CITATION: Ryam Lumber v. United Steelworkers, Local 1-2010, 2021 ONSC 1862
DIVISIONAL COURT FILE NO.: DC 354/20
DATE: 20210331
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Lederer, Mew JJ.
BETWEEN:
RYAM LUMBER [formerly Tembec Enterprises Inc. – Hearst Sawmill]
Applicant
– and –
UNITED STEELWORKERS, LOCAL 1-2010, KARL MALENFANT and KATHLEEN O’NEILL
Respondents
Michelle S. Henry, for the Applicant
G. James Fysche, for the Respondent, United Steel Workers, Local 1-2010 and Karl Malenfant
No one for the Respondent, Kathleen O’Neill
HEARD by videoconference: February 22, 2021
Lederer, J.
BACKGROUND
[1] This is an application for judicial review.
[2] The Applicant, Ryam Lumber operates a sawmill in Hearst, Ontario. The Respondent United Steelworkers, Local 1-2010 represents workers employed by Ryam Lumber. The Respondent Karl Malenfant was one of the employees it represents. For 18 years Karl Malenfant worked as a machinist. Following a workplace injury in 2010, he had several surgeries and related medical issues. He was no longer able to work in that capacity. Beginning in September 2013 he was absent from work, on an active Workplace Safety and Insurance Board claim. Efforts were made to accommodate him in his employment. After a period of recovery, in July 2013, he tried to work as a watchman. That job was thought to be suitable. At the start, he was assigned to work with another employee. On the first day that he worked alone, he sustained a further injury requiring him to leave work. He has not worked for the company since that day.
[3] On or about September 28, 2017, Karl Malenfant requested severance pay. Ryam Lumber refused. The union filed a grievance challenging the company’s decision. In two decisions, the first addressing the circumstances under which an employee was able to elect to be paid severance (the “Interim Decision”) and the second whether, on the merits, Karl Malenfant was entitled to severance (the “Final Decision”), the Arbitrator found that, in the circumstances confronted by Karl Malenfant, an employee was able to elect, and in the particular case he was entitled to collect, severance.
[4] It is these decisions which are the subject of this application for judicial review.
THE DECISIONS BEING REVIEWED
[5] The relationship between the company and the union is governed by a collective agreement. It includes the following paragraph which considers the entitlement to severance:
12.12 An employee with three (3) or more years of continuous service for whom no job is available can, upon termination, elect to receive a severance allowance of one and a half (1.5) weeks’ pay for each year of employment during his last period of continuous service (up to the date of termination) computed on the basis of forty (40) straight time hours at the employee’s regular rate. Employment after age 65 will not be included in the calculation of any severance allowance.
The maximum severance allowances payable being forty-five (45) weeks. It is understood that an employee who chooses to receive the severance allowance will be terminated from his employment waiving his recall rights pursuant to this Agreement.
[Emphasis added]
[6] The Interim Decision considered the meaning and implication of the word “termination” as it is used in Article 12.12 of the collective agreement. In short, what determines that the employee has been terminated and, thus, may be able to elect to claim severance?
