CITATION: Canadian Union of Public Employees, Local 5852 v. Scarborough Health Network 2022 ONSC 604

DIVISIONAL COURT FILE NO.: DC-20-90- JR

DATE: 2022 01 27

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt A.C.J.S.C.J. and Coats and Favreau JJ.

BETWEEN:

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 5852

Applicant

– and –

SCARBOROUGH HEALTH NETWORK

Respondent

Mark Wright & Willow Petersen, for the Applicant

Frank J. Cesario & Amanda P. Cohen, for the Respondent

HEARD at Toronto (by videoconference): November 23, 2021

Coats J.

REASONS FOR DECISION

I. Nature of the Proceedings

[1] This is an application for judicial review of the award of Labour Arbitrator Bernard Fishbein (the “Arbitrator”) dated January 8, 2020 (the “Award”). The Arbitrator dismissed the Applicant Union’s grievance and concluded that the Collective Agreement did not constrain the Respondent Hospital’s management right to unilaterally alter an employee’s designated “home” worksite. The Union seeks to have the Award set aside on the basis that it is unreasonable.

II. The Court’s Jurisdiction and the Standard of Review

[2] The Divisional Court has jurisdiction over this application pursuant to ss.2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1.

[3] The parties agree that the standard of review applicable to the Award is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 10. To the extent that this application may raise questions of procedural fairness, the question is whether the rules of procedural fairness were complied with: Brooks v. Ontario Racing Commission, 2017 ONCA 833, at para. 5.

III. The Issues

[4] The two issues in this judicial review are:

1. Is the Affidavit of Ella Bedard, sworn April 6, 2021 tendered by the Union admissible?

2. Is the Award reasonable?

IV. Background

i. Facts

[5] Scarborough Health Network (the “Hospital”) was created out of the merger of the Birchmount and General campuses of The Scarborough Hospital and the Centenary campus of The Rouge Valley Health System. Following the merger, the Hospital filed an application under the Public Sector Labour Relations Transition Act, 1997 with the Ontario Labour Relations Board (the “Board”). The Board ordered, in accordance with the parties’ settlement, that CUPE would act as bargaining agent for all of the Hospital’s service and clerical employees.

[6] In or around June of 2019, the Hospital decided to centralize its finance department. As a result of this decision, all employees in accounts payable and accounts receivable who previously had the Birchmount or General campuses as their home sites would be relocated to the Centenary site. The Centenary campus would become their designated home site.

[7] A number of employees in the finance department, including those employees in accounts payable and accounts receivable, belong to the newly formed CUPE bargaining unit.

[8] It is undisputed that the Birchmount, General and Centenary sites are all within 10-12 km of each other and are “readily accessible” by public transit.

ii. Collective Agreement Provisions

[9] The Collective Agreement between the Hospital and the Union includes a management rights clause (Article A), which sets out the Hospital’s rights to transfer employees in the following terms:

Article A - MANAGEMENT RIGHTS

A.1 The Union recognizes that the management of the Hospital and the direction of the working forces are fixed exclusively in the Hospital and shall remain solely with the Hospital and without limiting the generality of the foregoing, it is the exclusive function of the Hospital to:

(b) Hire, assign, schedule, retire, discharge, direct, classify, transfer, promote, demote, layoff, recall and suspend and otherwise discipline employees, provided that if an employee claims that he has been discharged or disciplined without just cause, a grievance may be filed and dealt with in accordance with the grievance procedure;

2. The Hospital agrees that such rights shall be exercised in a reasonable manner consistent with the provisions of this Agreement.

[10] Article 9 of the Collective Agreement deals with employees’ seniority. Article 9.05 provides that “[i]n matters of promotion and staff transfer appointment shall be made of the senior applicant able to meet the normal requirements of the job.”

[11] Article 9.08(A)(a) requires that the Hospital provide notice in the event of a proposed layoff or the “elimination of a position within the bargaining unit.” Article 9.08(A)(b) sets out what constitutes a “reassignment” for the purposes of the Collective Agreement and provides that the Hospital is not required to provide notice for a reassignment. Article 9.08(A)(d) requires the Hospital to establish a redeployment committee within two weeks of providing notice of a layoff or the elimination of a bargaining unit position.

[12] The Collective Agreement also contains mobility language. This provision was awarded in a post-merger interest arbitration Award of Arbitrator Eli Gedalof, dated May 26, 2019 (the “Gedalof Award”). Arbitrator Gedalof accepted the proposal on mobility put forward by the Hospital, which reads as follows:

Article XX - Mobility Between Sites

1. The parties agree to the principle of mobility between sites.

2. If an employee is required to travel between sites while on duty, they will be reimbursed in accordance with the Hospital’s transportation policy.

