George Brown College of Applied Arts and Technology v. Ontario Public Service Employees Union

68 O.R. (3d) 161

[2003] O.J. No. 4757

Docket No. C39509

Court of Appeal for Ontario

Labrosse, Doherty and Weiler JJ.A.

December 8, 2003

Employment -- Labour relations -- Collective agreement -- Interpretation -- Collective agreement between union representing community college teachers and College containing provisions creating expeditious process to resolve disputes over individual teacher workload assignments -- Collective agreement providing for arbitration of such disputes -- Collective agreement clearly specifying that only individual teachers are allowed to initiate workload grievances -- Arbitrator's conclusion that Union may initiate workload grievance being patently unreasonable.

The collective agreement between the Union (representing community college teachers) and the College contained provisions that created an expeditious process to resolve disputes over individual teacher workload assignments. Under Article 11 of the agreement, complaints about a teacher- specific workload are initially discussed with that teacher's supervisor, and if there is no resolution, the complaints are submitted to a two-part procedure. The first part involves a consideration of the complaint by the Workload Monitoring Group ("WMG"). If the matter is not resolved by the WMG, the complaint may then proceed to the second part of the process, arbitration by the Workload Resolution Arbitrator ("WRA"). The Union referred a complaint to the WRA. The College challenged the jurisdiction of the WRA to hear Union- initiated workload complaints, as opposed to complaints initiated by an individual teacher. The arbitrator found against the College, concluding that despite the lack of express language to that effect, the collective agreement implicitly allowed the Union to refer complaints to the WRA. The arbitrator held that a lack of union access to arbitration was not compatible with the Colleges Collective Bargaining Act, R.S.O. 1990, c. C.15. The Divisional Court allowed the College's application for judicial review of the arbitrator's decision, holding that Article 11 of the collective agreement contained very clear words limiting access to an arbitrator solely to individual teachers. The Union appealed.

Held, the appeal should be dismissed.

In light of the true privative clause found in s. 84(1) of the Colleges Collective Bargaining Act, the applicable standard of review was that of patent unreasonableness.

The arbitrator mischaracterized the issue by finding that denying the Union access to the WRA through Article 11 was inconsistent with s. 46 of the Act. The issue was not the Union's access to workload arbitration, but its ability to initiate these complaints. The acts of defining and limiting the nature of the Union's access to arbitration through Article 11 was not inconsistent with s. 46(1) of the Act. Nothing in s. 46(1) suggests that the arbitration process mandated for collective agreements must be initiated solely by the Union and no others. Instead, that section requires that an arbitration procedure be included in the agreement, otherwise one will be deemed to exist by virtue of s. 46(2). Under these provisions, parties can specify their own framework for the process. The parties in this case had created a comprehensive dispute resolution and arbitration mechanism to resolve workload disputes as set out in Article 11.02. Moreover, the fact that, according to the arbitrator, Union complaints can come before the WMG did not [page162] assist in concluding that the Union complaints can similarly come before the WRA. In fact, if the Union can indeed initiate workload complaints at the first step, it could be forcefully argued that by expressly providing for the Union's involvement at the first step and not at the second, the parties intended all along to preclude its involvement at the WRA. The reasons of the arbitrator did not support his conclusion that the Union can refer workload complaints to the WRA.

