COURT FILE NO.: 527/07

DATE: 20081202

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, MOLLOY and VAN MELLE JJ.

B E T W E E N:

LIMESTONE DISTRICT SCHOOL BOARD

Applicant

• and -

ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION

Respondent

Christopher G. Riggs, for the Applicant

Maurice Green, for the Respondent

HEARD: March 20, 2008

MOLLOY J. :

REASONS FOR DECISION

A. THE APPLICATION

[1] This is an application for judicial review of the decision of Arbitrator Elaine Newman, dated October 23, 2007, under the terms of a collective agreement between the Applicant, Limestone District School Board (“the Board”) and the Respondent, Ontario Secondary School Teachers’ Federation (“OSSTF”).

[2] The Arbitrator found that there had been serious misconduct by the grievor, but that this misconduct was “triggered” by a verbal reprimand that had been given against him in a prior meeting between the grievor and the principal and vice-principal of the high school in which he was employed. Because that reprimand had been issued at a meeting without a union representative present, this was held to be a violation of the collective agreement, and the Arbitrator therefore revoked all discipline that had been imposed for the grievor’s subsequent misconduct.

B. FACTUAL BACKGROUND

[3] Lee Huddleston, a member of OSSTF, is an adolescent care worker employed by the Board to work at Kingston Collegiate Vocational Institute to work with at-risk teenagers.

[4] On October 11, 2006, Huddleston was asked to meet with Principal Beth Woodley after she and Vice-Principal Steven Ward had discovered students using the school’s weight room contrary to the policy in place that students were not to use the weight room on an unsupervised basis.

[5] When Huddleston attended at Woodley’s office for the meeting, Ward was also there. No representative of the union was present. At the meeting Ward communicated concerns to Huddleston about leaving students unsupervised. Huddleston reacted negatively, in part because he believed that he was justified in attending to another, more pressing matter. He stated that he was dealing with an allegation of student sexual assault at the time and that he felt that the concerns about the unsupervised students in the weight room were misplaced. When Huddleston did not appear to be getting the message that students must not be left unsupervised, Ward pressed the point and told Huddleston that it must never happen again.

[6] Later that day, Huddleston confronted Ward and became more aggressive towards him. He swore at Ward and shouted, “Don’t you ever fucking do that again! You don’t bully me!” Ward testified at the arbitration that he felt physically intimidated and vulnerable in this situation.

[7] That same day, in the principal’s office, Huddleston repeated his angry outburst against Ward and Woodley, alleging that both of them were negligent and incompetent. That afternoon and the next morning he sent e-mails to department head Tim Orpin, the Director of Education, and several others, including all faculty and staff of the school. In these e-mails he continued his attacks against Ward and Woodley.

[8] As a consequence of Huddleston’s attacks on Ward and Woodley in person and by email, the Board suspended Huddleston without pay for two days and imposed a disciplinary transfer to a different school. A union representative was present at the meeting in which this discipline was discussed and imposed. It is from that discipline that the grievance giving rise to these proceedings was filed.

C. THE COLLECTIVE AGREEMENT

[9] The relevant sections of the Collective Agreement are:

5.02 The Board has the right to discipline, suspend, and discharge an employee for just cause, subject to the right of the employee concerned to lodge a grievance in a manner and to the extent provided herein.

5.04 When a Supervisor calls a Member to a meeting which may result in discipline, the Supervisor shall inform the Member about the nature of the meeting. For such a meeting the Member is entitled to OSSTF representation.

5.05 A member is entitled to be notified at a meeting with management of the reasons for imposing discipline or discharge unless the member is a danger to him/herself or others. Management shall advise the member and the Federation representative in advance of the time and place of the meeting. The member, at his/her discretion, may be accompanied by a Federation representative. The principal or Supervisory Officer shall inform the member of the right to OSSTF representation.

D. THE ARBITRATOR’S DECISION

[10] The Arbitrator found as a fact that neither Woodley nor Ward had any intention of disciplining Huddleston at the first meeting. The purpose of the meeting was to ascertain the facts about the students in the weight room.

[11] The Arbitrator accepted the testimony of Ward and Woodley, and rejected the evidence of Huddleston, as to the tenor of this first meeting and what was said. She rejected the testimony of Huddleston that he had apologized for leaving the students unsupervised and rejected his characterization of Ward as being angry, red-faced and condescending. She held, at page 7:

In the first meeting of October 11, 2006, the weight of the evidence supports the conclusion that Ward was serious, firm, using his hands to gesticulate, but was not angry and did not raise his voice as he pressed his point with the grievor.

