Court File and Parties
CITATION: Mammoet Canada Eastern Ltd. v. International Union of Operating Engineers, Local 793, 2022 ONSC 3447
DIVISIONAL COURT FILE NO.: 609/21
DATE: 20220609
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWATT A.C.J.S.C.J., STEWART and MEW JJ.
BETWEEN:
MAMMOET CANADA EASTERN LTD.
Applicant
– and –
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793 and ONTARIO LABOUR RELATIONS BOARD
Respondents
COUNSEL:
Frank Cesario and Amanda Cohen, for the Applicant
Kirsten Agrell and Mike Chianello, for the Respondent, International Union of Operating Engineers, Local 793
Aaron Hart and Andrea Bowker, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto (by videoconference): 20 April 2022
REASONS FOR DECISION
MEW J.
[1] The issue in this application for judicial review is whether a labour arbitrator’s interpretation of a provision in a collective agreement concerning the compensation of employees “required to use or transport the Employer’s equipment” was reasonable.
Background Facts
[2] Trevor Van Sickle is a crane operator employed by the applicant Employer, Mammoet Canada Eastern Ltd. (“Mammoet” or the “Employer”). His home base is Mammoet’s Toronto Yard and he lives in Kitchener, Ontario.
[3] In 2019, Mr. Van Sickle was assigned to work on a project at a job site in Napanee on two separate occasions: one period in July and one three-week period in September. On both occasions, he was given an allowance for the cost of food and lodging, as fixed in the Operating Engineers’ Provincial Collective Agreement (the “Collective Agreement”).
[4] Mr. Van Sickle was responsible for selecting and booking his hotel. On both occasions, he commuted between the hotel and the job site on a daily basis and Mammoet provided him with a rental car for that purpose. Mammoet was responsible for booking and paying for the rental car, the rental car was covered by the Mammoet’s fleet insurance policy, and Mr. Van Sickle paid for fuel using a Mammoet credit card.
[5] For the period in July 2019, Mr. Van Sickle was paid his hourly rate of pay for time spent travelling between his hotel and the Napanee job site. However, he was not paid for his travel time in respect of his work at the Napanee job site in September 2019. Nor was he paid any other allowance, such as for mileage or gasoline.
[6] Mr. Van Sickle’s union filed a grievance alleging that Mammoet was obligated under Article 1.12 of Schedule “A” of the Collective Agreement to pay Mr. Van Sickle his hourly wage for time spent commuting between his out-of-town hotel and the Napanee job site. The grievance was referred to the Ontario Labour Relations Board under s. 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A.
The Collective Agreement
[7] The grievance turned on the interpretation of Article 1.12 of Schedule “A” to the Collective Agreement and whether it applies to situations where the employee uses a rental car paid for by the Employer to travel between their out-of-town lodgings and the job site.
1.12 Employees required to use or transport the Employer’s equipment shall be paid their classification rate including overtime for doing so.
[8] Further Collective Agreement provisions in Schedule “A” address circumstances where employees use their personal automobiles to travel between lodgings and out-of-town job sites as well as compensation for travel time in certain situations:
3.1 If an employee is required to use his automobile in the course of his duties, he shall be paid:
Effective May 1, 2019 - *57.9¢ km. / 93.2¢ mile for each km./mile travelled
May 1, 2020 - *59.4¢ km. / 95.5¢ mile for each km./mile travelled
May 1, 2021 - *60.5¢ km. / 97.4¢ mile for each km./mile travelled
- In accordance with the signed Memorandum of agreement dated May 27, 2016, the kilometre allowance increase shall be capped at the prescribed automobile allowance rate issued by Canada Revenue Agency published annually. For any schedules where the kilometre allowance rate exceeds Canada Revenue Agency’s prescribed automobile allowance, it shall be red-circled at the current rate.
3.2 Employees shall be paid their applicable rate for time spent travelling from yard to job, job to job and job to yard. This shall apply when employees are required to leave or return to or from their home base. For the purpose of this clause, employee’s home shall be considered to be one and the same as home base agreed to in Article 4.5.