3. It is understood that this agreement will be a standing agenda item to be dealt with at Labour Management Meetings.

4. (a) Each employee shall have a designated home worksite. Such home worksite will change if an employee transfers to the other site under the job posting provisions.

(b) The Employer may assign or schedule an employee who does not regularly work in more than one worksite, to perform the duties of his/her classification at another worksite. The Employer will not be unreasonable or arbitrary in assigning or scheduling such employee to a worksite other than his/her home worksite.

(c) Where an employee has commenced his/her shift and is requested by the Hospital to go to another worksite to perform the duties of his/her classification, the employee will not suffer any loss of earnings for time spent travelling to the other worksite. In addition, the Hospital will reimburse the employee’s transportation cost in accordance with the Hospital’s Transportation Policy.

(d) An employee who pays for parking at their home site will not be required to pay for parking at the other site.

[13] Arbitrator Gedalof expressly rejected the Union’s proposal on mobility, which included language specifying that “mobility between sites is voluntary.” This language existed in the former CUPE agreement that had been in place at The Scarborough Hospital.

[14] In awarding the Hospital’s proposal, Arbitrator Gedalof found as follows:

In all of the circumstances, I am satisfied that the hospital has established a demonstrated need for mobility between sites, subject to reasonable limits. Further, as the Hospital argues, the ability to benefit from a reasonable degree of mobility is among the advantages of the merger, to be balanced against the significant costs. It is unlikely the Hospital would agree to both bear those significant costs and forfeit the benefit of integrating its operations.

We therefore award the Hospital Mobility Between Sites Proposal.

iii. Present Grievance

[15] Following receipt of the Gedalof Award, the Hospital decided to centralize the finance departments of different sites at the Centenary site. There is no dispute that this consolidation was done for bona fide and legitimate business reasons. The Hospital sent a letter advising members of the Union that their worksites would change from their current location to the Centenary site. This prompted the present grievance.

V. Positions of the Parties at the Arbitration before Arbitrator Fishbein

[16] The grievance was heard before Arbitrator Bernard Fishbein on August 27 and December 12, 2019. The parties provided the Arbitrator with an Agreed Statement of Facts to simplify the proceedings and to assist the Arbitrator in his adjudication of the dispute. The parties did not call any live evidence.

[17] The Union’s primary and central argument before the Arbitrator was that the Hospital’s unilateral decision to change the affected employees’ home worksite violated the Mobility Clause. The Union argued that the Mobility Clause guaranteed employees a designated home worksite. The Union referred to the mandatory language in the first sentence of subclause 4(a) which provides that “each employee shall have a designated home worksite.”

[18] The Union argued that the Mobility Clause only allowed the Hospital to assign or schedule an employee who does not regularly work in more than one worksite to perform the duties of their classification at another worksite. The Clause did not allow the Hospital to change an employee’s designated home worksite. The Union submitted to the Arbitrator that this was apparent from the plain phrasing of Article 4(b) of the Mobility Clause that “[t]he Employer will not be unreasonable or arbitrary in assigning or scheduling such employee to a worksite other than his/her home worksite.” The Union’s position was that the Hospital’s assignment and scheduling power is based on the employees’ home worksite remaining unaltered.

[19] Further, the Union referred the Arbitrator to the second sentence of paragraph 4(a), which provides that, “[s]uch home worksite will change if the employee transfers to the other site under the job posting provisions.” It was the Union’s position that the Mobility Clause contemplates a change to an employee’s designated home worksite in only one situation: where an employee exercises their seniority rights to obtain a transfer or promotion through the job posting provisions of the Collective Agreement. The clause does not contemplate or allow the Hospital to unilaterally change an employee’s designated home worksite, without regard for the employee’s wishes or their seniority.

[20] The Union, before the Arbitrator, relied on the principle that seniority rights can only be abridged by the clearest and most unambiguous of language. Since the Mobility Clause provides that employees use seniority rights to change their worksite, it would be an abridgment of these seniority rights for the Hospital to unilaterally change an employee’s home worksite. It was the Union’s argument that there was nothing in the Collective Agreement that clearly and unambiguously abridged these seniority rights; rather, the Collective Agreement protects them.

[21] The Union sought a declaration that the Collective Agreement did not allow the Hospital to unilaterally change the designated home worksites, and that the letters through which the Hospital purported to unilaterally alter the worksites of the staff be rescinded.

[22] The Union made two more arguments before the Arbitrator, each of which were consequential to, and depended on, its primary argument with respect to the mobility language, and both of which were made for remedial purposes.