[12] The Arbitrator held that the discussion went beyond fact-finding and counseling when the vice-principal continued to press the point, more than once, that students must not be left unsupervised and demanded Huddleston’s future compliance with the rules. The Arbitrator stated, at page 21, “Where the employer demands a change in behaviour the nature of the communication crosses the line. When the demand is made in a negative tone, as was done here, both the content and the tone of the communication is discipline.” The Arbitrator therefore held, as a question of fact and law, that discipline in the form of a verbal reprimand was imposed at this meeting, notwithstanding the fact that this was not the original purpose of the meeting. She did specifically note, however, that the reprimand was warranted in the circumstances.

[13] In these circumstances, the Arbitrator found that the Board had breached Article 5.04 of the collective agreement by failing to ensure that the union member had fair notice that discipline might be imposed and an opportunity to have a union representative present.

[14] The Arbitrator made detailed factual findings as to the misconduct of Huddleston following the first meeting. Again, the Arbitrator accepted the evidence of Ward and Woodley as to Huddleston’s conduct, rejecting Huddleston’s version of events when there was a conflict in the evidence. The Arbitrator held that at his next confrontation with Ward, Huddleston launched “a sudden, angry and vicious verbal attack on Ward”, that he “physically intimidate[d] Ward”, and that he “intentionally [made] Ward feel physically confined and threatened.” She characterized this conduct as “gross insubordination.” With respect to the next confrontation between Huddleston and both Woodley and Ward, the Arbitrator again found Huddleston to be “enraged and out of control.” She said that he “was very angry, upset, spoke in a raised voice, and caused them both [Woodley and Ward] to act in alarm and fear.”

[15] With respect to the various emails sent by Huddleston, the Arbitrator noted that his misconduct “was not merely a spontaneous combustion of anger and frustration”, but that it “continued for a prolonged period” and was compounded by the emails he later sent after he had an opportunity to calm down. Referring to these emails, she stated (at page 10), “The grievor acknowledges that he knowingly violated the code of confidentiality, privacy and professionalism that constitute part of the school board’s standard of conduct.”

[16] The Arbitrator found that Huddleston’s behaviour following the first meeting was “triggered” by the meeting and the reprimand delivered at the meeting. She stated, at page 26:

It would be fictional to sever the events of those days into distinct phases or episodes, and embark on a path of parsing the events in an effort to determine what action caused which reaction.

[17] The Arbitrator considered whether the presence of a union representative at the first meeting would have changed anything. She stated at page 24, “In the instant case, I have little confidence, in retrospect, that the presence of a union representative would have changed the grievor’s negative opinion of his school’s administration.” However, she also found that there was “some chance” that the presence of a union representative could have “quelled the inflamed emotion of the situation.”

[18] The Arbitrator held that “the first meeting, and the imposition of a disciplinary communication in the absence of a Federation representative, was a significant contributing factor in the development of all events that followed the next twelve hours.”

[19] The Arbitrator found that the misconduct of the grievor had a serious, detrimental effect on both Ward and Woodley, as well as broad consequences for the school and the Board. Both Woodley and Ward were affected personally as well as professionally. They felt shaken and frightened. The authority and respect for the principal and vice-principal were seriously, and unfairly, affected. Others throughout the school had received Huddleston’s email “diatribe” setting out his version of events and believed a great injustice had taken place. The Board, the principal and the vice-principal were constrained in their ability to respond because of rules of confidentiality. Further, the Arbitrator noted that although at the hearing Huddleston acknowledged the impropriety of his actions and said he was ashamed of his conduct, “with virtually the same breath” he remained critical of both Woodley and Ward.

[20] The Arbitrator recognized that the discipline imposed upon Huddleston, which was the subject of the grievance before her, was imposed solely because of his conduct subsequent to the first meeting and not because of leaving students unsupervised. There was no breach of s. 5.04 of the collective agreement with respect to that discipline; a union representative was present. The Arbitrator also implicitly recognized the reasonableness of the discipline terms imposed, the main one being the transfer of Huddleston to a different school. The Arbitrator found that it was not a workable situation to have Huddleston working in the same school as Vice-Principal Ward, stating at page 27:

The most critical element of discipline imposed here is the transfer. The evidence, in my view, is clear that the working relationship between the greivor and Vice Principal Ward, who remains at KCVI, is impaired. I reject the grievor’s statement that he would have “no problem” working with Ward. I observed open hostility between them at the hearing. The wounds caused by the grievor’s misconduct toward Ward are continuing. I am left with little confidence that these two individuals are in position to work together, interacting day by day in respect of students at risk, as their jobs require. I have little confidence that the grievor will take direction from Steve Ward. I am more concerned about requiring Mr. Ward to work in the same location as the grievor.

