CITATION: United Food and Commercial Workers, Local 175 v. La Rocca Creative Cakes, 2024 ONSC 2243
DIVISIONAL COURT FILE NO.:404/23
DATE: 20240230
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, D.L. Corbett, Matheson JJ.
BETWEEN:
United Food and Commercial Workers, Local 175
Wassim Garzouzi and Adam Gregory, for the Applicant
Applicant
– and –
La Rocca Creative Cakes and Arbitrator Janice Johnston
Geoff Ryans and Spencer Knibutat, for the Respondent, La Rocca Creative Cakes
Respondents
HEARD at Toronto: Feb. 6, 2024
H.J. Sachs J.
Overview
[1] This is an application to judicially review the June 5, 2023 decision of Arbitrator Janice Johnston (the “Decision”) in which she dismissed the Applicant Union’s 2021 group grievance (the “2021 Grievance”) as an abuse of process. In doing so the Arbitrator concluded that the 2021 Grievance was “identical in substance” to a group grievance filed by a different group of employees in 2017 (the “2017 Grievance”) that settled by way of a consent award that the Arbitrator endorsed in 2019 (the “2019 Consent Award”).
[2] The 2019 Consent Award was preceded by a mediation. There was no evidentiary hearing of any kind. In dismissing the 2021 Grievance, the Arbitrator, without notice to the Union, expressly relied on her own recollections and notes of discussions that took place between the parties during the without prejudice mediation that preceded the 2019 Consent Award. The Union argues that this was a breach of its right to procedural fairness.
[3] Both grievances involved employees who were classified as “Helpers”, but claimed they were performing the duties of a different classification of employees, namely “Assemblers”. Since Assemblers are entitled to more pay than Helpers, both grievances claimed compensation and/or promotions for the affected employees. In concluding that the issue of substance in the 2021 Grievance was the same as the issue of substance in the 2017 Grievance, the Decision defines the issue in the 2017 Grievance as being the “delineation of the duties falling within the Assembler classification and those falling within the Helper classification.” While the Arbitrator acknowledged that the 2019 Consent Award “did not appear to deal with the issue, it was an issue resolved by the decision.” Since the 2021 Grievance raised the same issue, it could not be relitigated.
[4] After receiving the Decision, the Union wrote to the Arbitrator asking her to clarify how the 2019 Consent Award resolved the issue of the delineation of the duties between a Helper and an Assembler. In response, on August 31, 2023, the Arbitrator issued a supplemental award (the “Supplemental Award”) in which she acknowledged that the Union was seeking clarification in “order to avoid unnecessary litigation in the future.” She stated that she could provide no clarification because she heard no evidence on the issue, she made no factual findings on the issue and the 2019 Consent Award contained no statement on the issue.
[5] For the reasons that follow and in spite of the clear deference that this court owes to the decisions of a labour arbitrator, I would allow the application for judicial review. I accept that there is an arbitral principle that if the Union settles a grievance where the issue of substance was not resolved, there is a presumption that it has accepted the Employer’s position on the issue. It is unreasonable, however, to apply this principle without examining the settlement document itself. Instead of examining the language in the 2019 Consent Award, the Arbitrator decided that the settlement resolved the issue based on her own notes and recollections of the mediation that led to the award. The Union was given no notice by the Arbitrator that she was going to decide the case based on her own recollections and notes from the mediation, was given no particulars, and was given no opportunity to make submissions as to those recollections or notes (including submissions as to the propriety of relying on statements made during without prejudice mediation discussions). This is a potential breach of procedural fairness.
Factual Background
[6] The Respondent, La Rocca Creative Cakes (the “Employer”) is a cake manufacturer based in Richmond, Ontario. Its employees are represented by the Applicant Union. The Employer and the Union are parties to a Collective Agreement.
[7] Under the Collective Agreement, the Assembler job classification is paid at a higher rate that the Helper job classification and workers under each classification are understood to perform different duties.
[8] In 2017 and 2021 the Union filed two separate grievances involving different employees alleging that some Assembler duties were being performed by Helpers on a regular basis.