[23] The first consequential argument advanced by the Union was that the Hospital breached its obligation under Article 9.08 of the Collective Agreement to provide the Union with notice that the positions in question were being eliminated. Under the jurisprudence that has developed under the central aspects of this Collective Agreement, a position is considered to have been eliminated, giving rise to notice requirements, when one or more of the position’s essential components are changed. In this case, the Union’s position was that the Mobility Clause makes an employee’s home worksite such an important feature of the employee’s job that if an employee wants to change their home worksite, they can only do so by exercising their seniority rights through the job posting clause in Article 9.05. Thus, according to the Union, by purporting to change the home worksite of employees, the Hospital altered their positions to the point where their positions were eliminated. The Union accordingly sought orders requiring the Hospital to provide it with notice of elimination and that a redeployment committee be struck, as per Article 9.08(A) of the Collective Agreement.

[24] The second consequential argument advanced by the Union was that the Hospital breached its obligation under Article 9.08 to provide the affected employees with notice of layoff, as well as financial and procedural entitlements that are triggered by a layoff. The Union drew the Arbitrator’s attention to jurisprudence developed under this Collective Agreement, which holds that a layoff within the meaning of Article 9.08 does not mean a layoff ‘to the street,’ but also includes situations where an employee’s job changes in a fundamental way. As above, the Union again argued that under this Collective Agreement, the mobility language makes a home worksite a fundamental aspect of an employee’s job, such that changing an employee’s home worksite amounts to a layoff.

[25] The Union acknowledged that under Article 9.08(A)(b), certain reassignments that would otherwise be considered layoffs are exempted from the definition of layoff, provided that the Hospital demonstrates that all six “bright line requirements” enumerated in the Article are met. The Union argued that the Hospital could not rely on the reassignment language in this case, as the Hospital did not actually invoke the reassignment clause at the time of the layoffs, and because the Hospital could not demonstrate that it had met all six of the bright line requirements.

[26] The Union accordingly sought a declaration that the affected employees were entitled to notice of layoff in the circumstances.

[27] The Hospital advanced three arguments at the arbitration before Arbitrator Fishbein:

a) First, the Hospital argued that the transfer of the finance department from one site to another was an exercise of management rights that was expressly within the Hospital’s rights under the Management Rights clause of the Collective Agreement, and that the Union had to point to a specific restriction to that right elsewhere in the Collective Agreement. The Hospital argued that there was no such language in the Collective Agreement.

b) Second, the Hospital argued that it did not need to rely on the Mobility Clause awarded by Arbitrator Gedalof and that in fact those provisions were not engaged here because they did not at all address restrictions on the employer’s ability to change an employee’s home worksite (as opposed to an employee changing his/her worksite through accepting a job posting, which was expressly addressed in clause 4(a)). The Hospital also argued that, to the extent the mobility language was being interpreted, it was unreasonable to interpret it (as the Union did) so as to restrict the Hospital’s mobility rights.

c) Finally, the Hospital argued that this was not an elimination of a position, and that even if this section was engaged at all, the transfer of employees to a site that was only 10 to 12 km away did not trigger the notice requirements of Article 9.08(A)(a).

VI. The Award of Arbitrator Fishbein

[28] In the Award dated January 8, 2020, the Arbitrator dismissed the grievance, holding that the Hospital had the right to unilaterally change the employees’ home worksites in these circumstances as part of its explicit management rights.

[29] The Arbitrator noted that the Management Rights Clause explicitly provides management the right to assign and transfer employees, subject to other Collective Agreement provisions and that the Union had not pointed him to anything in the Collective Agreement constraining the Hospital’s right to transfer employees to a nearby, reasonably accessible location for legitimate business reasons.

[30] The Arbitrator acknowledged that the Union had pointed him to Article 9.08(A)(a), which requires the Hospital to give notice in the event of a proposed lay-off or elimination of a position, triggering a series of seniority-based rights. However, the Arbitrator held that the Hospital’s actions were not an “elimination of position” and noted that the Union had pointed him to no authority explicitly stating that a change of location alone constituted the elimination of the position at the former location. The Arbitrator rejected the argument that employees have a “proprietary right” to a particular location such that a change would amount to “eliminating” the position within the meaning of the Collective Agreement, nor was there sufficient language to constrain an explicit management right.

[31] The Arbitrator also observed that the Gedalof Award granted the Hospital’s proposal for mobility language. In this context, he could not interpret the Mobility Clause as restricting the Hospital’s ability to transfer employees unilaterally altogether, in the face of language that was intended to grant the Hospital greater mobility rights.

[32] Further, the Arbitrator held that even if the above was not sufficient to dismiss the grievance, the Hospital had met all the conditions of Article 9.08(A)(b) (reassignment), which would alleviate from the notice and triggering of seniority rights otherwise required by Article 9.08(A)(a). Nothing in the Collective Agreement required the Hospital to spell out exactly what provision it was purporting to act under when it advised the employees of the reassignment.