[21] However, having found that the first meeting was in breach of the union representation clause in the agreement, and having concluded that what happened at the first meeting was a “significant contributing factor” and “trigger” with respect to Huddleston’s subsequent misconduct, the Arbitrator held that the discipline imposed at the second meeting could not stand. She stated (at page 26) that “discipline imposed in violation of a union representation provision cannot be allowed to stand”, citing Riverdale Hospital and C.U.P.E., Local 419 (2004), 128 L.A.C. (4th) 195 as authority for the proposition that unless an employer complies with a union representation clause, it is in a sense “without jurisdiction to impose discipline.” Further, she held (at page 27) that where there has been a breach of a representation clause, “the necessary result is inescapable.” The Arbitrator recognized that revoking the disciplinary transfer would create an unworkable situation, but concluded (at page 27) that anything short of a full remedy “would have the effect of undermining the import of the representation provisions of this collective agreement.” She considered Re City of Vancouver and Vancouver Municipal & Regional Employees’ Union (1977), 1977 2949 (BC LA), 16 L.A.C. (2d) 80 (Larson), in which a transfer was upheld on administrative, but not disciplinary grounds, but concluded that this option must be rejected in light of the Federation’s request for and “entitlement” to a full remedy.

E. THE STANDARD OF REVIEW

[22] Prior to the recent decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, 2008 S.C.C. 9, the standard of review from decisions of a labour arbitrator was patent unreasonableness. In Dunsmuir, the Supreme Court eliminated the patently unreasonable standard of review and held there would now be only two standards of review: correctness and reasonableness. In light of Dunsmuir, both parties agree, and I accept, that the applicable standard is reasonableness.

[23] In Dunsmuir Justices Bastarache and Lebel, writing for the majority, consider the scope of the reasonableness standard as follows, at paragraphs 47 and 49:

47. Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: 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 for reasonableness inquires 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 existence of justification, transparency and intelligibility within 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.

48. Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”: D. J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93. In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.

[24] The Supreme Court of Canada in Dunsmuir specifically noted (at para 48) that its decision to eliminate the patent unreasonableness standard should not be interpreted as changing the existing concepts of reasonableness and deference. The concept of reasonableness was well-established in the case law prior to Dunsmuir and is generally accepted as meaning a decision supported by reasons that can stand up to a “somewhat probing examination”: Canada (Director of Investigation and Research) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748 at para 61; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at paras 48-55. In Ryan, Iacobucci J. (delivering the unanimous decision of the Court), held at paras 55-56:

55. A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).

56. This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.

F. POSITION OF THE PARTIES

The Applicant School Board

[25] The Board takes the position that the Arbitrator’s decision regarding the discipline imposed on Huddleston, was based on an unreasonable interpretation of Article 5.04. The School Board submits that, for the purposes of Article 5.04, there is no connection between the first meeting on October 11 and the subsequent imposition of penalties for misconduct that followed the meeting. The Board notes, in this regard (as was recognized by the Arbitrator) that Huddleston was represented by an OSSTF official at the meeting which resulted in his suspension.

[26] The Board argues that if the failure of the employer to provide representation at the October 11 meeting, in some way, contributed to the behaviour that resulted in Huddleston’s suspension and transfer, then this is properly addressed as a “just cause” issue under Article 5.02.

[27] Finally, the Board takes the position that the Arbitrator’s conclusions with respect to Huddleston’s behaviour are not compatible with her conclusions in respect of the discipline he received. Had she properly considered the “just cause” provision, she would have been compelled to conclude that Huddleston’s actions merited the discipline he received.

The Respondent OSSTF

[28] The Respondent Teacher’s Federation takes the position that the arbitrator was entitled to find that the appropriate remedy for the breach of Article 5.04 at the October 11 meeting was the revocation of all subsequent discipline relating to that incident or events arising from it.

[29] The Federation submits that the arbitrator’s interpretation and application of Article 5.04 is grounded in her findings of fact and consistent with the relevant jurisprudence. The Federation submits as well that it is an established rule in arbitral jurisprudence that, in order to give meaning to the right to union representation, the remedy for an employer’s breach of a union representation clause is to revoke any discipline that the employer has imposed.

G. ANALYSIS

Overview

[30] In my view, the reasons of the Arbitrator in this case can not stand up to the kind of probing analysis that is required for the decision to pass the reasonableness test. The Supreme Court of Canada noted in Dunsmuir that the role of the reviewing court is to inquire into “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”: Dunsmuir at para. 47. In this case, for the reasons I will develop below, the outcome is not reasonable and the reasoning process by which the outcome was reached was tainted by arbitrariness and hence, also not reasonable.

