CITATION: Toronto Transit Commission v. Amalgamated Transit Union, Local 113, 2022 ONSC 2766
DIVISIONAL COURT FILE NO.: 497/21
DATE: 20220511
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Backhouse and Mandhane JJ.
BETWEEN:
TORONTO TRANSIT COMMISSION
Applicant
– and –
THE AMALGAMATED TRANSIT UNION, LOCAL 113 and LORNE SLOTNICK MEDIATION AND ARBITRATION
Respondents
Frances Gallop and Anne Marie Heenan, for the Applicant
Joshua S. Phillips and Adriana Zichy, for the Respondent Amalgamated Transit Union, Local 113
HEARD at Toronto (by videoconference): April 27, 2022
Swinton J.:
Overview
[1] The Toronto Transit Commission (“TTC”) seeks judicial review of an arbitration award of Lorne Slotnick dated May 27, 2021, in which he reinstated a bus driver to employment in a non-driving position.
[2] The TTC argues that the decision is unreasonable and asks this Court to quash the decision and uphold the discharge of the grievor. For the reasons that follow, I would dismiss the application for judicial review, as the TTC has not demonstrated that the decision is unreasonable.
Factual Background
[3] The grievor was hired by the TTC as a bus operator in March 2008. His employment was terminated for cause on December 24, 2014 because of an accident on December 19, 2014 that caused the death of a 14-year-old girl who had been a passenger on the grievor’s bus. She had exited the bus and was struck and killed when the grievor made a right turn on a red light onto Finch Avenue, just as the passenger stepped off the sidewalk to cross Neilson Road on a green light. The grievor was not aware at the time that he had hit the passenger, nor were the other passengers on the bus, and he continued on his route.
[4] The grievor was ultimately convicted of careless driving under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) on January 21, 2020. The trial judge accepted that the grievor had not seen the passenger, but he found that the grievor did not exercise due care and attention or reasonable consideration for the passenger as a user of the roadway. He sentenced the grievor to a fine of $2,000 and 12 months of probation.
[5] The parties then proceeded to arbitration. At the hearing, the parties agreed that the arbitrator was bound by the Court’s factual findings. However, the Union argued that the penalty of dismissal was excessive, and sought the grievor’s reinstatement in employment, possibly to a non-driving position.
[6] Subsection 48(17) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (“LRA”) grants a broad discretion to an arbitrator to substitute a penalty that is “just and reasonable” in the circumstances. It states:
Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances.
[7] In the present case, the arbitrator gave detailed reasons explaining why he substituted a penalty of reinstatement to a non-driving position, without back pay.
The Issues on this Application for Judicial Review
[8] Both parties agree that the standard of review in this case is reasonableness.
[9] The TTC argues that the decision of the arbitrator is unreasonable because:
• He erred by failing to apply the three-part test appropriately applied when an employee has been discharged for cause, and he instead inappropriately focused on whether there had been an irreparable breach of the employment relationship.
• He made an unreasonable finding that the employment relationship was not irretrievably damaged, given the grievor’s disciplinary record.
• He ignored or misapprehended the evidence of remorse.
• He failed to consider the grievor’s failure to stop the bus and the duty of care to a passenger.
• He failed to consider the lack of an apology to the TTC.
Analysis
The arbitrator applied appropriate considerations
[10] The TTC’s first argument rests on the assumption that the arbitrator used an inappropriate analysis in deciding whether to substitute a penalty for discharge. TTC counsel argues that the arbitrator should have worked through the three-step analysis found in a 1976 decision of the British Columbia Labour Relations Board, Wm. Scott & Co. (Re), [1976] B.C.L.R.B. No. 98.
[11] Scott is a decision in which the BC Board, in its review function under provincial legislation, set out guidance and a framework for analysis for British Columbia arbitrators in discipline cases. It is not directly binding on an arbitrator in Ontario. However, the analysis set out at paras. 13-14 of Scott is fully consistent with what the arbitrator did in the present case. In Scott, the BC Board stated (at para. 13):
… arbitrators should pose three distinct questions in the typical discharge grievance. First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer’s decision to dismiss the employee an excessive response in all of the circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?
