Court File and Parties
CITATION: Toronto Civic Employees Union, Local 416-CUPE v. City of Toronto, 2011 ONSC 7187
DIVISIONAL COURT FILE NO.: 53/11
DATE: 20111202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, HARVISON YOUNG AND RAY JJ.
BETWEEN:
TORONTO CIVIC EMPLOYEES UNION, LOCAL 416-CUPE Applicant
– and –
CITY OF TORONTO Respondent
James K. McDonald, for the Applicant
Amandi Esonwanne, for the Respondent
HEARD at Toronto: December 2, 2011
Oral Reasons for Judgment
HARVISON YOUNG J. (orally)
[1] The Toronto Civic Employees’ Union, Local 416-CUPE (the “Union”), brings this application for judicial review of the award of Arbitrator Dana Randall which denied the grievance of Manuel Frias. The Union had claimed that Mr. Frias was entitled to three more weeks of vacation pay than he was paid at the time of his retirement. Based on changes that had been made to the Collective Agreement in 2005, the Arbitrator denied the grievance. The grievance turned on the interpretation of Article 13 of the Collective Agreement in force at the time that the grievor retired in June 2008 (the “Black Book”), and in particular, a Clarity Note that had been placed after Article 13.07(c) in the Black Book.
[2] The Clarity Note reads:
Note: For Clarity, an employee hired prior to July 20, 2005 who received vacation entitlement, based on his previous years’ service method, shall retain such entitlement placed to his credit. Notwithstanding, clause 13.07(b)(i) shall apply.
[3] The Arbitrator found that the Clarity Note was intended to inform the language of Article 13.07, which entitled the City to claw back the value of certain vacation pay entitlements, which are unrelated to retirement and irrelevant to any of the grievor’s circumstances. The Union argues that the arbitration award failed to meet the Dunsmuir test of justification, intelligibility and transparency and that the result was not one falling within the range of reasonable outcomes. (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47).
[4] The Union argues: that, first, the decision failed to attribute any meaning or purpose to the Clarity Note; second, that the decision failed to properly recognize that Article 13.07 of the Black Book was the successor of or counterpart to Article 13.05 of the “Red Book”, which was the Collective Agreement in force from 2002 to 2004; third, that the Arbitrator unreasonably ignored the Union’s evidence concerning the purpose of the Clarity Note and relied exclusively on the City’s assumptions about its meaning; and fourth, that the Arbitrator improperly placed the burden of proof on the Union.
[5] Having considered the materials filed and heard the applicant’s submissions, we conclude that the application must be dismissed. First, we disagree that the decision was unreasonable and that the Arbitrator failed to ascribe any relevant meaning to the Clarity Note. The Arbitrator properly considered whether the Clarity Note supported the Union’s position in respect of this grievance. Having found that it did not support the grievance, he had no obligation to further ascribe a more general meaning to the Clarity Note. Rather, he considered the specific language of the Note and concluded that it does not support the finding that it was intended to protect or grandfather the “retirement bonus” formerly found at Article 13.05(b) of the Red Book. Second, we do not agree that the decision failed to recognize the fact that Article 13.07 was the successor or counterpart to Article 13.05 of the Red Book.
[6] The Arbitrator carefully considered both provisions and all of the circumstances, including the presence of the wording “such entitlement placed to his credit” in the Clarity Note and the fact that the old Article 13.05(b) provision was entirely absent from the new Collective Agreement. As a result, he concluded that the Note cannot reasonably be found to support the grievor’s claim, which is not based on vacation credited to his bank as of January 1, 2008, but is for a specific entitlement to vacation pay which crystallized and became payable only upon retirement.
[7] In addition, even if the Arbitrator erred in the application of the burden of proof with respect to a question of interpretation, we are of the view that this did not affect the outcome of the arbitration.
[8] Finally, the fact that the Arbitrator failed to refer to the Union’s statement filed in evidence does not render the decision unreasonable in the circumstances. That statement dealt with the Union’s understanding of the Clarity Note to which the Arbitrator was entitled to give limited, or indeed no weight, and to focus more on the language of the Collective Agreement and other evidence which he did accept.
[9] In our view, the reasons of the Arbitrator met the requirements of transparency, intelligibility and justification and the outcome was reasonable given the language of Article 13 of the Black Book. The application is therefore dismissed.
COSTS
SWINTON J.
[10] For oral reasons given in Court today, this application is dismissed. Costs to the City fixed at $7,500.00 all inclusive.
HARVISON YOUNG J.
SWINTON J.
RAY J.
Date of Reasons for Judgment: December 2, 2011
Date of Release: January 9, 2012
CITATION: Toronto Civic Employees Union, Local 416-CUPE v. City of Toronto, 2011 ONSC 7187
DIVISIONAL COURT FILE NO.: 53/11
DATE: 20111202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, HARVISON YOUNG AND RAY JJ.
BETWEEN:
TORONTO CIVIC EMPLOYEES UNION, LOCAL 416-CUPE Applicant
– and –
CITY OF TORONTO Respondent
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: December 2, 2011
Date of Release: January 9, 2012