3.3 If an employee is required to use his car to travel to job sites within ninety-five (95) kilometres of his home base, he shall be provided with a minimum of twenty-three (23) litres of gasoline for each day that he is required to use his car up to a maximum of ninety-two (92) litres per week. Such gasoline will be obtained from a supply source authorized by the Employer. An employee may claim either the gallonage allowance under this Article or the mileage allowance under 3.1, but not both simultaneously.
3.4 An employee boarding at an out-of-town project (outside the ninety-five (95) km. zone) shall be paid his car mileage (3.1) or gasoline allowance (3.3) in order to travel to job sites and return to lodgings or follow equipment, in the same manner as if the employee was working from home base.
4.6 The Employer shall pay time at the employee’s classification rates and overtime, and transportation to home and car for personnel left on the job sites without normal methods of conveyance.
The Arbitrator’s Award
[9] In a decision dated 28 June 2021 (International Union of Operating Engineers, Local 793 v Mammoet Canada Eastern Ltd., 2021 57233 (ON LRB)), Vice-Chair Jack S. Slaughter allowed the Union’s grievance, holding that Mammoet was obligated to pay Mr. Van Sickle his hourly wage for time spent commuting between his hotel and the Napanee job site using the rental car.
[10] Finding that the case “comes down to a straightforward reading of the plain words of Article 1.12 of Schedule ‘A’,” the Vice-Chair concluded that when an employee is driving a rental vehicle in such circumstances, that employee is being “required to use or transport the Employer’s equipment” and is to be paid at his or her classification rate for doing so. The Vice-Chair further noted that there was “nothing in the language of Article 4.6 of Schedule ‘A’, the structure or anything else in the Agreement, or the past practice evidence, that would cause the Board to come to a different conclusion”.
[11] The Vice-Chair concluded that there was no language qualifying the word “equipment” as used in Article 1.12 and so it must signify something wider than the hoisting equipment covered elsewhere in the Collective Agreement and should bear its common and ordinary meaning of being “a set of tools or other objects commonly used to achieve a particular objective”.
[12] The arbitrator found that everything about the rental vehicle, except for driving it, was within the Employer’s sole control. Mammoet decided when rental vehicles would be used, selected the rental companies and vehicles that would be used, and selected for how long they would be used. Mammoet also covered the vehicles under its fleet insurance policy and paid for all gas and related expenses through its credit cards.
[13] The Vice-Chair considered that the driving of the rental vehicle for the Employer is “work” within the meaning of Article 1.12. He noted that this conclusion was reached in analogous circumstances in Canadian Union of Skilled Workers v. Hydro One Inc., 2012 40880 (ON LRB). In that case, the employer had arranged for employees to be transported from a marshalling yard to the work site in a bus to be driven by a non-bargaining unit member. When that fell through, a bargaining unit member ended up driving the bus. The union grieved when the employee was not paid for driving the bus. In allowing the grievance, Vice-Chair Lewis noted that the employer could not require the employee to “perform the work duties of a driver for free”. The Vice-Chair in the present case held that while the Collective Agreement language was different, the “central governing principle is the same: the Employer is not entitled to have the employee ‘perform the work duties of a driver for free’”.
[14] While not necessary in the circumstances to do so, the Vice-Chair further noted that other contract language and the evidence of past practice confirmed the correctness of his conclusion.
[15] Article 4.6 of Schedule “A” states that travel time shall be paid “for personnel left on job sites without normal methods of conveyance”. The evidence before the Board made clear that the use of rental vehicles was a “rarity” and they are only used as a “last resort.” All the witnesses agreed that employees are paid their hourly rate when cranes, boom trucks, and transport trucks are utilised, but are not paid their hourly rates when personal vehicles are used as the mode of transport because the employee receives either the mileage allowance or the “gallonage” allowance.
