CITATION: Canadian Pacific Railway Company v. Teamsters Canada Rail Conference, 2020 ONSC 5346

DIVISIONAL COURT FILE NO.: 625/19

DATE: 2020/09/10

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Pattillo and Favreau JJ.

BETWEEN:

Canadian Pacific Railway Company

Frank Cesario and Amanda P. Cohen, for

the Applicant

Applicant

– and –

Teamsters Canada Rail Conference

Douglas J. Wray, for the Respondent

Respondent

HEARD at Toronto by videoconference: June 15, 2020

H. Sachs J.

Overview

[1] Canadian Pacific Railway Company (the “Employer”) and Teamsters Canada Rail Conference (the “Union”) are parties to a collective agreement that contains a clause concerning how grievances by employees are to be processed. That clause specifies that within 60 days of the events giving rise to the grievance the employee has to present their grievance in writing to a designated company officer. In the spring of 2019, during the term of the collective agreement, the Employer implemented an electronic Grievance Management System (“GMS”) and advised the Union that grievances that were not submitted in accordance with that system would not be processed.

[2] The Union objected and the parties agreed to proceed to arbitration before Arbitrator J.F.W. Weatherill (the “Arbitrator”). The issue before the Arbitrator was whether the Employer’s implementation of the GMS, which required employees to submit their grievances electronically through a centralized database, violated the collective agreement. On September 25, 2019 the Arbitrator issued a decision finding that the Employer’s position concerning the GMS was a breach of the collective agreement.

[3] On this application for judicial review the Employer seeks to quash the Arbitrator’s decision on the basis that it is unreasonable. For the reasons that follow, I would dismiss the application.

Factual Background

[4] The Employer and its affiliates are parties to 39 collective agreements across North America involving many bargaining units and unions (including the Respondent Union), each of which has various grievance procedures.

[5] The grievance procedure outlined in the collective agreement between the parties in this case provides as follows:

40.02 A grievance concerning the meaning or alleged violation of any one or more of the provisions of this Collective Agreement shall be processed in the following manner:

Step 1 - Presentation of Grievance to the Designated Supervisor

Within 60 calendar days from the date of the cause of grievance the employee may present the grievance in writing to the designated Company Officer who will give a decision in writing as soon as possible but in any case within 60 calendar days of date of the appeal, or this Step may be bypassed by forwarding the grievance to the Local Chairman who may initiate the grievance at Step 2.

Step 2 - Appeal to the Designated Company Officer

If a grievance has been handled at Step 1, within 60 calendar days from the date decision was rendered under Step 1 the Local Chairman may appeal the decision in writing to the designated Company Officer.

If Step 1 has been bypassed then, within 60 calendar days of the date of the cause of the grievance, the Local Chairman may present the grievance in writing to the designated Company Officer who will give a decision in writing as soon as possible but in any case within 60 calendar days of the date of the appeal.

The appeal shall include a written statement of the grievance along with an identification of the specific provision or provisions of the Collective Agreement which are alleged to have been misinterpreted or violated.

[6] Thus, as the Arbitrator found, there are three requirements to filing a grievance under the collective agreement: (1) the grievance must be in writing; (2) the grievance must be filed within 60 days; and (3) the grievance must be submitted to the designated Company Officer.

[7] After considerable study and consultation, the Employer developed an electronic filing and tracking system for grievances – the GMS. The development of the GMS was driven by the large number of grievances that are filed with the Employer (3500 in one year).

[8] The Arbitrator found that during the course of bargaining for the current collective agreement, the Employer proposed an amendment to the collective agreement to “accommodate” the GMS. The Union indicated it was not interested and no amendment was negotiated.

[9] On April 5, 2019, the Employer wrote to the Union advising that, effective April 15, 2019, “all grievances must be submitted to the Company via GMS as outlined in the November 22nd, 2018 letter attached hereto. Grievances submitted by any other means will not be accepted.”

[10] It is this unilaterally imposed requirement that was alleged to be a violation of s. 40.02 of the collective agreement.