More importantly, the conclusion of the WRA was not supported by the relevant articles of the collective agreement. First, the wording of Article 32.10 lent support to the argument that the Union was specifically barred from going to the WRA for workload complaints. Article 32.10 set out a distinction between union grievances and individual grievances. It explicitly contemplated personal grievances for individual employees, and provided that the Union cannot grieve matters that can be individually grieved. While this article did not address the actual interpretation of Article 11, it clearly indicated that at the time of the negotiations for the collective agreement, the parties had contemplated the possibility for complaints grieved personally by individual employees without the involvement of the Union. Second, the words of Article 11.02 clearly specified that only individual teachers are allowed to initiate workload grievances to the WRA. While Article 11.02 C 1, through its specific referral to the Union Local, may allow the Union to initiate complaints without specifying exactly how this is done at the WMG stage, the provisions describing the WRA process do not name the Union as a player. Given the lack of specific reference to the Union in the WRA provisions, it seemed likely that the parties did not intend to allow the Union to initiate complaints to the WRA. Third, several provisions in the agreement tended to demonstrate that only the individual teacher is allowed to initiate complaints at the WRA. For example, Article 11.02 E 2 states that if the teacher does not refer an assignment to the WRA within a specified period of time"the matter will be considered to have been settled". This article would be entirely redundant if the matter could simply be referred to the WRA by the Union without regard to the teacher. Fourth, the recognition of the Union's participation in the WMG process at Article 11.02 C 1 not only amplified the difference between the WMG's policy function and the WRA's focus on the resolution of individual disputes, but also bolstered the suggestion that the Union has no right to initiate complaints at the WRA. The WMG is responsible for reviewing workload assignments in general, making recommendations to the College on the workload assignments at the College, and making recommendations to the College and Union as to amendments or additions to the provisions governing workload assignments. Given these policy- related functions performed by the WMG, and the Union's ability to represent large numbers of employees, it was logical to assume that the Union would have an important role to play at this part of the process. The purpose of the WRA, however, was to provide a quick, informal, non-technical and non- precedential process for the resolution of individual disputes. It was therefore reasonable to expect that the Union's involvement at the arbitration level would be decreased. The difference in function between the WMG and the WRA processes, coupled with a lack of reference to the Union under the arbitration provisions of Article 11.02, dictated that the parties did not intend the Union to initiate complaints to the WRA. Finally, given that the collective agreement was a very detailed agreement covering comprehensive procedures that were negotiated over a long period of time by negotiators, the repeated reference to "teachers" when describing the WRA process could not have been meant to include not only the individual teacher, but also the Union. Had the parties intended to allow the Union to initiate workload complaints at the WRA, they would have clearly said so in the agreement. To allow the Union to refer complaints to the WRA would therefore amount to a rewriting of the collective agreement. [page163]

APPEAL by a union from a judgment of the Divisional Court allowing an application for a judicial review of a decision of an arbitrator.

Ontario Hydro and Ontario Hydro Employees' Union, Local 1000 (Re) (1983), 1983 1868 (ON CA), 41 O.R. (2d) 669, 147 D.L.R. (3d) 210 (C.A.), distd Hamilton (City) v. Canadian Union of Public Employees, Local 167 (1997), 1997 1875 (ON CA), 33 O.R. (3d) 5, 97 C.L.L.C. Â220-029 (C.A.); Sisters of St. Joseph of the Diocese of London v. Service Employees Union, Local 210 (1997), 1997 2233 (ON CA), 35 O.R. (3d) 91, 155 D.L.R. (4th) 674 (C.A.) [Leave to appeal to S.C.C. refused (1998), 227 N.R. 193n], affg (1992), 1992 8525 (ON SCDC), 89 D.L.R. (4th) 189 (Ont. Div. Ct.), consd Other cases referred to Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941, 101 D.L.R. (4th) 673, 150 N.R. 161, 93 C.L.L.C. Â14,022; Toronto Catholic District School Board v. Ontario English Catholic Teachers' Assn. (Toronto Elementary Unit) (2001), 2001 8597 (ON CA), 55 O.R. (3d) 737, [2001] O.J. No. 3748 (QL), 149 O.A.C. 328, 39 Admin. L.R. 188 (C.A.) Statutes referred to Colleges Collective Bargaining Act, R.S.O. 1990, c. C.15, ss. 46, 84(1) Labour Relations Act, R.S.O. 1970, c. 232

Timothy G.M. Hadwen and Gavin J. Leeb, for appellant. Christopher G. Riggs, for respondent.

The judgment of the court was delivered by

[1] LABROSSE J.A.: -- The appellant, Ontario Public Service Employees Union ("the Union"), appeals, with leave, the decision of the Divisional Court granting an application for judicial review by the respondent, George Brown College of Applied Arts and Technology ("the College") and quashing the award of a Workload Resolution Arbitrator ("the WRA" or "the arbitrator").

[2] The Union and the College are parties to a collective agreement involving community college teachers across the province. Included in this agreement are extensive provisions that create an expeditious process to resolve disputes over individual teacher workload assignments. This process involves several steps designed to resolve workload differences, with arbitration by a single WRA as the final step.

[3] The issue before this court is whether the Union can directly refer individual teacher workload disputes to the WRA. Although the collective agreement specifically provides that teachers can refer workload disputes to the WRA, it is silent about the Union's right to do so. The current case was commenced when the College challenged the jurisdiction of the arbitrator to hear [page164] Union-initiated workload complaints. The arbitrator found against the College, but his decision was subsequently quashed by the Divisional Court. The Union now appeals to this court. For the reasons that follow, I would dismiss the appeal.

The Relevant Legislation and Articles of the Collective Agreement

[4] The relevant legislation and articles of the collective agreement are attached to these reasons as Appendix "A". For ease of reference, parts of the collective agreement are reproduced below:

Article 32

GRIEVANCE PROCEDURES

32.10 The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by-passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights employees. . . .

