CITATION: Ontario Secondary School Teachers’ Federation of Ontario v. The Upper Canada District School Board, 2014 ONSC 2346
DIVISIONAL COURT FILE NO.: DC-13-1972
DATE: 2014/04/23
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. MCKINNON, WHITTEN AND B. THOMAS JJ.
BETWEEN:
Ontario Secondary School Teachers’ Federation of Ontario Representing the Secondary Teachers of District 26
Applicant
– and –
The Upper Canada District School Board and Kristen A. Eliot
Respondents
Joshua S. Phillips and Andrea K. Wobick, for the Applicant
Andrew J. McCreary and Colin J. Youngman, for the Respondent, The Upper Canada District School Board
HEARD: April 8, 2014
C. MCKINNON J.
BACKGROUND
[1] Gavin Williamson had been a teacher with the Upper Canada District School Board (“the Board”) since September 1981. On January 6, 2009, he was charged with three counts of sexual assault: buggery, indecent assault and gross indecency, involving a troubled twelve year old boy whom Mr. Williamson was purporting to mentor between the years 1979 and 1982. On January 9, 2009, the Board reassigned Mr. Williamson to work at home with full pay. On December 21, 2011, Mr. Williamson was convicted of the offences following a trial by jury. On the following day, the Board wrote a letter to Mr. Williamson placing him on unpaid home assignment. On the same day, Mr. Williamson wrote a letter to the Board advising that he was “retiring from the teaching profession effective immediately” and stating “I am eligible for a retirement gratuity as defined in Article 16.10.01 of the Secondary School Teacher’s Collective Agreement. Please forward to me the forms necessary in order to direct the receipt of the gratuity as soon as possible.”
[2] Because Mr. Williamson was 58 years old and had served for 30.8 years as a teacher, he qualified for a full pension, which continues to be paid to him since January 1, 2012.
[3] In light of the criminal convictions Mr. Williamson was unable to resume his teaching career. By December 22, 2011 he had in excess of 200 days credit in his sick day bank.
[4] On January 3, 2012 the Board advised Mr. Williamson that a final determination of his employment status would be held in abeyance pending the completion of the criminal proceedings. For the approximately 3 years during which he worked from home as a teacher, Mr. Williamson had received full pay which amounted to over $250,000.
[5] The Board refused to pay Mr. Williamson the gratuity that he demanded. The Ontario Secondary School Teachers’ Federation grieved the refusal.
[6] The Teachers’ Federation and the Board both agreed to the appointment of Ms. Kristin A. Eliot to act as arbitrator of the grievance. The grievance proceeded on an Agreed Statement of Facts.
[7] Article 16.10.01 governs the payment of a retirement gratuity in the case of teachers working for the Board. It provides as follows:
16.10.01 A teacher retiring from the teaching profession for the reason of health or age (the age at which a teacher is in receipt of a pension from the Teacher’s Pension Plan Board), or any reason approved by the Board after (10) or more years of continuous service with the Board or predecessor Boards, shall be entitled to a retirement gratuity to a maximum of two hundred (200) days calculated using the following.
[8] The Arbitrator framed the issue in the following words:
The Federation claims that the grievor clearly did retire for the reasons of age as he is in fact in receipt of a pension, and so he must be paid the retirement gratuity irrespective of the other circumstances surrounding his departure from the teaching profession. Conversely, the Board disputes that this was a valid retirement or resignation such that would trigger entitlement to the retirement gratuity under the language of this Collective Agreement. When the grievor was convicted of these criminal charges, the Board immediately assigned him to home assignment without pay, pending the grievor’s sentencing and further disciplinary investigation by the Board. Given these circumstances, the Board argues that the grievor’s attempt to resign his employment is null and void and further, even if the grievor’s departure from the teaching profession can be deemed to be a retirement, it was clearly not for the reasons mandated by Article 16.10.01 but rather for reason of his criminal conviction.
[9] The Arbitrator noted that there was a separate grievance proceeding regarding the validity of the grievor’s resignation from his employment with the Board. However, for the purposes of her analysis, she decided to assume that the grievor had in fact resigned from the Board. She deemed this issue irrelevant to the construction of Article 16.10.01.