[16] Mammoet’s operations manager, Steve Black, testified that the company only pays for travel where employees are travelling in vehicles for which they are required to possess a Commercial Vehicle Operator’s Registration (“CVOR”). However, the Vice-Chair found there was no basis for such a policy in the language of the Collective Agreement nor any evidence that the Employer ever obtained the Union’s agreement to such a policy.
[17] Regarding past practice, the Vice-Chair noted the evidence that some employees had previously been paid for time travelling in a Mammoet pickup truck or rental vehicle. One example of an instance where an employee was not paid for travel was given, but Mr. Black conceded in cross-examination that the employee in question had not asked for such payment. The Vice-Chair found there was no basis in either the Collective Agreement or past practice to import a CVOR policy and the evidence instead supported the Union’s position that travel time must be paid for time spent in a rental vehicle.
Grounds for Review
[18] The parties agree that the applicable standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 11and 143.
[19] In support of its position that the Vice-Chair’s award is unreasonable, the applicant poses three questions:
a. Is the Vice-Chair's interpretation of the Collective Agreement language unreasonable?
b. Did the Vice-Chair unreasonably rely on the Hydro One decision?
c. Did the Vice-Chair misapply the past practice evidence?
[20] The applicant acknowledges that on an application for judicial review it must satisfy the court that there are “sufficiently serious shortcomings” in the decision to warrant quashing it: Vavilov, at para. 100.
[21] The applicant argues that the arbitrator’s award is unreasonable in both its reasoning process and outcome. The arbitrator is said to have unreasonably interpreted the language of the Collective Agreement, relied on inapplicable case law and misapplied the past practice evidence. This led to an unreasonable conclusion that should be quashed.
[22] The applicant points to a number of respects in which, it submits, the Vice-Chair’s interpretation was unreasonable, including the following:
a. Mr. Van Sickle was not, as the Vice-Chair asserted, “required” to use the car rented by the Employer to get from his hotel to the job site. Rather, he simply had to be at the job site, and he had a paid vehicle made available to him to get himself there.
b. The phrase “Employer’s equipment” includes a possessive apostrophe, and the possessive form of a noun “denotes ownership or a relation analogous to ownership”. Logically and reasonably, therefore, for a rental car to be the Employer’s equipment, the Employer must have either owned the car or exercised control over it analogous with ownership.
c. Article 1.12 is placed in Article A of the Collective Agreement, which covers and applies to Employers engaged in the “Crane and Equipment Rental Business” and outlines equipment that is utilised by operators to perform work for Employers. The listed equipment does not include rental cars. Interpretation of the word “equipment” must be consistent with the term’s other uses in the Collective Agreement.
d. If the intention had been to ensure that employees were to be paid their hourly rate for their commuting time in rental cars that were not company property, that obligation would have been set out in the sections of the Collective Agreement dealing with payment obligations for out-of-town travel and expenses. Where a monetary benefit is asserted, it normally falls to the Union to show in clear, specific and unequivocal terms that the monetary benefit is part of the employer’s compensation package: Allmix Concrete Inc. v Teamsters Local Union 230, 2021 85019 (ON LA), at para. 155; Homewood Health Centre v Ontario Nurses’ Association, 2020 101233, at paras. 23-26 (ON LA).
e. Article 4.6 has no application to the facts of this case. Mr. Van Sickle was not “left” anywhere. On each day that he worked at his out-of-town job in Napanee, he had immediate access to a vehicle which was paid by for by Mammoet and which he was at liberty to use as he saw fit. The Vice-Chair unreasonably attempted to shoehorn these facts into Article 4.6 by stating that the use of rental vehicles by Mammoet was “very much a rarity” and therefore a rental car is not a “normal method of conveyance”, thereby engaging Article 4.6.
[23] The applicant also submits that the Hydro One case is of no assistance. Mr. Van Sickle driving the rental car in this case was much more like an employee driving a personal vehicle than an employee driving other employees to work at the behest of the employer.