VII. The Union’s Affidavit on this Application

[33] The Union has tendered an affidavit for this application, sworn by one of its counsel at the Arbitration, Ms. Ella Bedard. The affidavit seeks to put before this Court evidence about the submissions made before the Arbitrator through Ms. Bedard’s arbitration notes. As explained below, the Hospital submits that this evidence is inadmissible and does not assist the Union’s arguments in any event.

VIII. Key Positions of the Parties

i. Issue #1: Is the Union’s affidavit evidence admissible?

Union’s Position

[34] The issue of the admissibility of Ms. Bedard’s Affidavit was not addressed in the Factum from the Union. There were no written submissions from the Union on why this evidence should be admitted on judicial review. The Union did not bring a motion seeking permission to adduce the evidence.

[35] In oral submissions at the hearing of this judicial review, the Union conceded that this Affidavit evidence did not satisfy the admissibility test set out in Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). The Union submitted that where the ground of review is a failure by the Arbitrator to deal with a central argument, on a practical basis, it would be very difficult to establish that the argument had been made without an affidavit such as the one from Ms. Bedard. The Union acknowledged that in this case it could establish that the argument had been made without reference to the Affidavit.

Hospital’s Position

[36] The Hospital argues that the Affidavit of Ella Bedard tendered by the Union should not be admitted as these circumstances do not satisfy the test for admissibility of affidavit evidence on judicial review. To be admissible, the affidavit evidence must show “an absence of evidence on an essential point” or “disclose a breach of natural justice that cannot be proved by a mere reference to the record”: Keeprite, at para. 12.

[37] It is the Hospital’s position that the Union has alleged neither an absence of evidence nor a breach of procedural fairness. The argument that the Arbitrator’s reasoning does not reflect the emphasis that the Union says it argued at the Arbitration is not a basis to admit evidence on judicial review. It is not appropriate for the Union to attempt to reframe the argument that was put before the Arbitrator.

[38] In the alternative, the Hospital submits that this evidence does not assist the Union. Despite the Union’s assertion that its “primary” argument at the Arbitration was that unilaterally changing employees’ home worksites violated the Mobility Clause and that the Arbitrator conflated its primary and consequential arguments on Article 9, this is not supported by the Union’s evidence. A review of Ms. Bedard’s hearing notes shows that the focus of the Union’s argument was that the Mobility Clause must be read together with seniority rights under Article 9, such that an employee’s designated home worksite was sufficiently important that any change must occur through the exercise of seniority rights. This mirrors the argument articulated by the Arbitrator in his Award.

ii. Issue #2: Is the award reasonable?

Union’s Position

[39] The Union argues the Award is unreasonable for essentially two reasons. First, the Arbitrator mischaracterized and failed to adequately grapple with the Union’s arguments, namely its primary argument that the Mobility Clause expressly prohibits the Hospital from unilaterally altering an employee’s home worksite. Second, the Arbitrator failed to interpret the Mobility Clause according to the principle that its words must be given their plain and ordinary meaning.

1. The Arbitrator Mischaracterized and Failed to Grapple with the Union’s Arguments

a. The Union’s Primary Argument

[40] The Arbitrator mischaracterized the Union’s primary argument as turning on Article 9 and the statement of the Arbitration Board that the Hospital’s mobility rights were subject to “reasonable limits.” This was not the Union’s position – it argued before the Arbitrator that the language of the Mobility Clause expressly prohibited the Hospital from unilaterally changing an employee’s home worksite, not that the Hospital was impliedly restricted from doing so by the “reasonable limits” qualification. The Arbitrator accordingly failed to deal with the Union’s actual primary argument, referring to the Mobility Clause only in obiter and ignoring its plain language, rendering the Award unreasonable.

b. The Union’s Consequential Arguments

[41] The Arbitrator also mischaracterized the Union’s consequential arguments, stating the Union’s position was that the Hospital’s actions constituted an ‘elimination of a position,’ thereby triggering seniority rights. This was not the Union’s argument. The Union instead argued that because the Mobility Clause makes an employee’s home worksite an essential feature of their position, by changing the employees’ home worksites, the Hospital thereby eliminated their positions and laid off those employees. That is, the triggering of seniority rights was a consequence of its primary argument that the Hospital violated the express terms of the Mobility Clause.

[42] The Arbitrator then found the positions had not been eliminated, asserting that the Union had not pointed him to any authority that a change in location alone could constitute the elimination of a position. This analysis, the Union claims, ignored the Union’s primary argument, which was that the language of the Mobility Clause distinguished this case and uniquely made the employee’s home worksite an essential feature of their position.

