CITATION: Canadian Broadcasting Corporation v. Association of Professionals and Supervisors, 2020 ONSC 6531
DIVISIONAL COURT FILE NOs.: DC-15-2132; DC-19-2464;
20-DC-2601 DATE: 20201028
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Favreau and Gomery JJ.
BETWEEN:
CANADIAN BROADCASTING CORPORATION (CBC)/SOCIÉTÉ RADIO-CANADA
Frédéric Massé and Odessa O’Dell, for the Applicant
Applicant
– and –
ASSOCIATION OF PROFESSIONALS AND SUPERVISORS/ASSOCIATION DES PROFESSIONNELS ET SUPERVISEURS and BRENDA LEVY
Katty Duranleau, for the Respondents
Respondents
HEARD by videoconference: September 8, 2020
Swinton and Gomery JJ.
Overview
[1] The Canadian Broadcasting Corporation (CBC)/Société Radio-Canada (the “Employer”) has brought three applications for judicial review of arbitration awards of Arbitrator Serge Brault dealing with a grievance brought by the respondent Brenda Levy (the “Grievor”) following the termination of her employment: an interlocutory award, the award on the merits and the award dealing with remedy. For the reasons that follow, we would dismiss the three applications, as the decisions of the Arbitrator were reasonable.
[2] This was a bilingual hearing, with some of the material filed in English and some in French. The oral argument was in French and English. Our decision is written in English, as the Grievor does not speak French, and it is only fair that she be able to understand the reasons for our decision given its importance to her. There is also obviously no unfairness to the Employer, which is a federal Crown corporation that operates in both languages.
Factual Background
[3] The Grievor worked for the Employer from 1979 until her employment was terminated as of July 31, 2013. She had been a Unit Manager at the Parliamentary Bureau in Ottawa for about 15 years when terminated, and she was about 22 months away from the date she could retire with a full pension. She was represented by the respondent Association of Professionals and Supervisors/Association des Professionnels et Superviseurs (the “Union”).
[4] Since 2009-10, the Employer had been engaged in a restructuring. In particular, it was taking steps to consolidate the Parliamentary Bureau with the local Ottawa station that provided English language services. After an administrative reorganization in May 2012, the Grievor reacted strongly, in an email to management, because a colleague with a post equivalent to hers in the Ottawa station had been made her supervisor in a new position of Resources Manager.
[5] In the autumn of 2012, the Employer took steps to deal with serious cuts to its budget. In November 2012, management decided to declare the Grievor’s position redundant and to redistribute her tasks. She was not immediately told of this decision.
[6] On April 30, 2013, when the Grievor arrived for work, she was informed that her position had been declared redundant, and her employment was terminated as of July 31, 2013 in accordance with Article 16 of the collective agreement. She was informed that she was entitled to a notice period of three months, during which she would not be required to work but would be paid and would receive layoff pay to a maximum of 78 weeks (about $115,000 in her case). She was then immediately escorted from the premises.
[7] The Union filed a grievance on behalf of the Grievor on May 15, 2013, challenging the decision to declare her position redundant and seeking her reinstatement.
[8] In the period between May and July 31, 2013, the Grievor engaged in discussions with the Employer’s Human Resources and Administration, Shared Services Centre, about her entitlements on termination and the possibility of taking early retirement. In two of her emails, on June 5 and June 24, she mentioned her ongoing grievance. For example, on June 24, she wrote (as quoted at para. 15 of the Interlocutory Award):
Although my current employment situation is subject to a filed grievance and is therefore uncertain, I have been advised that I should prepare for possible outcomes and therefore require immediate answers to severance and pension related matters.
[9] On July 31, 2013, she confirmed in writing that she would take early retirement effective August 1, 2013. She did so, receiving a reduced pension. On August 12, 2013, she signed a document entitled “Payment Agreement,” which related to the termination payments owed and paid in accordance with the collective agreement. There was no mention of the grievance in either of these documents.
[10] The grievance was referred to arbitration. At the first hearing, on December 18, 2014, the Employer raised two preliminary objections to the proceeding, seeking a summary dismissal of the grievance based on estoppel or on the basis that the Grievor had abandoned her grievance when she took early retirement. Alternatively, it sought restitution of the layoff payments on the basis of unjust enrichment. On May 26, 2015, the Arbitrator rejected these arguments in a 42-page award.