2017 Grievance
[9] On November 22, 2017, the Union filed a grievance on behalf of seven employees who occupied Helper positions. The grievance particulars alleged that beginning in October of 2017, the employees were performing Assembler duties for the majority of their shifts, but were still being paid at the Helper wage rate in violation of article B-2(1) of the Collective Agreement. The Union notified the Employer that at the hearing of the grievance the Union would be requesting that the arbitrator find that the Employer had committed a violation of the Collective Agreement because the employees in question performed the function of Assemblers for more than half their shifts; that the employees be awarded the difference between the Assembler pay rate and the Helper pay rate for each shift in which this occurred and that the Employer be ordered to comply with article B-2(1) on a “go forward” basis.
[10] The 2017 Grievance proceeded to mediation/arbitration on November 27 and 29, 2019. By that time, one employee had withdrawn his grievance and another had left the workplace.
[11] Following the mediation discussions, the Arbitrator issued the 2019 Consent Award on December 12, 2019.
2019 Consent Award
[12] The 2019 Consent Award provided as follows:
By correspondence dated August 10, 2018 I was invited by the parties to act as sole arbitrator to determine a group grievance filed by the union. The issue in this case is an allegation by the union that persons employed in the classification called Helper are performing the duties of a higher-rated position called Assembler and should be compensated at that rate.
After carefully considering the evidence before me and the submissions of the parties I hereby declare and direct that:
Effective Monday, December 16, 2019 and for the lifetime of the Collective Agreement, there will be three (3) Assemblers working on each line that is running on the day shift, based on the Employer’s practice of running a maximum of three (3) lines on the day shift. Should the employer start up a fourth line on the day shift, they will only be required to have nine (9) Assemblers working on the four lines. To be clear, a static workstation is not a running line;
Management shall have the right to determine how many lines are required and to lay off employees as required subject to point number one (1);
The five (5) Grievors represented by the grievance in this case will be promoted to the role of Assembler, subject to their acceptance of the promotion. However, they will only be required to be paid at the Assembler rate when the lines are running and they are one of the three (3) Assemblers working on the running line. Where one or more lines on the day shift is not running, some or all of the Grievors promoted to Assembler may be paid at the Helper rate, subject only to the direction set out in point one above.
For the purposes of implementing the above, including determining who will be paid at the Assembler rate on any particular day, the Employer shall follow the following seniority order [names of five employees ranked by seniority].
The Employer shall maintain the right to continue its current practice of utilizing only two Assemblers per line on the afternoon shift. The Employer shall maintain the right to increase or decrease the number of Assemblers on the afternoon shift.
Management shall have the right to make changes and/or amendments to job descriptions in accordance with the collective agreement.
Grievance R2-19-0544 [a grievance that raised a different issue] is hereby dismissed and the union is directed not to file any grievance alleging a breach of the Letter of Agreement No.5 regarding the Employer’s use of temporary workers on or before November 29,2019.
In the course of the proceeding, the Union acknowledged that it currently has no issues with any other alleged overlap between classifications, alleged instances where employees are performing the duties of a higher-rated classification of alleged breaches of Article 1 of Schedule B-2.
The parties agree to engage in fulsome negotiations on the delineation between Helper and Assembler duties and the proper wages for the work performed by Assemblers and Helpers during the next round of bargaining.
I shall remain seized with respect to any issues regarding alleged overlapping duties, proper classifications, or alleged breaches of Article 1 of Schedule B-2, or any other issue addressed in this decision. In the event that the parties have any difficulties with regard to the interpretation or implementation of this decision I shall also remain seized.
[13] The 2019 Consent Award provided a remedy for the five grievors at issue – a promotion and the right to be paid at the higher Assembler rate when the Assembler lines were running and they were one of the three Assemblers working on the lines.
[14] The Consent Award also confirmed that at the time of the Award the Union “currently” had no other issues concerning alleged breaches of Article 1 of Schedule B-2 or with alleged overlapping duties and proper classifications.
[15] The Consent Award notes the parties’ agreement to continue to negotiate the delineation of duties between Assemblers and Helpers and the proper pay rates for both classifications during the next round of collective bargaining. In the next round of collective bargaining, the parties agreed to decrease the amount of time an employee had to work in a higher classification to receive a higher rate of pay: from half a shift to three hours. The parties did not agree to any new language concerning the job descriptions of Assemblers and Helpers.