[10] The Arbitrator noted that if the Collective Agreement only required that the grievor retire from the teaching profession in order to obtain the retirement gratuity, the matter would end there and the reasons for retirement would not require any examination.
[11] The Arbitrator found that Article 16.10.01 provided for three pre-conditions for eligibility, all of which must be satisfied namely: ten or more years of continuous service; retirement from the teaching profession; and retirement for “the reason of health, age….or any reason approved by the Board.”
[12] There was no dispute that the grievor had ten or more years of service and the Arbitrator accepted that the grievor ceased to be employed in education and that he had retired from the teaching profession, thus satisfying the first two criteria.
[13] As to the third criterion, the Arbitrator found that the parties had bargained for a more restrictive approach to entitlement to a retirement gratuity, which required some inquiry into the reasons for retirement. As she stated at page 9 of her decision:
…these parties have included the clause “for the reason of” and stipulated a list of acceptable reasons for retiring from the teaching profession. As such, I cannot accept the Federation’s argument that the mere fact the Grievor is of an age to be in receipt of a pension automatically means that he has retired “for the reason of age”, as required by Article 16.10.01.
This would be an overly reductive approach and would fail to give contractual effect to the words “for the reasons of”, the plain meaning of which is due to, or the cause or motive for an action. Accordingly, although age is stipulated to mean “the age at which a teacher is in receipt of a pension from the Teachers’ Pension Plan Board,” this is merely definitional, to clarify that an earlier age cannot be asserted as a basis for the retirement benefit.
Therefore, I cannot accept the Federation’s submission that this wording makes payment of the gratuity automatic on qualifications for a pension. That is not the language the parties, who are knowledgeable and have a long-standing collective bargaining relationship, have negotiated. Rather, they have made payment of the retirement gratuity contingent on a teacher retiring “for reason of” age, not merely upon receipt of a pension as in the other collective agreements in the case law referred to by the parties. The language employed is unique and must be given its plain effect. The very fact the Grievor is of an age to receive a pension is not dispositive of the interpretive issue of the reasons for retirement cited under Article 16.10.01.
Further, Article 16.10.01 stipulates “the” reason which necessitates an inquiry into the main or primary reason for leaving the profession. While this does not invite unreasonable or overbearing scrutiny of the reasons an individual seeking the gratuity has chosen to retire, some cursory causal review is clearly required. Obviously, in the vast majority of circumstances, teachers, like most employees, retire due to age or health, or some other reason approved by the Board. However, the facts of the instant case simply do not support that the Grievor retired from the teaching profession on December 22, 2011 for reason of age. The Grievor’s retirement from the teaching profession was prompted by his criminal conviction the day prior and being placed on an unpaid leave by the Board, pending further disciplinary review.
Accordingly, while clear language is needed to disentitle employees to an earned benefit under a Collective Agreement, the limiting clause of “for the reason of” under Article 16.10.01 is precisely such clear language. By negotiating a finite list of reasons for retirement that will trigger benefit entitlement, by logical extension these parties contemplated that certain reasons for retiring from the profession will not be a basis for payment of the gratuity. This is not unprecedented, as some collective agreements in the cases referred to by counsel disentitled teachers from payment of the retirement benefit if they are terminated for cause.
The fact that these parties intended to restrict entitlement by the clear language of Article 16.10.01 is reinforced by inclusion of the wording “any reason approved by the Board” to the clause. This emphasizes the element of causal acceptability attached to the reasons for retirement that has been written into this particular Collective Agreement. While these reasons are not specified beyond health and age, I have no difficulty concluding that the circumstances compelling the Grievor’s departure from the teaching profession in the instant case are not within the ambit of Board-approved reasons…the issue is solely one of interpreting and applying the clear and unambiguous language of “for the reason of” under Article 16.10.01 to the undisputed facts of this specific case…Accordingly, as the Grievor did not retire from the teaching profession “for the reason of” age, health or other reason approved by the Board, he has failed to bring himself within the scope of benefit entitlement under the relevant Collective Agreement provision.