2. The Arbitrator Failed to Give the Words of the Collective Agreement their Plain and Ordinary Meaning

[43] The Union argues that the words of a collective agreement must be interpreted according to their plain and ordinary meaning and that the Arbitrator failed to do so in respect of the Mobility Clause: Ross Memorial Hospital v. Canadian Union of Public Employees, Local 1909, 2018 4622 (ON LA), at para. 28. The Arbitrator selectively read out of the Clause the mandatory language used to establish the home worksite guarantee and the premising of the Hospital’s power to assign an employee to another worksite on the employee’s home worksite remaining unchanged.

[44] The Arbitrator erred by interpreting the Clause based on the Hospital’s presumed purpose of increasing its mobility rights. First, there was no evidence that the Hospital intended to increase its mobility rights by securing the right to unilaterally alter an employee’s home worksite. Second, the Arbitrator unreasonably relied on the Hospital having a subjective intention to secure this right. The Hospital’s subjective intention is an irrelevant consideration unless there is evidence of a consensus between the Union and the Hospital that the Hospital’s mobility proposal meant something other than its plain meaning, and there is no such evidence.

Hospital’s Position

[45] The Hospital argues that the Award is a reasonable interpretation of the Collective Agreement. Any limitation on an employer’s right to manage its operations must exist in clear language under the collective agreement. The Arbitrator noted that the Management Rights Clause gave the Hospital the right to transfer employees between worksites and reasonably concluded that the Union had failed to discharge its onus of pointing to express language in the Collective Agreement that restricted this right.

1. The Arbitrator Addressed and Rejected the Union’s Arguments

[46] Contrary to the Union’s assertion, it is the Hospital’s position that the Arbitrator did consider the Union’s argument that the Mobility Clause makes an employee’s home worksite a key element of their position such that it can only be altered through an exercise of seniority rights under Article 9. It is clear that this argument was rejected; the Arbitrator found that the language of the Collective Agreement and arbitral authorities did not support this argument and that a particular home worksite is part of a bundle of job duties that employees have no proprietary right to maintain. The Arbitrator acknowledged that the Union was unable to point to any clear restriction on mobility rights and that the language of the Mobility Clause arose out of a proposal of the Hospital intended to increase flexibility.

[47] Further, the argument that the Mobility Clause expressly constrained the Hospital’s actions was not the Union’s primary argument at arbitration. Rather, the Union’s central argument was that the Mobility Clause made an employee’s home worksite a key element of their position such that it could not be unilaterally altered without engaging seniority rights.

2. The Arbitrator Properly Interpreted the Mobility Clause

[48] Despite the Union’s claim that the Arbitrator ignored the plain and ordinary meaning of the Mobility Clause, the language of the clause does not support the Union’s position. The Hospital argues that the Arbitrator reasonably concluded that the Mobility Clause was silent on the Hospital’s ability to change an employee’s home worksite and therefore could not constrain the Hospital’s explicit management rights. The Arbitrator further acknowledged that the mobility language arose out of a proposal from the Hospital that was intended to increase its flexibility, leading the Arbitrator to conclude that it would make no sense to interpret the Mobility Clause as imposing greater limits on the Hospital’s management rights. The Arbitrator did not rely on the Hospital’s subjective intention, but rather on the fact that the Union’s mobility proposal was rejected by Arbitrator Gedalof, concluding that the Mobility Clause was intended to grant greater mobility rights to the Hospital.

[49] The Hospital was not required to establish an express right in the Mobility Clause to unilaterally change an employee’s home worksite because the Management Rights Clause afforded it the explicit right to transfer employees.

3. In Any Event, This Was a Reassignment Under Article 9.08(A)(b).

[50] Further, the Arbitrator acknowledged that even if the Union’s argument was accepted, the Hospital’s actions in centralizing employees to the Centenary site amounted to a reassignment under Article 9.08(A)(b) and therefore the notice provisions of Article 9.08(A)(a) did not apply.

IX. Analysis

i. Issue #1: Is the Union’s Affidavit evidence admissible?

The Law

[51] In most circumstances, the evidence before the court on judicial review is restricted to the record that was before the Arbitrator. It is only in exceptional circumstances that affidavit evidence is admissible to supplement the record on judicial review: Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882 (Div. Ct.), at paras. 21-22.

[52] Paragraph 12 of Keeprite speaks to the rarity of affidavit evidence being admissible on a judicial review:

Having just completed the exercise of examining, in this fashion, the evidence that was before the arbitrator I would express the view, which is in agreement with that of Pennell, J., that the practice of admitting affidavits of this kind should be very exceptional, it being emphasized that they are admissible only to the extent that they show jurisdictional error. I would think that the occasions for the legitimate use of affidavit evidence to demonstrate the exacting jurisdictional test of a complete absence of evidence on an essential point would, indeed, be rare.