[7] The company agued that “termination” applies to the closing down or discontinuing of the job the employee worked:
In argument, employer counsel made it clear that the employer does not take the position that the employee has to be terminated from employment to elect severance pay. Rather, the interpretation urged is that the section applies to a situation where an employee’s job has been terminated but the person is on the recall list and no job is available.[^1]
… the employer is of the view that Article 12.12 is not available unless the employer has decided a job is unavailable, and does not apply to the situation where an individual employee cannot perform any available job. Rather, it is applicable when a position is ended by the company and there is no other job available to an employee.[^2]
[8] The union argued that termination refers to the ending of the employment relationship between the company and the particular employee. In the circumstances mandated by Article 12.12 (three years of continuous service and no available job), with the employment relationship at an end, the employee has the option to take severance and be terminated:
Counsel submits, that if no job is available, the parties have given the employee the right to make the choice: will I take severance pay? Or keep seniority in case a job becomes available? If the employee elects the severance pay, then termination ensues, and seniority is lost.[^3]
… the union is of the view that the language means that an employee for whom there is no job available, including in the sense of no job that he can perform, can elect to exchange his employment relationship and seniority for severance pay which will be paid “on termination”.[^4]
[9] The Arbitrator determined that the interpretation on which the company relied led to an uncertain result:
So, the question arises, for the employer’s interpretation, “When is the job to be considered to be terminated?”. Even given the reality that each case will be determined on its facts, the fact that the wording yields no answer to that question, leaves a lack of clarity in the wording which means there is no basis to be confident that “upon termination” means some clear point in time at which the parties agreed employee would have an election.[^5]
[10] On the other hand, she concluded that the approach taken by the union was clear:
The interpretation of the word-pair “upon termination” has the advantage of consistency with the meaning of the word “termination” elsewhere in the same article and what I find to be a more generally used meaning of those words, i.e. at the end of the employment relationship.[^6]
[11] As the direction this reasoning suggests, the Arbitrator found in favor of the union:
Thus, I am not persuaded that the meaning of Article 12.12 is limited in the way the employer suggests. Instead, I find the ordinary meaning of the words “for whom no job is available” can reasonably include situations other than the end of a job by employer decision. Therefore, I find that the grievor would have access to Article 12.12’s election for severance pay if no job is available for him.[^7]
[12] I return to the opening words of Article 12.12 of the collective agreement: “An employee with three (3) years or more of continuous service, for whom no job is available can, upon termination, elect to receive a severance allowance”. Karl Malenfant had far more than three years of continuous service. The question that remained (Was a job “available?”) was taken up in the Final Decision. The employer argued that there were jobs that were available and that, on this basis, the grievance should not be sustained:
The employer urges me to find that that there was a position available and therefore the grievance should be dismissed. Briefly put, the company maintains that the watchman job was available, as it could have been modified to meet the grievor’s restrictions. There was also mention of the grievor being able to coach machinists even though he could no longer physically perform machinists’ work as he did before his compensable injury.[^8]
[13] The union submitted that in the absence of the employee being presented with an actual opportunity, it could not be said that a job was, in fact, available:
By contrast, the union argues that no job was ever offered, either with or without accommodations, and thus there was no job actually available to the grievor.[^9]
[14] As perceived by the Arbitrator, the question being put to her was limited:
This is not a case where the union is claiming that the grievor’s disability was not accommodated; it is a claim under the very specific language of Article 12.12 and the issue, in the end is quite narrow: Was there a job available for Mr. Malenfant around the time he asked for his severance pay in 2017?[^10]
[15] The Arbitrator accepted the position of the union. To be “available” an offer demonstrating that availability had to be made:
The important basic reality for this decision is that unless the employer, who controls the workforce, offers a job it is not, in any realistic sense, available to an employee. The evidence is very persuasive that no job was ever made available or offered to Mr. Malenfant during the relevant period.[^11]
There is no evidence of a proposal of any kind to modify the work to accommodate the grievor’s restrictions until well after the grievance and the employment of the grievor elsewhere, shortly before the first hearing date of this matter.[^12]
[16] The Arbitrator concluded:
To summarize, the grievance is allowed, as Mr. Malenfant qualifies under Article 12.12 to receive severance pay upon the termination of his employment.[^13]
[17] In bringing this application for judicial review the Applicant (the employer, Ryam Lumber) seeks to set aside both the Interim Decision and the Final Decision as unreasonable or incorrect in their interpretation of the collective agreement.
STANDARD OF REVIEW
[18] The parties agree that the standard of review is “reasonableness”. There is “…a presumption that reasonableness is the applicable standard in all cases. Reviewing courts should derogate from this presumption only where required by a clear indication of legislative intent or by the rule of law”[^14].
