CITATION: Gate Gourmet Canada Inc. v. Milk and Bread Drivers, 2021 ONSC 4202
DIVISIONAL COURT FILE NO.: 499/19
DATE: 2021/06/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and Kurke JJ.
BETWEEN:
GATE GOURMET CANADA INC.
Applicant
– and –
MILK AND BREAD DRIVERS, DAIRY EMPLOYEES, CATERERS AND ALLIED EMPLOYEES, LOCAL UNION NO. 647 and MORTON G. MITCHNICK
Respondents
Christopher D. Pigott, Bonny Mak and Justin P’ng, for the Applicant
Jorge Hurtado and Adam Veenendaal, for the Respondent, Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647
HEARD at Toronto (by videoconference): May 31, 2021
H. SACHS J.
Overview
[1] The Applicant (the “Employer”) seeks judicial review of the labour arbitration award by Arbitrator Morton G. Mitchnick (the “Arbitrator”) dated June 17, 2019 (the “Award”). In the Award, the Arbitrator found that the Employer had breached the collective agreement between the Employer and the Respondent Union. The breach occurred when the Employer sent dirty trolleys from their location at Pearson Airport in Toronto to be cleaned by employees at their Ottawa location. The Ottawa employees were covered by a completely different collective agreement.
[2] Central to the Award was the Arbitrator’s interpretation of Article 37.02 of the collective agreement between the parties. The Union submitted that Article 37.02 prohibited the Employer from sending work to employees in other geographic locations unless certain conditions were satisfied. One of these conditions required that no members of the bargaining unit at the Pearson location be deprived of overtime. The Employer argued that Article 37.02 was a “Supervisors Working Clause”, which prohibited certain classes of employees, such as supervisors, from performing work that was normally performed by the members of the bargaining unit. On this argument, Article 37.02 had no application to the facts giving rise to the grievances before the Arbitrator. The Arbitrator found in favour of the Union on this issue.
[3] The Arbitrator also found that the Employer had deprived the bargaining unit employees of overtime and thus the Employer’s actions under the collective agreement breached Article 37.02. However, the Arbitrator declined to award the Union any damages for this breach.
[4] On this application, the Employer argues that the Award is unreasonable in two respects: the Arbitrator’s finding that Article 37.02 applied to prohibit geographic transfers of work and the Arbitrator’s finding that the transfer deprived members of the Union of overtime work.
[5] For the reasons that follow, I would dismiss the application.
The Arbitrator’s Decision on the Scope of Article 37.02
[6] While the geographic scope of Article 37.02 appears to have been the focus of the grievances, it was not the focus of the Employer’s oral submissions. Those submissions focused almost entirely on what the Employer alleged was the Arbitrator’s failure to make the necessary finding on the overtime issue. Accordingly, the Employer relied on its factum for its submissions on the scope of Article 37.02.
[7] The Employer submitted that the Arbitrator’s interpretation of the scope of Article 37.02, “was based on an irrational chain of analysis, which departed from substantial precedential authority without any reasonable justification.”
[8] Article 37.02 reads as follows:
37.02 Work of the Bargaining Unit
(a) Employees not covered by this Agreement shall not perform work normally performed by members of the bargaining unit while seniority bargaining unit Employees who are qualified to perform such work are laid off or working less than the standard work week, nor to deprive them of overtime which would normally be assigned to them, except:
(i) For the purpose of instruction or training, or
(ii) During emergency or training situations. For the purpose of this article emergency is defined as conditions or circumstances beyond the control of the company.
(b) The above does not apply to supervisors replacing clerks for breaks or lunches.
(c) Any grievance dealing with this issue shall immediately proceed to step 3 to be addressed by the General Manager. [Emphasis in original.]
[9] According to the Employer, the bolded portion of Article 37.02, subclause (c), was an amendment inserted after the last round of collective bargaining where the parties focused solely on supervisors working. Subclause (c), like the whole Article, was meant to address the issue that the Union had with management performing bargaining unit work. There is well-established authority that Supervisors Working Clauses only restrict an employer’s ability to assign work performed by bargaining unit employees to employees excluded from the bargaining unit who work at the same facility, such as supervisors.