[53] The test for the admissibility of affidavit evidence on a judicial review is summarized at para. 18 of 142445 Ontario Limited (Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636 (2009), 2009 24643 (ON SCDC), 251 O.A.C. 62 (Div. Ct.), at para. 18:

The Keeprite standard for the admission of affidavit evidence on judicial review has been applied in numerous decisions involving labour boards and labour arbitrators. These cases have held that affidavit evidence can be admitted either to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by a mere reference to the record. See, for example, Ontario Secondary School Teachers’ Federation v. Thames Valley District School Board, 2004 66342 (ON SC), [2004] O.J. No. 4784 (Div. Ct.) at para. 8; Thompson Products Employees’ Assn. v. TRW Canada Ltd., 2003 3172 (ON SCDC), [2003] O.J. No. 541 (Div. Ct.) at paras. 9-10; Re Securicor Investigations & Security Ltd. And Ontario Labour Relations Board (1985), 1985 1978 (ON SC), 50 O.R. (2d) 570 (Div. Ct.); Medis Health and Pharmaceuticals Services Inc. v. Teamsters, Chemical and Allied Workers, Local 132, [2001] O.J. No. 2254 (Div. Ct.); Aylmer Police Assn. v. Aylmer Police Services Board, [2004] O.J. No. 4028 (Div. Ct.) at paras. 8-9; C.M.G. Innovations Co. Ltd. v. Ontario (Labour Relations Board), [2006] O.J. No. 4827 (Div. Ct.) at paras. 2-3; Hamilton (City) v. United Brotherhood of Carpenters and Joiners of America, Local 18, [2007] O.J. No. 270 (Div. Ct.) at paras. 17-18.

Application of the Law to the Bedard Affidavit

[54] By the Union’s own admission, the Bedard Affidavit does not meet the test for admissibility. I agree. The Union has not alleged either an absence of evidence or a breach of procedural fairness. The Union’s position is that the Arbitrator’s decision did not reflect the Union’s primary and central argument at the arbitration. This is not a basis to admit affidavit evidence on judicial review.

ii. Issue #2: Is the award reasonable?

The Law

1. Reasonableness Standard

[55] The Parties agree that the reasonableness standard applies to this judicial review: Vavilov, at para. 10; Markham Stouffville Hospital v. CUPE, Local 1999, 2019 ONSC 5373 (Div. Ct.), 298 LAC (4th) 192, at paras. 19-20; Hamilton Health Sciences v. Canadian Union of Public Employees, Local 7800, 2021 ONSC 1337 (Div. Ct.), at para. 35.

[56] As set out at para. 85 of Vavilov, “a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.” The standard requires a reviewing court to defer to such a decision: Vavilov, at para. 85.

[57] Reasonableness is concerned with justification, transparency and intelligibility. The focus of the review is on the decision the Arbitrator made, including the justification offered for the decision: Vavilov, at paras. 14-15.

[58] The written reasons of the Arbitrator must not be assessed against a standard of perfection. The reasons do not have to include all the arguments given: Vavilov, at para. 91.

[59] The burden is on the Union to show that the decision is unreasonable. This is set out at para. 100 of Vavilov:

The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.

[60] The reasons of the decision maker must be responsive and grapple with key issues raised by the parties. Paragraphs 127 and 128 of Vavilov provide:

The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.

Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker, at para. 39.

[61] This is also set out in Scarborough Health Network v. Canadian Union of Public Employees, Local 5852, 2020 ONSC 4577 (Div. Ct.), at paras. 15 and 28.

2. Collective Agreement Interpretation

[62] As held in Vavilov, at para. 111, administrative decision makers are constrained by the applicable statutory scheme and the common law. For arbitrators, this includes the common law principles of contractual interpretation.

[63] The objective in interpreting a collective agreement, as with any contract, is to determine the objective intention of the parties based on the words they have chosen to use in their agreement. A practical, common-sense approach is to be applied to contractual interpretation: Brown & Beauty, Canadian Labour Arbitration, 5th ed. (Toronto: Thomson Reuters Canada, 2006) (loose-leaf updated 2019, release 71), at para. 4:2100, as quoted in Neegan Development Corporation Ltd. v. International Union of Operating Engineers, Local Union No. 955, 2020 6437 (AB GAA), at para. 52; Coca-Cola Bottling Co. v. U.F.C.W. Local 175, 2003 CarswellOnt 4993, at para. 34; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 47.

[64] This practical approach has been applied to the interpretation of collective agreements by Arbitrators: see Masco Canada Limited v. Unifor, Local 27, 2019 107181 (ON LA), at para. 36; Halton Recycling Ltd. d.b.a. Emterra Environmental v. Labourers’ International Union of North America, Local 183, 2019 11765 (ON LA), at paras. 18-26.