[24] To similar effect, the past practice evidence referred to by the Vice-Chair did not establish that both parties had a long-standing, consistent and known practice which showed that they both acted in accordance with a shared or mutual understanding of the provision, and thus, was also of limited or no assistance to the interpretation of the Collective Agreement.
Governing Principles
[25] A collective agreement is a contract. The primary goal of contractual interpretation is to determine the objective intent of the parties at the time the contract was entered into. Contractual interpretation involves the application of contractual interpretation principles to the words of the contract, considered in light of the factual matrix: RBC Dominion Securities Inc. v. Crew Gold Corporation, 2017 ONCA 648, at para. 29.
[26] In Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, the Supreme Court stated, at para. 47, that the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction, the overriding concern being to determine “the intent of the parties and the scope of their understanding”. The court explained, at para. 48, that the meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement.
[27] While consideration of the surrounding circumstances in interpreting the terms of a contract must never be allowed to overwhelm the words of that agreement (Sattva, at para. 57), the goal of contractual interpretation - ascertaining the objective intentions of the parties - is inherently fact specific. Consequently, the circumstances in which a court judicially reviewing a tribunal’s interpretation of a contract will interfere with the tribunal’s findings will be rare.
[28] In particular, Vavilov, at para. 93, cautions judges conducting a reasonableness review to be attentive to the application by decision makers of specialised knowledge. In the context of labour relations cases, in Electrical Power Systems Construction Association v. Labourers' International Union of North America, 2022 ONSC 2313 (Div. Ct.), at paras. 14 and 15, this court recently observed:
[14] In reviewing a Board, judges should remain mindful of its expertise. Labour relations is a complex and sensitive field of law. The Ontario Court of Appeal has observed that "the decisions of the Supreme Court of Canada, over the course of many decades, show an unbroken commitment to affording labour relations boards the highest levels of judicial deference on matters within their exclusive jurisdiction" (Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, [2008] O.J. No. 1353, at para. 42).
[15] The interpretation of collective agreements is at the very heart of the Board's jurisdiction. In line with Vavilov, labour arbitrators and boards should be afforded the highest degree of deference in their interpretation of these agreements: see Ottawa Hospital v. OPSEU, 2017 ONSC 5501, at para. 2.
[29] The application of a reasonableness standard of review implicitly recognises that there may be more than one reasonable interpretation of an agreement.
Analysis
[30] A review of the impugned decision shows that the Vice-Chair carefully stated the applicable principles of contractual interpretation, making reference to both labour relations authorities and cases stating principles of general application, including Sattva.
[31] He applied those principles in making findings of fact that, in the circumstances, Mr. Van Sickle was “required” to use a rental car which, in the context, was the Employer’s “equipment”.
The Rental Car as “Equipment”
[32] The equipment listed in the Collective Agreement includes such things as bulldozers, tractors, scrapers, front-end loaders, trenching machines, mobile concrete pumps and even helicopters required to replace other types of hoisting equipment normally operated by members of the Union. But the list does not include regular automobiles.
[33] Nowhere in Schedule “A” or elsewhere in the Collective Agreement is there a definition of “equipment”. Nor is there any language which expressly limits the term to those items of equipment expressly listed in the agreement.
[34] As the arbitrator noted, the applicant agreed that crane rental employees would be entitled to payment for travel in time spent driving or being transported in equipment other than hoisting equipment (such as transport trucks and trailers).
[35] The Collective Agreement contemplates a number of situations in which employees are compensated when moving from A to B in connection with their employment. Provision is made for compensation when an employee travels from yard to job, job to job and job to yard. Mileage or “gallonage” is payable where an employee is required to use a personal vehicle to get from his or her home base to a job site, or where an employee boarding at an out-of-town project uses a personal vehicle to get to and from a job site from his or her lodgings. And if an employee is left on a job site “without normal methods of conveyance”, the Employer is required to pay time, and transportation to home and car.