The Arbitrator’s Decision

[11] The Arbitrator accepted that the GMS was developed by the Employer for what he considered to be “legitimate business reasons” – namely, a need to “modernize the manner in which it receives, processes and tracks grievances as part of a company-wide initiative to modernize its administrative and financial reporting systems.” Currently both parties have their own tracking systems and the Arbitrator acknowledged that “[it] may be that there would be advantages to both parties if there were a single system responsive to the needs of both parties.” However, according to the Arbitrator, that was not the question before him.

[12] Before the Arbitrator, the Employer argued that the imposition of the GMS and the requirement that all grievances be filed through that system was simply a change in the “designated company officer”. In making this submission the Employer referred to a number of cases where changes in methods of payment of wages, reporting of work-related incidents and tracking employees’ hours of work were not held to be violations of collective agreements.

[13] The Arbitrator found that that in this case, unlike the ones he was referred to, the method of filing grievances was clearly provided for in the collective agreement. Requiring employees and the Union to submit grievances through the GMS was more than a “change of address”. It required the Union to become involved in an electronic program “which belongs to and is controlled by the company.”

[14] Therefore, the Arbitrator found that the “company’s letter of April 5, 2019 improperly limits the rights of the union and of employees to file grievances” and constituted a violation of the collective agreement.

Standard of Review

[15] Both parties agree that the applicable standard of review is reasonableness.

Issues Raised

[16] The Employer argues that the Arbitrator’s decision is unreasonable for the following reasons:

(1) Management Rights: The decision failed to recognize a fundamental principle of collective agreement interpretation – namely, that an employer is entitled to make decisions in the exercise of its management rights, provided that the decision is not prohibited by the collective agreement and is done on reasonable grounds and in good faith. This principle applies regardless of whether there is a management rights clause in the agreement. Any limitation on management rights in the collective agreement must be clear. Arbitrators have held that management can, in the absence of an express term to the contrary in the collective agreement, update its operations and procedures. This is all that the Employer was doing in implementing the GMS.

(2) The Implementation of the GMS was not prohibited by Article 40 of the Collective Agreement: The fact that the filing of grievances was “provided for” in the collective agreement does not mean that the implementation of the GMS violated the collective agreement. Currently grievances are emailed. All that the GMS did was substitute one form of electronic communication for another. This form of electronic upgrade is not expressly prohibited by the collective agreement. Employers are entitled to make operational changes in the workplace so long as the changes are reasonable, made for legitimate business reasons, and not arbitrary or in bad faith. In this case the Arbitrator acknowledged that the Employer had a legitimate business reason for implementing the change.

(3) The Arbitrator’s Award is Inconsistent with the purpose of Article 40: A reasonable interpretation of a collective agreement involves a consideration of the intention of the parties in drafting the agreement. The intention of Article 40 is to ensure that grievances are handled in an organized and efficient manner to allow for the expeditious resolution of disputes between the parties. The introduction of the GMS was simply an alteration of the way the Employer carried out its obligations under the agreement. Its implementation had no adverse effect on the employees; it enhanced the ability of the parties to abide by the terms of Article 40. The Arbitrator unreasonably concluded that the GMS placed an “improper limitation” on the Union. It is not a limitation, but an operational upgrade.

(4) The Arbitrator’s reasoning relating to property is illogical: The fact that the GMS belongs to and is the property of the Employer is irrelevant. The GMS is set up so that all parties can access the repository. The email system currently used for filing grievances is also the property of the Employer.

(5) The Outcome of the Award is Unreasonable: The effect of the Arbitrator’s decision is to lock the parties into a grievance process that has outlived its usefulness.

Analysis

Management Rights

[17] The Employer has acknowledged that the exercise of management rights is limited by a number of things. First, the exercise must not run contrary to the wording of the collective agreement. Second, management’s exercise of its rights must be done in a reasonable manner. Third, those rights must not be exercised in bad faith.

