Canada Post Corporation v. Public Service Alliance of Canada, 2019 ONSC 3676
CITATION: Canada Post Corporation v. Public Service Alliance of Canada, 2019 ONSC 3676
DIVISIONAL COURT FILE NO.: DC-18-0000-2414-0000
DATE: 2019/06/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Swinton and Sachs JJ.
BETWEEN:
Canada Post Corporation
Applicant
– and –
Public Service Alliance of Canada
– and –
John Brunner
Respondents
Stephen Bird, for the Applicant, Canada Post Corporation
Amanda Montagne-Reinholdt, for the Respondent, Public Service Alliance of Canada
The Court
Background
HEARD at Ottawa: June 12, 2019
[1] The Applicant, Canada Post Corporation (“CPC”), seeks judicial review of an arbitration award dated June 26, 2018 which interpreted Article 31.07 of the Collective Agreement and concluded that downwardly reclassified employees were entitled to the economic increases known as “increments” and in-range increases known as “revisions” from their former group and level on the salary scale.
[2] Article 31.07 of the Collective Agreement, in place for a period from 2008 to 2012, permitted CPC to downwardly reclassify an employee’s position or to declare an employee’s position surplus. The applicant took the position at arbitration that those employees whose positions were downwardly reclassified and red circled after December 13, 1981 were not eligible for either revisions or increments; rather their salaries were meant to be frozen at the current rate, and they would not be eligible for lump sum payments.
[3] The respondent, the Public Service Alliance of Canada, interpreted the provision to mean that salary protection must continue to include the payment of salary revisions and increments. It filed a National Policy Grievance on the issue of the interpretation of this provision.
[4] The arbitrator upheld the grievance, ruling that employees reclassified after December 13, 1981 were to continue receiving both increments and revisions.
Issue Number One: The reasonableness of the interpretation of the collective agreement
[5] The first submission made by the applicant is that the arbitrator’s interpretation of article 31.07 was unreasonable. The applicant concedes that the interpretation by the arbitrator was within a range of reasonable outcomes, but submits that the reasoning engaged in by the arbitrator was neither transparent nor intelligible. The basis for its submission is that the applicant’s contention that in his reasons, the arbitrator did not expressly deal with those aspects of article 31.07 that undermined what the arbitrator found to be its clear and unambiguous meaning; in particular, the reference to “red circling” in the title of the article (which wording the applicant states is a concept that is only used to signify that a reclassified employee’s salary is to be protected until their salary in their new position catches up) and the use of the words “salary protection”, (which the applicant states refers back to its argument regarding the meaning of “red circling”).
[6] In Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board, 2011 SCC 62, [2011] 3 S.C.R. 708, the Supreme Court of Canada gave a clear direction that a court reviewing an arbitrator’s decision is not to do two discrete analyses, one for the reasons and one for the result. Rather, “[i]t is a more organic exercise as the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (from para. 14). Further, in assessing the reasonableness of a decision, the court may look to the record. Reasons do not have to include every argument that an applicant makes or make a finding on each “constituent element.” All the reasons must do is to “enable the court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of reasonable outcomes” (from paras. 15 and 16).
[7] The arbitrator found that the provisions of article 31.07 were “plain and unambiguous and not reasonably susceptible to more than one meaning” (at p. 14 of this decision). He explained why as follows:
Incumbents of positions who have been, or will be, reclassified after December 31, 1981, to a group and/or level having a lower attainable maximum rate of pay, meaning maximum salary rate, are despite a downward reclassification deemed to have retained for all purposes the former group and level. This salary protection status applies until either the position is vacated or the attainable maximum reclassified level, as revised from time to time, becomes greater than that applicable, as revised from time to time, to the former classification level.
In my opinion the words “for all purposes” include pay increases from year to year and increases from a minimum through to a maximum in the eight different and distinct steps set out in Appendix “AA”.
[8] The arbitrator’s interpretation was arrived at after considering the language in the provision, including the title of the article. The reasons for his interpretation are clearly articulated, and the outcome was a reasonable one.
Issue No. 2: Estoppel
[9] The argument advanced by the applicant is that the arbitrator’s reasoning with respect to the issue of estoppel does not meet the standard of reasonableness. According to the applicant, the arbitrator failed to deal with the full course of conduct relied upon by the applicant to make its estoppel argument.