Article 11

WORKLOAD

11.01 A Each teacher shall have a workload that adheres to the provisions of this Article.

11.02 A 1 (b) The College may, where a change in circumstances requires it, amend assignments provided to a teacher after the original assignment, subject to the teacher's right to refer any matter to the College Workload Monitoring Group (WMG) referred to in 11.02 B 1 and if necessary, the Workload Resolution Arbitrator (WRA) referred to in 11.02 E 1 and appointed under 11.02 F 1.

11.02 A 6 (a) In the event of any difference arising from the interpretation, application, administration or alleged contravention of 11.01 or 11.02, a teacher shall discuss such difference as a complaint with the teacher's immediate supervisor. . . .

Failing settlement of such a complaint, a teacher may refer the complaint, in writing, to the WMG within seven days of receipt of the immediate supervisor's reply. The complaint shall then follow the procedures outlined in 11.02 B through 11.02 F.

11.02 B 2 Each WMG will be composed of eight members, with four to be appointed by the College and four appointed by the Union Local unless the College and the Union Local otherwise agree. . . . [page165]

11.02 C 1 The functions of the WMG shall include:

(i) reviewing workload assignments in general at the College and resolving apparent inequitable assignments;

(ii) reviewing specific disputes pursuant to 11.02 A 4 and/or 11.02 A 6 (a) and where possible resolving such disputes;

(iii) making recommendations to the College on the operation of workload assignments at the College;

(iv) reviewing individual workload assignments where requested by the teacher or the Union Local and, where possible, resolving the disputes;

(v) making recommendations to the College and Union Local committees appointed under Article 7, Union College Committee, as to amendments or additions to the provisions governing workload assignments at the College for local negotiation in accordance with 11.02 G in order to address particular workload needs at the College.

11.02 D 5 Such decision shall be binding on the College, the Union Local and the teacher involved.

11.02 E 1 If following a review by the WMG of an individual workload assignment which has been forwarded to the WMG, the matter is not resolved, the teacher shall be so advised in writing. The matter may then be referred by the teacher to a WRA provided under the agreement. Failing notification by the WMG within three weeks of the referral of the workload assignment to the WMG, the teacher may refer the matter to the WRA.

11.02 E 2 If the teacher does not refer an assignment to the WRA within one week of the receipt by the teacher of notification by the WMG that it has been unable to settle the matter, the matter will be considered to have been settled.

11.02 F 5 A WRA shall determine appropriate procedure. The WRA shall commence proceedings within two weeks of the referral of the matter to the WRA. It is understood that the procedure shall be informal, that the WRA shall discuss the matter with the teacher, the teacher's supervisor, and whomever else the WRA considers appropriate. . . .

11.02 F 6 The award shall only have application to the teacher affected by the matter and shall have no application beyond the end of a twelve-month period from the date of the beginning of the workload assignment. . . .

11.02 F 8 The award of the WRA shall be final and binding on the parties and the teacher, and shall have the same force and effect as a Board of Arbitration under Article 32, Grievance Procedures.

[5] Briefly stated, the collective agreement sets out various dispute resolution procedures to be used in the event of conflict. [page166] Article 32 of the agreement prescribes a general grievance procedure that includes arbitration by a three-member board. Although the parties agree that the general grievance procedure is not available in the present case, Article 32.10 is significant because it describes the procedure through which the Union may normally file grievances.

[6] The dispute resolution process available in this case is outlined in Article 11. Article 11.01 sets out workload limits, and Article 11.02 sets out a process for assigning work and resolving individual workload complaints. According to this Article, complaints about a teacher-specific workload are initially discussed with that teacher's supervisor, and if there is no resolution, the complaints are referred to a two- part process. The first part of the process involves a consideration of the complaint by the Workload Monitoring Group ("WMG"). The WMG is comprised of an equal number of Union and College appointees, and a majority decision by the Group is binding on the College, the Union and the teacher. If the matter is not resolved by the WMG, the complaint may then proceed to the second part of the process, namely, arbitration by the WRA. In the case before us, the Union, and not the teacher, referred the complaint to the WRA. The issue in this case is whether the collective agreement permits this.

