CITATION: Air Canada v. Canadian Union of Public Employees, Air Canada Component, 2020 ONSC 5927
DIVISIONAL COURT FILE NO.: 363/19 DATE: 20201002
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Lederer and Penny JJ.
BETWEEN:
Air Canada Applicant
– and –
Canadian Union of Public Employees, Air Canada Component Respondent
Christopher Pigott and Megan Beal, for the Applicant Adrienne Lei and Mathieu Bélanger, for the Respondent
HEARD (by videoconference): September 4, 2020
Swinton J.:
Overview
[1] Air Canada (the “Employer”) seeks judicial review of an award made by Arbitrator Stephen Raymond dated March 18, 2019. The Employer argues that the Arbitrator’s decision to substitute a penalty of 30 days suspension for dismissal of the grievor was unreasonable, because his reasoning was not logical, coherent and transparent.
[2] For the reasons that follow, I would dismiss the application for judicial review, as the Employer has not demonstrated that the decision of the arbitrator was unreasonable in result or in the reasoning process adopted.
Factual Background
[3] The grievor was a flight attendant employed by the Employer since 1986. He was discharged on December 14, 2016 as a result of his conduct during a flight from Seattle to Toronto on November 7, 2016.
[4] Because of recent incidents in which refreshment trolleys had become unlatched and caused injury to passengers, the Employer issued a safety update to all cabin personnel on November 4, 2016. A new operating procedure would include a secondary verification by the Service Director to ensure the securing of refreshment trolleys in the galleys of planes before takeoff and landing in order to ensure that the trolleys were securely latched.
[5] The grievor worked two flights from Toronto to Seattle and return on November 5-7, 2016 with one other cabin crew member, the Service Director Sandra Harris. There were three trolleys in the rear galley, secured by a foot brake and latches that secure the trolleys to the body of the plane. There are also latches that keep the doors of the trolleys closed. For takeoff and landing, the grievor was seated in the back of the plane and the Service Director was seated at the front, facing towards the rear.
[6] There were incidents respecting the securing of the trolleys on both legs of the flight. However, Ms. Harris’ report to the Employer mentioned only what occurred on the November 7, 2016 flight. She informed the Employer that the grievor had unlatched at least one trolley in the back galley after she conducted her secondary verification. Although there had been another incident with the unlatching of the trolleys on the flight on November 5, she did not report that.
[7] The Employer suspended the grievor on November 15 pending an investigation and then on December 14, 2016, suspended him pending discharge. In the termination letter, the Employer claimed that the grievor “disengaged all the latches securing the trollies after the final checks had been completed by the Service Director, leaving the back galley unsecured and unsafe during taxi, a critical phase of flight.”
[8] A three day arbitration hearing was held. The arbitrator determined that the Employer had just cause to discipline the grievor. He found that there had been latch incidents on both the November 5 and 7 flights. However, it was only the November 7 incident of which the Employer was made aware, and that led to the disciplinary action.
[9] The grievor admitted that he had opened a butterfly latch to put something, a handheld device or some buns, into one trolley. However, the arbitrator accepted Ms. Harris’ version of events on that date – that multiple trolleys were unsecured, and the middle trolley was not secure to the body of the plane and was out in the aft galley when she spoke to the grievor. The trolleys were made insecure after Ms. Harris conducted her secondary verification.
[10] The arbitrator then determined whether it was appropriate to substitute a lesser penalty than discharge. He found it appropriate to substitute a 30 day suspension for three reasons. First, the misconduct of the grievor was not as grave as the Employer had believed when it decided to terminate. The arbitrator concluded that the Employer had acted on an inaccurate version of events – namely, that the grievor had disengaged all the latches securing all the trolleys in the back galley. However, the grievor’s misconduct was not as serious as the Employer believed.
[11] Second, the arbitrator considered the conduct of the grievor during the hearing, finding that the grievor was easily befuddled during questioning. The arbitrator concluded that the grievor was easily confused by circumstances, and during the flight, he forgot to follow the procedures, but he had not acted with malice or disrespect. The arbitrator also considered that the grievor had not been entirely truthful in his testimony at the hearing, but he discounted this as an effort by the grievor to minimize his actions and not to cover them up entirely.
[12] Third, the arbitrator noted that Ms. Harris worked again with the grievor the following week on the same two flights. In his view, if the grievor’s actions were as serious as the Employer concluded, she would not likely have accepted the assignment. Furthermore, there was no further incident on those flights.
[13] The arbitrator also considered the grievor’s prior disciplinary record in imposing a 30 day suspension.
[14] In a subsequent award, dated May 1, 2020, the arbitrator determined that reinstatement, rather than a monetary award, was appropriate.
The Issues
[15] The parties are agreed that the standard of review of the arbitrator’s penalty decision is reasonableness.