[19] A review based on reasonableness is constrained:
Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers.[^15]
[20] But it is not without substance:
However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.[^16]
[21] Reasons are the starting point for this form of analysis. Where reasons are required, “they are the primary mechanism by which administrative decision makers show that their decisions are reasonable…”[^17] “[A] reasonable decision is one that is based on an internally coherent and rational chain of analysis…[^18] It is not enough for the outcome of a decision to be justifiable. Where reasons for decision are required, the decision must also be justified...[^19]
THE INTERIM DECISION
[22] The employer submits that the Interim Decision is unreasonable in that it fails to consider Article 12.12 in the context of the collective agreement. as a whole. The decision fails to take proper account of the role Article 12.12 plays in the relationship between the employer and employee. As submitted by counsel Article 12.00 deals with seniority and Article 12.12 is concerned with what happens to seniority rights in the context of a layoff. Article 12 begins:
The Company recognizes the principle of seniority. Seniority will govern subject to reasonable consideration of skill, efficiency and ability, in promotions, transfers, layoffs…
[23] In short, the question to be answered refers to the ability to elect to receive severance as provided in Article 12.12. Did it extend to an employee who ceased to work due to disability? While the company took and maintains the view that it does not, the union disagreed. Severance is not prospective, given for work that has not been done but would have been if the employee had continued to work. Rather, “severance pay acts to compensate long-serving employees for their years of service and investment in the employer’s business…”. [^20] As understood by the union and accepted by the Arbitrator, Article 12.12 presents an opportunity for an employee to elect to give up seniority rights in exchange for severance pay.[^21] This “unique element of Article 12.12”[^22] allows for those who are disabled to take advantage of what has been earned and make the election understanding that in exchange for severance pay they will lose seniority and be terminated.
[24] It is plain that the Arbitrator found the interpretation Article 12.12 to be challenging. It is not fair to say that she ignored the rest of the collective agreement, in particular the rest of Article 12.00. She reviewed the rest of the collective agreement but found that doing so did not provide her with all the answers as to how to interpret Article 12.12:
The wording of the Article 12.12 presents obvious difficulties of interpretation, and the more time one spends trying to understand the wording, the more it is no surprise that a dispute arose over its meaning. The parties and I have all looked to the rest of the collective agreement for context that would provide clarity or interpretive assistance to all the words of Article 12.12. It is a necessary exercise, but in the end does not provide sufficient substance to answer all the questions that arise from testing each party’s theory of the case against the wording of the article itself, as will be discussed below.[^23]
[25] In the Interim Decision the Arbitrator begins her analysis with the words of Article 12.12. She identifies that the dispute as to whether the election was available to Karl Malenfant arises from the interpretation of the words “upon termination”. What do those words contribute to an understanding of who qualifies to make the election? Is it when “the job is no longer available” (as proposed by the company) or does it refer to “the end of the employment relationship” (as submitted by the union)?
[26] The Arbitrator accounted for the broad purpose of Article 12.00. She noted that the Article, as a whole, “has much to say about lay-off and a series of provisions relating to displacement” and that counsel for the company submitted this should “give meaning to the wording of ‘upon termination’ which would require linkage to an employer decision to end a job.” For the Arbitrator that context was not strong enough to support the “special meaning” the company proposed. Rather, “the usual meaning of termination within an article dealing with severance pay was the stronger contextual factor.”[^24]
[27] Contrary to the position taken on behalf of the company the Arbitrator did acknowledge that the word “termination” as it is used in the collective agreement is not reserved to indicate the end of the employment relationship. However, she concluded that these different uses did not assist her in interpreting Article 12.12. The way the parties have used the word “termination” in this agreement “cuts both ways”.[^25] She provided an example. In Article 12.08 “termination” speaks to the end of a leave of absence. The Arbitrator observed this “could just as easily be referring to the end of the availability by reason of disability as to the end of availability by reason of discontinuance of a job by the employer.”[^26]
[28] This kind of ambiguity is present in Article 12.12. The Arbitrator notes that to take up the company’s assertion that “upon termination” means when the person’s job no longer exists adds a component that the plain meaning of the words does not include. Both the employer and the employee have the ability to terminate the employment relationship. It is only the employer who decides that the job is no longer required and eliminates the position. As put by the Arbitrator: “The unavailability has to be created by employer actions, in the company’s view.”[^27] This being so a person who decides to leave after three or more years of continuous service, whose job is filled by someone else when he or she can no longer perform it, and for whom no other job is available, would not be able to make the election. The Arbitrator found that this implies qualifying language in the wording of 12.12 which is not clear from the language itself”.[^28] To imply the qualification would cause Karl Malenfant to lose the ability to elect in the absence of any language clearly withdrawing his right to do so.
