CITATION: Canadian Union of Public Employees, Local 79 v. Toronto (City of), 2019 ONSC 3006

DIVISIONAL COURT FILE NO.: 585/16

DIVISIONAL COURT FILE NO.: 080/19

DATE: 2019/08/08

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LINHARES DE SOUSA, WILTON-SIEGEL and THORBURN JJ.

BETWEEN:

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79

Applicant

– and –

CITY OF TORONTO and MARY LOU TIMS

Respondents

Douglas J. Wray, for the Applicant

Amandi Esonwanne, for the Respondent

HEARD: April 24, 2019 (at Toronto)

AND BETWEEN:

CITY OF TORONTO

Applicant

– and –

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79 and MARY LOU TIMS

Respondents

Amandi Esonwanne, for the Respondent

Douglas J. Wray, for the Respondents

HEARD: April 24, 2019 (at Toronto)

REASONS FOR DECISION

LINHARES DE SOUSA J.

1There are two applications for judicial review before the Court, one brought by the Applicant, Canadian Union of Public Employees, Local 79 (the "Union"), and the other brought by the Respondent, the City of Toronto (the "City").

2The Union seeks to quash an arbitration award of the Respondent Arbitrator, Mary Lou Tims (the "Arbitrator"), dated October 21, 2016 (the "Award") involving the grievance of an employee, Navnita Kanrar (the "Grievor"), who was discharged by the City on June 23, 2013.

3The City seeks to quash the three supplementary awards of the Arbitrator, dated September 21, 2017, January 31, 2018 and March 2, 2018 (collectively, the "Remedy Awards"), which dealt with the remedy portion of the arbitration proceeding.

FACTUAL BACKGROUND

4In 2001, the Grievor was employed by the City as a part-time early childhood educator for grade 2 students (an "ECE"). In 2003, she became a full-time, temporary ECE until her discharge in June 2013.

5On May 20, 2003, a few months after becoming a temporary employee, the Grievor stopped work and claimed workers' compensation benefits relating to an elbow sprain. After a period of absence, the Grievor returned to the workplace in September of 2012.

6Prior to her return to work, she claimed that her ability to perform certain physical tasks was restricted for medical reasons and as a result, she required work place accommodation from her employer. The Grievor had been assessed by the City's Employee Health & Rehabilitation Services on July 25, 2012, with the purpose of identifying her physical restrictions and the accommodations, reasonably required, for her to resume and carry out her work duties. "Intermittent lower back pain" and "intermittent left shoulder pain" were identified as the presenting issues. Following this, the Grievor was cleared to recommence work on a graduated basis with restrictions on bending, crouching, kneeling, lifting and carrying objects of prescribed weights.

7The program manager for workplace accommodation and health and safety for the City's Children's Services Division then assigned the Grievor to her first work placement at Edgeley Child Care Centre where she worked some part and full days from September 14 to 27, 2012. During that period she had to leave work early one day and missed one day because of the pain she was experiencing. Following discussions with the program manager, the Grievor was assigned to a second work placement at Metro Hall, where she worked on October 1, 2, 3 and 5, 2012, at which point she did not return, alleging physical ailments.

8The Grievor submitted to an updated Health Professional assessment in November 2012 by the Grievor's physiotherapist, Mr. Graham Jones, who recommended that the Grievor return to work gradually with modified hours over three weeks, along with essentially the same restrictions the City applied in her two previous placements.

9The Grievor was then assigned to Birchmount Child Care Centre for half days where she worked on November 19, 21 and 23, 2012. The Grievor did not work after November 23, 2012 and took the position that the work expected of her exceeded her limitations and that the City failed to accommodate her restrictions. When the Grievor stopped working in November 23, 2012 she had no sick credits available to her at the time.

10Communication went on for a number of months between the Grievor and her employer relating to the Grievor providing updated medical documentation, justifying her absence from her work assignment, despite the availability of modified duties, and the prognosis for her return to work. The Grievor was requested by the City to submit to an independent medical examination for her medical conditions. She failed to do so.

11When neither of these things materialised, the Grievor was discharged by the City on June 23, 2013.

12On July 16, 2013, the Grievor filed a grievance alleging unjust discharge resulting in the Arbitration awards which are the subject matter of the applications before the court.

13Previously, the Grievor had filed a grievance, dated November 12, 2012, alleging denial of benefits, which arose out of claims made by her under the Workplace Safety and Insurance Act, one relating to a condition of respiratory illness, and another relating to a recurrence of a left arm injury, both of which were denied on January 2, 2013 and January 25, 2013, respectively. The earlier grievance was scheduled to be heard together with the July 2013 grievance, alleging unjust discharge. However, the Union counsel advised the Arbitrator, during final argument of the arbitration hearing, that the earlier grievance of November 12, 2012 was withdrawn.

14A final relevant fact to mention here is the Amended Agreement executed by the parties, dated October 15, 2012 ("the Amended Agreement"), which resolved two prior grievances filed by the Grievor against the City, dealing with the employer's termination of LTD benefits, effective December 22, 2008, and with the employer's alleged failure to accommodate the Grievor. The Amended Agreement resolved:

3. …any and all issues and claims the Grievor has against the Employer under the Collective Agreement and the Human Rights Code up to September 14, 2012.

The Amended Agreement further provided as follows:

4. The Employer and the Union understand and agree that as a result of this Agreement, they are barred from relying on facts and /or allegations that arose prior to or that should have arisen prior to September 14, 2012 in any future proceeding under the Collective Agreement or the Human Rights Code (para. 37 of Arbitration Award, tab 2 Application Record).

ARBITRATION AWARD DATED OCTOBER 21, 2016

15At the commencement of the arbitration hearing, the Arbitrator was asked to rule on what grounds the City could assert to justify the Grievor's discharge. On November 19, 2014 the arbitrator held that the City could rely on the following three (3) reasons:

(1) failure to cooperate in the City's efforts to accommodate the Grievor's workplace restrictions;

(2) failure to provide medical certificates as required by the collective agreement; and

(3) insubordination in failing to provide medical certificates when directed to do so.