[36] The evidence before the Board confirmed that the use of rental vehicles is very much the rarity. As the Vice-Chair noted, at para. 28:
Before the 2019 work at the Napanee job site, the Grievor had never driven a rental vehicle before, despite being with the Employer for 14 years. The testimony of the other witnesses … is all to the effect that rental vehicles are used as a “last resort”. The much more common methods of conveyance are an Employer mobile crane, an Employer transport truck, an Employer pick-up truck, a client vehicle, the employee’s personal vehicle, or a taxi or Uber.
[37] The Vice-Chair was presented with the task of determining how this unusual factual situation should be addressed under the Collective Agreement.
[38] In Re Cardinal Transportation B.C. Inc. and C.U.P.E., Loc. 561 (1997), 62 L.A.C. 230, 1997 25143 (BC LA), at para. 236, it was held that:
Where a monetary benefit is asserted, it normally falls to the Union to show in clear, specific and unequivocal terms that the monetary benefit is part of the employee's compensation package. Such an intent is not normally imposed by inference or implication.
[39] The applicant says that the Vice-Chair effectively filled a lacuna in the scheme of the Collective Agreement and thereby impermissibly legislated for the parties. The inclusion of a rental car as the Employer’s equipment contorted the meaning of “equipment” beyond anything that could reasonably have been contemplated by the parties, having regard to the Collective Agreement as a whole.
[40] I disagree.
[41] The Vice-Chair’s analysis was predicated on having regard to what he described as “the plain words, common sense and the practical realities of the construction industry”. This corresponds with the “practical, common-sense approach not dominated by technical rules of construction” advocated in Sattva.
[42] According to the applicant, for a rental car to be the Employer’s equipment, the Employer must either have owned the car or exercised control over it analogous with ownership. Such a position does not, in my view, accord with commercial reality. Is a piece of equipment, whether it is a bulldozer, front-end loader or a Ford Focus car, more or less the Employer’s for the purposes of the Collective Agreement if it is leased or rented, rather than wholly owned, by the Employer? I think not.
[43] Here, the Employer provided Mr. Van Sickle with a car so that he could get from his out-of-town lodgings to a job site far from the yard or his home base. There was no evidence that Mr. Van Sickle had any other means, as a practical matter, to get from his lodgings to the job site. For all practical purposes he was “required” to use the vehicle provided to him for that purpose by his Employer.
[44] The arbitrator clearly explained the factors he relied on in concluding that the rental vehicle was under the control of the Employer, including the decision to obtain the vehicle, where and when to obtain it and the payment and insurance arrangements for it. That the rental of the vehicle combined with the level of control exercised was sufficient to make it the Employer’s equipment for the purpose of Article 1.12 was a logical and intelligible chain of reasoning: the Vice-Chair’s conclusions fell well within a range of reasonable outcomes having regard to a practical, common-sense approach to interpretation of the Collective Agreement.
[45] Having decided the issue before him on the basis of “a straightforward reading of the plain words of Article 1.12”, it was not, strictly speaking, necessary for the Vice-Chair to buttress his decision by drawing an analogy with the Hydro One case or evidence of past practices. Given my agreement with reasonableness of the Vice-Chair’s interpretation of the Collective Agreement language, any further review of the alternative bases for his decision would be superfluous.
[46] To adapt what was said by the Court of Appeal in RBC Dominion Securities, at para. 36, in rejecting its proposed interpretation, the Vice-Chair did not, as the applicant alleges, fail to apply proper contract interpretation principles; rather, he applied the principles, just not in the manner proposed by the applicant.
Disposition
[47] For the foregoing reasons I would dismiss the application with costs.
[48] Counsel have agreed that the successful party should recover costs in the all-inclusive amount of $6,000. The applicant shall pay the Union’s costs in that amount. Costs are not sought from, or claimed by, the Board.
Mew J.
I agree _______________________________
McWatt A.C.J.
I agree _______________________________
Stewart J.
Released: 9 June 2022