[10] We disagree. The essence of the applicant’s estoppel argument was and is that when it notified the respondent of its view about how article 31.07 should be interpreted, the respondent did not dispute its interpretation. In other words, according to the applicant, the respondent’s silence caused it to suffer a detriment. This is made clear in paragraph 38 of the applicant’s factum:
By PSAC remaining silent both prior to and during the renegotiation of the collective agreement about its interpretation, Canada Post suffered a detriment by not further clarifying the Article 31.07 language before the collective agreement was signed and ratified . At no time did PSAC imply to Canada Post that it was disputing its interpretation, which had been presented and repeated to PSAC on multiple occasions.
[11] The arbitrator expressly dealt with this submission at pages 16-18 of his decision and concluded as follows:
In my opinion, the silence of the Union in responding to the Corporation with respect to Article 31.07 in the midst of bargaining for a new collective agreement cannot be reasonably interpreted as agreement with the Corporation’s position particularly having regard to the notorious longstanding practice that prevailed between these parties, nor can I conclude on the evidence that its failure to respond should be held to be tantamount to an admission that the Corporation’s interpretation of Article 31.07 was correct from which PSAC cannot now resile.
[12] There is nothing unreasonable about this conclusion or analysis.
Issue No. 3: Extrinsic evidence and latent ambiguity
[13] The applicant argues that the arbitrator failed to consider that extrinsic evidence can be used to decide whether a clause contains a latent ambiguity. According to the applicant, the arbitrator simply missed this step in his analysis and in doing so, failed to apply a principle of black letter law. Given this, the applicable standard of review would be correctness.
[14] First, we do not accept that the applicable standard of review is correctness. Collective agreement interpretation and the rules governing that exercise fall within the core of a labour arbitrator’s expertise. Thus, the appropriate standard of review is reasonableness.
[15] Second, there is no merit to the applicant’s position on this point. As outlined above, the arbitrator came to the conclusion that the provision at issue was unambiguous. Thus, there is no ambiguity, latent or otherwise. In coming to this conclusion, the arbitrator was clearly aware of all the extrinsic evidence that the applicant was seeking to rely on (including the deletion of a provision from the prior agreement and the parties’ conduct in relation to the clause after it was signed.) Again, we find his conclusion was reasonable.
Issue 4: The use of past practice to establish a latent ambiguity
[16] The applicant argues that the arbitrator unreasonably failed to consider whether past practice established a latent ambiguity. This argument fails for the reasons given above in relation to issue 3.
Issues 5 and 6: Breach of natural justice
[17] According to the applicant, the arbitrator violated s. 61 of the Canada Labour Code, R.S.C. 1985, c. L-2 and the rules of natural justice, when he referred to five cases and one text in his decision that had not been given to him by the parties. Section 61 states:
An arbitrator or arbitration board shall determine their own procedure, but shall give full opportunity to the parties to the proceeding to present evidence and make submissions to the arbitrator or arbitration board.
[18] We agree with the applicant that issues of procedural fairness do not require any standard of review analysis.
[19] It is clear on the record that the parties were given a fair opportunity to present evidence and make submissions. A decision maker does not breach the audi alteram partem rule by considering new authorities in the course of making a decision, provided that the decision is not made on the basis of a new issue that was not raised by or addressed by the parties (see: Knoll North America Corp. v. Adams, 2010 ONSC 3005 (Div. Ct.) at para. 30).
[20] In this case, the applicant submits that the text “relied upon” by the arbitrator made a statement about the law respecting the interpretive use of deleted provisions in a contract that ran counter to the submissions of the parties. In particular, the arbitrator cited the text as authority for the proposition that deleted wording cannot be used in the interpretation of a contract.
[21] That is not what the text said, nor is it what the arbitrator said. The arbitrator accepted that words that have been deleted from a contract can be considered, but only when the contract is ambiguous. The only reason the applicant was seeking to have the arbitrator consider this deleted provision was to show an ambiguity. The arbitrator found no ambiguity, so his reliance on the text did not raise a novel issue. Thus, there was no breach of the rules of natural justice nor any breach of s. 61 of the Code.
Conclusion
[22] For these reasons, the application for judicial review is dismissed. The applicant is to pay costs of $7,500, all inclusive.
Aston J.
Swinton J.
Sachs J.
Date of Oral Reasons for Judgment: June 12, 2019
Date of Release: June 13, 2019
CITATION: Canada Post Corporation v. Public Service Alliance of Canada, 2019 ONSC 3676
DIVISIONAL COURT FILE NO.: DC-18-0000-2414-0000
DATE: 2019/06/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston J, Swinton J. and Sachs JJ.
BETWEEN:
Canada Post Corporation
Applicant
-and-
Public Service Alliance of Canada
-and-
John Brunner
Respondents
oral REASONS FOR JUDGMENT
By The Court
Date of Oral Reasons for Judgment: June 12, 2019
Date of Release: June 13, 2019