[10] The Employer argued that there was an arbitral consensus on this issue, so the party wishing to take a different view bore the burden of proving a different interpretation on a balance of probabilities. In the Award, the Arbitrator unreasonably reversed this burden of proof.
[11] The Employer also submitted that if the Arbitrator was going to depart from the arbitral consensus on this issue, he had to provide a rational justification for doing so, which the Arbitrator failed to do.
[12] The Arbitrator began his analysis by stating that “the parties do not disagree that in each case the language of the collective agreement in question is the necessary focus.” He then acknowledged that the “‘preponderance’ of arbitral decisions is in favour of the position put forward by the company.” However, he found that there were decisions that went the other way, and, in each case, it was the language of the collective agreement that governed.
[13] The Arbitrator went through a detailed analysis of the cases on the issue and found that the “cases relied upon by the employer are readily distinguishable, either by their own express terms, or by the absence of any additional language that would point in a different direction than indicated in the ‘preponderance’ of the case law.” Next, the Arbitrator turned to the case law relied upon by the Union where arbitrators concluded that where the language of the clause on its face prohibits employees who are not part of the bargaining unit from performing work that is normally performed by the bargaining unit members, the employer must bargain a reservation in the clause (that is, make it clear when the clause does not apply).
[14] The Arbitrator further found that in the cases where the scope of the clause is limited to non-bargaining unit employees at the same location, the clauses are read in conjunction with the Scope of Recognition Clause. In the collective agreement at bar, the Scope of Recognition Clause contained the following wording:
In the event the facilities or part of the same are moved to a new location the collective agreement and members will follow.
[15] According to the Arbitrator, this clause, commonly referred to as a “runaway shop clause” was significant, not because it covered the situation he was dealing with, but because it was designed to provide the Union with full protection in the event the Employer changes its location to outside of Pearson. Therefore, according to the Arbitrator, “it is hardly a stretch to read the express words used in Article 37.02 as providing the Union with protection in the case of a tiny subset of the members’ work.” In other words, unlike in the cases relied upon by the Employer, the Scope of Recognition Clause in the collective agreement at bar provided Union members with protection in the event of a location change.
[16] On this basis, the Arbitrator was not persuaded that “Employees not covered by this Agreement” was limited in scope to supervisors of other employees at the Pearson location. This was a decision based on the express wording of the clause in question, which refers to all “Employees not covered by this agreement”. Further, the Arbitrator provided detailed reasons as to why he was departing from the preponderance of the arbitral case law. Fundamentally, he did so because of the clear wording of the clause he was being asked to interpret, taken in the context of the collective agreement as a whole, which contained another clause focused on protecting the Union’s rights in the event the Employer changed the location where bargaining unit work was carried out. There is nothing unreasonable about this analysis or the Arbitrator’s conclusion on this issue.
Was the Arbitrator’s Treatment of the Overtime Work Issue Unreasonable?
[17] The Employer argues that the Arbitrator’s treatment of the overtime work issue was unreasonable because he failed to make a finding that the Employer deprived any bargaining unit members of overtime work. As the Arbitrator recognized, unless this was established, Article 37.02 of the collective agreement did not prohibit the Employer’s actions. This is because, in this case, there were no employees who were laid off or working less than a standard work week that could have performed the work in question.
[18] I disagree with the Employer that the Arbitrator failed to make such a finding. While it is true that making this finding was not the major focus of his decision, this is because the issue of first impression that was before him had to do with the geographic scope of Article 37.02, the issue I have already dealt with above. Resolving the “scope” issue would guide the parties’ actions in the future. Making a factual determination as to whether, on the particular occasion in question, the Employer had deprived any members of the bargaining unit of overtime work would not.