[31] There is no basis for interference with any of the factual findings of the Arbitrator. Her conclusions on the facts are articulate and well-reasoned. Those conclusions include the finding that the egregious conduct of Huddleston was “triggered” by what happened at the first meeting, and the finding that what happened at that meeting was a “significant contributing factor” to the grievor’s subsequent behaviour.

[32] The Arbitrator’s conclusion that what happened at the first meeting amounted to discipline is one of two reasonable conclusions that could be reached. Her conclusion was well-supported by her reasons and the case authority to which she referred. There is no basis to interfere with that conclusion. Given that finding, the Arbitrator’s conclusion that the first meeting breached Clause 5.04 of the collective agreement is also unassailable.

[33] However, the Arbitrator appeared to be of the view that upon reaching those conclusions, she had no choice but to set aside the discipline imposed by the Board at the second disciplinary meeting. It is at this point, that the Arbitrator’s decision-making process fails to meet the test of reasonableness for three reasons:

1. The Arbitrator failed to properly consider the implications of the fact that the discipline which was the subject of the grievance before her was solely as a consequence of Huddleston’s subsequent conduct and did not deal at all with the initial incident of leaving students unsupervised in the gym. Therefore, the matter was more appropriately dealt with as a “just cause” issue, with the Board’s conduct being taken into account as a factor contributing to the conduct of Huddleston.

2. Even if both disciplinary meetings are viewed as a continuum, setting aside the discipline imposed is not a mandatory remedy for breach of a union representation clause.

3. Having failed to consider all of the relevant circumstances and balance the competing concerns, the Arbitrator reached an unreasonable result.

Mischaracterization of the Nature of the Issue

[34] This was not a situation in which the discipline ultimately imposed by the Board was in any way related to the initial “misconduct” by the employee. The only penalty for the breach of school policy involved in leaving students unsupervised was the reprimand delivered at the first meeting. The discipline that was the subject of the grievance before the Arbitrator related solely to the conduct of the employee after the first disciplinary meeting was over and done with.

[35] The Arbitrator referred (at p. 19 of her decision) to a long line of arbitral jurisprudence dealing with the appropriate remedy when discipline is imposed at a meeting at which there was a violation of the employee’s right to union representation. Those principles are well-known. However, in those cases the discipline that was set aside related to conduct which was the subject of the meeting at which the union representation clause was breached by the employer. Only one incident or course of misconduct is at issue, although the discipline imposed may proceed in stages (e.g. from an investigatory suspension to a later dismissal). In this case, however, the discipline set aside by the Arbitrator was imposed at a meeting at which there was no breach of the union representation clause and which related to subsequent conduct of the employee that was the subject of a separate discipline procedure.

[36] There are certainly situations in which there can be a continuum of discipline and in which the conduct of the employee at the time the initial discipline was imposed for particular conduct can have an impact on the ultimate discipline imposed for that conduct. An example of such a situation can be found in two of the cases cited by the Arbitrator and relied upon by the respondent in this application: Brinks Canada Ltd. v. I.C.T.U. Local 1 (1997), 1997 25119 (CA LA), 69 L.A.C. (4th) 199, upheld 1998 2569 (BC SC), [1998] B.C.J. No. 1234, 55 B.C.L.R. (3d) 205 (B.C.S.C.); and London (King St.) Purchaseco Inc. v. U.F.C.W. Local 206 (2007), 160 L.A.C. (4th) 362 (Etherington). However, both are distinguishable from this case.

[37] In Brinks Canada a list of prohibited access codes was found in the locker of an ATM service technician. The employee’s supervisor, knowing that the likely penalty for possession of the codes would be dismissal, called the employee at home and confronted him with what had been found. The employee admitted that the list was his, at which point the supervisor advised him he was under suspension pending further investigation. Subsequently, the employee was advised that he was dismissed. The employee was not advised of his right to union representation on either of those two occasions. On both occasions, the employee’s response to the employer was aggressive and threatening, which did not help his situation. The Arbitrator held that the union representation clause was breached and voided all discipline imposed as a result of the possession of the prohibited access codes. The Arbitrator noted that if the employee had been given the opportunity to exercise his rights to union representation at the outset, he might not have “shot himself in the foot” and the penalty imposed might have been something more lenient than dismissal.

[38] The situation now before this Court is distinguishable from Brinks Canada. After the initial meeting at which the union representation clause was breached, the entire incident was over as far as the Board was concerned. There was no ongoing disciplinary process at which Huddleston’s subsequent conduct might be seen as an aggravating factor going to the nature of the penalty to be imposed. The subsequent disciplinary proceedings were completely separate and related only to Huddleston’s conduct after the fact.