[65] This practical, common-sense exercise is governed by a “cardinal presumption” that “the parties are assumed to have intended what they said, and that the meaning of the collective agreement is to be sought in its express provisions”: Brown & Beatty, at para. 4:2100. Therefore, the focus of the interpretative exercise of a provision(s) of a collective agreement must always be on the language of the disputed clause, read in the context of the collective agreement as a whole. All words must be given their plain and ordinary meaning: words or phrases cannot be ignored. Further, it should be presumed that the same word has the same meaning wherever it is used, and different words have different meanings: Brown & Beatty, at para. 4:2100; Ross Memorial Hospital, at para. 28; and Ontario Power Generation Inc. and Society of Energy Professionals (Sloan), Re (2017), 283 L.A.C. (4th), at para. 37.

[66] Evidence of context and surrounding circumstances may be considered in interpreting a contract. Where circumstances reveal that the bargaining parties had reached a consensus as to the intended meaning of a clause, then such circumstances may be considered as an interpretive aid. However, such extrinsic evidence cannot be used to deviate from the text. The parties must live with the bargain they reached or that was awarded through interest arbitration. As was summarized in an arbitral award in Ontario Power Generation Inc. and Society of Energy Professionals (OPGN-2010-5706/1538), Re, 2013 CarswellOnt 17912, at para. 32:

The fundamental rule of collective agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended, or the plain and ordinary meaning result would be illegal or absurd. Words or phrases cannot be ignored. All words must be given meaning, different words are presumed to have different meanings, and specific provisions prevail over general provisions. As a matter of general principle collective agreements must be interpreted in a manner which preserves the spirit and intent of the collective agreement. However, it is the words that the parties have agreed to use which are of primary importance. The parties to a collective agreement are deemed to say what they mean and mean what they say. Allegedly missing words or terms cannot be implied under the guise of interpretation unless it is absolutely essential to the clear mutually intended operation of the collective agreement, or to make the collective agreement consistent with legislation which the parties cannot contract out of.

[67] This approach is consistent with the approach set out in Sattva, at paras. 57-60.

[68] It is also the general rule of collective agreement interpretation in a unionized workplace that management is entitled to make decisions in the exercise of its management rights, provided that its decision/action is not prohibited by the collective agreement and is done on reasonable grounds and in good faith. Any limitation on the employer’s right to manage its operations must exist in clear language under the collective agreement (or through a legislative restriction): Brown & Beatty, at paras. 4:2310 and 5:000; Bloorview School Authority v. CUPE, Local 4400, 2017 26535 (ON LA) at p. 24; CUPE, Local 503 v. Ottawa (City), 2016 12173 at paras. 30-32; and Re British Columbia Emergency Health Services and Ambulance Paramedics of British Columbia CUPE, Local 873 (Victoria Post Central Reporting Station Deployment), 2013 CarswellBC 1869, at paras. 98, 251-254.

Application of the Law to the Facts

1. Overall

[69] Having reviewed the Award, I have determined that the Arbitrator’s interpretation of the Collective Agreement language at issue is reasonable and consistent with the Collective Agreement as a whole.

[70] The Arbitrator began his analysis with reference to the Hospital’s management rights. He noted that the Hospital had a core right to operate its workplace, which included a right to transfer employees between its worksites. He reasonably concluded that the onus was on the Union to point to express language in the Collective Agreement that restricted this right.

[71] The Arbitrator was unable to find anything on the face of the language of the mobility clause that restricted the Hospital’s ability to change an employee’s designated home worksite. As the mobility clause is silent on this issue, the Arbitrator reasonably concluded that it could constrain management rights and that the gap in this language was filled by the Hospital’s rights. The Arbitrator reinforced this conclusion with reference to the context in which the mobility language was added to the parties’ Collective Agreement. The language of the mobility clause had been proposed by the Hospital and granted by Arbitrator Gedalof to increase flexibility between the Hospital’s worksites. Arbitrator Fishbein reasonably concluded that in this context, it would make no sense to interpret this language to impose greater limits on the Hospital’s management right to transfer employees.

[72] The Arbitrator also acknowledged and outlined in detail the Union’s argument that an employee’s home worksite constituted a key element of their position that could only be altered (both by the employee and the Hospital) through the exercise of seniority in accordance with Article 9 of the Collective Agreement. He found that the language of the Agreement and the arbitral authorities presented to him could not support this argument. He logically concluded that a particular home worksite was part of a bundle of job duties that employees had no proprietary right to maintain.