[18] The Arbitrator’s acceptance that the Employer’s implementation of the GMS was made for a legitimate business purpose goes to the reasonableness and good faith of the Employer in implementing the system. It does not speak to the basis on which the Arbitrator found that the GMS violated the agreement. The basis for that finding was that section 40.02 of the collective agreement specified the procedure for giving notice of a grievance. That procedure had three components – the notice had to be in writing, filed within 60 days and sent to a designated representative. In this case, the Employer had announced that it would not accept a grievance that was filed in accordance with the provisions of the collective agreement. This, according to the Arbitrator, violated the terms of the agreement.

[19] Given the clear wording of Article 40.02, it was reasonable for the Arbitrator to find that the Employer’s unilateral imposition of the GMS system as the only way to file a grievance is contrary to the terms of the collective agreement. While Article 40.02 does not prohibit the Employer from developing a system like the GMS; it does set out all the necessary and sufficient conditions for the presentation of a grievance. Again, the Article specifies that an employee “may present the grievance in writing to a designated Company Officer [within 60 days] who will give a decision in writing as soon as possible.”(emphasis added). This wording does not allow for the Employer to impose more mandatory conditions on the presentation of a grievance.

[20] It was also reasonable for the Arbitrator to conclude that the merits of the Employer’s decision to implement the system was not a question he had to decide. That question would only arise if the Arbitrator had found that the imposition of the GMS was not contrary to the express provisions in the collective agreement.

[21] In addition, the Arbitrator reasonably found that the GMS does far more than designate a representative; it prescribes a different procedure for giving notice of a grievance than the one provided for in the collective agreement.

[22] The Arbitrator also reasonably concluded that the cases put before him by the Employer concerning the exercise of management rights were distinguishable. As found by him, in none of those cases was there a provision in the collective agreement that addressed the matter over which management was seeking to exercise its rights.

[23] The authority that the Employer emphasized in oral submissions was Lehigh Northwest Cement Ltd. and Cement, Lime, Gypsum Allied Workers Division, Local D277, 2007 CarswellBC 3898. In that case the collective agreement imposed an obligation on employees to fill out work sheets and to get those sheets signed by a supervisor. The employer proposed to move to an electronic timekeeping system, which would eliminate the need for employees to fill out paper work sheets. The union argued that the change violated the section of the collective agreement that required employees to fill out work sheets. The arbitrator rejected this argument, finding that the clause in question just imposed an obligation on employees to do something to help the employer to fulfill its obligation to pay employees for all time worked. It did not restrict the employer from introducing another method for fulfilling its obligation to pay employees for all time worked. This is very different from the situation at bar. Clause 40.02 of the collective agreement in question specifies the process that must be followed for filing grievances. The Arbitrator reasonably found that by making the GMS the only process that could be used for filing grievances, the Employer was seeking to unilaterally change a term of the collective agreement.

[24] I will briefly review the other cases relied upon by the Employer.

[25] In Coca-Cola Bottling v. U.F.C.W., Local 175, [2003] O.L.A.A. No. 799, the employer unilaterally changed its payroll practice from weekly to bi-weekly. In that case the arbitrator found that there was nothing in the agreement that specified a particular pay period or pay day and that management’s decision to change the pay period was a reasonable one.

[26] In Brookfield Management Services Co. and C.U.O.E., Re, [1999] O.L.A.A. No. 481, the employer changed the shifts of some employees from continuous twelve-hour shifts to rotating eight-hour shifts. The arbitrator acknowledged that this change had an adverse impact on the employees in question. However, the arbitrator found that the agreement contained a specific clause giving management the right to determine hours of work and shifts and that there was nothing in the agreement that specified how that right was to be exercised. Furthermore, the arbitrator noted that in the negotiations leading up to the collective agreement the union had proposed an amendment whereby the employer would agree to maintain current shift schedules. The amendment was refused. The arbitrator then went on to address the other issues in the case, which included whether management’s exercise of their right was reasonable.