Workload Arbitrator's Award

[7] When asked to rule upon his jurisdiction to decide Union- initiated workload complaints, the arbitrator concluded that notwithstanding the lack of express language to the effect, the collective agreement implicitly allows the Union to refer such complaints to the WRA. He summarized the basis of his decision, at p. 45 of his reasons:

Based on the analysis above, and especially because the result of no Union access to arbitration is not compatible with the [Colleges Collective Bargaining] Act, because the agreement makes it clear that these Union complaints can come before the workload monitoring group, because the agreement also permits these Union complaints to come before that group without providing any express language as to how that is to happen, because the agreement implies that these disputes are then resolved by workload resolution arbitration, and because the agreement expresses a desire to have workload issues dealt with expeditiously, I conclude that the parties intended that Union initiated workload complaints under Articles 11.01 and 11.02 should be dealt with through workload resolution arbitration. Of the possible interpretations of the agreement, this is the interpretation which fits best with the language of the collective agreement. I therefore find that as workload resolution arbitrator I have jurisdiction over these Union complaints. [page167]

The Divisional Court

[8] The Divisional Court quashed the WRA's award by holding that he had no jurisdiction under the collective agreement to arbitrate workload disputes initiated by the Union. According to the court, Article 11 contains very clear words limiting access to an arbitrator solely to individual teachers. It is not correct to assert that an unsuccessful complaint at the WMG stage means that there is no remedy. Rather, the collective agreement merely provides that a remedy may be pursued by the teacher and not the Union. Alternatively, the court held that even if the Union can be said to have a right to arbitrate, the procedure governing such arbitration is set out in s. 46(2) of the Colleges Collective Bargaining Act, R.S.O. 1990, c. C.15. Since s. 46(2) provides access to arbitration in front of a tripartite board, it is not open for a single arbitrator to decide Union-initiated workload complaints. As a result of these errors, the arbitrator's decision amounted to a rewriting of the collective agreement. The WRA therefore exceeded his jurisdiction and the award should be quashed.

Standard of Review

[9] In light of the "true" privative clause found in s. 84(1) of the Act, both parties agree that the applicable standard of review is patent unreasonableness. Little needs to be said on this issue, and it is sufficient to keep in mind the words expressed by Cory J. in Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941, 101 D.L.R. (4th) 673, at pp. 963-64 S.C.R.:

It is said that it is difficult to know what "patently unreasonable" means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "[n]ot having the faculty of reason; irrational. . . . Not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.

See also Toronto Catholic District School Board v. Ontario English Catholic Teachers' Assn. (Toronto Elementary Unit) (2001), 2001 8597 (ON CA), 55 O.R. (3d) 737, [2001] O.J. No. 3748 (QL) (C.A.).

Positions of the Parties

[10] On appeal, both parties also agreed that the Union is able to initiate complaints before the WMG and that all of the workload [page168] issues raised by the Union in this case were matters that could have been raised by individual teachers.

[11] The Union submits that the WRA's decision should stand because it interpreted the collective agreement as a whole. It argues that the arbitrator's decision is entitled to deference based on the standard of patent unreasonableness, is consistent with the established labour relations principle that the Union and not the individual is a party to the collective agreement, and is correct in holding that all differences between the parties may be referred to arbitration. According to the Union, the arbitrator's decision is also consistent with the decision of this court in Re Ontario Hydro and Ontario Hydro Employees' Union, Local 1000 (1983), 1983 1868 (ON CA), 41 O.R. (2d) 669, 147 D.L.R. (3d) 210 (C.A.).

[12] The College, on the other hand, adopts the reasoning of the Divisional Court. It argues that the arbitrator's decision is patently unreasonable since the collective agreement clearly specifies access to arbitration would be open only to individual teachers and not the Union. In addition, the College argues that Ontario Hydro can be distinguished from the case at bar.

Analysis

A. The reasons of the WRA

[13] A review of the arbitrator's reasons for assuming jurisdiction reveals that there is no rational basis for his decision. The arbitrator gave the following five reasons for his conclusion:

1. The result of no Union access to arbitration is not compatible with s. 46(1) of the Act;

2. The agreement makes it clear that the Union's complaints can come before the WMG;

3. The agreement permits the Union complaints to come before the WMG without providing any express language as to how that is to happen;

4. The agreement implies that these disputes are then resolved by workload resolution arbitration; and

5. The agreement expresses a desire to have workload issues dealt with expeditiously.

I will deal with each of these five issues in turn.

[14] First, the arbitrator states that denying the Union access to the WRA through Article 11 is inconsistent with s. 46 of the [page169] Act. The arbitrator has mischaracterized the issue. The issue here, is not the Union's access to workload arbitration, but its ability to initiate such complaints. Even if there is no provision for the Union to initiate workload complaints, the WRA, under Article 11.02 F 5, may consider the Union to be an appropriate participant if the teacher is willing to initiate the complaint. To state, therefore, that the Union has no access to arbitration is to ignore the larger picture of the complaints process provided by the collective agreement.