16In her interim decision dated November 19, 2014, the Arbitrator ruled that the City could not rely upon the Grievor's innocent absenteeism from 2003. She held, among other things, that as the Union was only advised that the City intended to rely on innocent absenteeism nearly a year after the discharge, the Union was prejudiced by the loss of the ability to address this issue in a timely manner. She held, however, that "it is open to the City to rely upon the Grievor's alleged failure to cooperate with the City in its accommodation efforts from 2009 in seeking to justify discharge." The Arbitrator did not address at that time whether it would be open to the City to rely upon innocent absenteeism in support of a position that compensation should be ordered in lieu of reinstatement, should the grievance be upheld.

17During the course of the arbitration hearing, the Arbitrator had to rule, when an objection was raised by the Union, on whether the City could rely on facts and allegations that arose prior to September 14, 2012, given the provisions of the Amended Agreement. Based on the wording of para. 4 of the Amended Agreement, she ruled that "it was not open to the City to 'rely on facts and/or allegations that arose prior to September 14, 2012' in any future proceeding under the collective agreements and that it therefore could not rely here upon facts and allegations that the Grievor failed to co-operate in the City's efforts to accommodate her workplace restrictions prior to September 14, 2012."

18The Arbitrator issued the Award on October 21, 2016. For the reasons given by her, she concluded as follows:

(1) The City had proven that the Grievor failed to cooperate in the City's efforts to accommodate her in returning to work in late 2012 and she continued to fail to cooperate in its efforts to accommodate her through the pursuit of an IME (independent medical examination) after March 2013;

(2) The City had proven that the Grievor failed to provide it any of the medical certificates contractually required of her while absent from the workplace from November 26, 2012. At para. 248 of the Award the arbitrator concluded that the City had:

demonstrated that the Grievor failed to provide to it the information contemplated by article 11A.15 [of the parties' collective agreement] during her absence from the workplace starting November 26, 2012, and that the certificate submitted in June 2013 did not "right the ship" as suggested by the Union. I find that she was thereby in repeated breach of the collective agreement throughout her absence from the workplace from November 26, 2012 to the time of discharge;

(3) The City had not proven the separate offence of insubordination (para. 4);

(4) The City had established that the Grievor's conduct clearly warranted discipline;

(5) The Arbitrator was not satisfied that discharge was proven to be justified, allowing the grievance in part; and

(6) The matter was remitted back to the parties for resolution of the remedial issues, failing which they were to return to the Arbitrator (paras. 267 and 268 of the Award).

ARTICLE 11A.15 OF THE COLLECTIVE AGREEMENT

19Article 11A.15 is a sub-article within Article 11A. Article 11A is entitled "Illness or Injury Plan ("IIP"). Article 11A.15 is entitled "Physicians' Certificates" and provides:

11A.15 (a) An employee absent for more than three (3) consecutive working days shall furnish within seven (7) working days from commencement of absence, a certificate from his/her physician covering the duration of illness, with first and last dates the employee was seen by the physician. The seven (7) day period may be extended by the Division Head if the employee is incapacitated to the extent that he/she is unable to produce the certificate of illness within that period.

11A.15 (b) An employee absent for more than twenty-four (24) consecutive working days shall:

1. Provide immediately following such twenty-four days, a certificate from his/her physician covering the illness, the latest date the employee was seen by the physician and the probable date on which the employee will return to duty; and

2. Provide further certificates from his/her physician, covering the same information, following each subsequent twenty-four (24) consecutive working days of absence.

20On the facts of the case, the Arbitrator found that "the Grievor's sick bank was exhausted at all relevant times and she did not seek IIP benefits" nor was she eligible for such benefits under the above article of the collective agreement (para. 183 of the Award, Application Record, tab 2).

21At the beginning of the arbitration hearing, the Union submitted, in its opening statement, that it was open to the City to rely on the Grievor's alleged failure to provide medical certificates in accordance with the collective agreement, and that the medical certificate, dated June 14, 2013, given to the City, satisfied the requirements of the collective agreement (paras. 33 and 172 of the Award, Application Record, tab 2).

22However, in its final submissions before the Arbitrator, the Union challenged the application of Article 11A.15 of the collective agreement, in view of the fact that the Grievor was not claiming an entitlement under that article of the collective agreement. The Union argued that article 11A.15 only applied to "eligible employees" who had IIP benefits (para. 182 of the Award, Application Record, tab 2).

23The City objected to the position taken by the Union in its final argument before the Arbitrator. The City argued that the Union ought not to be permitted to advance such an argument at that late stage in the proceedings when no further evidence could be adduced on an alternative argument of the City that the Grievor was estopped from denying the application of Article 11A.15.

24The Arbitrator concluded that it was not necessary to address the City's objection (paras. 173 and 174 of the Award, Application Record, tab 2).

25At para. 183 of the Award (Application Record, tab 2), the Arbitrator found that the Grievor was subject to the requirements of article 11A.15. She accepted the City's argument that the Grievor was subject to such contractual requirements during her absence from the workplace commencing in November, 2012. As a result, the Arbitrator found that the City had proven conduct on the part of the Grievor warranting discipline.

REMEDY AWARD DATED SEPTEMBER 21, 2017

26The parties were not able to agree on the appropriate remedy so the matter was returned to the Arbitrator for further hearing to deal with the appropriate sanction. At the first remedial hearings in May and September of 2017, the question of advancing facts and allegations pre-dating September 14, 2012 for the purposes of the remedial hearings came up again in several contexts.

27The first ruling of particular relevance arose in the context of the parties' lack of agreement on whether the Grievor's accrued service permitted the Grievor non-probationary employee status as of the date of her discharge.

28When the Union, during the remedy award hearing, attempted to elicit from a City witness the number of accrued hours of service the Grievor had accumulated at the time of termination, the City objected because of its reference to a pre-September 14, 2012 period of service and submitted that this evidence amounted to an "end run" around the previous ruling of the Arbitrator concerning the Amended Agreement. The City submitted that it was particularly so since the City, on the previous ruling given by the Arbitrator, had not been permitted to address the Grievor's pre-September 2012 non-attendance or work performance.

