result of the licence suspensions and ignition interlock requirement, these employees were unable to drive for work for twelve months.

[4] As a result of the convictions and the related events, the City demoted the two employees from First Class Fire Fighters to Second Class Fire Fighters for one year. The impact of the demotion, in terms of salary, was the rough equivalent of an eighteen day suspension. The City also suspended Mr. Nesbitt for four days as a result of his post-arrest conduct with the police.

[5] The two employees grieved their demotions and Mr. Nesbitt grieved the additional four day suspension. Mr. Nesbitt’s grievance of his four day suspension was dismissed and is no longer at issue. However, the demotion grievances were allowed. The arbitrator replaced each demotion with a two day suspension. The City brought this application for judicial review.

[6] There is no issue that the standard of review on this application is reasonableness. The City submits that the arbitrator unreasonably concluded that these employees could still do their jobs despite being unable to drive and unreasonably imposed a mild penalty in the face of serious criminal conduct.

[7] The first steps in the arbitrator’s analysis are not challenged on this application. A significant issue before the arbitrator was whether the demotions were disciplinary (as submitted by the Association) or non-disciplinary (as submitted by the City). The arbitrator concluded that the demotions were disciplinary. The City does not seek to displace this finding.

[8] The arbitrator then applied the “just cause” test applicable to discipline and found that the City had just cause to discipline the employees for engaging in off-duty conduct that resulted in the loss of their drivers’ licences. She found that this was culpable conduct that placed these employees in violation of the City’s rule that they maintain a valid driver’s licence. Obviously, the City does not dispute these findings.

[9] The final issue for the arbitrator to address was penalty – more specifically, whether or not she should exercise her discretion to substitute a different penalty. That discretion was conferred on the arbitrator both by the parties’ collective agreement and by s. 53(12) of the Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4, which provides as follows:

53 (12) Where an arbitrator determines that a firefighter has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator may substitute such other penalty for the discharge or discipline as to the arbitrator seems just and reasonable in all the circumstances. [Emphasis added.]

[10] The arbitrator therefore had discretion to substitute another penalty that, as to the arbitrator, seemed just and reasonable in all the circumstances.

[11] Judicial deference is particularly apt in the context of the exercise of an arbitrator’s discretion on remedy. This is the case “however indulgent and permissive” the decision may appear, as Justice A.G. Campbell put it in the context of the Labour Relations Board, in Niagara Falls (City) v. Canadian Union of Public Employees, Local 133, 1992 8522, at para. 29.

[12] The question before the arbitrator was whether, in all the circumstances, the two employee’s loss of their drivers’ licences contrary to the City’s rules, and the potential harm to the reputation of the City and its firefighters, justified a one year demotion. The City points to excerpts from the arbitrator’s reasons for decision, and isolated wording, submitting that these portions of the decision demonstrate an overly narrow approach by the arbitrator or are inconsistent or muddled. However, the issue for the Court is whether the decision, taken as a whole, is reasonable. The reasons must be read together with the record and the outcome and serve the purpose of showing whether the result falls within a range of possible, acceptable outcomes: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, 3 S.C.R. 708, at paras. 14-16 and 18. The reasons for decision fulfill that purpose.

[13] The arbitrator considered whether the temporary inability to drive rendered these employees under-qualified or incapable of meeting the duties of a First Class Fire Fighter. The arbitrator concluded, on the evidence, that while driving is an important function, the inability to drive had not rendered these employees incapable of performing, overall, as First Class Fire Fighters. It was open to the arbitrator to make these findings on the evidence before her.

[14] In determining that it would be appropriate to substitute a two day suspension for the demotions, the arbitrator took a number of considerations into account, including the seriousness of the criminal conduct, the potential for reputational harm, the objective of deterrence, a progressive discipline approach relative to the penalty for lapsed licences, and the arbitrator’s assessment of the seriousness of the loss of the licences as compared to the conduct of Mr. Nesbitt, who had attempted to intimidate a police officer. The arbitrator indicated that she took all of the circumstances into consideration, which would include the long service and clear prior discipline record of these employees.

[15] However indulgent the arbitrator’s decision in this case may appear to the City or to the Court, the arbitrator’s decision-making process fits with the principles of justification, transparency and intelligibility, and the outcome falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. There is no basis for the Court to interfere.

[16] Despite the able argument of applicant’s counsel, this application is dismissed. The applicant shall pay costs to the respondent in the agreed amount of $5,000, all inclusive.

Lederman J.

M.G.J. Quigley J.

Matheson J.

Date: December 21, 2017