[11] The parties then proceeded to a seven-day hearing on the merits. A second 45-page award was issued on November 12, 2018. The Arbitrator began by explaining that his role was not to determine whether or not there should be a termination because of redundancy, because an employer has the right to reorganize work, subject to any limitations in the collective agreement. The Arbitrator could intervene only if the Union proved that the Employer had contravened the collective agreement or had abused its management rights by acting arbitrarily, discriminatorily or in bad faith. After the Arbitrator examined the evidence, he concluded that the Grievor’s termination was not based on economic and operational considerations. Rather, it was a disguised dismissal in contravention of the collective agreement, motivated by the Grievor’s email in May 2012 complaining about her new supervisor.
[12] As the Arbitrator concluded in the merits award that reinstatement was not a viable option, the only issue remaining was the quantum of damages owed to the Grievor. After a further hearing on remedy, the Arbitrator issued a third award on March 31, 2020 dealing with the appropriate damages.
[13] In this 80-page award, the Arbitrator considered salary loss, loss of benefits, moral damages, contingencies and mitigation. He concluded the Grievor would have continued working if her employment had not been terminated, and concluded that she was entitled to be compensated for amounts she would have earned from July 30, 2013 to July 23, 2019. After subtracting income that the Grievor had earned from other employment, the severance pay she had received and an amount to reflect contingencies, the Arbitrator awarded her net damages of $392,276 plus interest from 2013. That sum included $10,000 in moral damages. In reaching his conclusion, he found that the Employer failed to show that the Grievor did not meet her duty to mitigate.
The Standard of Review
[14] The parties are agreed that the standard of review with respect to the arbitration awards is reasonableness.
The Interlocutory Award (Court File DC-15-2132)
[15] A few days before the arbitration hearing was scheduled to commence on December 18, 2014, the Employer raised two preliminary objections for the first time. It argued that the Grievor was estopped from proceeding with the grievance because she had represented, implicitly or explicitly, that she was waiving her right to grieve when she accepted layoff pay. The Employer also argued that she had abandoned the grievance by electing to retire and resigning. Alternatively, the Employer argued that if the arbitration hearing were to proceed, the Grievor should be compelled to repay the layoff pay she had received, as otherwise she would be unjustly enriched.
[16] At the hearing, the Grievor was the only witness, and it was the Employer who summonsed her to testify. The Employer called no other witnesses.
[17] The Arbitrator held that the Employer had not established the conditions for estoppel. He quoted from the text of Professor S.M. Waddams on The Law of Contracts, 4th ed. at para. 94 setting out the elements of estoppel in a civil law context: a representation, express or implicit, by the representor and reliance on the representation by the representee to its detriment (Interlocutory Award, para. 62).
[18] He then turned to an examination of the evidence. Having heard the Grievor’s testimony, he rejected the argument that she had represented, either explicitly or implicitly, that she was waiving her right to proceed with the grievance when she accepted the layoff payment from the Employer. He noted that she had referred to the ongoing grievance in her emails to the Employer on June 5 and June 24, 2013, and that there was no reference to the grievance in the Payment Agreement that she signed.
[19] The Arbitrator also noted that there was no evidence of any representation by the Union, a party to the collective agreement, that it would not proceed with the grievance.
[20] In addition, the Arbitrator noted that there was no evidence from any management witness to support the Employer’s claim that there had been a representation relied upon by the Employer to its detriment. The benefits paid to the Grievor were ones to which she was entitled on layoff, in accordance with the collective agreement, as the Employer’s termination letter had made clear. Notably, the Arbitrator stated at para. 64 of the Interlocutory Award:
Aucune preuve n’a été présentée par CBC au sujet de quelque propos de la plaignante qui aurait donné à croire dans le contexte où ces échanges se déroulaient que son grief était retiré. CBC n’a pas non plus offert de preuve à l’effet que quiconque de sa direction avait pu penser de la sorte à quelque moment ni encore moins, sur la foi de représentations de la plaignante.
[21] The Employer has not identified any flaw in the Arbitrator’s analysis of estoppel. On the evidence, he reasonably concluded that the elements of estoppel had not been established by the Employer.
[22] In the argument before this Court, the Employer suggested that the Arbitrator should have found that there was a settlement of the grievance. This argument is without merit. The evidence, as set out in the arbitration award, does not make mention of a settlement. There was no written settlement document. The Employer has pointed to no evidence to show that the Grievor intended to make a settlement, and the Union was certainly not involved in any settlement agreement. Moreover, the Grievor was not obtaining a benefit in return for settling the grievance. The layoff pay and other amounts received was money to which she was always entitled under the collective agreement because of the termination.