[27] In Cascadia Terminals v. Grain Workers’ Union, Local 333 (2004), 2004 94826 (CA LA), 123 L.A.C. (4th) 403, management introduced a new time-keeping system (a biometric scan system). Again, the arbitrator found that there was nothing in the collective agreement that specified the manner in which the employer was to track hours of work. After making that determination, the arbitrator went on to consider the other issues, including whether the system proposed was a reasonable exercise of management rights.

[28] Gerdau Ameristeel v. U.S.W., Local 8918, [2011] O.L.A.A. No. 405, is another case involving the employer’s introduction of a biometric scan system. Because there was nothing in the collective agreement that dealt with how the employer was to keep track of hours worked, the union’s arguments focused on whether the system was fair to employees or an invasion of their privacy.

[29] St. Boniface Hospital and St. Boniface Nurses (MNU, Local 5), Re, 2010 CarswellMan 852, is a case where the issue was not whether the employer’s introduction of a new software system for tracking work-related incidents was contrary to the terms of the collective agreement, but whether the employer had breached its duty to act fairly and equitably under its management rights clause. There was nothing in the collective agreement that addressed how work-related incidents were to be tracked.

[30] In Signature Aluminum Canada Inc. v. U.S.W.A, Local 2784, [2008] O.L.A.A. 416, the collective agreement provided that employees were to be monitored with respect to attendance at work. The employer introduced a swipe card/punch clock system. The union argued estoppel and that the introduction of the system was an unreasonable exercise of management rights. There was no suggestion that anything in the collective agreement specified how employees were to be monitored for attendance.

[31] In Canadian National Railway Co. v. United Transportation Union (1990), CROA Case No. 2024, the employer discontinued payment by cheque and instituted a direct deposit system. The arbitrator found that there was nothing in the agreement that specified the manner in which employees were to be paid and that the change in method of payment was a reasonable exercise of management rights.

[32] This review just confirms the Arbitrator’s finding that all of the cases cited by the Employer were distinguishable from the one before him. None of them concerned a matter that was specifically addressed in the collective agreement between the parties.

[33] For these reasons, I reject the Employer’s submission that the Arbitrator’s decision unreasonably dealt with management rights and unreasonably distinguished the jurisprudence before him.

Purpose of Article 40

[34] The Employer argues that the Arbitrator’s decision is unreasonable because it is inconsistent with the purpose of Article 40. The purpose of the relevant section of the collective agreement (Article 40.02) is clear on its face. It is to specify a process for filing grievances. If the Employer wishes to make amendments to that process it must get the agreement of the Union (as it attempted to do during the last round of negotiations). Again, this is not to say that it cannot implement the GMS; it just cannot refuse to process a grievance that is not uploaded onto the GMS, but is filed in accordance with the terms of the collective agreement.

GMS as the Employer’s Property

[35] The Employer submits that the Arbitrator’s decision illogically focused on the fact that the GMS is the Employer’s property. Currently, the Union files its grievances using the Employer’s email system.

[36] The Arbitrator’s comments on this point must be put in context. First, the Arbitrator notes that both parties maintain their own tracking systems for grievances and that there might be advantages to both parties if there were a single system responsive to the needs of both parties. He then goes on to find as follows:

The requirement that all grievances be submitted by way of entry in the GMS is more than a “change of address”; it requires the union to become involved in an electronic program which belongs to and is controlled by the employer. The GMS is not a joint-union management program; it is not the property equally of the company and the union, as is the collective agreement. Thus, the company’s letter of April 5, 2019 improperly limits the rights of the union and of employees to file grievances and constitutes, I find, a violation of the collective agreement.

[37] In other words, unlike the collective agreement, the GMS has not been developed by both the Union and the Employer. It is the Employer’s system, which the Employer is seeking to unilaterally impose on the Union, in violation of the jointly negotiated collective agreement. There is nothing unreasonable or illogical about this reasoning.

[38] Subsequent to the hearing of this matter the Union forwarded a decision that was decided after the hearing (on July 22, 2020) and that dealt with issues that were similar to the case at bar. The panel directed both parties to make submissions in writing on the case – Canadian Pacific Railway Company v. IBEW, System Council No. 11, a decision by Arbitrator William Kaplan (the “Kaplan Award”).