29The Arbitrator found in favour of the Union, ruling that the Union could adduce evidence of the Grievor's hours of service as of the time of discharge for the purpose advanced by the Union, namely to establish her non-probationary status at the time of discharge. The Arbitrator reasoned that "the grievor's alleged non-probationary status as of the date of discharge is not a fact arising prior to September 17, 2012, but is a fact pertaining to June 2013, although her status as of that date resulted in part from pre-September 2012 hours."

30The Arbitrator confirmed this ruling when she held that evidence of a Union witness regarding pre-September 2012 hours for the purposes of establishing that she was a non-probationary employee was admissible. In doing so, the Arbitrator stated explicitly that she was of the view that "it does not offend the parties' agreement and is consistent with my previous rulings to permit the Union to adduce evidence of the grievor's accrued hours of service as of June 2013 in seeking to establish that she was not a probationary employee as of the date of discharge."

31The Union wanted to rely on the evidence of accrued hours as of the time of the discharge for a second reason. The Union intended to rely on the evidence of accrued hours as of the discharge in order to respond to the City's request that damages be awarded in lieu of reinstatement. The City argued that it would be unfair to be prevented from relying on the Grievor's pre-September 2012 employment history in addressing remedy, particularly in addressing the viability of the employment relationship, if the Union was permitted to rely on evidence of the Grievor's pre-September 2012 service in support of the position it intended to advance with respect to damages in lieu of reinstatement. The Arbitrator nevertheless allowed the Union to use the evidence for this purpose on the grounds that the Grievor's service accrued as of June 23, 2011 is a fact that arose after September 14, 2012, as opposed to facts that arose prior to such date such as alleged pre-September 2012 absenteeism or failure to co-operate with the City's accommodation efforts. This reasoning was based on the Arbitrator's view that the Grievor's service accrual just prior to September 14, 2012 continued to be her service accrual as of September 14, 2012 and thereafter "augmented by post-September 2012 service". The Arbitrator characterized the Union's evidence as "the grievor's service accruals as of the time of discharge, reflective of her service as of that time, which she 'carried with her' beyond September 14, 2012. (See Remedy Award dated 21 September, 2017, para. 26.)

REMEDY AWARD DATED JANUARY 31, 2018

32The Arbitrator's final Remedy Award, dated 31 January, 2018, addressed the City's continued attempts to rely on facts arising prior to September 14, 2012 to establish that the employment relationship was no longer viable. At para. 7 of the Remedy Award the Arbitrator stated:

… I appreciate that the ramifications of the parties' agreement may have proven regrettable from the City's perspective insofar as it views pre-September 2012 facts as highly relevant. That this might be so does not alter the undisputed fact that both parties agreed not to rely upon such facts in "any" future proceeding under the collective agreement. While the City vigorously argued that it ought to be permitted to adduce evidence of pre-September 2012 facts, it suggested no defensible basis upon which it should be relieved from the consequences of its agreement to forego reliance upon "facts … that arose prior to … September 14 2012" in proceedings under the collective agreement.

33Although the Arbitrator permitted the Union to present evidence of the Grievor's accrued hours as of the time of discharge for the dual purpose of establishing the Grievor's non-probationary status at time of discharge and to respond to the City's position on remedy (damages as opposed to reinstatement), while not permitting the City to present evidence of the Grievor's absenteeism for the same period, the Arbitrator concluded that such a ruling did not deny the City fairness.

34After hearing the parties' arguments regarding reinstatement versus damages as a remedial measure, the Arbitrator concluded that, while it was open to her to deny the remedy of reinstatement, in view of her finding that the Grievor was discharged without just cause, it would be an "extraordinary" remedial outcome appropriate where the employment relationship was no longer viable. In her assessment of the evidence she could not conclude, considering the employment relationship broadly and within the parameters of the parties' agreement not to rely upon pre-September 2012 facts, inclusive of what was troubling therein, that it rose to the level required to support the conclusion that there is no longer a viable employment relationship or that it has been "so irretrievably damaged that it cannot be resuscitated" (para. 92 of the Remedy Award dated 31 January, 2018.).

35The City was ordered to reinstate the Grievor as soon as practicable to the full-time position of ECE 2 in the City's temporary service, with no loss of seniority or service and with her rights and entitlements in the position governed by the collective agreement, but without compensation (paras. 98 and 128 of the Remedy Award, dated 31 January, 2018).

36Finally, given the proven misconduct worthy of discipline on the part of the Grievor, the Arbitrator imposed a one-month suspension in June 2013, to be treated as already served (para. 128 of the Remedy Award, dated 31 January, 2018 and para. 8 of Remedy Award, dated 2 March, 2018).

JUDICIAL REVIEW APPLICATION FILED BY THE UNION

THE ISSUE

37The sole issue raised in the judicial review application filed by the Union was whether the Arbitrator's interpretation and application of Article 11A.15 of the collective agreement was reasonable. It was on the basis of that article in the collective agreement that the arbitrator concluded that the Grievor failed in her contractual obligation to provide the City medical certificates in support of her illness-related absences from the workplace.

STANDARD OF REVIEW

38The parties agreed, rightly, that in light of the accepted expertise of arbitrators, the standard of review applicable to the interpretation of a collective agreement is reasonableness. Reasonableness is a deferential standard, applied to administrative bodies intended to avoid undue interference with the discharge of the administrative functions delegated to them.

39The case of Dunsmuir v. New Brunswick, 2008 SCC 9 (S.C.C.), at para. 47 held that:

…certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review of reasonableness inquiries 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 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.

40In Ontario, the jurisprudence supports the conclusion that the court owes a very high deference to an arbitrator's interpretation of a collective agreement. (See Dollar Thrifty Automotive Canada Inc. v. United Food and Commercial Workers Union Local 175, [2011] O. J. No. 547.)

41The reviewing court's role is to ensure that the administrative body does not "overstep [its] legal authority". (See Dunsmuir v. New Brunswick, supra.)