[12] In para. 14, the Board set out a number of factors, drawn from arbitral jurisprudence, that are relevant in determining whether a penalty is excessive:
• The seriousness of the offence which precipitated the termination
• Whether the conduct was repetitive or premeditated, or whether it was a momentary aberration
• The employee’s seniority, ability as a worker and past disciplinary record
• Whether there have been attempts at corrective discipline
• Whether there has been discriminatory treatment of the grievor as compared to others who have committed similar misconduct.
[13] In the present case, there was no need for a detailed discussion of the first step in Scott. The central issue for the arbitrator was not whether the TTC had grounds for disciplinary action, as the conviction for careless driving was binding on the arbitrator. Clearly, the TTC had cause for discipline, given the conviction for careless driving, the grave consequences of the grievor’s inattention to passenger safety on the evening of the fatality, and the TTC’s concern and responsibility for the safety of the public. The arbitrator noted that he was bound by the grievor’s careless driving conviction, and he observed that the issue before him was to assess the employment consequences of that carelessness.
[14] Thus, the key issue for the arbitrator was what Scott describes as step 2 – the determination of whether the penalty was excessive in the circumstances. The TTC submits that the arbitrator failed to consider the factors set out in Scott, and improperly focussed on whether the employment relationship was irretrievable.
[15] It is true that the arbitrator did not work through these factors one by one, but he was not required to do so in a formalistic manner. His reasons demonstrate that he did weigh the kinds of considerations set out in Scott – for example, the gravity of the misconduct and whether it was repeated or a “momentary lapse”, as both he and the trial judge concluded.
[16] The TTC argues that the arbitrator erred in finding there was a momentary lapse, given the grievor’s disciplinary record. I disagree. The arbitrator, at the point he made this comment in his reasons, was determining the gravity of the misconduct that had given rise to the termination – that is, what happened on December 14, 2014. His characterization of a momentary lapse reflected the finding of the trial judge and was supported by the evidence.
[17] Moreover, the arbitrator did take the grievor’s disciplinary record into account. That record included a warning letter after a preventable collision less than three months prior to the 2014 accident, as well as a “last chance agreement” signed by the grievor in 2011 after he was dismissed and then reinstated for using a Bluetooth device while driving a TTC vehicle. The arbitrator noted that the last chance agreement was not mentioned in the grievor’s termination letter, and it limited his jurisdiction to vary the penalty only when the grievor violated TTC policy regarding use of electronic devices. Nevertheless, he concluded that it should be taken into account in determining the appropriate penalty, as it concerned a driving safety issue.
[18] The TTC also argued that the grievor had failed to apologize to it and failed to express remorse. The arbitrator held that the grievor’s silence during the employer’s investigation was not a basis for discipline, nor did it foreclose the possibility of varying the penalty: the grievor had the right to contest the pending criminal charges and should not be faulted for following the advice of legal counsel when he remained silent during the investigation by the TTC.
[19] With respect to remorse, the arbitrator found that the grievor had expressed remorse during the criminal proceeding. That was a finding he was entitled to make on the evidence before him.
[20] The grievor’s manager had testified that the grievor should have stopped the bus to investigate when there was a “bump” after the passenger was hit. However, the arbitrator noted that this was not mentioned in the termination letter, and there was no evidence that it was TTC policy to stop and investigate whenever there is a bump. The other passengers had not noticed anything. He concluded that the grievor’s failure to stop was not a consideration in this case.
[21] The arbitrator also considered that the grievor’s training included detailed instruction on defensive driving, scanning the roadway ahead, and checking beside the bus, as well as watching the movements of passengers who left the bus. He concluded that inadequacies in the grievor’s driving were caused by the grievor’s own carelessness.
