CITATION: Canadian Union of Postal Workers v. Canada Post Corporation, 2019 ONSC 5240
COURT FILE NO.: 18-DC-2427
DATE: 20190926
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Canadian Union of Postal Workers, Applicant
AND
Canada Post Corporation, Respondent
BEFORE: Aston, S.T. Bale and Favreau JJ.
COUNSEL: R. Rubinoff and J. Barrow, Counsel for the for the Applicant
D. Monet and S. Kimpton, Counsel for the Respondent
HEARD at Ottawa: September 10, 2019
ENDORSEMENT
Aston J.
[1] The Canadian Union of Postal Workers (CUPW) applies for judicial review of a decision by Arbitrator Kenneth Swan rendered April 19, 2018. The Applicant’s national grievance alleged that Canada Post Corporation violated their collective agreement by adopting policies and practices (the Policy) that would prevent employees with permanent partial disabilities from transferring to new vacancies simply on the basis of seniority.
[2] The Arbitrator found that the Policy did not violate the terms of the collective agreement and denied the grievance. The Policy, as published and implemented, first identifies the employee with the most seniority to fill a vacant position. If that employee is identified as permanently partially disabled in their current position the person would not be moved to the vacant position until a “staffing subprocess” had been conducted. That process, in consultation with CUPW and on notice to the employee, would determine if the employee was capable of performing the duties of the vacant position, with or without accommodation. The Policy also contemplates an obligation on the employer to modify duties of the vacant position, unless doing so would entail undue hardship.
[3] The grievance arbitration was conducted over two hearing dates, November 22, 2012 and June 13, 2013. The decision was rendered almost five years later, on April 19, 2018.
[4] The union asks for an order quashing the decision on grounds of a breach of procedural fairness, while also asserting that it is unreasonable on the merits.
Procedural Fairness
[5] There are two aspects to the Applicant’s claim that the Arbitrator breached procedural fairness: (1) delay and (2) the denial of an opportunity to be heard on a critical point in the Arbitrator’s reasoning. No standard of review analysis is required on a question of procedural fairness amounting to a denial of natural justice. The reviewing court simply determines whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, and its application in subsequent jurisprudence.
[6] If there is a breach of natural justice the Court need not address the question of whether the decision is reasonable.
Delay:
[7] There was no significant delay in hearing the grievance, only in the time between the completion of the hearing and the rendering of the decision. The rights of employees with permanent partial disabilities were left in limbo while awaiting the decision. On the other hand, the Applicant did not contact the Arbitrator to enquire about the delay until May 18, 2017, almost four years after the hearing had concluded. The Arbitrator responded promptly, indicating he had mistakenly believed the matter was in abeyance. He then rendered his decision ten months after that. The Applicant’s failure to follow up with the Arbitrator without any explanation for its delay seriously undermines its position on this point.
[8] Although a delay in rendering a decision may sometimes adversely affect a fair and full assessment of the evidence at a hearing, the facts that the Arbitrator had to consider in this case were not complex or particularly controversial. He had the Applicant’s written submissions from the hearing. The decision is essentially an interpretation of the Policy and the collective agreement on the face of those documents, in the context of the Canadian Human Rights Act, R.S.C. 1985, C. H-6.
[9] The Applicant has not established that delay directly caused it significant prejudice. See Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307 at para. 115. The delay in this case is unfortunate but it is not fatal. It does not rise to the level of a breach of procedural fairness.
Audi alteram partem
[10] The union submits that the Arbitrator “raised a new issue” without giving the parties a fair opportunity to respond. Specifically, the Arbitrator referred to Article 13.07 of the collective agreement in his interpretation of Article 13.09.
[11] Article 13.07 spells out “knowledge requirements” a transferring employee must acquire within six months or less at any new classification or assignment. The Arbitrator quoted the last paragraph: “Vacant positions or assignments in classifications other than those listed above shall be filled on the basis of seniority by qualified employees”. (Arbitrator’s emphasis). He regarded this as “a further limitation on the application of seniority” in filling positions, the Applicant having conceded other specific limits within the collective agreement.