[29] In a similar vein, the Arbitrator notes that there are, within Article 12.00, provisions which clearly set out the limitation on the right that provision is dealing with. For example, in Article 12.10, it is explicitly stated that “the training does not apply to seasonal lay-offs.” Having referred to the clearly worded limitation, the Arbitrator took the “fact that they did not insert a specific restriction in Article 12.12 [as] an indication… that there was no mutual intention to limit the election in the manner suggested by the employer”[^29].
[30] The Arbitrator refers to the second paragraph of Article 12.12 and the statement that “an employee who chooses to receive the severance allowance will be terminated from his employment waiving his recall rights”. According to the employer, these words make it clear that the provision is limited to layoff situations. Only laid off employees have recall rights; a permanently disabled employee does not. Thus, unless you have recall rights to waive, you are not eligible to elect to receive a severance payment.
[31] The Arbitrator determined that the reference to “waiving recall rights” does nothing more than confirm that the ability to elect a severance payment may apply to those who have been laid off and who, by electing to take severance, would lose the right to be recalled. It does not foreclose those who are not working because they are permanently disabled from electing to take severance. As reasonably found by the Arbitrator, to interpret the reference to “waiving recall rights” as being a precondition to making the decision to receive severance would be to add a precondition that Article 12.12 does not contain. The words of Article 12.12 are clear about what is required to elect a severance payment – “An employee with three (3) or more years of continuous service for whom no job is available can, upon termination, elect to receive a severance allowance…”.
[32] The use of the word “will” makes clear that a choice is being made. Before the Arbitrator, it became “common ground that the employment relationship did not have to first be terminated by the employer in order for the employee to elect the severance pay set out in Article 12.12”.[^30]
[33] The Arbitrator reasonably concluded that the words “upon termination” refer to the end of the employment relationship. This being the case it follows that, as a person with more than three years of continuous service, Karl Malenfant could, if no job was available for him, elect to take severance understanding that his employment relationship would end, that is to say he would be terminated. Article 12.12 would apply. The question that remained was whether a job was available. This was this issue reviewed and considered in the Final Decision.
THE FINAL DECISION
[34] The Arbitrator found that there was no job available. The end result being that it was open to Karl Malenfant to elect to take severance. The grievance was allowed. The company submitted that this too was not reasonable and, quite apart from the applicability of the words “upon termination” to the circumstances of Karl Malenfant, the Final Decision should be set aside and the Award quashed.
[35] I pause to observe there is a common perspective to the approach taken by the employer. As seen by the company, the right of an employee to severance is entirely within the employer’s control. It decides whether a particular job is to be discontinued and, accordingly “terminated”. The same is true with respect to the question of whether a job is available to the employee. It submitted:
The words of a contract are to be taken in that their plain and ordinary meaning, unless the context or clear evidence establishes the contrary. The plain and ordinary words “no job is available”, in Article 12.12, do not contemplate the situation where an employee is unable to perform the jobs available because of disability. The provision does not say it is available to employees who are unable to perform their jobs. Rather, it is triggered by the action of the employer when it makes the job unavailable, rather than because of disability of the employee.[^31]
[Emphasis added]
[36] The Arbitrator accepted the approach (look for the plain and ordinary meaning):
As noted in my interim decision, the rules of interpretation include that the words of a contract are to be taken in their plain and ordinary meaning, unless the context or evidence establishes the contrary. There is nothing in the context of this case that establishes a special meaning for the wording “for whom a job is available”, and neither party suggested there was.[^32]
[37] But she rejected the employer’s submission that whether a job was available required the company to decide that a particular job was unavailable. She found that the “ordinary meaning” of the word “available” suggests work which has been offered to the employee that the employee is capable of performing. In coming to this determination, she placed reliance on a dictionary definition:
When looking for the ordinary meaning of the word “available”, the dictionary definition of “available”, as something present and ready for immediate use, is a good place to start.