[22] The arbitrator also considered other cases where public transit operators were not reinstated after being dismissed for a preventable accident, but he distinguished them on the basis that the Union in those cases had not requested reinstatement to a non-driving position. The arbitrator also discussed other cases where reinstatement to a non-driving position was ordered following a fatal accident or following multiple careless driving incidents.
[23] Having considered all the circumstances, the arbitrator held that it was not appropriate to reinstate the grievor to a driving position because his record showed “too casual an approach to driving safety.” However, he concluded that the grievor’s lapse with respect to safe driving had not irreparably damaged the employment relationship. He took into consideration that the grievor was not a short-service employee, he had shown remorse over the accident “although perhaps not in the profuse manner that some might expect,” and he did not attempt to mislead his employer in any way.
[24] The arbitrator was aware that the grievor had never apologized directly to the TTC, but he referred to comments made by another arbitrator in Re Alberta Health Services and Health Sciences Assn. of Alberta, [2010] A.G.A.A. No. 50 (Wallace) that the lack of an early apology can be a neutral factor in the analysis: “Though early acceptance of responsibility can mitigate the appropriate penalty, it does not follow that its absence must aggravate the offence.”
[25] In sum, the arbitrator applied an analysis consistent with Scott when he considered whether, in all the circumstances, the penalty of dismissal was excessive and whether a lesser penalty was just and reasonable.
The arbitrator did not “tinker” with a reasonable penalty imposed by the employer
[26] The TTC also argues that the decision is unreasonable because the arbitrator failed to give effect to arbitral jurisprudence stating that an arbitrator should not “tinker” with a penalty imposed by an employer if that penalty is reasonable.
[27] There is no merit to this argument. The cases cited in which arbitrators refused to substitute a lesser penalty were ones where the arbitrator found the penalty reasonable in the circumstances. In the present case, the arbitrator did not find the penalty to be reasonable and just, having considered all the circumstances, as set out above. Moreover, a decision to reinstate, even if the reinstatement is without backpay as it is here, is not “tinkering” with the employer’s penalty decision. It is the substitution of a significantly different penalty.
The decision was a reasonable exercise of discretion
[28] The TTC argues that the arbitrator focused improperly on whether there was an irretrievable impact on the employment relationship. As I have set out above, the arbitrator considered a variety of factors, including the nature of the misconduct, the fact it was a momentary lapse, the disciplinary record, the work record, seniority and remorse. Having weighed the various factors, he concluded that the penalty of dismissal was excessive.
[29] The arbitrator’s conclusion that the employment relationship was not irretrievable is consistent, again, with comments of other arbitrators. I note that the Divisional Court upheld an arbitral decision using similar language involving these same parties and substituting a penalty of reinstatement to a non-driving position in Toronto Transit Commission v. Amalgamated Transit Union Workers, Local 113, 2013 ONSC 459 (see para. 8).
Conclusion
[30] It is not the role of this Court, on judicial review, to ask what penalty we would have imposed. The task of the Court is to determine whether the penalty imposed by the arbitrator was justified in his reasons and the outcome was reasonable, given the facts and the broad discretion conferred by s. 48(17) of the LRA. The TTC has not demonstrated that the penalty here was unreasonable.
[31] Accordingly, the application for judicial review is dismissed. Costs to the Union are fixed at $6,500, an amount agreed upon by the parties.
Swinton J.
I agree _______________________________
Backhouse J.
I agree _______________________________
Mandhane J.
Released: May 11, 2022
CITATION: Toronto Transit Commission v. Amalgamated Transit Union, Local 113, 2022 ONSC 2766
DIVISIONAL COURT FILE NO.: 497/21
DATE: 20220511
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Backhouse and Mandhane JJ.
BETWEEN:
TORONTO TRANSIT COMMISSION
Applicant
– and –
THE AMALGAMATED TRANSIT UNION, LOCAL 113 and LORNE SLOTNICK MEDIATION AND ARBITRATION
Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: May 11, 2022