[15] Indeed, the acts of defining and limiting the nature of the Union's access to arbitration through Article 11 of the collective agreement is not inconsistent with s. 46(1) of the Act. Nothing in s. 46(1) suggests that the arbitration process mandated for collective agreements must be initiated solely by the Union and no others. Instead, that section requires that an arbitration procedure be included in the agreement, otherwise one will be deemed to exist by virtue of s. 46(2). Under these provisions, parties can specify their own framework for the process, and indeed the parties in this case have created a comprehensive dispute resolution and arbitration mechanism to resolve workload disputes as set out in Article 11.02.

[16] Second, the fact that, according to the arbitrator, the Union complaints can come before the WMG does not assist in concluding that the Union complaints can similarly come before the WRA. In fact, if the parties are right, and the Union can indeed initiate workload complaints at the first step, it can be forcefully argued that by expressly providing for the Union's involvement at the first step and not at the second, the parties intended all along to preclude its involvement at the WRA.

[17] Third, the absence of any express language as to how Union complaints come before the WMG does not support the conclusion that the Union can refer complaints to the WRA. The arbitrator's reasoning here begs the question of whether the Union is, in fact, allowed to go directly to arbitration under the agreement. Leaping from an observation that there is no provision for the Union to engage either the WMG or the WRA to the conclusion that the Union is therefore entitled to go to the WRA is not logically supportable. Just because there is a lack of provisions for both processes does not mean that the parties intended for the Union to directly refer workload complaints to the WRA.

[18] Fourth, the argument that the collective agreement implicitly allows workload disputes to be resolved by workload resolution arbitration, again begs the central question of the Union's entitlement to participate at the second stage of the arbitration. Here, the arbitrator has reasoned by conclusion since [page170] he has stated, without support, the issue under dispute as a reason for his decision.

[19] Finally, although it is true that the agreement intends to provide for an expeditious determination of workload issues, it does not follow that the Union is entitled to go to the WRA. In the agreement, specific time frames govern each step of the appeal process. These time requirements seem to fulfil the expediency purpose behind the dispute resolution mechanism. Whether an individual teacher or the Union initiates such complaints is immaterial to the expediency of the process. The addition of the Union as a party capable of initiating workload complaints to the WRA does not change the time schedule set out in the agreement and therefore has no bearing on the expeditious nature of the scheme. The fact that an expedited procedure was intended by the parties therefore does not assist in determining whether the Union should be allowed to initiate workload complaints at the WRA.

[20] The reasons of the arbitrator therefore do not support his conclusion that the Union can refer workload complaints to the WRA.

B. The collective agreement

[21] More importantly, the conclusion of the WRA is not supported by the relevant articles of the collective agreement.

[22] First, the wording of Article 32.10 lends support to the argument that the Union is specifically barred from going to the WRA for workload complaints. Article 32.10 sets out a distinction between union grievances and individual grievances. It explicitly contemplates personal grievances for individual employees, and indeed provides that the Union cannot grieve matters that can be individually grieved. While this article does not address the actual interpretation of Article 11, it clearly indicates that at the time of the negotiations for the collective agreement, the parties had contemplated the possibility for complaints grieved personally by individual employees without the involvement of the Union.

[23] Second, the words of Article 11.02 clearly specify that only individual teachers are allowed to initiate workload grievances to the WRA. Although the Article makes specific references to the teacher and the Union, it is the teacher that is referred to most frequently in provisions relating to the complaints process. Indeed, the words of the agreement suggest that it is the teacher alone who is given the power to initiate complaints before the WRA: [page171]

(a) The College may amend assignments subject to the teacher's right to refer any matter to the Workload Monitoring Group (WMG) and if necessary, the WRA (11.02 A 1 (b));

(b) If the teacher is not in agreement with the workload, the teacher shall discuss such difference as a complaint with his or her supervisor and failing settlement of such a complaint, the teacher may refer the complaint to the WMG (11.02 A 6 (a)), composed of an equal number of College and Union appointees (11.02 B 2);

(c) The WMG is given a number of workload related functions including "reviewing individual workload assignments where requested by the teacher or the Union Local and, where possible, resolving the disputes" (11.02 C 1);

(d) A decision by a majority of the WMG shall be binding on the College, the Union Local and the teacher involved (11.02 D 5);

(e) If the complaint is not resolved, the teacher shall be so advised in writing and the matter may then be referred by the teacher to the WRA (11.02 E 1);

(f) "If the teacher does not refer an assignment to the WRA . . . the matter will be considered to have been settled" (11.02 E 2; emphasis added);

(g) ". . . the WRA shall discuss the matter with the teacher, the teacher's supervisor, and whomever else the WRA considers appropriate" (11.02 F 5; emphasis added);

(h) "The award shall only have application to the teacher affected by the matter . . ." (11.02 F 6; emphasis added); and

(i) "The award of the WRA shall be final and binding on the parties and the teacher, and shall have the same force and effect as a Board of Arbitration under Article 32, Grievance Procedure" (11.02 F 8; emphasis added).