And concluded:
It is clear to me from all the evidence that there was no job with the employer present and ready for Mr. Malenfant in late 2017 or for the significant period of time leading up to it, when the WSIB was actively pursuing a return to work for the grievor with the employer in the first instance, or failing that, in the wider market.[^33]
[38] The important basic reality for this decision is that unless the employer, who controls the workforce, offers a job, it is not, in any realistic sense, available to an employee.
[39] This conclusion is underscored, in this case, by the understanding that the WSIB had concluded that Karl Malenfant had achieved “maximum medical recovery”[^34] and that he would only be capable of “sedentary-light work”.[^35] The Arbitrator accepted that “there was no work available either in the plant or the office that the worker could do”.[^36] The company agreed that its Superintendent of Human Resources admitted that he never told Karl Malenfant when he asked for his severance pay that they could offer him another job (such as in the watchmen’s office) if they could “figure out the accommodation”. Thus, the Arbitrator reasonably concluded that on the facts of the case before her, that the employer could not argue that there was work available for Karl Malenfant, when it had never made him aware that it had a job it thought he could perform that it was prepared to offer him.
[40] The issue of what work is available to disabled workers arises sometimes in the context of appeals to the Workplace Safety and Insurance Appeals Tribunal [WSIAT], as well as in labour arbitrations. The approach to this issue which I have taken, to the effect that a job has to be offered by the employer in order to be found to be available, is consistent with decisions of the WSIAT such as Decision No.75/88, 1988 2554 (ON WSIAT), 1988 2554 (ON WSIAT)[^37] and Decision No.496/90, 1991 4809 (ON WSIAT)[^38] in which the panels found that, in order to say that a job is available, it must have been offered to the worker. To similar effect, in labour arbitration jurisprudence, are decisions such as Wire Rope Industries Ltd. v. U.S.W.A., Local 3910, 1982 5086 (BC LA), 1982 CarswellBC 2620, [1982] B.C.C.A.A.A. No. 317, 4 L.A.C. (3d) 323 (Chertkow) and Re Canadian General Electric Co., Ltd. and U.E.W., Local 507 (1954), 5 L.A.C. 1674 (Lane)[^39], which support the idea that the employer has to make work available in order for it to be considered available to a worker. Both cases, albeit in different circumstances, find that where work may be seen, in the abstract sense, to be "available", it was not available to a specific employee if management chose not to make it available.[^40]
[41] All of this being so, the Arbitrator reasonably conclude that Karl Malenfant met all of the qualifications necessary to allow him to elect to take severance. He had more than three years of continuous service, no job was available and he would, as a result of making the election, be terminated.
THE IMPACT OF THE RESULT
[42] The company submitted that, taken together, the Interim Decision and the Final Decision created a result that was, on its face, absurd. This was taken as a further demonstration that both decisions were unreasonable and should be quashed. As perceived by the company, the Interim Decision was “based only on the interpretation of the language in the collective agreement. The application of that interpretation was left to the Final Award.”[^41] The proposition was that the interpretation was taken in a factual vacuum and ignored the practical impact. The company had submitted and on this judicial review repeats that, given the interpretation and its application it would be open to an employee with a temporary disability to elect to take severance.
[43] It is not that, in the Interim Decision, the Arbitrator failed to consider this proposition:
In reply, union counsel made clear that the union has never argued that a person on temporary sick leave could elect to receive severance pay. Counsel sees it as only a possible theoretical position, because the employer would respond to a request by such a person by pointing out available work. Counsel suggests that there may be a dispute between the parties about the availability of a job for the grievor, but that there is not a dispute about whether anyone on sick leave, no matter how temporary, can automatically elect severance pay.[^42]
[44] The Arbitrator returned to the concern in the Final Decision:
In this regard, there are two points from the employer’s argument in the first phase of this case which are also relevant to this final phase. The first is that the employer was concerned that a person with a disability who could not do a job one day, but might completely recover and be able to do it in the future, could unfairly claim entitlement to severance pay. The union made clear that it was not claiming that a temporarily disabled worker could claim severance pay in such a circumstance. Moreover, the medical evidence is clear that the grievor reached maximum medical recovery some years ago, and that the restrictions to his left wrist are permanent. Thus, whatever the notional danger that a worker would decide to give up his job during a temporary disability in order to claim severance pay, those are not the facts of this case. In any event, if the employer proactively offers modified work to a disabled employee at the relevant time, it can manage the situation to substantially reduce or eliminate the risk of such a claim being made.[^43]
[45] The company asked the Arbitrator, and asks the Court, to consider facts that were not before it and were not before us. It requests that we speculate as to the difficulties it perceives might present themselves in some different and future case. It wants done what it submitted was the error in the Interim Decision, namely, that the interpretation of the collective agreement was made in the absence of the facts. Now it seeks to have us set aside the decision of an Arbitrator, which was based the plain and ordinary meaning of the clause before her, on the basis of facts that are speculative and without background or context and are, by their nature, incomplete.