[23] Secondly, the Arbitrator rejected the argument that the Grievor had voluntarily resigned from her employment when she took early retirement and so she had no right to proceed with a grievance. Instead, the Arbitrator found that she had not chosen to terminate her employment by taking early retirement. That decision had come about because of the termination of her employment by the Employer and her need for income, as she and her husband were supporting two dependent children. The Arbitrator stated at para. 85:
En l’espèce, CBC a rompu le lien d’emploi de la plaignante; fatalement et nécessairement, avant qu’il soit question de sa retraite qui, en l’espèce, selon la preuve non contredite, demeure une circonstance non souhaitée, imposée plutôt que choisie, au moment où elle est prise.
[24] Moreover, the Arbitrator indicated that he could not reasonably assess the impact of the Grievor’s early retirement on the resolution of the grievance at this preliminary stage. However, the parties would be able to present evidence and make submissions on the issue during the hearing on the merits.
[25] Again, this was a reasonable conclusion, given the evidence before the Arbitrator, and there is no basis for judicial intervention.
[26] The Arbitrator also rejected the argument based on restitution, finding that the Employer had provided no evidence of unjust enrichment. Moreover, he held that the argument was premature, and the treatment of the layoff payments should more appropriately be addressed once a decision was made on the merits of the grievance.
[27] As we indicated during the hearing of this application, it is not necessary for this Court to determine the reasonableness of the Arbitrator’s decision rejecting the claim for restitution. The restitution issue is moot, given that the Arbitrator has now dealt with the treatment of the layoff payments in his final award on remedy. In that decision, he gave credit to the Employer for those sums, given that he found that the Grievor would have worked until the date when she could have retired with a full pension.
[28] For these reasons, the application for judicial review in Court File DC-15-2132 is dismissed.
The Award on the Merits (Court File DC-19-2464)
[29] The Arbitrator held that the Employer had failed to prove that the decision to declare the Grievor redundant was based on real economic and operational concerns. He noted that there was an absence of evidence before him of structured discussions about the need to declare her position redundant. The only position eliminated was that of the Grievor, and her tasks were redistributed.
[30] In its Notice of Application for Judicial Review and in its factum, the only issue raised by the Employer respecting the merits award was his refusal to admit two emails presented in evidence. The Employer argues that the Arbitrator erred in rejecting these emails and then finding that there was an absence of evidence to show that there were structured discussions during which the reasons for declaring the Grievor’s position redundant were addressed.
[31] The two emails from Rob Shannon were written in May 2013. They described internal management meetings held on February 13, 2013 and March 20, 2013 (S-17 and S-21). Mr. Shannon was not called to testify. The emails were introduced through two individuals involved in the reorganization discussion, Kelly Dexter and Loretta Hensel, who were summonsed to testify by the Union by subpoenas duces tecum. The only witness called by the Employer was Paul Hambleton.
[32] The Arbitrator noted that these emails had been prepared after the termination occurred and the grievance filed, and he accepted the Union’s characterization of these emails as “self-made evidence” (Merits Award, para. 109).
[33] The Arbitrator reasonably gave no weight to these emails. They were prepared well after the meetings were held to discuss restructuring and the elimination of the Grievor’s position and postdated her filing of a grievance. They referred to meetings in February and March, but it appears that the decision to terminate the Grievor’s employment had first been considered in November 2012.
[34] The Arbitrator’s finding that there was a lack of persuasive evidence of structured discussions about the redundancy of the Grievor’s position was reasonable. It is clear from his reasons that he considered the testimony of all the witnesses as well as the documentary evidence before him, which he set out in detail in the award. Ultimately, he concluded that the Employer had failed to prove that the redundancy and termination occurred because of real economic and operational considerations.
[35] In oral submissions before this Court, the Employer for the first time raised the argument that the Arbitrator also failed to consider Article 16 of the collective agreement. This was not a ground set out in the Notice of Application for Judicial Review. It was not discussed in the factum, and it would be unfair to the Union were the Court to address this argument now.