2021 Grievance
[16] The previous collective agreement expired on June 30, 2021. On July 29, 2021, during the term of its current collective agreement with the Employer (which expires on June 30, 2026), the Union filed another group grievance involving Helpers doing Assemblers’ jobs. The grievance form itself indicates that the remedy sought is “full redress”. In response to a request from the Employer, the Union provided particulars of the grievance on January 24, 2023.
[17] The particulars provided state that the grievance involves three employees who, whenever they work a Helper shift, they do substantially the same work as when they work a shift as an Assembler and yet they are paid at the Helper rate in contravention of the current agreement. The nature of the duties performed that were alleged to be Assembler duties was particularized.
[18] On February 10, 2023 the Employer advised the Union that it was objecting to the grievance on the basis that the parties had already received an award that addressed the delineation of Helper and Assembler duties.
[19] The Employer’s preliminary objection was heard by the Arbitrator who, after receiving written submissions, rendered the Decision.
The Decision (June 5, 2023)
[20] The Arbitrator summarized the basis for the Employer’s preliminary motion as follows:
- Employer counsel has argued by way of a preliminary objection that the second grievance currently before me is identical in substance to the one filed previously by the Union and dealt with by my award in 2019. She argued that it would be an abuse of process to allow the Union to proceed with this second grievance.
[21] The Arbitrator went on to observe as follows:
- The situation in this case is somewhat unique as the Union is seeking to litigate a grievance which the Employer asserts is substantially the same as a grievance which was before me and upon which I rendered a decision…The fact that I was part of the earlier process is important because I have a clear memory of what was discussed and what the issues were in the earlier case. I recall and have notes of the discussions that took place which led to my issuing the decision in December of 2019. In other words, unlike what is the normal case, I have first-hand knowledge as to whether or not the current grievance is “identical in substance” to the earlier grievance.
[22] The Arbitrator identified the issue in the following terms:
The issue in the first grievance was the delineation of the duties falling within the Assembler classification and those falling within the Helper classification. In that case, the Union was asserting that Helpers were performing Assembler duties and should be compensated at the higher rate. That issue was discussed at length and was integral to the award that was issued. Although the award does not specifically appear to deal with that issue, it was an issue that was resolved by the decision. While the Grievors and the time frame may be different in this current grievance, the issue is the same.
[23] Thus, the Arbitrator identified the issue of substance as the “delineation of the duties falling within the Assembler classification and those falling within the Helper classification.” She acknowledged that the award resulting from the first grievance did “not specifically appear to deal with that issue” and then concludes that, in spite of this, “it was an issue resolved by the decision.” Since the second grievance raised the same issue, it must be stayed to prevent an abuse of process.
Supplemental Award – August 21, 2023
[24] In response to the Union’s request for clarification as to how the issue of the delineation of the duties between the two classifications was resolved the Arbitrator issued the Supplemental Award in which confirmed that she issued the 2019 Consent Award “upon request and agreement of the parties” and that while the Award “references evidence, I did not hear any evidence as the parties opted to settle the matter as opposed to litigating it.” The Arbitrator went on to state:
There were two positions at the heart of the dispute between the parties, one called “Assembler” and the other called “Helper”. The Union alleged in the group grievance that persons employed in the classification called Helper were performing the duties of the higher rated position called Assembler and should be compensated at that rate.
As the matter was not litigated but settled. I did not make any factual findings with regard to this issue as I was in no position to do so and the parties did not request that I do so. However, I assisted the parties in their mediation efforts and because the mediation spanned two days, by the end I had a clear understanding of the issues in dispute. But I did not know then, nor do I know now what duties each of the two classifications performed or the delineation between the duties performed by Helpers and Assemblers.
[25] Thus, the Arbitrator confirmed that the issue at the heart of the dispute between the parties in the 2017 Grievance – the delineation between the duties of Assemblers and Helpers – was one she could offer no guidance on since she heard no evidence on the issue and the parties did not ask her to make factual findings about it.