[16] The Employer argues that the decision to substitute a suspension for discharge is unreasonable because the arbitrator’s reasons are fatally flawed: they are internally incoherent; they are at odds with the evidence; they fail to explain why the arbitrator departed from the arbitral consensus on the treatment of dishonest testimony by a grievor; and they fail to address the Employer’s safety-related concerns.
Analysis
[17] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada emphasized that a court reviewing the decision of an administrative tribunal must consider both the reasonableness of the outcome and the reasoning process, where reasons for decision are required (at para. 86). The reviewing court is required to consider the reasonableness of the decision in terms of justification, transparency and intelligibility, as well as the reasonableness of the outcome in light of the legal and factual context (at paras. 99, 101).
[18] In considering whether the arbitrator’s reasoning process was fatally flawed, it is important to begin by considering the task before the arbitrator. Having determined that the Employer had just cause for discipline, the arbitrator then had to consider whether to substitute a lesser penalty for dismissal. Pursuant to s. 60(2) of the Canada Labour Code, R.S.C. 1985, c. L-2, an arbitrator has the discretion to substitute a lesser penalty for dismissal or discipline. It reads:
Where an arbitrator or arbitration board determines that an employee has been discharged or disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject of the arbitration, the arbitrator or arbitration board has the power to substitute for the discharge or discipline such other penalty as to the arbitrator or arbitration board seems just and reasonable in the circumstances.
[19] The arbitrator concluded that it was just and reasonable to substitute a 30 day suspension. The Employer argues that his reasoning process was internally incoherent.
[20] Before I consider each issue raised by the Employer, I return to the Supreme Court’s instruction that reasonableness review is not “a line-by-line treasure hunt for error” (Vavilov at para. 102). There must be no fatal flaw in the logic of the decision, and there must be a line of analysis that can lead the decision maker from the evidence to the conclusion.
[21] First, the Employer argues that the arbitrator’s conclusions are at odds with the evidence. One of these errors was the statement that the Employer had dismissed the grievor because of wilful sabotage. According to the Employer, there is no evidence to support that statement. The Employer points to the language of the termination letter that expresses the Employer’s concern about safety to those on the plane and makes no mention of sabotage.
[22] In my view, the Employer has focused on one sentence of a particular paragraph, rather than consider the content of that paragraph as a whole. The Employer has also miscast what the arbitrator said. What the arbitrator said was that “the conclusion of the Employer suggests that the grievor was engaged in willful sabotage” and that he engaged in willful disobedience to the Service Director (emphasis added). The arbitrator does not say that “sabotage” was the reason for the discharge (although I note that the Service Director had used that word in reporting the November 7 events and that she used the word at the time of the incident).
[23] When the paragraph in which that sentence is found is read as a whole, it is clear that the arbitrator was saying that the grievor’s conduct was not as grave as the Employer had assumed. That is a reasonable conclusion by the arbitrator and a reasonable consideration in substituting a lesser penalty. The Employer chose to dismiss the grievor because it believed that he had disengaged the locks on all the trolleys in the back galley. Gabriella Bellisario, Cabin Crew Manager, Flight Service Operations, was the individual who carried out the investigation prior to dismissal. The arbitrator observed that she “was unclear as to what exactly the grievor had done to make the aft galley unsecured. She concluded that all three carts had been unlatched from the body of the place and the three doors were open” (Award, p. 4). The evidence accepted by the arbitrator was that the grievor did not release all the trolleys. The arbitrator found that one or more latches had been released. Thus, the conduct of the grievor, while raising a serious safety concern, was not as grave as the Employer had thought when it acted.
[24] The Employer also argues that the arbitrator made inconsistent findings, thus making his reasons logically incoherent. In particular, the arbitrator found that the grievor was easily confused by circumstances and did not act with malice. The Employer argues that this contradicts the finding earlier in the award that the grievor was aware of the new safety procedures, and he intentionally undid the latches.
[25] While the arbitrator’s reasons are not perfect, there is a sufficient explanation for his exercise of discretion. Again, the arbitrator rejects the Employer’s characterization of the conduct. While the conduct was serious, the arbitrator finds that there was no motivation to harm the Employer or passengers. He finds the grievor was somewhat befuddled at the time, and he was not acting maliciously. This is a relevant consideration in determining the degree of misconduct and the appropriate penalty.
[26] The Employer also argues that the arbitrator erred by treating the grievor’s dishonest testimony as a mitigating factor, and this is inconsistent with an arbitral consensus that a dishonest grievor should not be reinstated.
[27] There are two problems with this argument. First, the arbitrator did not treat the grievor’s dishonesty as a mitigating factor. Indeed, the arbitrator does not use the word “mitigating” in his reasons.