[36] In any event, the Arbitrator acknowledged management’s right to reorganize the workplace. Management’s authority is not however unlimited. Where a union can prove that a restructuring was not made for economic and operational reasons and was made arbitrarily, in a discriminatory manner or in bad faith, the termination can be found to be a disguised dismissal.
[37] On the record before him, the Arbitrator reasonably concluded that the Employer had not demonstrated that the termination occurred for authentic economic and operational reasons, and the Union had met its burden to show that the decision to abolish the position was made arbitrarily, discriminatorily and in bad faith. As he stated (at para. 130):
Pour tous ces motifs, le Tribunal constate que l’Employeur a échoué à se décharger de son fardeau de prouver la véracité et l’authenticité des motifs économiques et opérationnels invoqués au soutien du renvoi de la plaignante survenu le 30 avril 2013. En revanche, le Syndicat a démontré de manière prépondérante que la décision d’abolir le poste de la plaignante était abusive, entachée de mauvaise foi, discriminatoire et arbitraire. Force est donc pour le Tribunal de conclure que la plaignante a été victime d’un congédiement déguisé imposé en contravention de sa convention collective et de ses droits et non l’objet d’un licenciement.
[38] The application for judicial review in Court File DC-19-2464 is accordingly dismissed.
The Remedy Award (Court File 20-DC-2601)
[39] In the March 31st, 2020 award, the Arbitrator calculated the Grievor’s gross damages as follows:
Lost salary: $472,332
Lost benefits: $59,042
Amount foregone as a result of her decision to take early retirement: $81,674
Long service gratuity she would have received: $33,452
Moral damages: $10,000
Total Gross Damages: $656,500
[40] From this amount, the Arbitrator deducted the Grievor’s income from other work following her dismissal ($79,846) and the severance pay she received from the Employer ($115,163). He discounted the resulting net damages of $461,491 by 15% to reflect contingencies, resulting in net damages of $392,267.
[41] The Employer contends that the Award should be set aside because the Arbitrator unreasonably:
(i) Did not apply Ontario law in interpreting the collective agreement;
(ii) Reached conclusions contrary to uncontradicted evidence;
(iii) Applied a “fixed term job approach” to damages;
(iv) Concluded that the Grievor discharged her duty to mitigate; and
(v) Awarded the Grievor $10,000 in moral damages.
(i) Did the Arbitrator unreasonably fail to apply Ontario law in interpreting the collective agreement?
[42] The collective agreement between the Employer and the Union does not set out a remedy for unjust dismissal. Section 60(2) of the Canada Labour Code, R.S.C. 1985, c. L-2 provides that, if a collective agreement does not contain a specific penalty for the infraction that is the subject of an arbitration, the arbitrator has the power to impose such penalty as they deem “just and reasonable in the circumstances”.
[43] The Employer argues that, in these circumstances, s. 8.1 of the Interpretation Act of Canada, R.S.C. 1985, c. I-21 required the Arbitrator to refer to Ontario law in determining the damages to which the Grievor was entitled. Section 8.1 reads as follows:
Both the common law and the civil law are equally authoritative and recognized sources of law of property and civil rights in Canada and, unless provided by law, if in interpreting an enactment it is necessary to refer to a province’s rules, principles or concepts forming part of the law of property or civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.
[44] In Quebec (Attorney General) v. Canada (Human Resources and Social Development), 2011 SCC 60, at para. 27, the Supreme Court summarized the effect of s. 8.1: “if in interpreting a federal provision it is necessary to refer to private law concepts, reference must be made to the law of the province in which the provision is to be applied”.
[45] In the Employer’s submission, the Arbitrator either failed to refer to any supplemental provincial law or wrongly referred to the civil law of Quebec.
[46] We do not agree that the Arbitrator unreasonably failed to refer to appropriate law and legal concepts in determining an appropriate remedy in this case.
[47] In its submissions on remedy before the Arbitrator, the Employer presented the same s. 8.1 argument as it does here. The Arbitrator observed that s. 8.1 mandates the use of provincial law only where necessary. In the context of federal labour arbitration, arbitrators across the country have held that, if reintegration is impossible, a damages award should attempt, insofar as possible, to put the employee in the position he or she would have enjoyed but for the employer’s breach of the collective agreement. In the Arbitrator’s words at para. 115, “le principe de la pleine réparation vaut d’un océan à l’autre”.