POSITION OF THE UNION

42The Union submits that the Arbitrator's interpretation and application of Article 11A.15 in the case of this Grievor was unreasonable. It was the Union's argument that the decision to apply Article 11A.15 to the facts of this case lacked justification, transparency and intelligibility and, as such, it did not fit within a range of possible acceptable outcomes which are defensible in respect of the law.

43The Union's position is that Article 11A.15 only applies to employees who were or are applying for IIP benefits provided for in Article 11A.15, which the Grievor was not, nor was she eligible to do so. It should be noted, however, that the Grievor initially applied for such benefits and that the grievance was subsequently withdrawn without prejudice to her right to reapply if she was reinstated in the arbitration. The Union submits that the overbroad interpretation of the Arbitrator that Article 11A.15 applied to all employees absent due to illness or injury regardless of their eligibility, entitlement or claims for IIP is unreasonable and leads to erroneous results.

44The Union relies on the wording of Article 11A.15, when read in conjunction with, in particular, the first subsection of Article 11A, Article 11A.01, that makes reference to "eligible employee" in its purpose provision. The Union takes the position that, as a result, when examined textually and contextually, the Article in question must be read and viewed for the sole purpose of the IIP plan and no other and as applicable only to those employees claiming benefits under that plan.

45Furthermore, the Union argues that the Arbitrator's application of Article 11A.15 to all employees led to contradictions within the Article itself because of the availability of other employee benefits plans, such as the Workplace Safety and Insurance Act, 1997, and rendered the result anomalous with other available employee insurance plans.

46The Union further argues that the Arbitrator's overbroad interpretation also led to an erroneous conclusion regarding the existence of consent of the Grievor to provide the medical certificates provided for in Article 11A.15, through the collective agreement.

47Finally, the Union argues that the Arbitrator's interpretation of Article 11A.15 is inconsistent with prior arbitration awards between the parties wherein arbitrators have held that the requirement to provide physicians' certificates under the IIP sick pay plan provisions relate to the sick pay plan only. The Union cites two decisions in particular, namely: Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 79, (unreported, Watters) September 9, 1995; and Re Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 79, 23 L.A.C. (3d) 271 (Burkett).

48Counsel for the Union, in his factum and in his oral submissions conceded however that, depending on all of the circumstances, an employer is legally entitled to require that an employee, who is absent claiming illness or injury and who is not claiming or eligible for benefits under the Article in question, provide some medical proof to justify the absence based on the management rights of the employer.

POSITION OF THE CITY

49The City submits that the Arbitrator's interpretation of Article 11A.15 is reasonable in that it fell within the range of possible outcomes, supported by the Arbitrator's reasons for the decision.

50The City disagrees with the Union's position that Article 11A.15 necessarily applies for the sole purpose of the IIP plan. The City argues that there is nothing in the Article that states that it applies only for the purpose of the IIP claimants. The City submits that if the parties had intended such specificity, they would have chosen more precise language, such as"those eligible for IIP" or "those in receipt of IIP".

51The City submits that the Arbitrator's conclusion that Article11A.15 applies to all employees, absent due to illness or injury regardless of their eligibility, entitlement or claim for IIP does not lead to an anomalous result when read contextually. In particular, in the context of other sub-paragraphs under the same Article that provide other benefits that are not only about IIP or impact an employee's IIP bank of benefits. Furthermore, the absence of the specific word "eligible" in the Article in question must be taken to have been purposeful and could only have meant "an employee" under the IIP regime.

52The City takes the position that the prior arbitration awards, referred to by the Union as being inconsistent with the one before the court, are distinguishable. Those awards dealt with the sick pay plan that existed before the IIP regime was created. Nor were those prior awards put before the Arbitrator or or considered by her because of the manner in which the Union advanced the issue. In addition, because the prior awards are dealing with another Article, the awards do not bind the Arbitrator.

53The City submits that the Arbitrator's interpretation and application of Article 11A.15 to the facts of this case were consistent with the Union's own position from the very start of the grievance proceedings launched by the Union. At the commencement of the hearing in 2014, the Union specifically accepted that it was "open to the City to rely on the Grievor's alleged failure to provide medical certificates in accordance with the collective agreement" in seeking to justify discharge. In fact, until the final submissions, the Union's position was that the Grievor had complied with Article 11A.15 by providing the City a prescription pad note from her doctor. It was the position of the City that the Union's conduct during the hearing is reflective of its acceptance that the Grievor had an arguable claim under Article 11A.15. Furthermore, in their conduct throughout, the Union acted in such a way so as to preserve or safeguard the Grievor's rights to make an IIP claim in the future if she were ever reinstated.

54It was the submission of the City that because the Union behaved as it did it was not possible to present evidence on how the IIP was administered so as to assist the Arbitrator in her interpretation of the Article in question. She was then left with the plain language of the provision and the authorities put to her. As a result her decision was justifiable and intelligible in the circumstances.

55Finally, the City submits that the Union's concession that the employer's management rights include the right to request medical proof from its employee to justify absences from the workplace for illness or injury, makes the Arbitrator's decision reasonable in that Article 11A.15, simply put, enables the City to monitor illness related absences from employees that are not receiving workers compensation or LTD benefits.

ANALYSIS AND DISPOSITION

56The Arbitrator referred to the Union's request, as the Arbitrator expressed it, that she find that "article 11.15A applies only to 'an eligible employee' who seeks IIP benefits, and thus it has no application to probationary employees who do not satisfy the eligibility criteria set out in article 11A.03, to those who have exhausted IIP entitlement, or to those who do not seek IIP credits despite contractual entitlement to such benefits." The Arbitrator concluded that the Grievor was not exempt from the requirement of Article 11A.15 even though her sick bank was exhausted and she did not seek llP benefits. The Arbitrator's determination was based on her view that "the broad language of article 11.15A, and specifically the requirement that an 'employee' submit medical certificates, cannot reasonably be so construed even when considered contextually."

57This interpretation of Article 11A.15 is within the range of reasonable decisions on the facts of this case and on the record before the Arbitrator for the following reasons.

58First, as the Arbitrator noted, it is supported by the plain meaning of the language of Article 11A.15.