[39] The Kaplan Award also concerned the unilateral implementation of an all-electronic grievance system (‘GMS”) by the employer. The collective agreement between the parties provided for a grievance procedure that required grievances to be filed electronically within 35 days with a designated company officer. During the last round of negotiations the employer had made proposals to the union to introduce an all electronic grievance management system. The union rejected the proposal, but did sign a Letter of Understanding (“LOU”) in which the union agreed to evaluate the employer’s system and “if mutually acceptable, the parties may enter into a signed agreement recognizing that the Union will submit grievances using the Grievance Tracking System”. The employer provided a demonstration and the union continued to object to the new system.

[40] Arbitrator Kaplan began his analysis by observing that the issue before him was the same issue at the one in the case at bar, minus the LOU, which he found just strengthened the union’s case. In the end he found that the employer’s system could not be implemented. Key to his decision was the following:

And I agree with Arbitrator Weatherill that the implementation of a shared up-to-date electronic system for the filing, monitoring and administration of grievances is a legitimate activity with axiomatic advantages to the parties, but the emphasis must be on shared.

The grievance procedure is fundamental to labour relations. It is how the parties resolve their disputes during the life of the collective agreement. As Arbitrator Weatherill observes, an electronic platform that is owned and controlled by the employee is not a joint union-management program. The mechanisms in place under the GMS affect and impair the union and its members: their freedom and ability to file grievances and to see the responses to them by requiring those activities to take place in a system that belongs to the employer, and one that is run by it. A system can obviously be developed that will meet the needs of both parties in this shared enterprise, but the GMS is not that system. The overriding importance of the grievance process, and of the union’s role in it, has been acknowledged by the Supreme Court. (cite omitted).

[41] While the Kaplan Award case is in no way determinative, I agree with the Union that it undermines the Employer’s position that the Arbitrator’s focus on the fact that the GMS was the Employer’s property was illogical.

The Outcome

[42] The Employer submits that the outcome of the decision is unreasonable. The outcome of the decision is to respect and uphold the collective agreement between the parties. Far from being unreasonable, this is one of the primary goals of labour arbitration.

Conclusion

[43] For these reasons, the Employer’s application for judicial review is dismissed. As agreed by the parties, the Union is entitled to its costs of the application, fixed in the amount of $5000.00, all inclusive.

H. Sachs J.

I agree _______________________________

Favreau J.

PATTILLO J. (DISSENTING)

Introduction

[44] I have reviewed the reasons for decision of my colleagues and while I agree the standard of review is reasonableness, with respect, I am otherwise unable to agree with their reasons. For the reasons that follow, I have concluded, given the evidence and the issue before the Arbitrator, that the decision is not reasonable and cannot stand. I would therefore allow the application for judicial review.

Background

[45] As identified by the Arbitrator, the issue for decision was whether Canadian Pacific Railway Company’s (“CP” ) implementation of its Grievance Management System (GMS) and specifically its requirement as stated in its letter of April 5, 2019, that the Teamsters Canada Rail Conference (the “Union”) must submit its grievances electronically to the GMS, represented a violation of Article 40 of the Collective Agreement.

[46] Article 40.02 of the Collective Agreement sets out a two-step procedure which provides for the filing and processing of grievances, sets out time limits, appeal procedures within CP and ultimately provides for arbitration.

[47] The grievance procedure in the Collective Agreement has been in existence for some time. Historically, grievances were submitted in hard copy to the designated company officer. More recently, they are submitted by the Union by email using a grievance form.

[48] The GMS was developed by CP starting in 2017 to more efficiently manage and process the many grievances it receives during the course of a year. In developing it, CP carried out a lengthy study and consultations with its unions (including the Union) which resulted in changes to the system.

[49] The GMS facilitates the filing and storage of grievance claims, the responses to those claims and any relevant supporting documents. Information stored in the GMS is available only to authorized users of CP and each union and enables them to search outstanding or historic case files and generate reports.