As demonstrated above, the teacher initiates the process by complaining to his or her supervisor. If the complaints cannot be resolved by the supervisor, the teacher and the Union (as agreed by the parties) may then refer the complaint to the WMG. However, when the decision is made to refer the complaints to the second process, namely the WRA, the Articles are completely silent with respect to the role of the Union. While Article 11.02 C 1, through its specific referral to the Union Local, may allow the [page172] Union to initiate complaints without specifying exactly how it is done at the WMG stage, the provisions describing the WRA process do not name the Union as a player. Given the lack of specific reference to the Union in the WRA provisions, it seems likely that the parties did not intend to allow the Union to initiate complaints to the WRA.

[24] Third, several provisions in the agreement tend to demonstrate that only the individual teacher is allowed to initiate complaints at the WRA. For example, Article 11.02 E 2 states that if the teacher does not refer an assignment to the WRA within a specified period of time"the matter will be considered to have been settled." This article would be entirely redundant if the matter could simply be referred to the WRA by the Union without regard to the teacher. Similarly, if union initiated complaints at the WRA are permitted, Article 11.02 F 6, which states that the award shall only have application to the teacher affected by the complaint, would be an unnecessary departure from Article 11.02 D 5 which makes the decision of the WMG binding on the teacher, the College and the Union.

[25] Fourth, the recognition of the Union's participation in the WMG process at Article 11.02 C 1 not only amplifies the difference between the WMG's policy function and the WRA's focus on the resolution of individual disputes, but also bolsters the suggestion that the Union has no right to initiate complaints at the WRA. According to the agreement, the WMG is responsible for reviewing workload assignments in general, making recommendations to the College on the workload assignments at the College, and making recommendations to the College and Union as to amendments or additions to the provisions governing workload assignments. Given these policy- related functions performed by the WMG, and the Union's ability to represent large numbers of employees, it is logical to assume that the Union would have an important role to play at this part of the process.

[26] Unlike the WMG, however, the WRA's main role is more specific in nature. Instead of deciding policy issues, the WRA focuses on the resolution of individual workload complaints between the teacher and the college. The purpose of the WRA is to provide a quick, informal, non-technical and non- precedential process for the resolution of individual disputes. It is therefore reasonable to expect that the Union's involvement at the arbitration level would be decreased and that only if the teacher (rather than the Union) is dissatisfied with the result of the first stage can the second stage, WRA, be engaged. The difference in function between the WMG and the WRA processes coupled with a lack of reference to the Union under the arbitration provisions of [page173] Article 11.02 therefore dictates that the parties did not intend the Union to initiate complaints to the WRA.

[27] Finally, given that the collective agreement is a very detailed agreement covering comprehensive procedures that were negotiated over a long period of time by large experienced negotiators, the repeated referral to "teacher" when describing the WRA process cannot have been meant to include not only the individual teacher, but also the Union. Had the parties intended to allow the Union to initiate workload complaints at the WRA, they would have clearly said so in the agreement. To allow the Union to refer complaints to the WRA would therefore amount to a rewriting of the collective agreement.

C. Ontario Hydro case

[28] The Union asserts that the provisions of the collective agreement are inconsistent with the judgment of this court in Re Ontario Hydro and Hydro Employees' Union Local 1000, supra. In Ontario Hydro, the collective agreement contained a provision which permitted a probationary employee to grieve, but precluded access to arbitration. In that case, the court held that the board of arbitration had jurisdiction to consider the matter. The Article barring resort to arbitration was held to be ineffective due to the enactment of a section of the Labour Relations Act, R.S.O. 1970, c. 232, which is similar in language to s. 46 of the Act.

[29] The present case does not involve a situation that is analogous to the facts in Ontario Hydro. In Ontario Hydro, the probationary employee could initiate a grievance but could not go to the arbitrator. In the present case, the employee is entitled to proceed to arbitration because Article 11.02 specifically provides a mechanism for the teacher employee to initiate workload complaints at the WRA stage.