[26] In addition to confirming that she was not asked to determine the issue, the Arbitrator also confirmed that the settlement between the parties could have contained a statement about the issue. It did not. “Had that been part of the settlement, I would have included it in the consent award. But that was not part of the settlement reached by the parties.”
[27] According to the Arbitrator, if the Union had wanted a ruling on the substantive issue, they should not have settled the 2017 Grievance and should have litigated. “But the Union did not choose to do that and can’t ask me now to give guidance on an issue that I have not heard.”
[28] The Arbitrator closed the Supplemental Award with a statement regarding the reference in the 2019 Consent Award to her remaining “seized with respect to any issues regarding alleged overlapping duties, proper classifications or alleged breaches of Article 1 of Schedule B-2, or any other issues addressed in this decision.” According to her, this did not mean that she was “to remain seized of these issues forever, but simply for the purposes of implementing the consent award.”
Issues Raised
[29] On this application the Union raises two issues:
Was the Decision made in breach of the duty of procedural fairness?
Was the Decision unreasonable?
Standard of Review
[30] The parties agree that the merits of the Decision must be reviewed on a standard of reasonableness.
[31] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Supreme Court of Canada instructed reviewing courts that “[r]easonableness review is an approach meant to ensure that courts intervene in administrative matters only when it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process”: at para. 13. The decision must be examined to determine if it “bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”: Vavilov, at para. 99. The burden to demonstrate unreasonableness is on the party challenging the decision and the alleged flaws in the decision “must be more than merely superficial or peripheral to the merits of the decision”: Vavilov, at para. 100.
[32] A reviewing court cannot interfere with a decision because it would have decided the matter differently or because an alternative interpretation would have been open to the tribunal. Thus, in conducting a reasonableness review, a court must develop what has been described as a “reasons first” approach. The court starts with the reasons of the tribunal and examines them with a view to considering whether the rationale for the decision and the outcome of the decision were reasonable. It does not “conduct a de novo analysis or seek to determine the “correct” solution to the problem”: Vavilov, at para. 83.
[33] The Supreme Court also found that “minor missteps” are not a proper basis to find that a decision is unreasonable. A tribunal’s decision is unreasonable “only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Vavilov, at para. 102.
[34] Vavilov holds that decisions must be read in light of the “history and context of the proceedings” including the evidence before the tribunal, the submissions of the parties, policies and past decisions of the tribunal. The Supreme Court held, at para. 94, that attention to the history and context of the proceeding:
may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency.
[35] While expertise is no longer a factor in determining the applicable standard of review, it is a factor in applying it. Both before and since Vavilov courts at all levels have recognized, for example, the Ontario Labour Relations Board's specialized expertise in determining grievances and have held that the Board should be afforded the highest degree of deference in its interpretation of collective agreements.
[36] In Electrical Power Systems Construction Association v. Labourer’s International Union of America, 2022 ONSC 2313, O.L.R.B. Rep. 497 (Div. Ct.), the Divisional Court held, at paras. 14-15:
[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. (cite omitted).
[37] In Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th) 421, the Court of Appeal for Ontario dealt with an appeal from a Divisional Court decision that quashed three decisions of the Board. In allowing the appeal, the Court of Appeal made the following comments about the role of expertise, at para. 61:
[61] I would add that the reviewing court must bear in mind the expertise of the administrative decision maker with respect to the questions before it. At para. 31 of Vavilov, the Supreme Court states that “expertise remains a relevant consideration in conducting a reasonableness review”. Being attentive to a decision maker’s demonstrated expertise may reveal to a court why a decision maker reached a particular outcome or provided less detail in its consideration of a given issue (para. 93). Moreover, decision makers’ specialized expertise may lead them to rely, when conducting statutory interpretation, on “considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise” (para. 119). As such, relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review, both when examining the rationality and logic of the decision maker’s reasoning process and the decision itself, in light of the factual and legal constraints bearing on it.
[38] While this case does not involve interpreting an issue of statutory interpretation or the interpretation of a collective agreement, and while it does not involve a decision made by the Ontario Labour Relations Board, I accept that, given the expertise of the Arbitrator, her decision must be awarded the highest degree of deference on the merits.