[12] The Applicant submits that Article 13.07 was critical to the Arbitrator’s reasoning but that neither side had referred to it in their submissions. The Applicant says that it could have adduced evidence and made submissions material to the Arbitrator’s analysis but had no opportunity to do so and could not have anticipated the need to do so.
[13] In its submissions to the Arbitrator, Canada Post had defended its Policy only on the basis of the Duty to Accommodate found in Article 54, not on the basis of Article 13.07. The employer submits Article 13.07 is merely peripheral to the decision because the heart of the issue in this case is Article 54, and more specifically clause 54.01(b) which imposes an ongoing duty on the employer to assess and accommodate an employee’s capacity. That provision provides that in determining appropriate accommodation, the corporation must “first consider” measures that allow the employee to remain in his or her position and assignment “or in any vacant position or assignment he or she can obtain based on seniority”.
[14] The Arbitrator began by observing that Articles 13 and 54 are the two provisions “most essential” to the determination of the dispute (page 4). In setting out the entirety of Article 13 “for ease of reference” he states “it is Part B” [which includes Article 13.09 but not Article 13.07] that is most relevant”, while acknowledging that Article 13.07 is also “central to” the issues.
[15] The principle of audi alteram partem protects a party’s right to present his or her case “on the issues to be decided”. We accept the employer’s submission that the Arbitrator’s reference to Article 13.07 did not amount to a “new issue” or point of law. Though there are no pleadings in a labour arbitration, the issue for this Arbitrator was clearly defined and never changed. His task was to decide if the Policy violated the collective agreement. The grievance itself referred broadly to “articles 5, 11, 13, 54 and all other applicable articles… and… statutes.” The Arbitrator is entitled, in fact required, to take into account any relevant provision of the collective agreement. The entire collective agreement was part of the record. The Applicant knew the Arbitrator might refer to any part of it.
[16] It is important to recognize that a labour arbitrator is not bound to choose between the interpretations advanced by the parties: The Society of Energy v. Ontario Power Generation, 2015 ONSC 167 paras. 18 and 23.
[17] It is also important to read the reasons organically and as a whole. Article 13.07 was certainly identified as part of the reasoning process, but it is not at the root of the decision.
Is the decision reasonable?
[18] The standard of review on the decision itself is reasonableness and calls for curial deference to the expertise of the labour Arbitrator the parties themselves chose to interpret their collective agreement. If the reasons are transparent and intelligible and the conclusion falls within a range of possible reasonable outcomes the Court will not quash the decision.
[19] The heart of the dispute between the parties was whether seniority alone requires the transfer of an employee with a permanent partial disability to a vacant position that employee may be physically incapable of performing.
[20] The Arbitrator considered the entirety of Article 13 (not just Article 13.09) together with Article 54 (Duty to Accommodate) and the Canadian Human Rights Act, in concluding that the Policy of Canada Post Corporation concerning transfers by permanently partially disabled employees to vacant positions did not constitute a breach of the collective agreement. His reasons constitute a lucid explanation for his rejection of the union’s position on that point.
[21] The Arbitrator was careful to clarify that this is a national policy grievance against a national policy, noting that his decision preserves a possible remedy in individual cases when that policy is applied.
[22] The result falls within the range of possible acceptable outcomes defensible in respect of the facts and law. The decision denying the grievance is reasonable.
[23] The judicial review application is dismissed. The Applicant shall pay costs, fixed at $10,000 all inclusive, the amount agreed upon by the parties.
Aston J.
I agree S. T. Bale J.
I agree Favreau J.
Date of Release: September 26, 2019
CITATION: Canadian Union of Postal Workers v. Canada Post Corporation, 2019 ONSC 5240
COURT FILE NO.: 18-DC-2427
DATE: 20190926
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
RE: RE: Canadian Union of Postal Workers, Applicant
AND
Canada Post Corporation, Respondent
BEFORE: Aston, S.T. Bale and Favreau JJ.
COUNSEL: R. Rubinoff and J. Barrow, Counsel for the for the Applicant
D. Monet and S. Kimpton, Counsel for the Respondent
HEARD: September 10, 2019
ENDORSEMENT
Aston J.
Date of Release: September 26, 2019