[28] Second, he does not say that the lack of honesty was explained by the grievor’s befuddlement, as the Employer suggests. The arbitrator took into consideration the fact that the grievor was not fully honest in his testimony, but he concluded that this did not lead to a finding that dismissal was a reasonable penalty.
[29] It is true, as the Employer submits, that arbitrators have treated dishonesty as an aggravating factor. The Employer cites Invista (Canada) Co. v. CUPE, Local 28-0 (2006), 151 LAC (4th) 222 (Barrett), where the arbitrator stated (at para. 25):
… Many arbitrators find a grievor’s false testimony to be an aggravating factor. Put another way, arbitrators find that a grievor who has failed to fully acknowledge his wrongdoing or who attempts to mislead the arbitrator, is a poor candidate for reinstatement.
[30] In the present case, the arbitrator took into consideration the lack of honesty, but he did not find that it weighed in favour of dismissal. His reasoning is consistent with the decision of the Ontario Court of Appeal in Canadian Office and Professional Employees Union v. Yellow Pages Group Company, 2012 ONCA 448, where the issue was the appropriateness of a dismissal penalty. The Court stated that the grievor’s dishonesty before the arbitrator was not relevant to the determination whether the employer had just cause to discharge (at paras. 19-20). To the extent that the arbitrator considered dishonesty to be relevant to the issue of the grievor’s ability to reintegrate in the workplace, the Court stated that there was no evidence to support a finding that the grievor would have difficulty in reintegrating (at para. 20).
[31] Here, the Employer did not base its decision to dismiss on the grievor’s lack of candour. In fact, the grievor had admitted opening the door of one trolley after the secondary verification in order to stow a handheld device or some buns.
[32] The Employer also argues that there is a flaw in the reasons because of the failure to discuss the serious safety implications of the grievor’s behaviour, despite extensive written submissions from the Employer about safety concerns. The termination letter also sets out the Employer’s safety concerns.
[33] In fact, it is clear from the reasons, read as a whole, that the arbitrator was aware of the safety implications of leaving trolleys insecure, as he accepted Ms. Harris’ evidence that more than one trolley was insecure. He then held that the grievor’s conduct was deserving of discipline. However, he did not accept that the conduct was so grave as to put everyone’s life at risk by detaching all the trolleys, as the Employer had alleged in the termination letter. Nevertheless, the 30 day suspension reflects the gravity of the grievor’s misconduct.
[34] As an aside, it is notable that in the final hearing on whether reinstatement or monetary relief was appropriate, the Employer did not make further submissions about the grievor’s inability to follow procedures or to act safely. Nor did the Employer challenge the reinstatement decision in this application for judicial review.
[35] Finally, the Employer argues that it was illogical for the arbitrator to give weight to the fact that Ms. Harris was willing to work with the grievor shortly after the incident and that there were no incidents on the subsequent flights. Again, one can see the logic of the arbitrator’s reasons, even though his reasons are brief. The grievor worked with Ms. Harris again a week later and the flights were without incident. Whatever had led to the first incident had effectively been resolved. There was nothing unreasonable about this consideration.
[36] Vavilov gives guidance about applying the reasonableness standard. In doing so, it draws on the past jurisprudence of the Supreme Court. In particular, it instructs that a reviewing court must give respectful attention to an administrative decision maker’s reasons, but should not hold them to a standard of perfection (at paras. 84 and 91).
[37] When one reads the arbitrator’s penalty decision in the context of the reasons as a whole, there is a logical and coherent line of analysis. Essentially, the arbitrator was not satisfied that the grievor’s misconduct was as serious as the Employer alleged, and the conduct was not malicious, nor was it repeated. He concluded that dismissal was not a just and reasonable penalty in the circumstances. The arbitrator reached this conclusion after he also took into account the grievor’s disciplinary record and lack of honesty as a witness.
[38] The arbitrator heard from the witnesses in cross-examination, including the grievor. He was in the best position to assess their evidence and to make the necessary findings of fact. He had a broad discretion to determine the penalty that is “just and reasonable in the circumstances”. In the present case, the penalty assigned was within a range of reasonable outcomes, given the evidence before him, and his decision was justified, intelligible and transparent.
Conclusion
[39] Accordingly, the application for judicial review is dismissed.
[40] Costs to the Union are fixed at the agreed amount of $10,000.00.
Swinton J.
I agree _______________________________
Lederer J.
I agree _______________________________
Penny J.
Released: October 2, 2020
CITATION: Air Canada v. Canadian Union of Public Employees, Air Canada Component, 2020 ONSC 5927
DIVISIONAL COURT FILE NO.: 363/19 DATE: 20201002
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Lederer and Penny JJ.
BETWEEN:
Air Canada Applicant
– and –
Canadian Union of Public Employees, Air Canada Component Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: October 2, 2020