[30] Furthermore, this is not a case in which the Union is denied all access to arbitration. In the agreement, the Union has recourse to arbitration under Article 32.10 of the collective agreement, provided that union grievances "shall not include any matter upon which an employee would be personally entitled to grieve". In addition to the right to have grievances adjudicated under Article 32, the Union has the right to take grievances to arbitration under s. 46 of the Act in the event that the provisions of the collective agreement do not provide for "final and binding settlement of all differences". Although both procedures are limited, this is clearly not a case in which both the individual and the Union are denied all opportunities to arbitrate. The provision by the parties for a variety of different remedial mechanisms for [page174] both the Union and the teacher is not the same as the complete denial of a remedy as was the case in Ontario Hydro.

D. Other caselaw

[31] The cases of Hamilton (City) v. Canadian Union of Public Employees, Local 167 (1997), 1997 1875 (ON CA), 33 O.R. (3d) 5, 97 C.L.L.C. Â220-029 (C.A.), and Sisters of St. Joseph of the Diocese of London v. Service Employees Union, Local 210 (1997), 1997 2233 (ON CA), 35 O.R. (3d) 91, 155 D.L.R. (4th) 674 (C.A.), are helpful in showing when it is appropriate to infer terms into collective bargaining agreements.

[32] In Hamilton, the grievor's position was eliminated and he was subsequently assigned to another position at a lower salary. The grievor complained and the arbitrator implied a term into the collective agreement whereby the grievor was entitled to be red-circled, or paid the same salary as his previous position. On appeal, this court held that inferring a term guaranteeing the wage of an employee whose work had been contracted out was not necessary to the functioning of the agreement's framework. Accordingly, the arbitrator had exceeded his jurisdiction when he effectively amended the provisions of the collective agreement.

[33] In Sisters of St. Joseph, the employer posted a job- vacancy previously filled by registered nursing assistants with registered nurses. Despite a strong management rights clause in the collective agreement, the arbitrator held that the job should have been posted under the agreement covering nursing assistants rather than with registered nurses. On appeal, this court held that the arbitrator had exceeded his jurisdiction by requiring the employer's management decisions to be "cogent" and "convincing". Such a requirement was not part of the collective agreement and the arbitrator had exceeded his jurisdiction by deciding the case on that basis. However, the court added that if it could be said that the arbitrator was merely performing his function of interpreting the agreement, then adding terms to an entirely clear provision in the agreement was patently unreasonable.

[34] The reasoning of this court in Hamilton and Sisters of St. Joseph, when applied to the present case, demonstrates that allowing the Union to refer complaints to the WRA would constitute an amendment to the agreement. First, it would contravene Hamilton because the inference of such a term is not necessary to the functioning of the arbitration process under Article 11.02. Since complaints may be referred and settled by the teachers themselves, the involvement of the Union in the referral stage is not necessary to the scheme. This is not a case where an inability by the union to directly refer complaints leads to a breakdown of [page175] the dispute resolution scheme set out in the agreement. Second, the agreement in this case clearly provides that only teachers are allowed to refer complaints to the WRA. To read in a term allowing the Union to initiate complaints would therefore be contrary to the "clear provision" rule established in Sisters of St. Joseph.

Conclusion

[35] As a result, the Divisional Court was correct in concluding that the WRA had no jurisdiction to arbitrate workload disputes initiated by the Union. The WRA was rewriting an entirely clear and specific provision of the collective agreement. This rewriting by the WRA in order to confer jurisdiction on himself was patently unreasonable.

[36] For these reasons, I would dismiss the appeal with costs fixed at $6,000, as agreed by the parties.

Appeal dismissed.

APPENDIX "A"

Colleges Collective Bargaining Act, R.S.O. 1990, c. C.15

46(1) Every agreement shall provide for the final and binding settlement by arbitration of all differences between an employer and the employee organization arising from the interpretation, application, administration or alleged contravention of the agreement including any question as to whether a matter is arbitrable.

(2) Unless an agreement otherwise provides for the final and binding settlement of all differences between an employer and the employee organization arising from the interpretation, application, administration or alleged contravention of the agreement, the agreement is deemed to include a provision to the following effect:

Where a difference arises between an employer and the employee organization relating to the interpretation, application or administration of this agreement, or where an allegation is made that this agreement has been contravened, including any question as to whether the matter is arbitrable, either the employer or the employee organization may, after exhausting any grievance procedure established by this agreement, notify the other in writing of its desire to submit the difference or allegation to arbitration and the notice shall contain the name of its appointee to an arbitration board. The recipient of the notice shall within five days inform the other either that it accepts the other's appointee as a single arbitrator or inform the other of the name of its appointee to the arbitration board. Where two appointees are so selected they shall, within five days of the appointment of the second of them, appoint a third person who shall be the chair. If the recipient of the notice fails to appoint an arbitrator or if the two appointees fail to agree upon a chair within the time limited, the appointment shall be made by the Commission upon the request of either the employer or the employee organization. The single arbitrator or the arbitration board, [page176] as the case may be, shall hear and determine the difference or allegation and shall issue a decision and the decision is final and binding upon the employer and the employee organization and upon any employee affected by it. The decision of a majority is the decision of the arbitration board, but, if there is no majority, the decision of the chair governs. The arbitrator or arbitration board, as the case may be, shall not by his, her or its decision add to, delete from, modify or otherwise amend the provisions of this agreement.

