Court File and Parties
CITATION: Canada Post Corporation v. Canadian Union of Postal Workers, 2021 ONSC 7278
DIVISIONAL COURT FILE NO.: 136/21
DATE: 20211104
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Lederer and Doyle JJ.
BETWEEN:
CANADA POST CORPORATION Applicant
– and –
CANADIAN UNION OF POSTAL WORKERS and ARBITRATOR F.R. VON VEH Respondents
Christopher D. Pigott and Gillian Round, for the Applicant Christopher Perri, for the Respondent Canadian Union of Postal Workers
HEARD at Toronto (by videoconference): October 19, 2021
Reasons for Judgment
Swinton J.:
Overview
[1] Canada Post Corporation brings this application for judicial review of an arbitration award dated September 1, 2020, along with a supplementary award dated September 16, 2020, and a direction dated January 16, 2021, issued by Arbitrator F.R. von Veh. It argues that the Arbitrator’s award was unreasonable, because he failed to follow an earlier arbitration award that was binding upon him.
[2] For the reasons that follow, I would dismiss the application, as the award was reasonable.
Factual Background
The issue before the Arbitrator
[3] The grievances before the Arbitrator concerned how certain employee absences were to be counted for the purposes of determining the appropriate complement of relief letter carriers at postal facilities in Grimsby and Burlington, Ontario in 2018. The specific dispute was whether the absence of a Relief Letter Carrier (“RLC”) who was replacing a Letter Carrier (“LC”) absent for five working days or more, pursuant to article 17.06 of the collective agreement, should be counted as part of the Bar Chart Review Process. Specifically, the question was whether the RLC’s absence constitutes an “absence” within the meaning of article 17.06.
The arbitration processes under the collective agreement
[4] These grievances were determined in the “regular” arbitration procedure established in the collective agreement between Canada Post and the respondent union, the Canadian Union of Postal Workers (“CUPW”).
[5] The provisions relating to the regular arbitration procedure are found in articles 9.50 through 9.71 of the collective agreement. They provide for an expedited and informal form of arbitration process (article 9.50). Grievances are referred to one of a roster of arbitrators in batches; the use of witnesses is minimized; and the parties refrain from using lawyers. The arbitrator is encouraged to deliver an oral decision by giving a brief resumé of the reasons or to deliver brief reasons subsequently as soon as possible (article 9.68). These awards have no precedential value and are not to be referred to in subsequent arbitrations (article 9.70).
[6] In contrast to the regular procedure is the “formal” procedure under the collective agreement, set out in articles 9.72 through 9.80. It deals with more serious matters, and it is conducted in a more formal manner (article 9.49). Most importantly, for purposes of the present case, an award arising from the formal procedure has a binding effect in other arbitrations. Article 9.103 specifically states:
The final decision rendered by an arbitrator binds the Corporation, the Union and the employees in all cases involving identical and/or substantially identical circumstances.
The Bar Chart Review Process
[7] Canada Post employs both LCs and RLCs. LCs deliver mail on predetermined routes. They deliver mail to the same walk each workday. RLCs perform largely the same tasks as LCs, but they do not have dedicated walks. Instead, they cover for LCs who are absent from work.
[8] Article 52 as a whole is entitled “Selection of Assignments by Relief Letter Carriers.” It deals with the selection of assignments (article 52.01), determination of assignments (article 52.02), and what happens where no work is available (article 52.03). When an RLC bids to replace an LC who is absent pursuant to article 17.06 (that is, an absence of five or more working days), the RLC must remain in the position he or she is filling for the duration of the absence of the person being replaced (article 52.01(c)).
[9] Of importance in the present case is article 52.04, “Relief Letter Carrier Complement.” Canada Post tracks LC absences for the purpose of determining the size of its RLC staff complement at a given postal facility. Article 52.04(b) provides that the number of RLC positions at each facility, over and above the minimum relief component specified in the collective agreement, is determined through the “bar chart review process”. Absences are recorded in bar charts in order to indicate the relief complement required for coverage (article 52.04(b)(i)). There is no definition of “absence” in the collective agreement.
[10] The bar chart review process is explained in an earlier arbitration award of Arbitrator Kenneth P. Swan, dated November 20, 1995 (the “Swan award”) at p. 8:
Bar Charts are prepared monthly, and show on a daily basis the number of absences. As the charts have evolved, the absences are colour-coded as to whether the absence fits within five named categories of leave, or into an “other” category. The chart is set up in cells, each column representing a day of the month, and each row indicating the loss of one person/day. A line is drawn horizontally across the chart to indicate the number of relief staff available at the particular office concerned, also measured in person/days, and absences above the line indicate absences which could not be covered by the relief staff complement, for whatever reason. Therefore, the Bar Chart provides an indication of “requirements greater than the minimum criteria” for the purposes of clause 52.04.
[11] Each year, the parties meet to review the annual bar chart data for a facility and make adjustments to the RLC complement for the following calendar year based on the number of absences that have occurred. If the process demonstrates that an additional RLC, over and above those in the minimum relief component specified, “would have been required” more than 65% of the time at the facility to cover the absences of LCs over the preceding 12 months, then Canada Post is required to establish an additional RLC position at the facility (article 52.04(a)).