[39] However, Vavilov makes it clear that a reasonableness review involves not just assessing the reasonableness of the outcome of a decision, it is also concerned with the assessing the reasoning that led to the decision at issue. As put by the Supreme Court in Vavilov, at para. 85, “[a] reasonable decision is one that is based on an internally coherent chain of analysis that is justified in relation to the facts and law that constrain the decision maker.” Further, at para. 86:
In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.
[40] The importance of an administrative decision maker’s reasoning is reinforced in Vavilov, at para. 101: “What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process.”
[41] The standard of review analysis does not apply when reviewing a decision on grounds of procedural fairness. Rather, the Court must determine whether the process followed by the decision-maker satisfied the level of fairness required in all the circumstances. Accordingly, no deference is owed, and a failure to comply with the duty of procedural fairness is sufficient to set the decision aside.
Analysis
The Doctrine of Abuse of Process
[42] In Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R.(4th) 328 the Supreme Court dealt with the doctrine of abuse of process in an administrative context. While the issue in that case was whether the proceedings should be stayed because of inordinate delay, and while Abrametz was decided in the context of a statutory appeal rather than a judicial review application, the Supreme Court does make some general comments about the doctrine that are important to keep in mind in this case.
[43] First, the Supreme Court emphasizes, at para. 34, that the doctrine of abuse of process is a “broad concept” that can apply in various contexts: one of the ways courts use it, particularly in the civil context, is to prevent the relitigation of an issue.
[44] Abuse of process is also a flexible concept. “It is not encumbered by specific requirements, unlike the concepts of res judicata and issue estoppel”: Abrametz, at para. 35. In this regard, the Supreme Court adopts the following formulation of the doctrine by Goudge J.A. where he explained that the doctrine “engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.”
[45] The “primary focus” of the doctrine is “the integrity of the courts’ adjudicative functions, and less on the interests of the parties. The proper administration of justice and ensuring fairness are central to the doctrine. It aims to prevent unfairness by precluding ‘abuse of the decision-making process’”: Abrametz, at para. 36, citations omitted.
[46] The Supreme Court also notes that “[i]n administrative proceedings, abuse of process is a question of procedural fairness”: Abrametz, at para. 38.
[47] An earlier Supreme Court of Canada decision, Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, discussed the doctrine in the labour context. In that case the issue was the use that could be made of a criminal conviction in a grievance brought by the convicted person challenging his dismissal. As the Supreme Court noted, the doctrine of abuse of process is employed to examine whether relitigation will be detrimental to the to the adjudication process.
[48] In Toronto v. C.U.P.E. the Supreme Court also makes several general remarks about the doctrine of abuse of process, many of which are echoed in the Abrametz case. However, it goes on to note that one of the ways in which the doctrine is employed is “where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined”: at para. 37. The Supreme Court, at para. 38, also adopts the following formulation of the policy grounds for the doctrine:
The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts’ and the litigants’ resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice.
[49] In emphasizing that the doctrine is designed to focus on the “integrity of the adjudicative process’, the court goes on to make “three preliminary observations”, at para. 51:
First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will have proved to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.
[50] The Supreme Court discusses the factors that can applied to prevent the doctrine of abuse of process from “achieving an undesirable result”. It does so as follows, at para. 53:
The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similarly a similarly undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would ultimately create fairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision. [Citations omitted.]
[51] What emerges from these cases is that the doctrine, while broad and flexible, is not one to be employed lightly. It is designed to prevent “manifest unfairness” to one party or to prevent bringing the administration of justice into disrepute. Further, in applying the doctrine, a court must be aware of the ways in which applying the doctrine could actually result in unfairness.
[52] The Arbitrator accepted the Employer’s argument that the 2021 Grievance was an abuse of process because of a principle articulated in the 1965 case of C.U.P.E., Local 207 v. Sudbury (City), [1965] O.L.A.A. No. 7 (“Sudbury”), where Arbitrator Reville stated, at para. 1:
The authorities are legion that a board of arbitration has no jurisdiction to consider or, alternatively, that the grievor and his or her union representatives are barred and estopped from processing a grievance which is identical to a former grievance filed by the grievor and either withdrawn, abandoned or settled, or determined by a board of arbitration. Some of these cases proceed on the basis of estoppel and others on the principle of res judicata, but regardless of the approach taken, the authorities are overwhelming that a board of arbitration has no jurisdiction to entertain such a second grievance. There is also substantial authority to support the proposition that an arbitration board has no jurisdiction to determine a grievance which, though not identical in wording and form to a former grievance lodged by the same grievor, is identical in substance. [Citations omitted.]
