CITATION: Canadian Postmasters and Assistants Association v. Canada Post Corporation, 2019 ONSC 1222
DIVISIONAL COURT FILE NO.: 18-DC-2370
DATE: 20190221
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: Canada Postmasters and Assistants Association (CPAA) v. Canada Post Corporation
BEFORE: Swinton, Mulligan and Raikes JJ.
COUNSEL: Sean McGee and Alison McEwen, for the Applicant
Stephen Bird, for the Respondent
HEARD at Ottawa: February 20, 2019
E N D O R S E M E N T
The Court:
[1] The applicant, Canadian Postmasters and Assistants Association (CPAA) (the “Association”) seeks judicial review of an arbitration award dated October 23, 2017 dismissing an Association grievance concerning the respondent Employer’s refusal to pay a bilingual bonus to part-time indeterminate employees working temporarily in bilingual positions.
[2] The standard of review in this application is reasonableness. The resolution of the grievance in this case required the interpretation and application of the collective agreement, as well as a consideration of past practice, all matters within the expertise of the arbitrator. The arbitrator was one of eight arbitrators from a mutually agreed upon panel for grievance arbitrations.
[3] The Association submits that the arbitrator gave an unreasonable interpretation to article 40 of the collective agreement, which deals with acting pay and replacement pay. The Employer argues that the decision of the arbitrator is reasonable, given the terms of article 44, which deals with payment of a bilingual bonus.
[4] The award of the arbitrator is not easy to follow and would have greatly benefitted from better formatting, including numbered paragraphs and headings. Despite the deficiencies of the award, there is nevertheless a line of analysis that explains the result and shows that the outcome is reasonable, given the terms of the collective agreement and the evidence.
[5] In particular, the arbitrator focused on article 44. It provides that the Employer would continue its present practice with regard to the payment of a bilingual bonus to bargaining unit members. It specifies that the amount and conditions for payment of a bilingual bonus will be the same as those existing immediately prior to the signing of the collective agreement.
[6] The arbitrator accepted the evidence of Louis Rozza, a specialist in Compensation Policy since 2006, who commented on the corporate policy on the bilingual bonus, WT 1380. According to that policy, part-time employees ordinarily working less than 13 and 1/3 hours per week do not receive the bilingualism bonus.
[7] Notwithstanding the wording of WT 1380 and Mr. Rozza’s evidence, it was part of the evidence before the arbitrator (and was confirmed by counsel for the Employer before us) that indeterminate employees who perform the duties of a Postmaster or Assistant Postmaster for more than 20 consecutive shifts have been paid the bilingualism bonus (if they meet the bilingualism requirement). That exception to the policy does not prevent reliance by the arbitrator on Mr. Rozza’s evidence as to past practice for payment of the bilingual bonus to part-time indeterminate employees.
[8] Given the wording of article 44 of the collective agreement and the arbitrator’s acceptance of Mr. Rozza’s evidence with respect to past practice in the payment of the bilingual bonus, the arbitrator’s conclusion was reasonable – namely, that indeterminate employees with regular hours up to 13 and 1/3 per week were not entitled to the bonus, even if they worked hours above that in a designated position.
[9] Accordingly, the application for judicial review is dismissed. Costs to the Employer are fixed at $5,000.00 all inclusive.
Swinton J.
Mulligan J.
Raikes J.
DATE: February 21, 2019