[46] As the paragraph quoted above demonstrates, in the absence of facts supporting a claim for severance based on a temporary disability, the Arbitrator refused to speculate but went so far as to point out that there could well be ways in which such a situation could be managed. In the circumstances the determination of the Arbitrator was reasonable and cannot form a foundation for setting aside either of the two decisions being reviewed.
CONCLUSION
[47] The Application is dismissed.
[48] Both the Interim Decision and the Final Decision satisfy the reasonableness standard. The decisions made are well within the range of possible, acceptable outcomes. The reasons given are internally coherent with a rational chain of analysis which is readily apparent. The decisions made are justified by the reasons provided.
COSTS
[49] As agreed to by the parties, costs payable to the Respondent union and Karl Malenfant as the successful parties in the amount of $7,500.
Lederer, J.
I agree _______________________________
Sachs, J.
I agree _______________________________
Mew, J.
Released: March 31, 2021
CITATION: Ryam Lumber v. United Steelworkers, Local 1-2010, 2021 ONSC 1862
DIVISIONAL COURT FILE NO.: DC 354/20
DATE: 20210331
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sachs, Lederer, Mew JJ.
BETWEEN:
RYAM LUMBER [formerly Tembec Enterprises Inc. – Hearst Sawmill]
Applicant
– and –
UNITED STEELWORKERS, LOCAL 1-2010, KARL MALENFANT and KATHLEEN O’NEILL
Respondents
REASONS FOR JUDGMENT
Released: March 31, 2021
[^1]: Interim Award of Arbitrator Kathleen G. O’Neil, March 18, 2019 at p. 4 [^2]: Ibid at p.10 [^3]: Ibid at p. 3 [^4]: Ibid at pp. 9-10 [^5]: Ibid at pp. 12-13 [^6]: Ibid at p. 13 [^7]: Ibid at pp. 13-14 [^8]: Award of Arbitrator Kathleen G. O’Neil, May 21, 2020 at p. 10 [^9]: Ibid at p. 10 [^10]: Ibid at p.12 [^11]: Ibid at p. 12 [^12]: Ibid at p. 15 [^13]: Ibid at p. 16 [^14]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 2019 S.C.C. 65 at para. 10 and 25 [^15]: Ibid at para. 13 [^16]: Ibid at para. 13 [^17]: Ibid at para. 81 [^18]: Ibid at para. 85 [^19]: Ibid at para. 86 [^20]: Interim Award of Arbitrator Kathleen G. O’Neil, March 18, 2019 at p. 3 relying on Rizzo & Rizzo Shoes Ltd. (Re) [1998] 1 S.C.R. 27, 1998 837 (S.C.C.) at para. 26 [^21]: Ibid at pp. 2 and 3 [^22]: Ibid at p. 2 [^23]: Ibid at p. 10 [^24]: Ibid at p. 13 [^25]: Ibid at p. 13 [^26]: Ibid at p. 13 [^27]: Ibid at p. 10 [^28]: Ibid at p. 12 [^29]: Ibid at p. 12 [^30]: Ibid at p. 9 [^31]: Factum of the Applicant at para. 36 At this paragraph the Factum footnotes Brock University v. Brock University Faculty Association 2014 24449 (ON LA). No specific paragraph is referenced. The case does not deal with severance or disability. An employee of the University was the subject of a complaint under the Human Rights Code. She expected the University to provide (pay for) legal representation. The University refused. There was a grievance. The case deals, in large part, with the interpretation of the applicable collective agreement and the insurance policy which was said to be in furtherance of satisfying obligations undertaken within the collective agreement. I assume the case is cited for the proposition that collective agreements are to be interpreted beginning with the “plain and ordinary meaning of the words” (see the 2nd para. under the heading “The Decision”). [^32]: Award of Arbitrator Kathleen G. O’Neil, May 21, 2020 at p. 12 [^33]: Ibid at p. 12 [^34]: Ibid at pp. 2, 3 and 14 [^35]: Ibid at pp. 2 and 7 [^36]: Ibid at p. 3 [^37]: It is fair to say, as Counsel for the company did, that the fact situation was different. The case concerns whether an injured worker could continue to be entitled to compensation benefits. This depended on whether suitable work was available. If it was and the employee did not avail herself of it, she would not be so entitled. In considering the question the panel of the Workplace Safety