[48] In reaching this conclusion, the Arbitrator referred at length to analyses in three labour arbitration decisions: Hay River Health and Social Services Authority v. Public Service Alliance of Canada, [2010] C.L.A.D. No. 407; Bahniuk v. Canada (Revenue Agency), 2016 FCA 127, [2016] A.C.F. No. 467; and First Canada ULC v. International Union of Operating Engineers, Local Union No. 955). These cases each arose in a common law province. The Arbitrator relied particularly on the principles set out in First Canada ULC, an Alberta case.
[49] We conclude that the Arbitrator’s general approach and his reliance on these cases was reasonable, and that he did not unreasonably rely on civil law caselaw and doctrine in assessing the Grievor’s damages.
(ii) Were the Arbitrator’s conclusions contrary to uncontradicted evidence?
[50] The Employer contends that the Arbitrator drew three conclusions contrary to uncontradicted evidence.
[51] First, the Employer argues that the Arbitrator’s calculation of the Grievor’s damages should have taken into account her decision to take early retirement on August 1, 2013.
[52] This is essentially a repackaging of the Employer’s attack on the interlocutory award. The argument fails because, as already been found above, the Arbitrator reasonably held that the Grievor was dismissed without cause on April 30, 2013, and that in accepting an early retirement package she neither waived her right to grieve nor released the Employer from liability for damages that she suffered as a result of her dismissal. The acceptance did not preclude her from pursuing her grievance, but rather served to mitigate her damages.
[53] Second, the Employer contends that the Arbitrator unreasonably concluded that the Grievor was entitled to both severance pay and a long service gratuity, despite “undisputed evidence” that no employee could get both pursuant to the terms of the Employer’s Long Service Recognition Policy.
[54] The Employer has not pointed to any evidence on this point beyond the Policy itself. Based on the Arbitrator’s interpretation of the Policy, the prohibition against recovery of both a long service gratuity and severance pay applies only in the case of a lay-off. It did not apply to a case, like this one, where an employee was dismissed without cause.
[55] We do not agree with the Employer that the Arbitrator’s decision on this point was unreasonable, or that his reasoning was unintelligible. He explicitly dealt with the Employer’s argument on this point at paras. 144 to 150 of the Award. At para. 147, the Arbitrator referred to the Grievor’s unchallenged and uncontradicted evidence about what would have happened if she had not been fired by the Employer:
[N]’eut été son congédiement, madame Levy serait même toujours à l’emploi de la Société Radio-Canada. L’indemnité reçue en considération de son licenciement, qui n’en était pas un, ne saurait par conséquent faire obstacle à son droit de toucher la prime de reconnaissance de ses longs états de service. Tout porte en effet à croire que madame Levy l’aurait touchée au moment de sa retraite et que c’est son congédiement non conforme qui l’en a privée.
[56] Drawing on the economic loss approach applied in Bahniuk, the Arbitrator held that the Grievor should be entitled to the gratuity because, had it not been for her unjust dismissal, she would have received it after earning a salary for another six years and retiring with a full pension.
[57] The Employer’s third argument is that the Arbitrator failed to consider reintegration as a remedy in the Award even though the Grievor never led evidence that she was abandoning it.
[58] This argument is specious. The Employer maintained throughout the proceedings that it had eliminated the position held by the Grievor and that her reintegration was therefore impossible. The Employer cannot complain that the Arbitrator failed to consider reintegration after arguing before him that this remedy was moot. The transcript furthermore shows that, when the parties presented their submissions on penalty, everyone proceeded on the understanding that the Grievor could not return to her job at the Employer.
(iii) Did the Arbitrator unreasonably apply a “fixed term job approach” to damages?
[59] The Employer’s complaint is not that the Arbitrator used a “fixed term job approach” in assessing the Grievor’s damages. It conceded that this was an appropriate approach in its submissions on penalty. The Employer instead takes issue with the contingency factor applied by the Arbitrator as part of this approach. It had suggested a contingency rate of 70%. The Arbitrator instead reduced the Grievor’s claim by only 15%.
[60] Although the Arbitrator himself acknowledged that the discount applied in this case was very low, we find that his decision on this point was reasonable based on his analysis of the purpose of the contingency factor, the unusual circumstances in this case and the Arbitrator’s findings about what would have occurred had the Employer not violated the collective agreement.