59Second, Article 11A uses both the terms "employee" and "eligible employee". The Arbitrator's interpretation reflects the parties' intention, as expressed in the use of the former term in Article 11A.15, that this provision would apply to all "employees" rather than only to "eligible employees" as that term is used in Article 11A. Accordingly, the Arbitrator's interpretation is supported by the context in which Article 11A.15 is to be interpreted, being the provisions of Article 11A which govern the IIP.

60Third, I do not think that it necessarily follows that the existence of similar provisions in Article 11B.13 implies a redundancy that requires acceptance of the Union's position.

61Fourth, I do not agree with the Union that, on the Arbitrator's interpretation, the fact that an employee who is receiving Long Term Disability Benefits remains obligated to comply with the provisions of Article 11A.15 is evidence that the parties did not intend Article 11A.15 to apply beyond employees who are eligible for the 11P. As the Union points out, such employees provide medical information on an on-going basis to the City's LTD provider and, as a practical matter, the City treats such reports as satisfying the requirements of Article 11A.15. Accordingly, there is no operational inconsistency between Article 11A.12 and Article 11A.15 that outweighs the considerations set out above for the purposes of the interpretation of Article 11A.15.

62Lastly, I do not accept the Union's argument that the Arbitrator's interpretation of Article 11A.15 is inconsistent with the two prior arbitration awards between the parties noted above for three reasons.

63First, these other awards, while available at the time, were not argued before the Arbitrator and so did not form part of the record before her. They should not form part of this review.

64In addition, I agree with the City that these awards are distinguishable and are not relevant.

65They relate to the interpretation of a predecessor of Article 11B in the much earlier Arbitration Awards of 1986 and 1995 which did not have the IIP as well as a sick pay plan and which did not contain the distinction between an "employee" and an "eligible employee". The Union says that they stand for the proposition that "the requirement to provide physician's certificates under the sick pay plan provisions relate to the sick pay plan only." I do not agree. The 1986 Arbitration Award addressed whether an automatic requirement for a medical certificate, based on absences over a 12-month period regardless of whether there were reasonable grounds to believe that the absence was not due to injury or illness, complied with the collective agreement. The arbitrator held that it did not. The 1995 Arbitration Award proceeded on the basis that an employer had to have reasonable grounds to believe an absence was not due to illness or injury to be entitled to request a medical certificate in cases where an employee was absent for less than three consecutive days with the result that the automatic requirement for a medical certificate did not apply. The issue in that award was whether the employer had such reasonable grounds. The arbitrator held that there were reasonable grounds.

66Lastly, these arbitration decisions were not binding on the Arbitrator in any event and are certainly not binding on this Court.

67Accordingly, the judicial review application of the Union is dismissed.

JUDICIAL REVIEW APPLICATION FILED BY THE CITY

ISSUES

68The City's judicial review application challenges the Arbitrator's Remedy Awards and requests that they be quashed on three principal grounds:

(1) that the Arbitrator denied the City natural justice by excluding pre-September 14, 2012 facts regarding the viability of the employment arrangement;

(2) that the Arbitrator unreasonably fettered her discretion under section 48(17) of the Labour Relations Act, S.O. 1995, c. 1, Sched. A; and

(3) that the Arbitrator unreasonably applied the legal test for payment of damages in lieu of reinstatement.

REMEDY AWARD JURISDICTION

69Pursuant to subsection 48(17) of the Labour Relations Act, 1995, an Arbitrator has broad discretion in imposing a penalty where the conduct warrants it; she "may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances."

70Nonetheless, such discretion must be exercised reasonably and with a duty to procedural fairness towards the parties.

STANDARD OF REVIEW

71It was agreed that the standard of review to be applied to the City's judicial review application is the same as was identified and discussed in the Union's judicial review application, namely, reasonableness.

72Courts have applied the reasonableness standard of review when arbitrators are determining the appropriate remedy, particularly in cases involving discharge and discipline, acknowledging that this determination lies within the core expertise of labour arbitrators. (See Toronto District School Board v. O.S.F.T.F., (2011) 215 L.A.C. (4th) 205 (Ont. Div. Ct.), at para. 3 and Canada Post Corp. v. C.U.P.W., (2012) 223 L.A. C. (4th) 115 (Ont. Div Ct.), para. 18.) Accordingly, a decision of payment of damages in lieu of reinstatement or vice versa, rendered by an arbitrator, would not be quashed unless it was unreasonable. A decision will be considered reasonable if it lies within the range of possible rational outcomes.

73With respect to a case of denial of natural justice or denial of procedural fairness the court does not apply the reasonableness standard. The Arbitrator owes a duty of fairness in deciding upon the rights and privileges of the parties. This involves "ensuring that the parties affected by the decision have a meaningful opportunity to present their case and to have it fully and fairly considered." The ability of a party to adduce and present evidence in support of their case is an important aspect of procedural fairness. (See Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75 at para. 38; Murray v. Human Rights Tribunal of Ontario, 2018 ONSC 2953 (Div. Crt) at para. 24; and, Re B. C. Motor Vehicle Act, [1985] 2 S. C. R. 486 at para. 39.)

74The review of procedural fairness does not attract deference to the arbitrator's choices. It is examined contextually, considering the statutory scheme, the nature of the rights in issue and the specific circumstances of the case and what gave rise to the allegations in order to determine what was required to ensure compliance with the duty to act fairly. (See Murray, supra, para. 17 and London (City) v. Ayerswood Development Corp, (2002), 167 O.A.C. 120 (C.A.) at para. 10.)

75In relation to the admission of evidence, there is case law to support the proposition that an arbitrator ought to make her decision on the basis of all relevant evidence available to enable the parties to present their case and to permit the arbitrator to come to a reasonable decision. (See Mooring v. Canada (National Parole Board), supra, at paras. 36-37; Université du Québec à Trois-Rivière v. Larocque, [1993] I S.C.R.471 at para. 47; Voudouris v. Appeal Tribunal of the Certified General Accountants; and Steller v. Ontario Flue-Cured Tobacco at paras. 5, 16 and 20; varied on other grounds: 2009 ONCA 234, [2009] O.J. No. 1050 (CA).)