[50] Following lengthy advance notice, the GMS went live on April 15, 2019, after which, as noted, CP required the Union to file its grievances using the GMS. In response, the Union filed a grievance.

[51] Before the Arbitrator, the Union argued that the GMS violated the Collective Agreement because Article 40 represents a “complete code” as to submissions of grievances and does not dictate that it must utilize a particular type of software or confer on CP a right to implement the GMS.

[52] In response, CP submitted that the implementation and requirement to use its GMS did not conflict with Article 40 of the Collective Agreement. It submitted that the GMS was a technological means to deal with grievances and relied on its “management rights”.

The Reasons

[53] After setting out the relevant provisions of Article 40.02 and the background concerning the development and operation of the GMS, the Arbitrator referred to a number of “management rights” cases relied on by CP and noted that the grievances in those cases were dismissed, generally for the reasons given in C.N.R. and U.T.U. (1990), CROA 2024, which held that the action in question, payment of wages by mandatory direct deposit, did not violate the collective agreement and was not a material change in working conditions.

[54] The Arbitrator then set out his conclusion in the second last paragraph of the Reasons as follows:

The instant case is clearly different [from the management rights cases relied on by CP] , in that the grievance procedure, and the filing of grievances, is expressly provided for in the collective agreement. The requirement that all grievances be submitted by way of entry in the GMS is more than a “change of address”; it requires the union to become involved in an electronic program which belongs to and is controlled by the employer. The GMS is not a joint union-management program; it is not the property equally of the company and the union, as is the collective agreement. Thus, the company’s letter of April 5, 2019 improperly limits the rights of the union and of employees to file grievances and constitutes, I find, a violation of the collective agreement.

Discussion

[55] The issue the Arbitrator was called upon to decide was whether, having regard to the Collective Agreement, CP was entitled, in accordance with its “management rights”, to require that the union must submit its grievances to its GMS.

[56] The principal of “management rights” has long been recognised and applied in arbitral jurisprudence in the context of labour relations. It recognises the right of the employer to operate and manage its business as long as the proposed activity is not prohibited or does not conflict with the collective agreement and management’s actions in so doing have not been exercised in a discriminatory, arbitrary or capricious manner or in bad faith. (my emphasis) See: Canadian Labour Arbitration (Brown & Beatty; 5th ed. 2019) at Chapters 4:2310 and 5.000 and the cases cited therein.

[57] Management rights have been held to permit management actions in situations such as changes in the markets served by the business, customer demands, technological change, legislative parameters, fiscal pressure, etc. where such action is not prohibited or does not conflict with the collective agreement: Brookfield Management Services Co., 1999 CarswellOnt 7375, at paras. 62-63.

[58] A determination of whether management rights can prevail to permit the proposed activity involves an analysis of whether the activity in question is prohibited by or does not conflict with the collective agreement. See: Leheigh Northwest Cement and Cement Lime, Gypsum and Allied Workers Division, Local D277 (2007), 90 C.L.A.S. 106.

[59] Rather than conduct such analysis or any analysis, the Arbitrator erred in my view, by simply concluding, “the grievance procedure, and the filing of grievances, is expressly provided for in the collective agreement.” That conclusion does not answer the question of whether the requirement to submit grievances to the GMS conflicts with or is prohibited by the Collective Agreement.

[60] In concluding that CP’s requirement that the Union submit its grievances to the GMS violated Article 40, the Arbitrator also stated that the GMS was more than a “change of address” and that it was the property of CP and not CP and the Union equally. In my view, those statements are not relevant to the issue before him and cannot support his conclusion.

[61] There is nothing in the Reasons to explain the Arbitrator’s comment that the GMS was more than a “change of address”. Given the argument before him, however, it is reasonable to assume that it refers both to the fact that the GMS contains multiple features beyond simply filing grievances and the Union’s argument that it is too complicated.

[62] In either case, the fact that the GMS can generate statistical data concerning grievances (which is available equally to the Union) has no bearing, in my view, on whether the requirement to submit grievances to it is a violation of the grievance procedure in Article 40. There is no evidence the submission of grievances to the GMS is more complicated or time consuming than the present method of submission.