[39] In London (King St.) Purchaseco Inc. the grievor was employed at a hotel as a cleaning person and laundry room worker. There was a miscommunication regarding the hours and type of shift the grievor was to work on a particular day, and, as a result, the grievor arrived at 8 a.m. and began a laundry shift, rather than at 10 a.m. to begin a room cleaning shift as scheduled. At the request of her supervisor, the grievor switched to a room cleaning shift at 10 a.m. but indicated she would be unable to complete the assigned rooms by usual shift end. The grievor was requested by her manager to work overtime, but the grievor refused. The manager alleged that the grievor "went ballistic", using inappropriate language and yelling, after she was asked why she had come in at an earlier time. The manager then asked the grievor to finish up her current work and to come to her office before she left. At the subsequent meeting, the manager alleged that the grievor's misconduct continued, describing her as ranting and raving. The grievor denied such misconduct, which was partially supported by the testimony of another witness. The manager asked the grievor to go home and not return until called, intended as a suspension with pay by the manager, but interpreted by the grievor as a dismissal. On her way out the door, the grievor called the manager a "bitch". The grievor was then subsequently subject to a formal discipline proceeding, with union representation, and discharged for misconduct.

[40] Upon review, the arbitrator held that the initial suspension constituted discipline, and that the union representation clause of the collective agreement had been breached. The arbitrator then considered whether, as a result of the breach of union representation, both the initial suspension imposed by the manager and the eventual discharge imposed by the company should be voided. The arbitrator found that "…the decisions concerning the suspension with pay and the discharge were intimately and directly connected and this was a rare case in which the denial of the right to union representation at the initial suspension meeting could be seen to have had a very direct and prejudicial impact on the decision to discharge". He found that "…the grievor's use of profanity directed towards [the manager] as she left the hotel at 4:30 p.m. after being suspended was a very significant consideration in the employer's decision that discharge was the appropriate penalty in the circumstances". Indeed, the arbitrator seemed to suggest that the final comments of the grievor were the main basis for her eventual termination, as he finds the evidence of the other alleged verbal abuse lacking.

[41] The arbitrator emphasized the circumstances surrounding the grievor's subsequent conduct, noting that "… it must be remembered that the grievor only directed this profanity toward [the manager] immediately after she had been suspended indefinitely by [the manager], without the benefit of union representation as required by [the collective agreement], in a manner that left her with the mistaken impression that she had just been fired". He likewise pointed to the connection between the stages of discipline imposed, finding that "[t]his is truly a case in which the initial paid suspension was integrally related to, and led directly to, the discharge, and was part of the discharge continuum. It is for this reason that both the suspension and discharge decisions must be rendered null and void by the employer's failure to comply with the substantive right to union representation…"

[42] In reaching his conclusion, the arbitrator also emphasized the importance of union representation clauses, holding that "… the relevance and importance of the denial of … access to the support and considered advice of a union advocate in a conflict situation where her job was in jeopardy and ensuring a third person to witness to the exchange, cannot be overestimated in circumstances where the grievor misunderstood the actions of the supervisor during the meeting and consequently overreacted to them in a manner that was relied on as grounds for discharge." Further, he blamed management for the outcome of the scenario: "…the fact we are left to speculate on whether union representation at the time of the suspension would have prevented the main act of misconduct that is relied on to justify discipline and trigger the operation of the culminating incident doctrine is directly attributable to the decision by [the manager] to issue the suspension without first ensuring the right to union representation was observed." At the same time, however, he recognized that "… there was nothing in the action of [the manager], even in denying union representation to the grievor, that could be viewed as justifying the grievor's use of profane and abusive language as she left the office area."

[43] There are some common elements between the London (King St.) Purchaseco Inc. case and the case now before us, in particular the misconduct of the employee (swearing at her employer) in relation to earlier discipline imposed in breach of a union representation clause. However, there is also a fundamental difference. In London (King St.) Purchaseco Inc. the employee’s misconduct was contemporaneous with the suspension imposed by the employer and there was a direct causal relationship found, in that the employee said what she did mistakenly believing she had been fired, which would likely not have happened if there was union representation present to clarify the situation. Further, there was a single continuum of discipline. The dismissal that ultimately was imposed was because of the initial misconduct, as aggravated by the employee’s disrespectful attitude along the way. However, in the case before us, there are two separate courses of conduct and two separate disciplinary processes. The penalty ultimately imposed by the School Board had nothing to do with leaving students unsupervised.