[12] As the Arbitrator observed in his reasons, article 17.06 of the collective agreement is central to the present dispute. Article 17.06, “Coverage of Known Periods of Absence of Full-Time Employees”, sets out how Canada Post must cover known periods of LC absence of five or more working days. The process outlined in this article permits RLCs to bid to cover the long-term absences based on seniority.
[13] The dispute before the Arbitrator was the tracking of periods of absences of five days or more when RLCs, who were replacing LCs, were themselves on an absence of five working days or more. As the Arbitrator described it in an example, Susan, an RLC, replaces John, an LC, pursuant to article 17.06. She is then absent for five days or more. Is her absence to be included when determining the RLC complement?
The Arbitrator’s Award
[14] In addressing the two grievances before him, the Arbitrator was bound to follow the earlier Swan award, because it had been issued through the formal arbitration procedure. Both parties agree that the Swan award is the leading and binding authority on the bar chart review process.
[15] The Arbitrator dealt first with the Burlington grievance. He agreed that the Swan award was binding, and he quoted significant parts of it in his reasons. Ultimately, he agreed with CUPW’s position that the absence of an employee like Susan, in the example above, should be included when determining the RLC complement. He issued the following declaration:
In relation to Article 17.06, all absences are to be recorded and included in the bar chart trend calculations, including absences when a relief letter carrier performs back fill duties.
He also concluded that there was a shortage of three RLCs in the staffing complement in Burlington in 2018.
The Standard of Review
[16] Both parties agree that the standard of review of the Arbitrator’s award is reasonableness. I agree. The Arbitrator here was engaged in an exercise of collective agreement interpretation.
Analysis
[17] The issue before the Arbitrator, as he clearly stated, was whether RLC absences should be included, under article 52.04, in determining the RLC complement, when an RLC was filling an LC’s absence of five days or more pursuant to article 17.06 and then the RLC was absent for five days or more.
[18] Canada Post argues that the Swan award held that absences of RLCs were not to be counted. It submits that the Arbitrator’s decision was unreasonable, because he purported to follow the Swan award and then applied it unreasonably. CUPW submits that the interpretation of the Swan award is reasonable, as is the current award.
[19] In the earlier proceeding before Arbitrator Swan, Canada Post had conceded that all absences are to be recorded on the bar charts, but in calculating the need for additional RLCs, it had argued that the only absences that should be counted were ones where RLCs were “required”, or necessary, to cover absences - that is, where the absence could not be covered through other means under the collective agreement, such as overtime (Swan award, p. 18). Because absences covered under article 17.06 could be covered by means other than relief staff, Canada Post argued that they should be excluded when relief staff were not used.
[20] The reliance on the word “required” arises from the wording of article 52.04. Arbitrator Swan rejected Canada Post’s argument, stating at pp. 28-29 of the award:
In the result, although I have tried to follow all of the possible routes through clauses 17.04 and 17.06, I am of the view that there can never be a time when there is an absence which must be covered under one or the other of those provisions, when it cannot be said that a relief staff person was not “required”. It is only when the total number of absences of all lengths and for all reasons is less than the regular relief staff that unassigned relief staff members can be said not to be required, and such a circumstance fits under the minimum relief staff requirements, rather than under the provisions of clause 52.04 relating to the use of the Bar Charts.
I am therefore satisfied that the Corporation’s argument, while having a certain superficial attraction, ultimately does not give the correct construction to the combined operation of clauses 17.04, 17.06 and 52.04. In my view, there is no exception to be made in constructing the Bar Charts, or in assessing whether additional relief staff is required, for absences which may be covered under clause 17.06. (emphasis added)
[21] Arbitrator Swan then turned to other provisions of the collective agreement which Canada Post argued dealt with absences that were not to be counted for purposes of article 52.04 – for example, educational leave. He ruled on the treatment of each of these absences, characterized as “exceptions”.
[22] The important discussion in the Swan award for purposes of the present proceeding dealt with absences covered by an unassigned LC. Canada Post argued (at pp. 34-35 of the Swan award):
Finally, the Corporation argues that the only absences which should be counted for the purposes of the Bar Chart calculations are absences which have not been covered by an unassigned Letter Carrier, and which occur in the regular Letter Carrier complement itself, rather than among the relief staff or inside workers such as night routers, unless they are treated as priority assignments to which relief staff may be assigned.
I do not agree that an absence does not count simply because it is covered by an unassigned Letter Carrier. The presence of an unassigned Letter Carrier may reduce the Corporation’s need to use employees beyond the relief staff complement and to avoid the use of overtime, but it should not affect the overall question of whether there are sufficient relief staff at the installation. It may be that, if the Bar Charts show the need for additional relief staff, that the unassigned Letter Carrier should be replaced by an additional relief employee instead. But an absence is no less an absence simply because there is an extra employee around to cover it.