[19] The Employer took us to its evidence before the Arbitrator to demonstrate the efforts it made to offer overtime work to its employees during the time period leading up to the events giving rise to the grievance. This evidence established that, once a month, the Employer posted a sheet allowing employees in every department to indicate their willingness to work overtime. The Employer also established that during the period at issue, particularly on weekends, more employees were calling in sick and less employees were signing up for overtime.
[20] However, the Arbitrator noted in his decision that “when a ‘backlog’ in Wares Wash reaches the proportions that it did in the period giving rise to the action in dispute here” there was evidence that the Employer had found other methods to use “its own staff on overtime to deal with severe backlogs when needed.” He heard testimony as to two of these methods. For the first method, management posts a special invitation to all employees to indicate their willingness to work overtime in the Wares Wash department. This was done in 2017. However, in the year in question, 2018, the witness who testified that the special invitation was sent could neither produce the invitation nor confirm that the invitation was posted before the Employer decided to send the trolleys to Ottawa. For the second method, the Arbitrator heard evidence from a former Chief Steward, the Union’s witness, who testified that the General Manager, the Employer’s witness, gave him permission to organize a special team to do a night of overtime and get rid of the backlog of dirty trolleys. According to the Chief Steward, the team was able to clear up the entire backlog. The Arbitrator noted that the General Manager disputed this evidence, but unlike the Chief Steward, the General Manager was not present when the team was clearing the backlog.
[21] Towards the end of his decision, after concluding his analysis regarding the scope of Article 37.02, the Arbitrator notes that the Employer argued that the Union had failed to provide proof that any specific employee had suffered a loss of overtime and that, in any event, the Employer had followed their “normal” procedure in soliciting overtime. Therefore, according to the Employer, Article 37.02 had no application. The Arbitrator’s response to these arguments is as follows:
Given that this clearly was the kind of work normally done by unit members, both on regular hours and on overtime, and the varying methods of soliciting that overtime, depending on the exigencies at the time, I would not want to be taken as accepting either of those arguments. [Emphasis added.]
[22] Thus, given the evidence that the Arbitrator had heard about the methods the Employer had used in the past to solicit overtime when the backlog of dirty trolleys reached unacceptable proportions, he was not prepared to find that no Union members had been deprived of overtime. Accordingly, the exception in Article 37.02 had not been made out.
[23] However, the Arbitrator went on to find that the Employer did not deprive the Pearson employees of opportunities for overtime to save money and that the Employer was not looking to undermine the integrity of the bargaining unit. Therefore, while there was “the potential awarding of damages here”, the amount of damages would be small and there would be difficulties in allocating those damages. The Arbitrator concluded that:
In the special circumstances of this case, therefore, I consider the more important point to be to provide the parties with an interpretation of Article 37.02 that will guide them in the future, and I am persuaded on the occasion of this “first time” breach to limit the remedial relief to that.
[24] These portions of the Arbitrator’s decision make it clear that the Arbitrator did make a finding that employees in the bargaining unit had been deprived of overtime, but that in the special circumstances of this case he would not award damages for the Employer’s breach of the collective agreement. The Arbitrator’s finding about whether the Employer deprived bargaining unit members of overtime is a factual finding that should not be overturned by a reviewing court except in exceptional circumstances: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 125. I do not find any reason to overturn that factual finding.
Conclusion
[25] For these reasons the application for judicial review is dismissed. Pursuant to the agreement of the parties, the Union, as the successful party, is entitled to its costs fixed in the amount of $10,000, all inclusive.
Sachs J.
I agree _______________________________
Backhouse J.
I agree _______________________________
Kurke J.
Released: June 10, 2021
CITATION: Gate Gourmet Canada Inc. v. Milk and Bread Drivers, 2021 ONSC 4202
DIVISIONAL COURT FILE NO.: 499/19
DATE: 2021/06/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and Kurke JJ
BETWEEN:
Gate Gourmet Canada Inc.
Applicant
– and –
Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647 and Morton G. Mitchnick
Respondents
REASONS FOR JUDGMENT
H. SACHS J.
Released: June 10, 2021```