[53] In Sudbury there were two grievances – both of which dealt with the same complaint i.e. that the grievor, a married woman, was forced to pay 100% of the premium to get medical benefit coverage for her husband under the collective agreement. In contrast, married male employees only had to pay 50% of the premium for such coverage. The first grievance was worded as an individual grievance in the first person. The second was worded in the third person and was drafted to appear like a policy grievance. The board decided that the two grievances were identical in substance and that they had no jurisdiction to process the second grievance. The reported sections of the case do not indicate what happened to the first grievance.
[54] The other two cases relied upon by the Arbitrator were O.N.A. v. Chatham-Kent (Municipality), [2006] O.L.A.A. No. 734 and Turning Point Youth Services v. CUPE, Local 3501 (Assignment of job duties) (2019), 138 C.L.A.S. 271 .
[55] In Chatham-Kent, the Union filed a grievance, the employer filed its reply to the grievance and the union failed to take any step to refer the grievance to arbitration within the time limit specified in the collective agreement. The collective agreement stated that if the time limit was not met, the grievance was deemed to be abandoned. There is limited arbitral discretion to relieve against time limits for referral to arbitration. When the union tried to refer the matter to arbitration at a later date, the employer objected. The union filed a second grievance that was the same as the first grievance and stated that they were withdrawing the first grievance. The arbitrator stayed the second grievance. In doing so the arbitrator relied on the principle cited in Sudbury above and added the following comment, at para. 25:
As noted by Arbitrator Briggs in Child & Youth Wellness Centre of Leeds and Grenville, supra, there has been broad arbitral consensus on the application of these principles in the last forty years (at para. 29). Briggs and other arbitrators have noted that the consensus results from the fact that the rule simply makes good labour relations sense. A bar to the litigation of grievances that have already been settled, abandoned or withdrawn recognizes the parties’ need for certainty and finality in their dealings with each other, the avoidance of unnecessary expenses through misuse of the arbitration process, and their interest in an orderly processing of grievances to foster good labour relations. Arbitration recognizes the danger to these interests if they allow either party to revive an issue because they did not like the outcome of an earlier grievance.
[56] In Turning Point the union filed a grievance that was referred to arbitration. Two weeks before the hearing date the union withdrew the grievance. Eight months later the union filed another grievance, that the arbitrator found addressed the same issues as the first grievance. Applying the principle set out in Sudbury, the arbitrator stayed the second grievance.
[57] The Employer put before us other cases, which also applied what I will refer to as the Sudbury principle.
[58] In Weston Bakeries Ltd. v. Milk & Bread Drivers, Dairy Employees, Caterers & Allied Employees, Local 647, [1998] O.L.A.A. No. 937, the first grievance was abandoned, not withdrawn. The arbitrator applied the Sudbury principle to stay a second grievance that she found raised substantially the same issue. In doing so, at para. 14, the arbitrator quotes extensively from North American Lumber Ltd. v. I.W.A., Local 2693 (1992), 25 L.A.C. (4th) 402 that contains the following articulation of the rationale for the principle:
The grievance procedure is designed to provide members of the bargaining unit and the union with a method of orderly processing their respective grievances. In order to avoid the expense inherent in the arbitration process the procedure provides for bona fide efforts to be made by both the grievor and management to settle the dispute at various stages and various levels. It follows, therefore, that if the grievor and/or the union actually or impliedly accept the decision of management they should not be allowed to have second thoughts on the matter and re-process essentially the same grievance at a later date. If this were to be allowed, management would never know whether, in fact, its decision had been accepted by the individual grievor or the union representing him, and management could be plagued and harassed in what would be a plain abuse of the grievance procedure.