[63] I also consider the Arbitrator’s comments concerning the GMS being the property of CP and not jointly owned with the Union to be irrelevant to the issue. Management is entitled to upgrade its operations through technology. It is not something which must be set out in the collective agreement unless specifically conflicted or prohibited by the collective agreement. Ownership has nothing to do with determining that issue.

[64] For the above reasons therefore, I consider that the Arbitrator’s Reasons and specifically his conclusion is not based on a reasonably coherent and rational chain of analysis that is justified in relation to the facts and the law given the issue before him. The Arbitrator’s decision is therefore unreasonable. See: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 85.

[65] Further, even if it can be said that the Arbitrator’s decision is reasonable, a reasonable outcome cannot stand if it was reached on an improper basis: Vavilov at para. 86.

[66] The purpose of Article 40 is to ensure that grievances are handled in an organized and efficient manner to allow for the expeditious resolution of disputes between the parties. The GMS does not conflict with that purpose.

[67] As the Arbitrator notes, Article 40 essentially provides for three requirements to be met in filing a grievance: 1) that it be in writing; 2) that it be filed within 60 days; and 3) that it be submitted to the designated company officer.

[68] The fact that Article 40 requires the grievance to be submitted “in writing” to the designated company officer is no different, in my view, than requiring that it be submitted electronically to the GMS. It is still in writing (using the same form). The only difference is that rather than submitting it by email (which is electronic) to the designated company officer, the Union is required to submit it electronically to the GMS which directs it to the designated company officer. Nor does the GMS change any of the time limits or appeal procedures.

[69] In my view, the differences between the filing of grievances in Article 40 and to the GMS constitute a distinction without a difference.

[70] Further, there is no issue in the evidence to suggest that CP implemented the GMS in a discriminatory, arbitrary or capricious manner. To the contrary, the Arbitrator found that the GMS was developed by CP for legitimate business reasons.

[71] Accordingly, based on the evidence and the provisions of Article 40 of the Collective Agreement, in my view, the operation of the GMS is not prohibited by nor does it conflict with the grievance procedure set out in Article 40.

[72] With respect to the decision of Arbitrator William Kaplan in Canadian Pacific Railway Company v. IBEW, System Council No. 11, dated July 22, 2020, as my colleague points out, it is not determinative. It is also not relevant in my view. Our task is to review the reasons of the Arbitrator and in my view, as stated, they are not reasonable.

Conclusion

[73] For the above reasons, I would allow the application for judicial review and quash the decision of the Arbitrator and award CP its costs of the application for judicial review, as agreed.

[74] As noted by the Arbitrator at the outset of his decision, there were three issues before him. The parties agreed, however, and the Arbitrator concurred that he should deal first with the issue of whether the CP’s requirement that the Union file grievances to its GMS represented a violation of Article 40 on the basis that a determination of that issue might render consideration of the other two issues moot. In so doing, the Arbitrator noted that the parties retained their rights to present evidence and argument with respect to the other two issues, in the event it became necessary to determine them.

[75] While the proper disposition would be to remit the matter back to the Arbitrator for a determination of all issues, regrettably, he has since passed away.

[76] As the parties agreed the arbitration would be governed by the rules of the Canadian Railway Office of Arbitration and Dispute Resolution, I would therefore remit the issues back to an arbitrator as provided by those rules.

Pattillo J.

Released: September 10, 2020

CITATION: Canadian Pacific Railway Company v. Teamsters Canada Rail Conference, 2020 ONSC 5346

DIVISIONAL COURT FILE NO.: 625/19

DATE: 2020/09/10

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Pattillo and Favreau JJ.

BETWEEN:

Canadian Pacific Railway Company

Applicant

– and –

Teamsters Canada Rail Conference

Respondent

REASONS FOR JUDGMENT

H. Sachs J.

Favreau J.

Pattillo J. (Dissenting)

Released: September 10, 2020