[44] The Ontario Divisional Court in Toronto (City) v. C.U.P.E., Local 79 (1997), 1997 17809 (ON SCDC), 147 D.L.R. (4th) 548 at 573 noted that provisions in collective agreements requiring the employer to advise an employee of the right to union representation are “rooted in a concern for procedural fairness in the disciplinary process.” Discipline imposed as a result of a meeting where the employee was not afforded procedural fairness can be vitiated for that reason alone, regardless of whether there was just cause for discipline, and sometimes without even inquiring into whether there was just cause. However, in this particular case, the denial of procedural fairness occurred in respect of a meeting at which the discipline imposed was a reprimand. There was no procedural unfairness in respect of the meeting at which the suspension and transfer penalties were imposed.

[45] The facts of this case must be examined within the context of the underlying purpose for vitiating discipline imposed when there has been a breach of the union representation clause. If the purpose is to ensure that penalties are not imposed for misconduct without an employee having first had an opportunity to consult with a union representative, then that purpose has been satisfied here. Any penalty imposed at the first meeting could be revoked. However, that penalty was not the subject of any grievance. With respect to the second set of penalties, there was no breach of the representation clause and no procedural fairness in the manner in which that particular misconduct was dealt with.

[46] That is not to say that the chain of events that were the subject of the second disciplinary process should be looked at in isolation, as if the employer’s breach of the union representation clause had not occurred. As the Arbitrator held, Huddleston’s conduct was “triggered” by what he perceived to be the unfairness of the principal and vice-principal at the first meeting and it would be “fictional to sever the events of those days into distinct phases or episodes.” However, as was submitted by the School Board the appropriate manner for dealing with this is no different from any other misconduct by an employee that is “triggered” by some wrong committed by the employer. The conduct of the employee should be analyzed within the context of what led up to it, including any wrongdoing by the employer, the length of time between the employer’s wrongful act and the misconduct by the employee and the comparative severity of both wrongs. (See e.g. Sifto Canada Inc. v. International Union of Operating Engineers, Local 722, [2001] O.L.A.A. No. 701 (Knopf); Re Unitel Communications Inc. and C.A.C.A.W., 1991 13346 (BC LA), [1991 B.C.C.A.A.A. No. 507, 22 L.A.C. (4th) 179 (Morrison))

[47] Had that analysis been applied, it is apparent that the conclusion reached would likely have been quite different. The Arbitrator held that the principal and vice-principal did not originally have any intention of disciplining Huddleston at the first meeting. The reprimand resulted from the reaction of Huddleston to the questions asked. The proper course of action before issuing the reprimand would be to advise Huddleston of his rights and adjourn if he wished to speak to a union representative. This was not done, which is clearly wrong. However, the Arbitrator held that the tone of the meeting was not angry or threatening and that the reprimand was appropriate in the circumstances. Thus, even though the representation right is a fundamentally important one, the breach by the employer in this instance was relatively minor. This is to be contrasted with Huddleston’s behaviour, which the Arbitrator also held was completely unacceptable, and a serious act of misconduct that had broad repercussions throughout the school. Further, there was not just one incident of this type of behaviour, but several, including serious misconduct after Huddleston had a substantial time to calm down. Applying that analysis, it is clear that the volcanic reaction by Huddleston to a mild rebuke was grossly disproportionate to the extent of any wrongdoing by the employer, even though that initial disciplinary reprimand was imposed in breach of the collective agreement. In those circumstances, the conduct of the employee cannot be excused: Sifto Canada; Unitel Communications; Howe Sound Forest Products Ltd. V. International Woodworkers American, Local 1-71, 1996 20348 (BC LA), [1996 B.C.C.A.A.A. No. 344, 57 L.A.C. (4th) 100 (Fuller).

[48] In my opinion, it was not reasonable for the Arbitrator to analyze this situation within the framework of the classic breach of union representation clause cases. The factual context in which the discipline was imposed and the grievance arose in this case was distinguishable from those cases where the discipline imposed was in respect of the original wrongdoing that was central to the meeting at which the rights were breached. In the absence of concerns about procedural fairness at the meeting in which the subject discipline was imposed, the appropriate procedure was the usual “just cause” analysis, that would allow for consideration of provocation, proportionality and balancing of interests.

Failure to Treat Remedy as Discretionary

[49] In any event, even if it was reasonable to approach this case as one continuum in which the breach of the union representation clause is taken to be integral to the conduct that followed, the Arbitrator’s rigidity in her application of those principles in this case was unreasonable. Clearly, there is ample jurisprudence justifying the revocation of all discipline as an appropriate remedy for an employer’s breach of a union representation clause: Brinks Canada; London (King St.) Purchaseco Inc; Ontario (Liquor Control Board) v. O.P.S.E.U., Liquor Board Employees Division, [2007] O.J. No. 952 at paras. 22-23 (Div.Ct.); Medis Health and Pharmaceutical Services v. Teamsters, Chemical and Allied Workers, Local 424, [2002] O.J. No. 571 at para 14 (Div.Ct.); Toronto (City) v. C.U.P.E., Local 79 (1997), 1997 17809 (ON SCDC), 147 D.L.R. (4th)548 (Div.Ct.). However, that does not mean that every time there is a breach of a union representation clause, that is the remedy that must be applied, or even that there must always be a remedy for every breach.