[23] Arbitrator Swan then went on to say the following, in a passage that Canada Post says was totally and unreasonably ignored by the Arbitrator in the current proceeding (at p. 35):
On the other hand, I agree with the Corporation’s argument that absences among the relief staff do not count. The ratios set out in clause 52.04 are clearly based on a fraction of the regular Letter Carrier staff, and it is a reasonable inference that it is intended that the additional relief staff generated under that clause should also depend on absences within the Letter Carrier complement only. … (emphasis added)
[24] It is true that Arbitrator von Veh did not make express reference to this paragraph of the Swan award. Although he quoted an earlier paragraph (which I have quoted above in paragraph 22), he did not quote the succeeding paragraph on which Canada Post relies respecting absences of relief staff. However, I do not agree with the submission of Canada Post that this renders the Arbitrator’s decision unreasonable.
[25] When determining whether a decision is unreasonable, the Court should consider the reasons as a whole and within the institutional context (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 91 and 94). In the present case, it is important to bear in mind that this award was made in the regular arbitration process, a point I will return to at the end of my reasons.
[26] In my view, the Arbitrator’s decision is consistent with both the Swan award and the Corporation’s Delivery Services Bar Chart Data Collection Manual, which was a document before him.
[27] The Arbitrator heard from one witness, an employee of Canada Post, who focused on the Manual and testified that the definition of “absence” is correctly addressed in the following paragraphs, which he quoted in his award at p. 4:
An absence is any time a Group 2 indeterminate employee is not available to complete all or a portion of their assignment coverage, except for those conditions resulting from the application of the Article 17.06/07 – Coverage of absences of five days or greater.
When this article is applied, it is only the initial absence that is reflected on the Bar Charts and not the resulting absences that occur due to leaving the route to act as a replacement. However, if an absence occurs to someone involved in the backfilling of the original 17.06/07 coverage of five days or greater absence, that absence would also be shown on the Bar Charts and counted if applicable. (emphasis added)
[28] The Arbitrator then considered and applied the Swan award. That award concluded that all absences must be recorded on the Bar Charts, although certain absences were treated as exceptions, and not counted for purposes of determining the number of RLCs required.
[29] The Swan award did not explicitly address whether the absence of an RLC, who has bid to fill an LC vacancy pursuant to article 17.06 and then is absent for five or more days, should be taken into account in determining the RLC complement. However, it is consistent with what Arbitrator Swan said at pp. 28-29 of his award, quoted above, that such an absence should be included, as additional relief staff would be “required” to fill the LC position. That is what Arbitrator von Veh concluded. Implicitly, he concluded that none of the exceptions applied.
[30] With respect to the passage on p. 35 of the Swan award relied on by Canada Post, it appears to deal with the counting of absences within the RLC complement itself. While it would have been preferable if Arbitrator von Veh had discussed this paragraph, his failure to do so does not render the decision unreasonable. The Swan award, in that passage, was not addressing the fact situation put before Arbitrator von Veh – whether the absence of the backfilling RLC for five days or more should be counted as an absence for purposes of the bar charts. Arbitrator Swan was addressing absences of individuals in the relief letter carrier group, not those RLCs who were backfilling LC positions.
[31] Arbitrator von Veh reasonably concluded that the absence of an RLC temporarily filling in an LC absence under article 17.06 should be included in the bar charts for purposes of determining the RLC complement. Such an absence creates a requirement for further relief staff to replace LCs, as provided in article 52.04. Consistent with the passages quoted from pp. 28-29 of the Swan award, such absences should be counted and included in the calculation, as relief staff is “required” to fill an LC position.
[32] The present award makes labour relations sense. It is consistent with the Corporation Manual quoted and, more importantly, the Swan award.
[33] Canada Post argues that the interpretation is inconsistent with the 1996 Poirier Directive, a corporate document that interprets the Swan award. The Directive states that the Swan award excluded certain absences from counting when determining the relief staff needed. Among those was “absences from relief staff.” In my view, the Poirier Directive fails to consider the exact situation before Arbitrator von Veh – namely, the absence of an RLC temporarily backfilling an LC position. Consistent with the Swan award, particularly pp. 28-29, such absences should be counted in the bar chart review process.
[34] While the Arbitrator’s reasons are not lengthy, they must be assessed in context. They are consistent with the requirements of the regular arbitration procedure, where the parties have expressed a desire for informality and expedition. There is a line of analysis, when read with the Swan award and the other documents before the Arbitrator, that is logical and coherent, and the outcome is reasonable. I see no basis for judicial intervention.
Conclusion
[35] Accordingly, the application for judicial review is dismissed. Costs to CUPW are fixed at the agreed amount of $7,500.00.
Swinton J.
I agree _______________________________ Lederer J.
I agree _______________________________ Doyle J.
Date of Release: November 4, 2021
CITATION: Canada Post Corporation v. Canadian Union of Postal Workers, 2021 ONSC 7278
DIVISIONAL COURT FILE NO.: 136/21
DATE: 20211104
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, LEDERER AND DOYLE JJ.
BETWEEN:
CANADA POST CORPORATION Applicant
– and –
CANADIAN UNION OF POSTAL WORKERS and ARBITRATOR F.R. VON VEH Respondents
REASONS FOR JUDGMENT
Swinton J.
Date of Release: November 4, 2021