Position of the Parties
[14] On behalf of the Federation, Mr. Phillips submits that Arbitrator Eliot’s conclusion that the inclusion of the word “the” necessitated an inquiry into the main or primary reason for the grievor leaving the profession was an unreasonable interpretation of the Collective Agreement. Mr. Phillips submits that it defies common sense to suggest that a complex decision such as retirement, which necessarily requires consideration of economical, social, psychological, health and other factors, can or should be reduced to identifying the main or primary factor in order to qualify for a gratuity. Moreover, he submits that it simply cannot be the case that a teacher who might identify a motivation to retire as being financial self-sufficiency, or wishing to spend more time with family, or to look after aging parents would be disentitled, because such reasons are not “age, health or approved by the School Board.”
[15] Mr. Phillips submits that Arbitrator Eliot unreasonably interpreted the words “for the reason of health or age” to require proof of a subjective motivation of the teacher to retire, rather than as a reference to the objective state of qualifying to receive a pension. Article 16.10.01 explicitly defines age as “the age at which the teacher is in receipt of a pension from the Teacher’s Pension Plan.” There is no rational or practical distinction that can be drawn between the objective state of qualifying for a pension and being subjectively motivated to attain such a status. Mr. Phillips submits that the Board has no interest in whether a teacher retires primarily because he or she may qualify for a pension as distinct from one who retires to spend more time with family, return to school, begin a second career or any other reason. There is no realistic way to discern such motivation and there was no evidence before Arbitrator Eliot to suggest that the Board had ever inquired into the main or primary subjective reasons for retirement of any teacher in order to determine eligibility for a retirement gratuity. He submits that the only rational interpretation of Article 16.10.01 is that it requires that a teacher be of an age to qualify for a pension. Mr. Williamson thus qualified for the payment of the gratuity.
[16] Mr. Phillips also submits that Arbitrator Eliot fell into error when she stated that “some cursory causal review” was required to determine the reason for retirement. He submits that the requirement to carefully consider the evidentiary record does not accord with the “cursory” review that Arbitrator Eliot suggests is required, and in fact undertook. Arbitrator Eliot heard no evidence about the subjective motivation of the grievor for his retirement and there was no evidence before her that the Board had ever inquired into retirees’ subjective motivation before paying out gratuities. Notwithstanding a complete lack of evidence relating to motivation, the Arbitrator presumed that the grievor retired due to his criminal conviction based solely on the temporal relationship between the grievor’s conviction and retirement. This conclusion ignored the evidence that the grievor had obtained the age necessary to qualify for his pension and entitlement to a gratuity.
[17] On behalf of the Board, Mr. McCreary submits that the Arbitrator was required to give meaning to Article 16.10.01 and in particular to the word “the” as employed within that Article. To avoid doing so would ignore the language of the Collective Agreement. Mr. McCreary submits that the parties had a choice when negotiating the language incorporated into the Collective Agreement. They could have made the entitlement to the gratuity automatic upon retirement or negotiate more restrictive language. In this case, more restrictive language was negotiated by including the terms “for the reason of” which required that there be some review of the underlying reason for the retirement. Accordingly, the interpretation of the phrase and the meaning ascribed to the word “the” was reasonable.
[18] With respect to the submission that a teacher need only be in receipt of a pension in order to be entitled to a gratuity, Mr. McCreary submits that Arbitrator Eliot specifically rejected this argument on the basis that it ignored the unique language employed by the parties. Mr. McCreary submits that the interpretation of the Collective Agreement language is precisely within the Arbitrator’s expertise and entitled to deference. The parties negotiated for an examination of the reasons for retirement which is entirely reasonable and supported by the language of the Collective Agreement.
[19] With respect to the submission that the Arbitrator undertook only a “cursory review of the evidence”, Mr. McCreary submits that the grievor made the decision to lead no evidence whatsoever about the subjective motivation for his retirement. The parties proceeded by way of an Agreed Statement of Facts which included the exhibits to be employed at the hearing. The Arbitrator was required to make a decision based on those facts as presented to her. The use of the word “cursory” was consistent with the Arbitrator’s determination that the language does not invite “unreasonable or overbearing scrutiny of the reasons an individual seeking the gratuity has chosen to retire.” There is nothing in the decision which suggests that the Arbitrator was unaware of the entire evidentiary record, or that she ignored any of the evidence before her.
[20] On the basis of the Agreed Statement of Facts, the Arbitrator’s finding that it was the criminal convictions that motivated Mr. Williamson to suddenly and unexpectedly retire in the middle of the school year was the only reasonable conclusion, which is entitled to deference.