76Furthermore, there is case law to support the proposition that if an arbitrator determines that she is bound by legal rules regarding the admissibility of evidence or in the belief that prior arbitration awards are binding, that could be found to be a fettering of discretion in the decision making process. (See City of Toronto and Canadian Union of Public Employees, Local 79, (1982), 35, O. R. (2d) 545 at p. 556.)

77In Toronto (City) v. Canadian Union of Public Employees, Local 79 (Aminirad Grievance), [2004] O.L.A.A. No. 289 at para. 11 it was held that there was a presumptive requirement to admit all relevant evidence to enable parties to present their case "in a full and complete manner, thereby […] providing the arbitration board with the best evidence upon which to base its decision".

POSITION OF THE CITY

78The City submits that the Arbitrator, by interpreting the Amended Agreement without considering and limiting its application to the context in which it was negotiated (in the settlement of two previous grievances) and by excluding all evidence relating to the Grievor's work performance before September 14, 2012, denied the City procedural fairness to properly present its case. The result, the City submits, namely the exclusion of critical evidence that went to the City's ability to present relevant and vital evidence relating to the viability of the employment relationship, was a denial of procedural fairness. It was a denial of procedural fairness because it excluded the possibility of adducing evidence that was relevant to the consideration of the viability of the reinstatement of the Grievor to the workplace.

79The City further submits that in doing what she did, the Arbitrator limited her discretion with respect to remedial authority under section 48(17) of the Labour Relations Act, 1995 in coming to her decision regarding termination and hence it was unreasonable. It was also unreasonable because it resulted in the absurd result of excluding critical information about the Grievor which was necessary to proceed with the case, such as when she was hired part-time and then full-time, when she achieved non-probationary status, the date when she became injured and the periods of absence from the workplace, when she became entitled to accommodation, when she was in receipt of LTD benefits and when such benefits were denied.

80It was the position of the City that to unfairly narrow the "employment relationship" to mean "employment relationship since September 14, 2012" prevented the City from presenting evidence on the totality of the employment relationship from 2001 to the date of discharge in 2013. The City submits that in making the decision that she did, the Arbitrator effectively excluded, in terms of time, 95% of the employment relationship (To establish her non - probationary status at the time of discharge and to respond to the City's position on remedy) for her review of the viability of the continuing employment relationship.

81The City submits that the unfairness was exacerbated by the decision of the Arbitrator to permit the Union's evidence of the Grievor's "paid hours" (to establish her status at the time of discharge) without permitting the City to present counter-balancing evidence regarding her significant absenteeism during the same period.

82As an alternative argument, the City submits that in not acting fairly and permitting the City to present its case fully and appropriately, the Arbitrator denied herself "the best evidence" upon which to base her critical decision about the viability of the employment relationship and to find "lasting, practical solutions to the workplace problems" as was her obligation. (See Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28, [2004] 1 S.C.R.727 at par. 54.)

83Finally, the City submits that the Arbitrator correctly outlined the applicable test and factors to be considered but unreasonably applied the legal test for the payment of damages in lieu of reinstatement.

84According to the City, the Arbitrator appropriately identified all of the relevant factors relating to a proper consideration of the viability of the employment relationship in the circumstances of the case before her. In particular, she identified the following in her reasons: the interactions between the Grievor and the City just prior to discharge, the inability of the Grievor to accept responsibility for her wrongdoing, the lack of trust between the Grievor and the employer, the demeanour and attitude of the Grievor at the hearing, the risk of a poisoned atmosphere in the workplace and the potential for continuing conflict between the Grievor and the employer. But when it came to weighing those factors against each other and applying them to the circumstances of the case, her conclusion was not reasonable.

POSITION OF THE UNION

85The Union disputes that the Arbitrator denied natural justice or procedural fairness to the City. The Union submits that the Arbitrator's conclusion that the Amended Agreement precluded the introduction of evidence relating to pre-September 2012 facts and allegations did not result in a denial of procedural fairness. It was in effect an interpretation by the Arbitrator of the terms by which the City and the Union agreed they would be bound going forward.

86Furthermore, the Union submits that the terms of paragraph 4 of the Amended Agreement are not unusual in the labour relations context and it is not unreasonable to hold the parties to account for their negotiated agreements. The Union submits that the City has not provided any authority that supports its position that a decision to restrict evidence in accordance with paragraph 4 of the Amended Agreement amounts to a denial of natural justice or procedural fairness.

87The Union also submits that the Arbitrator's decision to permit the Union to introduce the limited evidence of the Grievor's "paid hours", which included pre-September 14, 2012 facts, was logically explained by her in her reasons and is reasonable. The reason for the admissibility of the "paid hours" evidence is quite distinguishable from the reason for the inadmissibility of the evidence of the Grievor's absenteeism during the same period.

88The Union submits that the Arbitrator used the same interpretation of the Amended Agreement in coming to her decision in the Award. At that time the City did not challenge the Arbitrator's interpretation and is therefore bound, logically, by her decision in the Remedy Award. Otherwise, it amounts to an improper collateral attack on that prior Award.

89The Union also argues that, given that it is agreed that the applicable standard of review by the court of the Arbitrator's decision is reasonableness, the Arbitrator is entitled to deference unless the City can convince this court that the Arbitrator's interpretation of paragraph 4 of the Amended Agreement is unreasonable. As a result, the court ought not to interfere with her decision to exclude evidence or to conclude that she improperly or unreasonably excluded evidence.

90In reply to the City's submission that the Arbitrator has unreasonably fettered her discretion in the Remedy Awards, the Union submits that it is clear that section 48(17) of the Labour Relations Act, 1995 grants Arbitrators a broad jurisdiction and discretion to determine the appropriate remedy in discharge or discipline cases. There is nothing improper nor unreasonable in the Arbitrator deciding to hold the parties to the terms of their agreement as a proper exercise of her discretion under that section.

91Furthermore, the Union submits that the City has presented no authority for the contention that section 48(17) of the Labour Relations Act, 1995 empowers or even permits an Arbitrator to ignore the terms of an agreement in relation to the scope of admissible evidence in considering the appropriate penalty in a discharge or discipline case.