[50] Reasonable decision-making, particularly in the consideration of remedy, requires the application of legal principles to the particular facts of a case. There is no absolute rule that a breach of a union representation clause renders all discipline void. That determination must be made on a case by case basis by the Arbitrator; it cannot be a formulaic response.

[51] A five-member panel of the British Columbia Labour Relations Board examined this issue in British Columbia (Public Service Employee Commission) and B.C.G.E.U., [1995] C.C.L.R.B.D. No. 233, 27 C.L.R.B.R. (2d) 161. The central issue in that case was whether an employer can “re-dismiss” an employee where an earlier termination has been declared void because of a breach of a union representation clause in a collective agreement. However, the Board also considered the inter-connected issue of whether the remedy of void ab initio is mandatory upon finding a breach of representational rights. Because of the importance of the issue, the Board extended invitations of intervenor status to a number of interested business and labour organizations and engaged in its decision in an extensive analysis of the principles involved. In the result, the Board concluded that once a dismissal has been set aside by an arbitrator for breach of representation rights, an employer cannot re-dismiss the employee for the same cause. In the course of coming to that conclusion the Board disapproved of a “presumptive” or “usual” remedy which does not account for the merits of a particular dispute, stating at para 47:

We observe in passing our discomfort over describing something as a “usual remedy”. Such a presumptive approach borders on an a priori remedy which is inconsistent with an arbitrator’s statutory duty under the Code. Further, we do not find the terminology “void ab initio” to be particularly helpful or appropriate in this labour relations context. As we have stated above, where arbitrators set aside a discharge based on a breach of representational rights, they are really finding that the employer has lost authority to impose discipline, and cannot proceed to prove just and reasonable cause.

[52] A similar conclusion was reached by the British Columbia Supreme Court in Purolator Courier Ltd. v. Public Service Alliance of Canada, 1998 1283 (BC SC), [1998] B.C.J. No. 336, 156 D.L.R. (4th) 357 (B.C.S.C.). In that case an employee was suspended, then later dismissed, for having contravened the employer’s cash management policies. Prior to the imposition of the initial discipline, the employer failed to provide notice to the employee and union that discipline might be imposed. Both the union and the employee filed grievances. The Arbitrator concluded that a breach of representational rights “must result in a determination that any action taken against the affected employee is void ab initio”: Purolator Courier, para. 13. This arbitrary approach was found to be patently unreasonable by the British Columbia Supreme Court on judicial review. Pitfield J, held, at paras. 25 and 29:

25. While the arbitrator construed the notice provision as conferring a substantive right on the employee and requiring a mandatory course of conduct on the part of the petitioner, it is evidently unreasonable to conclude that any departure from the notice requirement will render all disciplinary proceedings a nullity. Non-compliance with the notice provision must be considered in conjunction with the merits of the petitioner’s claim that the employee’s conduct provided cause justifying the employer’s actions. The arbitrator must weigh the factors against one another and decide whether, in all of the relevant circumstances, the dismissal was justified.

26. To conclude otherwise could lead to absurd results. For example, if the arbitrator’s approach to jurisdiction were to prevail when an employer failed to give the Article 13.11 notice to an employee whom it dismissed when the employee had been convicted of fraud practiced upon the employer over a period of time, the employee would be reinstated because the disciplinary proceeding was a nullity. The employer would be precluded from renewed disciplinary action or “re-dismissal”. The employer would be deprived of a suitable remedy and would be compelled to continue to employ an individual in untenable circumstances.

[53] Likewise, in BPB Canada v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge D274, [2005] M.G.A.D. No. 47 (Graham) the Arbitrator adopted a balancing approach in a situation where there had been breach of a union representation clause, rather than merely voiding the discipline once the breach had been proven. The Arbitrator observed (at para 78) that declaring discipline causally connected to a breach of an employee’s representation rights to be void ab initio was “problematic” and “in some cases will lead to unfair and unreasonable results.” He held, at paras 80 and 81:

80. Accordingly, I cannot accept that in all cases, any discipline imposed after a breach of an employee’s representation rights, which is causally connected to the breach, will be null and void. Such a result will be appropriate in some cases, but not in all.