[61] The Arbitrator devoted 24 paragraphs of the Award to a discussion of the appropriate contingency rate. He began by noting at paras. 170 and 171 that the Grievor’s case was unusual. A contingency factor reduces the future income loss to which a terminated employee is entitled, by factoring in the possibility that the employee could lose their job or become unable to work in any event. It is, in most cases, an informed guess about what might happen. In this case, however, the Grievor’s damages were not premised on future income loss. The Arbitrator determined that she was entitled to recover salary lost from July 30, 2013 to July 23, 2019, a period of time that had passed by the time her damages were assessed. In his words, “tout le temps écoulé entre le renvoi et la fin de l’emploi arrêtée par nous est derrière”.
[62] As a result, the Arbitrator held that he did not need to speculate about certain critical issues, such as date of retirement, that typically drive the contingency rate. The Grievor had continued to work, albeit on a part-time basis, during the six-year period on which her income loss was calculated. She testified that she would have continued in her job at the CBC had she not been fired. The Arbitrator accepted this evidence.
[63] The Arbitrator then considered each of six factors that the Employer argued were relevant to the determination of an appropriate contingency factor. The Grievor had an unblemished 33-year work history, despite some friction between her and her immediate supervisor in the year prior to her termination. She was happy in her job. The Arbitrator rejected the Employer’s argument that she would have retired in April 2015, when she became entitled to full retirement benefits. He also rejected the Employer’s argument that, notwithstanding the Arbitrator’s finding about the real reason why the Grievor was dismissed, it might have legitimately declared her position redundant. Even if this had occurred, the Grievor’s seniority and long career would have permitted her to find another position with the Employer.
[64] The Arbitrator concluded that there was only one contingency to which he must give some weight, that is, the slim possibility that the Grievor might have lost her job for one reason or another between 2013 and 2019, had she not been fired. He determined that this single contingency should be given minimal weight. Since a factor in the usual range would be manifestly inappropriate, he derived the rate by calculating the number of years the Grievor would have continued working at CBC as a percentage of the total years of her employment there. Had she remained in her job, she would have worked at the Employer for 39 years. The “lost years” between 2013 and 2019 amounted to 15% of this total.
[65] The Arbitrator recognized that a contingency factor of 15% was significantly lower than the contingency factor applied in other cases, observing at para. 191 that: “À première vue, retenir un facteur de pondération de 15% peut étonner en comparaison de ceux de 80% ou 90% constatés dans la jurisprudence ou celui de 70% avancé par l’Employeur”. He stated that this was an exceptional case due to the Grievor’s 33 years of service with the Employer, her lack of any disciplinary record, the manner in which she was dismissed, and the length of time — seven years — that had elapsed between the termination and the assessment of her damages. At para. 215 of the Award, he summarized the situation as follows:
En l’espèce, la salariée a été remerciée cavalièrement et illégalement il y a bientôt sept ans. Lorsqu’un jugement a pu être rendu accueillant son grief, cinq ans s’étaient déjà écoulés et j’ai jugé que la réintégration n’était pas une avenue raisonnable dans les circonstances. La résultante de cette situation selon les principes et règles régissant les rapports collectifs du travail est qu’il y avait lieu d’entendre la preuve de l’ensemble des dommages subis en vue d’assurer la remise en état de cette employée sous la forme d’une réparation pécuniaire. En évinçant illégalement une employée de 33 ans de service au dossier vierge, la Société s’est exposée à une responsabilité importante dans la mesure où il s’agissait d’une employée professionnelle syndiquée jouissant de droits, avantages et bénéfices substantiels ainsi que d’un salaire important. C’est cet ensemble qui explique et justifie le résultat.
[66] In the unusual circumstances of this case, we find that the Arbitrator’s application of a contingency factor of 15% was reasonable, and that his reasoning on this issue was transparent, intelligible and justified on the evidence before him.
(iv) Did the Arbitrator unreasonably conclude that the Grievor discharged her duty to mitigate?
[67] After her dismissal, the Grievor obtained a part-time clerical job with a local schoolboard. From 2015 to 2018, her annual income was in the range of $16,000 to $17,000. The Employer contends that the Arbitrator unreasonably concluded that she discharged her duty to mitigate, because a person with her experience, skills and references ought to have been able to secure full-time work had she looked for it.
[68] In our view, it was reasonable for the Arbitrator to conclude that the Employer had not proved an absence of mitigation by the Grievor, based on the evidence before him.