92Finally, the Union takes the position that the Arbitrator's application of the legal test for payment of damages in lieu of reinstatement is not unreasonable. The Union submits that both parties agree that courts have recognised that the "normal" remedy in cases where just cause for discharge is not established is reinstatement and that ordering damages, in lieu of reinstatement, is an "exceptional" or "extraordinary" remedy where the employment relationship is no longer viable. The Union argues that the Arbitrator's findings of fact are clear as to why she found that she could not conclude that the employment relationship was no longer viable. It submits that there is no basis for interfering with the Arbitrator's factual findings or conclusions.

ANALYSIS AND DISPOSITION

93As mentioned above:

(1) that the Arbitrator denied the City natural justice by excluding pre-September 14, 2012 facts regarding the viability of the employment arrangement;

(1) that the Arbitrator unreasonably fettered her discretion under section 48(17) of the Labour Relations Act, 1995; and

(2) that the Arbitrator unreasonably applied the legal test for payment of damages in lieu of reinstatement.

The City argues that it was denied natural justice in being denied the opportunity to adduce evidence of facts prior to September 14, 2012 that bear on the viability of the employment relationship. The City makes two alternative arguments on this issue which I will address in turn. I will then address the disposition of the remaining submissions of the City.

The Argument Based on the Arbitrator's Interpretation of the Amended Agreement

94The City argues that the Arbitrator's interpretation of the operation of the Amended Agreement in respect of evidence pertaining to the viability of the employment relationship was unreasonable and, as a result, the City was prevented from presenting its case in full on this issue.

95As mentioned, the Union and the City entered into the Amended Agreement to settle two earlier grievances commenced by the Grievor. For present purposes, the relevant provisions read as follows:

3. This Agreement shall resolve any and all issues and claims the Grievor has against the Employer under the Collective Agreement and the Human Rights Code up to September 14, 2012.

4. The Employer and the Union understand and agree that as a result of this Agreement, they are barred from relying on facts and/or allegations that arose prior to or that should have arisen prior to September 14, 2012 in any future proceeding under the Collective Agreement or the Human Rights Code.

96In connection with the Award, the Arbitrator held that the City could not rely upon facts and allegations prior to September 14, 2012 for the purpose of a ground of discharge to the effect that the Grievor failed to co-operate in the City's efforts to accommodate her workplace restrictions prior to that date.

97The issue of the operation of the Amended Agreement also arose in connection with the Remedy Award. The City sought to present evidence regarding the number of days that the Grievor worked between May 2003 and the date of termination. The Arbitrator held, however, that there remained a "proceeding under the Collective Agreement" and that s. 4 of the Amended Agreement continued to apply when determining the remedy. On this basis, the Arbitrator declined to admit any evidence of the City of factual circumstances prior to September 14, 2012 directed toward the issue of the viability of the employment relationship.

98The City says that, by virtue of this interpretation, it was denied the ability to adduce evidence regarding, among other things, the Grievor's history of failing to co-operate in her own accommodation, the Grievor's history of WSIB claims since 2003 after any contact with the City, the Grievor's failure to return to work after her LTD benefits were terminated, and the Grievor's refusal to undergo an independent medical examination after she had agreed to do so in 2011. In addition, the City says that it was denied the ability to adduce evidence regarding the Grievor's record of absences, which has relevance for both of the City's arguments.

99The City argues that this interpretation of the Arbitrator was unreasonable and, as a result, it was denied natural justice. The City accepts that the parties intended the Amended Agreement to apply to any disciplinary proceedings that might otherwise be brought. It says, however, that the Amended Agreement was not intended to prevent the complete examination of the viability of the employment relationship after any finding in a proceeding under the collective agreement that a sanction was warranted. I agree with the City's interpretation of the Amended Agreement and find the Arbitrator's interpretation to be unreasonable for the following reasons.

100First, read together, sections 3 and 4 indicate a restriction of the operation of s. 4 to proceedings to determine the merits of grievances under the collective agreement and complaints under the Human Rights Code. The phrase "as a result of this Agreement" in section 4 makes it clear that section 4 is intended to do no more than describe for clarity the effect of section 3. It is clear that section 3 is limited to fresh claims or complaints of the Grievor against the City.

101Accordingly, read in this manner, section 4 states that the parties agreed that facts and allegations may not be adduced for the purpose of supporting new grievances that could have been asserted under the collective agreement or new complaints that could have been made under the Human Rights Code. Nothing however prevents the parties from adducing facts and allegations that arose prior to September 14, 2012 for other purposes.

102Second, the literal reading of the Arbitrator produces the absurd result that information of a general nature would be inadmissible in any future proceeding for any purpose. As the City notes, such information would include the date the Grievor was hired as part-time staff, the date she was appointed full-time temporary staff, the date she achieved non-probationary status, and the date she became injured and therefore became entitled to accommodation. Clearly, the scope of the restriction in section 4 must be limited rather than absolute. The only issue should be the extent of such limitation.

103Third, as a related matter, the Arbitrator recognized the existence of such a limitation to the bald language in section 4 in admitting evidence regarding the Grievor's alleged non-probationary status as of the date of discharge. This necessarily required admission of evidence of the Grievor's record of attendance during the period 2003 to September 14, 2012. The Arbitrator justified this on the basis that such status "is not a fact arising prior to September 14, 2012, but is a fact pertaining to June 2013, although her status as of that date resulted in part from pre-September 2012 hours." I will return to this finding later. For present purposes, it illustrates the implicit limitation to the Amended Agreement described above – that nothing prevents the parties from adducing facts and allegations that arose prior to September 14, 2012 for purposes other than new grievances that could have been asserted under the Collective Agreement or new complaints that could have been made under the Human Rights Code.

104Given the conclusion that the Arbitrator's interpretation of the operation of the Amended Agreement in respect of evidence pertaining to the viability of the employment relationship was unreasonable, it necessarily follows that the City was denied natural justice in being denied the ability to present its case fully. In particular, it was denied natural justice in being prevented from presenting evidence of pre-September 2012 facts that are relevant for this issue.