81. An arbitrator should have the discretion to consider the circumstances of the case, including the nature of the statements or information given by the employee, and the impact of such statements or information on the employer’s disciplinary decision, and the other information on which the disciplinary decision was made, before determining the consequences of an employer’s breach of an employee’s representation rights.

[54] The same underlying principle is implicit in the Alberta Court of Appeal’s decision in White v. Canada Safeway Ltd., [1994] A.J. No. 725. 1994 ABCA 319, 157 A.R. 195 (C.A.). At issue was the admissibility of evidence concerning the acts of an employee at a meeting held in breach of a representation clause in a collective agreement. The Court stated (at para 15), “We have great difficulty seeing why a breach of the collective agreement should automatically lead to exclusion of evidence as the union suggests.”

[55] Maintaining a discretion in the Arbitrator in these situations is particularly important when dealing with conduct of an employee subsequent to a breach of the representation clause by the employer. The employer’s wrong cannot be seen as a complete license for the employee to engage in extreme reactive wrongdoing of his own. The employee’s remedy is to file a grievance. It is not reasonable to permit the employee in that situation to engage in extreme acts of misconduct with impunity, particularly where the breach by the employer was minor, or unintentional.

[56] Accordingly, in my view, it was open to the Arbitrator in this case to consider the Board’s conduct in reprimanding Huddleston at a meeting conducted in breach of the union representation clause in the collective agreement and whether that breach by the Board caused or provoked Huddleston’s subsequent misconduct. It was also appropriate to consider the fundamental importance of union representation clauses in collective agreements generally. However, it was not reasonable for the Arbitrator to automatically impose the drastic remedy she did merely upon finding the breach and without considering that breach within the context of all the surrounding circumstances. In doing so she acted arbitrarily, not reasonably.

Unreasonableness of the Result

[57] Finally, in determining whether a decision is reasonable, it is relevant to consider the reasonableness of the outcome: Dunsmuir at para 47. No remedy can be considered to be automatic, no matter how unreasonable.

[58] In this case, the Arbitrator herself recognized that having Huddleston return to this school was not workable. The relationship between Huddleston and the principal and vice-principal had seriously broken down, because of the serious misconduct of Huddleston and the impact it had on the individuals involved, as well as on the school itself. Because the Arbitrator was mindful of this difficulty, she considered the possibility of adopting a remedy demonstrated in Re City of Vancouver and Vancouver Municipal & Regional Employees’ Union (1977), 1977 2949 (BC LA), 16 L.A.C. (2d) 80 (Larson), in which a transfer was upheld on administrative, but not disciplinary grounds. However, she noted that in that case the union had not requested to vitiate the transfer and held, therefore, “I specifically reject that option in light of the Federation’s plea for, and its entitlement to, a complete remedy.”

[59] There is no “entitlement” to a remedy that is unreasonable. Given that the relationship between the parties had irrevocably broken down because of Huddleston’s inappropriate and violent conduct, it was unreasonable to order that he be returned to the same school to work with these same people. That does not mean that the Board’s breach of the union representation clause is not addressed. For example, declaratory relief could be granted and the disciplinary suspension could be revoked. However, it was not reasonable to revoke the transfer of Huddleston to another school given the factual findings that had been made.

CONCLUSION

[60] The Arbitrator made clear findings of fact with respect to the misconduct by the employee, which would amount to just cause for the discipline imposed. We have determined that the revocation of the transfer of Huddleston to another school is not a reasonable outcome in all of the circumstances. Therefore, the award of the Arbitrator is quashed in that respect. However, given that we have upheld the Arbitrator’s finding that the Board breached the union representation clause and that this was a contributing factor to the employee’s misconduct, it is not unreasonable to give effect to the Arbitrator’s decision to revoke the suspension and compensate the employee for any financial losses flowing from the suspension. Further, the Arbitrator’s decision requiring the Board to post a notice with respect to union representation clause should be left in place.

[61] In the result, paragraph three of the Arbitrator’s Award at page 28 of the decision is quashed. In all other respects, the award stays in place.

[62] The parties agreed that $5000 would be an appropriate costs disposition. The most significant issue before the Arbitrator and before this Court was the transfer penalty upon which the Board has been successful. Accordingly, costs are fixed at $5000 payable to the applicant Board within 30 days.

MOLLOY J.

FERRIER J.

VAN MELLE J.

Released: December 02 , 2008

COURT FILE NO.: 527/07

DATE: 200812__

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, MOLLOY and VAN MELLE JJ.

B E T W E E N:

LIMESTONE DISTRICT SCHOOL BOARD

Applicant

• and -

ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION

Respondent

REASONS FOR DECISION

FERRIER J.

MOLLOY J.

VAN MELLE J.

Released: December ___, 2008