Collective Agreement - Relevant Articles

32.10 The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by-passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights employees.

11.01 A Each teacher shall have a workload that adheres to the provisions of this Article.

11.02 A 1 (a) Prior to the establishment of a total workload for any teacher the supervisor shall discuss the proposed workload with the teacher and complete the SWF, attached as Appendix 1, to be provided by the College. The supervisor shall give a copy to the teacher not later than six weeks prior to the beginning of the period covered by the timetable excluding holidays and vacations. It is recognized that if the SWF is subsequently revised by the College, it will not be done without prior consultation with the teacher.

11.02 A 1 (b) The College may, where a change in circumstances requires it, amend assignments provided to a teacher after the original assignment, subject to the teacher's right to refer any matter to the College Workload Monitoring Group (WMG) referred to in 11.02 B 1 and if necessary, the Workload Resolution Arbitrator (WRA) referred to in 11.02 E 1 and appointed under 11.02 F 1.

11.02 A 6 (a) In the event of any difference arising from the interpretation, application, administration or alleged contravention of 11.01 or 11.02, a teacher shall discuss such difference as a complaint with the teacher's immediate supervisor.

The discussion shall take place within 14 days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the teacher in order to give the immediate supervisor an opportunity of adjusting the complaint. The discussion shall be between the teacher and the immediate supervisor unless mutually agreed to have other persons in attendance. The immediate supervisor's response to the complaint shall be given within seven days after discussion with the teacher.

Failing settlement of such a complaint, a teacher may refer the complaint, in writing, to the WMG within seven days of receipt of the immediate supervisor's reply. The complaint shall then follow the procedures outlined in 11.02 B through 11.02 F. [page177]

11.02 B 2 Each WMG will be composed of eight members, with four to be appointed by the College and four appointed by the Union Local unless the College and the Union Local otherwise agree. The term of office of each member of the WMG shall be two years, commencing on April 1 in each year with four members of the WMG, two College appointees and two Union appointees, retiring on March 31 of each year. A quorum shall be comprised of four, six or eight members with equal representation from the College and Union Local.

11.02 C 1 The functions of the WMG shall include:

(i) reviewing workload assignments in general at the College and resolving apparent inequitable assignments;

(ii) reviewing specific disputes pursuant to 11.02 A 4 and/or 11.02 A 6 (a) and where possible resolving such disputes;

(iii) making recommendations to the College on the operation of workload assignments at the College;

(iv) reviewing individual workload assignments where requested by the teacher or the Union Local and, where possible, resolving the disputes;

(v) making recommendations to the College and Union Local committees appointed under Article 7, Union College Committee, as to amendments or additions to the provisions governing workload assignments at the College for local negotiation in accordance with 11.02 G in order to address particular workload needs at the College.

11.02 D 5 Such decision shall be binding on the College, the Union Local and the teacher involved.

11.02 E 1 If following a review by the WMG of an individual workload assignment which has been forwarded to the WMG, the matter is not resolved, the teacher shall be so advised in writing. The matter may then be referred by the teacher to a WRA provided under the agreement. Failing notification by the WMG within three weeks of the referral of the workload assignment to the WMG, the teacher may refer the matter to the WRA.

11.02 E 2 If the teacher does not refer an assignment to the WRA within one week of the receipt by the teacher of notification by the WMG that it has been unable to settle the matter, the matter will be considered to have been settled.

11.02 F 5 A WRA shall determine appropriate procedure. The WRA shall commence proceedings within two weeks of the referral of the matter to the WRA. It is understood that the procedure shall be informal, that the WRA shall discuss the matter with the teacher, the teacher's supervisor, and whomever else the WRA considers appropriate.

11.02 F 6 A WRA shall, following the informal discussions referred to above, issue a written award to the College and the Union Local and to the teacher, resolving the matter. Such award shall be issued by the WRA within ten working days of the informal discussion. The award shall only have application to the teacher affected by the matter and shall have no application [page178] beyond the end of a twelve- month period from the date of the beginning of the workload assignment.

11.02 F 8 The award of the WRA shall be final and binding on the parties and the teacher, and shall have the same force and effect as a Board of Arbitration under Article 32, Grievance Procedures.