Professional Institute of the Public Service of Canada v. Unifor, 2018 ONSC 1259

CITATION: Professional Institute of the Public Service of Canada v. Unifor, 2018 ONSC 1259

DIVISIONAL COURT FILE NO.: DC-14-2044

DATE: 20180223

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA, Applicant

AND

UNIFOR, LOCAL 3011, Respondent

BEFORE: Morawetz R.S.J, Thomas R.S.J. and Swinton J.

COUNSEL: D. Bruce Sevigny, for the Applicant

Jaye Hooper and Joshua Nutt, for the Respondent

HEARD at Ottawa: February 22, 2018

ENDORSEMENT

Swinton J.:

[1] The applicant, the Professional Institute of the Public Service of Canada (the “Employer”), seeks judicial review of an arbitration award of Brian Keller dated July 23, 2014 which dealt with a number of grievances concerning the classification of the Employment Relations Officer (“ERO”) position. The Employer argues that it was denied procedural fairness because the arbitrator failed to bifurcate the hearing, with the result that the Employer did not have the opportunity to lead evidence and make submissions on the proper level of classification of the ERO position after the arbitrator found the position was improperly classified.

[2] The arbitrator heard evidence and submissions over the course of several days. He concluded that the ERO position of the grievors was not properly classified at Level 6 because there had been substantial changes to the job duties. He also determined that the position should be classified as Level 7 instead of Level 6. The Employer submits that the arbitrator denied procedural fairness when he made the reclassification determination, because he had indicated in an earlier interim award on March 20, 2014 that the hearing would be bifurcated – that is, the issue of the proper classification and compensation would be determined after the arbitrator decided whether the position was improperly classified due to substantial changes in job duties.

[3] The Employer now seeks an order quashing the award and referring the matter to a new arbitrator, alleging that there is a reasonable apprehension that Arbitrator Keller is biased.

[4] The parties have filed competing affidavit evidence, as well as cross-examination transcripts, for purposes of this application for judicial review. This evidence deals with a conference call between counsel and the arbitrator in April 2014, as well as the hearing process. Needless to say, the parties have different views as to whether there was an agreement that the hearing would be bifurcated.

[5] In my view, the outcome of this application for judicial review does not turn on a finding of what occurred in the April 2014 telephone call with the arbitrator. However, I reject the Employer’s challenge to the credibility of affiant Rebecca Aleem, a young lawyer who was present with Union counsel during the telephone call. While the Employer suggests that her affidavit is suspect because she was not asked if she had an independent recollection of what had occurred, its counsel did not ask her that question in cross-examination. However, she did affirm and state in cross-examination that the contents of the affidavit reflected her recall of what occurred.

[6] Having read all the affidavit evidence, including the evidence of what occurred during and after the arbitration hearing, I am satisfied that the Employer was not denied procedural fairness. The Employer should have been alert to the fact that classification was in issue for the reasons that follow.

[7] During the hearing, the Union led evidence through three witnesses – one of the grievors and two individuals who had worked in management positions with the Employer. The evidence dealt with both the change in job duties and the proper classification for the ERO position. According to the affidavit evidence led by the Union for this judicial review, particularly the evidence of Ms. Giroux, Employer’s counsel did not object to the evidence dealing with the proper classification. This affidavit evidence was not contradicted by the affidavit evidence of the Employer led in this application.

[8] The arbitrator had before him a revised job description agreed upon by the EROs and their managers. As well, the manual used for the classification of positions was made an exhibit before the arbitrator. This manual would be relevant to the issue of reclassification, not the substantial change issue.

[9] At the arbitration hearing, the Employer’s case was presented by one witness, and the parties then made submissions. At the end of the argument, according to Ms. Giroux, there was no mention of a further stage in the proceedings. Again, the Employer’s affidavits do not contradict this evidence. In my view, one would expect some indication that there would be a need for a hearing where further evidence was to be called and dates needed if a true bifurcation had been agreed upon.

[10] After the arbitrator issued his award, he asked for written submissions on the appropriate date to implement the new level of compensation for the affected employees. The arbitrator notes in his award that the Employer had asked to make additional submissions on this issue. It is of significance that the Employer made those submissions on retroactivity, but did not object to the lack of opportunity to make submissions on the proper classification.

[11] Now, over three years after the final award in December 2014, the Employer seeks to set aside the award respecting classification. It seeks to start the process all over again with a different arbitrator. I would not grant the relief sought. The Employer should have known that the issue of the proper classification was before the arbitrator, given the Union’s evidence and submissions during the hearing.

[12] Indeed, it is telling that Employer’s counsel sent an email to his client after the April telephone call stating the following:

If they can’t make out substantial change, we win. If they can make out a substantial change, Brian will remit the matter back to the parties, to determine how it should be classified (with the practical understanding that it will go up one level or two). If the parties cannot agree, we will go back in front of Keller, and he will decide. If he has to decide this second issue, there is some possibility that further evidence and argument will be required. (emphasis added)

[13] At the time of the email, the Union was seeking a reclassification from Level 6 to Level 8. However, it then changed its position and advocated a reclassification to Level 7. Given that change in its position, the key issue before the arbitrator was whether there had been a substantial change in job duties. If so, it was reasonable to expect the position would be reclassified to Level 7, and the Union’s evidence at the hearing supported that result, particularly that of Ms. Auclair, who had been manager of the grievors and who testified about the substantial change in their job duties.

[14] This is not a case where the Employer has been able to demonstrate that it was denied an opportunity to present important evidence in support of its position on reclassification. Sue Baribeau, the affiant of the Employer, was cross-examined on the evidence that would likely have been called. She identified Ms. Auclair (who testified on behalf the Union and indicated that Level 7 was appropriate) and Mr. Gillis (who testified for the Employer), as well as herself. Those individuals were present during the hearing and could have been questioned further on the proper level of classification, and as I have said, the Employer should have been aware that reclassification was a live issue.

[15] In sum, the Employer has not shown that it was denied procedural fairness because of the way in which the hearing was conducted. The arbitrator clearly had jurisdiction to deal with the grievances, and he reached a reasonable conclusion on the merits of those grievances.

[16] Accordingly, the application for judicial review is dismissed.

[17] Costs to the Union are fixed at $7,500.00 all inclusive, an amount agreed upon by the parties.

Swinton J.

I agree ___________________________

Morawetz R.S.J.

I agree __________________________

Thomas R.S.J.

Date: February 23, 2018