[73] The Arbitrator acknowledged that even if the Union’s argument was to be accepted, the Hospital’s actions in centralizing employees to the Centenary site amounted to a reassignment under Article 9.08(A)(b) and, as such, the notice provisions of Article 9.08(A)(a) did not apply.

[74] The reasoning in the Award is sound, clearly articulated, internally consistent, and gives the language of the Collective Agreement a meaning that the words easily bear. It is therefore reasonable.

2. Response to the Union’s Arguments

[75] It is the Union’s position on this judicial review that the Award is unreasonable because the Arbitrator failed to grapple with the Union’s “primary and central argument” that the Hospital’s actions were constrained by the express language of the Mobility Clause. I do not accept this argument. The Arbitrator did consider the impact of the Mobility Clause on the Union’s position and, in my view, reasonably determined that the Mobility Clause could not be interpreted to limit the Hospital’s management rights in the manner proposed by the Union.

[76] The Union relies on para. 33 of the Arbitrator’s Award and his statement that the “Union [pointed him] primarily to Article 9.08(A)(a).” It is the Union’s position that this demonstrates a failure by the Arbitrator to understand or consider its central argument with regards to the Mobility Clause. I disagree. It is clear from looking at the Arbitrator’s complete summary of the Union’s position that the Arbitrator fully understood the Union’s position. In his Award, the Arbitrator specifically acknowledges the Union’s arguments that the Mobility Clause has to be read in conjunction with the language of the Collective Agreement (and in particular, Article 9), that the clause does not contain language that entitles the Hospital to change an employee’s home worksite, that an employee’s home worksite can be changed only through an exercise of an employee’s seniority rights, and that this language transformed an employee’s home worksite into a “key element” of their position, such that the Hospital unilaterally changing it constituted an elimination of their positions and triggered notice requirements under the Collective Agreement.

[77] It is clear from the Award that the Arbitrator considered the Mobility Clause and that the Arbitrator rejected the argument that the Mobility Clause restricted the Hospital’s ability to unilaterally change employees’ home worksites. The Arbitrator noted that the Union was unable to point him to any clear restriction on mobility like that found in the previous TSH agreement (see para. 33 of the Award). He also acknowledged that the mobility language arose out of a proposal of the Hospital that was intended to increase flexibility (see para. 34 of the Award). Further, at paras. 36 to 38, the Arbitrator clearly set out his conclusion that the Mobility Clause must be interpreted to add greater mobility rights to the Collective Agreement. The Arbitrator fully considered the Mobility Clause.

[78] The Arbitrator engaged in an interpretive exercise in which he considered the Collective Agreement as a whole, including the Hospital’s underlying management rights. Although the Arbitrator did not structure his analysis in the manner of the arguments put forward by the Union, this does not equate to a failure to consider the Union’s arguments. This does not make his Award unreasonable.

[79] The Union submitted on this judicial review that the Arbitrator’s analysis failed to give the words of the Mobility Clause their “plain and ordinary meaning” and ignored key phrases within the parties’ Collective Agreement. The relevant language does not bear that conclusion. Although the Clause provides for a home worksite (which the Arbitrator acknowledges), it is silent on the issue of how the Hospital may (or may not) transfer an employee’s designated home worksite.

[80] The Union took issue on this judicial review with the Arbitrator’s consideration of the Hospital’s “presumed purpose” in proposing the mobility language that was accepted by Arbitrator Gedalof, the implication being that Arbitrator Fishbein considered the Hospital’s subjective intentions in putting forward the mobility clause it did before Arbitrator Gedalof. The Arbitrator did not do so. He considered the fact that the Union’s proposed mobility clause was rejected by Arbitrator Gedalof and the rationale that Arbitrator Gedalof gave for accepting the Hospital’s proposed mobility clause. The Arbitrator reasonably concluded from these surrounding circumstances that the Mobility Clause was intended “to grant the Hospital greater mobility rights”. The Arbitrator was entitled to consider this contextual evidence as part of the interpretative analysis he was engaged in.

X. Conclusion

[81] For these reasons, the application is dismissed.

[82] Costs shall be paid by the Applicant to the Respondent in the agreed amount of $6,500, all inclusive, payable within 90 days.

Coats J.

I agree _______________________________

McWatt A.C.J.S.C.J.

I agree _______________________________

Favreau J.

Released: January 27, 2022

CITATION: Canadian Union of Public Employees, Local 5852 v. Scarborough Health Network 2022 ONSC 604

DIVISIONAL COURT FILE NO.: DC-20-90- JR

DATE: 2022 01 27

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt A.C.J.S.C.J. and Coats and Favreau JJ.

BETWEEN:

CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 5852

Applicant

– and –

SCARBOROUGH HEALTH NETWORK

Respondent

REASONS FOR DECISION

Coats J.

Released: January 27, 2022