[69] The Arbitrator once again took pains to explain his reasoning on this point. He began by noting that an employer who alleges a failure to mitigate has the burden of proof. He cited three Quebec arbitral decisions as authority on this point: Matrundola and Transport Canpar S.E.C., 2018 109730 (QC SAT); Maarouf and Gardium Sécurité Inc., 2018 110998 (QC SAT); and Santiago and Service d’aide aux néo-québécois et immigrants (SANQI), 2010 QCCRT 339, 2010 QCCRT 0339. The arbitrators in Matrundola and Maarouf relied on Evans v. Teamsters Local Union No. 31, 2008 SCC 20, [2008] 1 SCR 661, a case arising in B.C., for the proposition that an employer must prove, in particular, that an employee has not made reasonable efforts to find new employment and that, had she done so, she would have been able to find comparable employment. In other words, the common law and civil law both require that an employer alleging mitigation must show that the prejudice suffered by the employee as a result of a dismissal was avoidable.
[70] Turning to the evidence, the Arbitrator concluded that the Employer had not discharged its burden:
En l’espèce, l’Employeur n’a offert aucune preuve à l’appui de l’affirmation selon laquelle madame Levy aurait facilement pu se trouver un emploi à temps plein si elle l’avait voulu. En fait, la Société n’a offert aucune preuve de quelque manquement de la plaignante à son obligation de mitiger ses dommages… .
La preuve offerte en face fait en revanche état de démarches nombreuses de madame Levy en vue de se trouver un nouvel emploi, y compris à temps plein et dans son champ de compétence, en commençant par son inscription à la liste de rappel de la Société. Elle a aussi rapidement eu recours à la firme de placement Optimum Talent et a démarché tous ses contacts du milieu des communications afin de s’y replacer. Elle a longtemps assuré une vigie quotidienne des guichets d’emploi sur internet et même offert ses services à tous les réseaux présents à Ottawa en vue des élections de 2014, offre que la Société Radio-Canada connaissait et qu’elle a refusée.
[71] Before both the Arbitrator and this Court, the Employer did not present any evidence that there was another position in Ottawa comparable to the Grievor’s job at CBC that she failed to pursue. Its only evidence on the mitigation issue was the Grievor’s admission that she did not update her curriculum vitae after obtaining a permanent position with the school board.
[72] The Employer argued that the Arbitrator should infer a lack of sincere effort to mitigate by the Grievor because she was able to support herself with her partial pension and part-time work. The Arbitrator held that her acceptance of early pension benefits was in fact an attempt to mitigate her damages as a result of the Employer’s unjust dismissal.
[73] We find nothing unreasonable about the Arbitrator’s analysis or conclusion on this issue. It is rooted in appropriate legal concepts and is solidly in line with the evidence.
(v) Did the Arbitrator unreasonably award the Grievor $10,000 in moral damages?
[74] The Employer contends that the Arbitrator failed to provide any reasons for concluding that $10,000 was an appropriate amount of moral damages. It argues that the facts of this case are “almost identical” to those in Windsor (City) and CUPE, Local 543 (Gendreau), 2017 41221 (ON LA), where a terminated employee was awarded no moral damages at all.
[75] We reject the Employer’s argument that the Arbitrator failed to provide reasons for awarding moral damages. His reasons are detailed over six pages. He began by setting out the principles underpinning such damages, as elaborated in Hay River, Honda Canada Inc. v. Keays, 2008 SCC 39, Wallace v. United Grain Growers, 1997 332 (SCC), [1997] 3 S.C.R. 701, and Greater Toronto Airports Authority v. Public Service Alliance Canada, Local 0004, [2010] C.L.A.D. No. 127. At para. 155, he found that, based on this caselaw, the Employer’s conduct in terminating the Grievor was precisely the kind of conduct that invites sanction, according to the Supreme Court’s guidance in Wallace:
L’employeur a, selon la preuve, de manière résolument abusive et empreinte de mauvaise foi ultimement orchestré sous le couvert d’une réorganisation administrative soi-disant froide et rationnelle son renvoi ciblé en contravention de la convention collective et de ses droits. Mené d’une manière pressante et humiliante, l’exercice cachait mal un congédiement déguisé… .