The Argument Based on the Nature of the Evidence Admitted by the Arbitrator

105The alternative argument of the City is that, even accepting the Arbitrator's interpretation of the Amended Agreement, it was denied natural justice by the exclusion of evidence regarding the Grievor's record of absenteeism prior to September 14, 2012, notwithstanding the admission of evidence regarding the Grievor's hours of employment during that period.

106As mentioned above, in the Remedy Award dated September 21, 2017, the Arbitrator held that the Union was entitled to present evidence regarding the Grievor's "accrued hours paid" as of the date of termination with a view to establishing her non-probationary status as of that date. The Arbitrator reasoned that "the grievor's alleged non-probationary status as of the date of discharge is not a fact arising prior to September 14, 2012, but is a fact pertaining to June 2013, although her status as of that date resulted in part from pre-September 2012 hours."

107The City does not challenge this ruling. It does, however, say that it was denied natural justice as a result of a further ruling of the Arbitrator in the same Remedy Award also discussed above pertaining to the Union's reliance on such evidence of the Grievor's accrued hours as of the time of her termination in response to the City's position that damages should be awarded in lieu of reinstatement.

108In allowing the Union to do so, the Arbitrator reasoned as follows:

Although the Amended Agreement bars the parties from reliance upon facts arising prior to September 14, 2012, it does not eliminate or adjust the grievor's service accrued as of that date. What necessarily follows from that is that the grievor's service accrual just prior to September 14, 2012 continued to be her service accrual as of September 14, 2012 and onward to the date of discharge, augmented by post September 14, 2012 service. As such, the grievor's service accrued as of June 23, 2013, the date of discharge, is a 'fact' that 'arose' after September 14, 2012. It is distinct from 'facts' that arose prior to that date such as those relating to pre-September 14, 2012 absenteeism or failure to co-operate in the City's accommodation efforts. While the City was not permitted through previous rulings in these proceedings to rely upon such facts that arose prior to September 14, 2012, I conclude that the Union does not seek to do so here where it wishes to adduce evidence of the grievor's service accrual as of the time of discharge, reflective of her service as of that time, which she 'carried with her' beyond September 14, 2012. The parties' agreement that they are "barred from relying on facts … that arose prior to … September 14, 2012" does not therefore preclude the Union from adducing evidence of the grievor's accrued service as of the time of discharge for the purpose advanced by the Union at this time. [para 26]

109The City submits that it was denied natural justice in being unable to present the Grievor's record of absenteeism for consideration in respect of the viability of the employment relationship when the Grievor's hours of service were in evidence for such purpose, not merely for establishing her non-probationary status as of the date of termination. I also agree with this alternative argument of the City for the following reasons.

110First, I see no difference for this purpose between the Grievor's record of attendance and the Grievor's record of absenteeism. Collectively, they comprise the Grievor's work history. Insofar as the Grievor's work history is admissible to establish a fact as of June 2013, I see no principled basis for excluding a part of that work history.

111Second, more generally, I see no material difference for present purposes between the facts of: (1) the Grievor's status as an employee as of June 2013; and (2) the viability of the employment relationship as of that time. Both are facts which required a determination by the Arbitrator, based in part on pre-September 2012 facts or circumstances. To the extent that the Arbitrator admitted evidence regarding the Grievor's non-probationary status for consideration in the context of the viability of the employment relationship, the Arbitrator should also have admitted evidence of pre- September 14, 2012 facts that addressed the state of the employment relationship as of the date of discharge.

112Third, for the reasons set out above, I think the reason that the Grievor's work history is admissible is that the parties did not intent to exclude such factual evidence pursuant to the Amended Agreement except to the extent that it was being presented to ground a fresh grievance under the collective agreement or a fresh complaint under the Human Rights Code.

Conclusions Regarding the City's Claim of a Denial of Natural Justice

113Accordingly, I conclude that the City was prevented from making a full presentation of its case that the employment relationship between the City and the Grievor was no longer viable and, accordingly, was denied natural justice for the two reasons discussed above.

Disposition of the Remaining Submissions of the City

114The City also argues that the Arbitrator improperly fettered her discretion under s. 48(17) of the Labour Relations Act, 1995 in excluding such evidence based on her interpretation of the Amended Agreement. Given the fact that this submission appears to be entirely dependent upon acceptance of the City's interpretation of the Amended Agreement, it is not necessary to address this additional submission.

115Lastly, the City also submitted that the Arbitrator unreasonably applied the legal test for payment of damages in lieu of reinstatement in finding that the employment relationship between the Grievor and the City continued to be viable. Essentially, the City submits that the Arbitrator's finding on this question of mixed fact and law was unreasonable. Given the determination above that the City was denied natural justice in the presentation of its case on this issue, it is unnecessary to address this issue and I therefore decline to do so.

Disposition of the City's Application

116For the foregoing reasons, the judicial review application brought by the City is granted and the issue of an appropriate sanction is remitted to the Arbitrator (as the parties have agreed) for a rehearing of the remedy award after a consideration of evidence regarding the viability of the employment relationship without regard to the application of the Amended Agreement.

COSTS

117The parties have agreed on the quantum of costs to be awarded, namely $4,000 in respect of each application. In view of the foregoing decisions, costs are payable to the City in the amount of $8,000.

Linhares De Sousa J.

I agree _______________________________

Wilton-Siegel J.

I agree _______________________________

Thorburn J.

Released: August 8, 2019

CITATION: Canadian Union of Public Employees, Local 79 v. Toronto (City of), 2019 ONSC 3006

DIVISIONAL COURT FILE NO.: 585/16 DIVISIONAL COURT FILE NO.: 080/19

DATE: 2019/08/08

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Linhares De Sousa, Wilton-Siegel and Thorburn JJ.

BETWEEN:

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79

Applicant

– and –

CITY OF TORONTO and MARY LOU TIMS

Respondents

AND BETWEEN:

CITY OF TORONTO

Applicant

– and –

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 79 and MARY LOU TIMS

Respondents

REASONS FOR JUDGMENT

Linhares De Sousa, J.