[21] Mr. McCreary submits that the Arbitrator’s decision was not based solely on the temporal relationship between the conviction and retirement but was also informed by a lack of any other explanation on the facts before her.
Standard of Review
[22] Both parties acknowledge that the applicable standard of review in this case is reasonableness as explained in Dusmuir v. New Brunswick, [2008 SCC 9], [2008] 1 S.C.R. 190 at para. 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 the law.
[23] The onus is on an applicant to “positively show” that the impugned decision falls short of the reasonableness standard: Law Society of New Brunswick v Ryan, [2003 SCC 20], [2003] 1 S.C.R. 247 at para. 48; McLean v. British Columbia (Securities Commission), [2013 SCC 67], [2013] 3 S.C.R. 895 at paras. 40-41.
[24] In applying a reasonableness analysis, a reviewing court should never ask what the correct decision would have been. A court will often be forced to accept that a decision is reasonable even if it is unlikely that the court would have reasoned or decided as the tribunal did. The reviewing court must assess whether a decision is supported by the reasoning of the Arbitrator, rather than engaging in its own reasoning: Law Society of New Brunswick v. Ryan at para. 50. Even if a court disagrees with the manner in which an Arbitrator weighed the evidence, it can only substitute its view where the evidence, viewed reasonably, is incapable of supporting the Arbitrator’s finding: Toronto Board of Education v. Ontario Secondary School Teachers’ Federation, District 15, [1997] 1 S.C.R. 487 at para. 48.
Findings
[25] In my view, Arbitrator Eliot was alive to the issues before her and correctly articulated those issues throughout her decision. She analyzed the language employed in the Collective Agreement and contrasted it with retirement gratuity language in place at other school boards. She provided an intelligible and reasonable interpretation of the language. After interpreting the language she made a logical conclusion from the facts that the grievor retired as a result of his criminal conviction the day before. In Mr. McCreary’s words, the reason for the resignation was “blindingly obvious”. I agree. I am persuaded by the arguments as to the reasonableness of the decision advanced by Mr. McCreary on behalf of the Board.
[26] The wording of Article 16.10.01 clearly permits an interpretation that would import a subjective element into the “reason” for retirement from the teaching profession. Were the interpretation urged by Mr. Phillips accepted, there would be no need to employ the words that retirement is for “the reason of health, age or any reason approved by the Board.” Those words are capable of importing a subjective element into the analysis.
[27] The examples given by Mr. Phillips requesting reasons for retirement, such as financial self-sufficiency, or wishing to spend time with grandchildren or care for aging parents would naturally fall into the third category of “any other reason approved by the Board”, in my view. Notably, the examples given point directly to the validity of the conclusion arrived at by the Arbitrator, namely that the parties bargained for a collective agreement which contemplated that certain reasons for retiring would not be a basis for receiving an annuity. Convictions for sexual assault would obviously fall into that category.
[28] I note incidentally that given that the word “gratuity” means a gift or reward for services rendered, it is entirely logical that the granting of a “gratuity” should not be automatic, absent words that render it so. The meaning ascribed by the Arbitrator to the wording in Article 10.10.01 is manifestly reasonable.
[29] Arbitrator Eliot’s decision is intelligible and falls within the range of possible acceptable outcomes. It is defensible in relation to the wording and facts upon which she was called to interpret and apply.
Conclusion
[30] For these reasons, the Application is dismissed. Counsel have agreed on costs. Costs shall be payable to the respondents fixed in the amount of 7,500 inclusive of HST and disbursements.
C. McKinnon J.
I agree ________________________________
A. Whitten J.
I agree ________________________________
B. Thomas J.
Released: April 23, 2014
CITATION Ontario Secondary School Teachers’ Federation of Ontario v. The Upper Canada District School Board, 2014 ONSC 2346
DIVISIONAL COURT FILE NO.: DC-13-1972
DATE: 2014/04/23
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Ontario Secondary School Teachers’ Federation of Ontario Representing the Secondary Teachers of District 26
Applicant
– and –
The Upper Canada District School Board and Kristen A. Eliot
Respondents
C. McKinnon J.
A. Whitten. J.
B. Thomas J.
Released: April 23, 2014