and Insurance Appeals Tribunal observed: The employer further claims that the work was available had the worker asked for it. On this point, the Panel is of the view that, in order to say that a job is available, it must be shown that it was offered to the worker. (Decision No. 75/88, 1988 2554 (ON WSIAT) at 10th para. below the heading “After March 29, 1985) [^38]: Again, the fact situation was different. The panel of the Workplace Safety and Insurance Appeals Tribunal accepted that the job suggested was not suitable within the meaning ascribed by the applicable legislation and went on: In this case we are satisfied that the job which was available to the worker was not suitable and no other job was actually offered to the worker. Thus, the evidence did not establish that a suitable job was, in fact, available to the worker. The worker therefore did not "fail to accept or [to be] available for" available suitable employment. (Decision No. 496/90, 1991 4809 (ON WSIAT) at the para. immediately below the heading “Other Available Suitable Employment”) [^39]: In these two cases the employers did not make the employees’ regular work available. There were other more pressing needs. In Wire Rope an employee was transferred to assist in production. In Canadian General Electric there were two grievances: one by an employee directed to take part in an inventory and the other by an employee laid off while the inventory was being taken. The employees objected. Wire Rope relying on Re: Canadian General Electric notes: The finding in the Canadian General Electric case clearly supports the position of the company in this case. While in the abstract sense, the Canadian General Electric case, there was work "available", it was not available work for that employee because management chose not to make it available, and, therefore, the employer's right in that case for rate retention was rejected. In the case before us there is no issue of rate retention but the same principle is applicable. The company chose not to make available to the grievor his regular work of reel storesman on the day in question because it had, in the circumstances of the absences on that day, a higher priority to complete certain production work which necessitated the grievor going into the labour pool. In our view art. 5.13 must be interpreted in the sense that it is the employer that makes the work available and if he chooses not to do so for bona fide business reasons, then the employee cannot resist a temporary transfer to work which he is qualified to do. (Wire Rope Industries Ltd. v. U.S.W.A., Local 3910, 1982 5086 (BC LA), 1982 CarswellBC 2620, [1982] B.C.C.A.A.A. No. 317, 4 L.A.C. (3d) 323 (Chertkow) at paras. 23 and 24) These two cases were relied on by the company to demonstrate circumstances where the availability of work was in the hands of the employer and were misapplied by the Arbitrator. On the other hand, the union says they confirm that a job, to be “available”, must be offered. The comments made by the Arbitrator, following her identifying these cases, indicates she understood the different circumstances. [^40]: Award of Arbitrator Kathleen G. O’Neil, May 21, 2020 at p. 16 [^41]: Factum of the Applicant at para. 38 [^42]: Interim Award of Arbitrator Kathleen G. O’Neil, March 18, 2019 at p. 7 and see also p. 9 [^43]: Award of Arbitrator Kathleen G. O’Neil, May 21, 2020 at p. 14. I point out that in the Factum of the Applicant the last two sentences of this quotation (beginning “Thus, whatever the notional danger…”), are quoted and referenced as being found in the Interim Decision rather than the Final Decision. This error is important. Contrary to the submission of the Applicant, this statement coming, as part of the Final Decision, places it in the decision which applied the interpretation of the collective agreement to the facts of the case and not as part of the Interim Decision with its supposed factual vacuum.