[76] The Arbitrator revisited his earlier description, in the context of the merits award, of the way in which the Grievor was advised on the termination of her employment. On her arrival at work one day, she was directed by the Employer without warning or notice to the Union into an isolated room and abruptly informed that she no longer had a job. She was prohibited from speaking to anyone, her cellphone was wiped and she was escorted out of the building. The Grievor testified that she was shocked and humiliated by this treatment. She lost her self-confidence and self-esteem and for a period of time afterwards was reluctant to leave her home. In the Arbitrator’s words at para. 157: “Elle avait perdu de manière subite, inattendue et humiliante un emploi d’importance qu’elle aimait, qui la valorisait et dans lequel elle se sentait bien. C’est bien là un préjudice moral.”
[77] Contrary to the Employer’s submission, the facts in this case are wholly distinguishable from those in City of Windsor. The only similarity is that, in that case as here, the defendant advanced the pretext that a post had been eliminated in order to justify a termination. There was no conduct in that case, as there was here, that was humiliating, or which caused the person terminated the level of distress and loss of self-esteem experienced by the Grievor in this case.
[78] In determining that $10,000 was an appropriate amount of moral damages in this case, the Arbitrator at para. 161 referred to the Employer’s violation of the collective agreement, the fundamental right of a unionized employee not to be fired without just and sufficient cause, the Grievor’s seniority, her years of service and the nature of her position with the Employer. He cited caselaw, notably Matrundola, Maarrouf, Keays and Joseph v. Tl’azt’en First Nation, [2012] C.L.A.D. No. 184. Although he did not review the quantum of moral damages awarded in each of these cases, they amply support moral damages of $10,000 on the facts of this case. On the whole, these cases suggest that the amount awarded was, if anything, modest.
[79] We conclude that the Arbitrator’s award of $10,000 in moral damages to the Grievor was reasonable, and that the Arbitrator’s reasons for the award are transparent, intelligible and justified.
[80] Accordingly, we would dismiss the application for judicial review in Court File 20-DC-2601.
Costs
[81] At the end of the hearing before this Court, we reserved our decision and asked the parties to make cost submissions. The Union sought approximately $53,000 in costs on the applications, on a partial indemnity basis. The Employer sought almost $95,000 in costs, including $35,000 for a motion to stay to which the Union had ultimately consented.
[82] As the successful party on all three applications, the Union is entitled to costs. We would fix costs at $50,000, inclusive of fees, disbursements and HST. This is higher than usual in the context of an application for judicial review of a labour arbitration award. It is however merited in this case because:
• There were three applications for judicial review, each in respect of a lengthy award.
• The lawyers representing the Union had a level of experience appropriate to this case, and the time they recorded was reasonable in the circumstances. The Employer seeks costs for the three applications in the same range as those sought by the Union. This indicates that the costs proposed by the Union are what the Employer would reasonably expect to pay.
• The case did not raise issues of public importance, but they were important to the parties.
• The Employer raised a completely new argument with respect to the merits award at the hearing. The argument had not been raised before the Arbitrator and was not mentioned in the Employer’s notice of application or its factum.
• The Employer failed to abandon at least one issue that, at the hearing, its lawyer conceded was moot. This unnecessarily increased the work that the Union’s lawyers were required to do, to respond to the applications.
• Most of the Employer’s arguments were ultimately grounded in its disagreement with the Arbitrator’s findings of fact and should not have been pursued.
[83] We conclude that the Employer is not entitled to costs on the motion to stay. These costs were incurred before counsel for the Union was given an opportunity to take a position on the motion. When the lawyer for the Union was asked for her consent to the motion, she provided it promptly.
Conclusion
[84] Accordingly, the three applications for judicial review are dismissed. Costs to the Respondents are fixed at $50,000.00 all inclusive.
___________________________ Swinton J.
Gomery J.
I agree
Favreau J.
Date of Release: October 28, 2020
CITATION: Canadian Broadcasting Corporation v. Association of Professionals and Supervisors, 2020 ONSC 6531
DIVISIONAL COURT FILE NOs.: DC-15-2132; DC-19-2464;
20-DC-2601 DATE: 20201028
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Favreau and Gomery JJ.
BETWEEN:
CANADIAN BROADCASTING CORPORATION (CBC)/SOCIÉTÉ RADIO-CANADA
Applicant
– and –
ASSOCIATION OF PROFESSIONALS AND SUPERVISORS/ASSOCIATION DES PROFESSIONNELS ET SUPERVISEURS and BRENDA LEVY
Respondents
REASONS FOR JUDGMENT
Swinton and Gomery JJ.
Date of Release: October 28, 2020