Clearly, in finding that the abandonment, withdrawal or settlement of a grievance, in the instant case, by the union, acts as a bar to its revival, arbitrators have recognized that the parties’ need for certainty and finality, the parties’ interest in orderly processing of grievances, and avoidance of unnecessary expenses associated with the arbitration process, properly entitle the employer to view the abandonment, settlement or withdrawal of a grievance as an actual or implied acceptance by the union, of its decision on the subject-matter of a grievance. [Citations omitted.]
[59] In Saint-Gobain Abrasives v. C.E.P., Local 12, [2003] O.L.A.A. No. 495, the arbitrator stayed a grievance because a grievance making the identical claim had been filed some years earlier and that grievance was never referred to arbitration by the union or otherwise pursued within the time limits contained within the collective agreement. In doing so the arbitrator commented that applying the Sudbury principle is not just a matter of discouraging a party from using the grievance process to “snipe at the other party”, but also “to limit the scope for conflict where the withdrawal of a prior grievance clearly evidences an acceptance of the other parties’ position”: Saint-Gobain, at para. 12. The arbitrator then goes on to examine the arbitral jurisprudence, which appears to be divided on the question of whether a grievance that raises the same issue as a grievance that has been previously withdrawn or abandoned, should be automatically rejected or whether the circumstances behind that withdrawal or abandonment should be examined to see if the withdrawal or abandonment did actually represent an acceptance of the other side’s position. The arbitrator in Saint-Gobain was “of the view that there ought not to be a blanket rule that the withdrawal of any prior grievance automatically bars the filing of a subsequent grievance”: at para. 14.
[60] What emerges from these cases is the principle that in withdrawing, settling or abandoning a grievance, the union may have impliedly accepted the position of the employer on an issue that was the subject matter of the grievance. Therefore, it would be an abuse of process to allow the union to pursue a second grievance that raises the same issue. Applying this principle to the facts of this case (as the Arbitrator did) and putting the Employer’s argument at its highest, results in the following reasoning: the issue of substance in the 2017 Grievance was the delineation of the duties between Assemblers and Helpers. The Union settled that grievance. In doing so it impliedly accepted the Employer’s position on the delineation of the duties between Assemblers and Helpers. The Employer’s position on the delineation of these duties has not changed. Therefore, filing the 2021 Grievance, which raised the same issue, was an abuse of process.
[61] The cases relied on by the Employer and the Arbitrator are cases where the first grievance was withdrawn or abandoned. In those cases there may be some debate about whether the circumstances surrounding the withdrawal or acceptance must be examined to determine whether they do constitute an acceptance by the union of the employer’s position. However, this case does not involve a withdrawal or an abandonment. The first grievance was settled and there is an award that records that settlement. It would be irrational to conclude that no matter what a settlement agreement says, the Sudbury principle should be applied to conclude that if the settlement does not determine an issue, the union impliedly accepted the position of the employer on that issue. Apart from anything else, to do so would be to apply a principle that is to be invoked to prevent manifest unfairness in a way that could cause manifest unfairness.
[62] In this case the Decision contains no analysis of the 2019 Consent Award with a view to determining whether it supports the conclusion that the Union impliedly accepted the Employer’s position on the issue of substance between them. This required an analysis of the substance of the grievances filed and their substantive disposition in the consent order. A decision that is internally coherent and logical (and, therefore, reasonable) would contain such an analysis, especially where the Union makes arguments based on the wording of that award to support its position that in entering into the settlement it was not accepting the position of the Employer as to the delineation of duties between Assemblers and Helpers. I will not go into those arguments as I accept that it is not our task to determine whether the arguments have merit. I will only comment that they certainly rise to the level of being serous enough that they needed to be addressed. For one thing, the 2019 Consent Award granted a remedy to the grieving workers, making it difficult to draw an inference that the Employer’s prior practices had been accepted by the Union.
[63] Instead of doing this analysis, the Arbitrator came to the conclusion that the 2019 Consent Award resolved the issue of the delineation of the duties between Assemblers and Helpers on the basis of her own memory and notes. Further she does so without explaining why she is taking this step rather than conducting the analysis she should have conducted. This raises a real concern about possible procedural unfairness.
[64] Two critical elements of procedural fairness are the right to notice and the opportunity to know the case against one. As the Supreme Court explained in IWA v. Consolidated Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, at p. 339: “[s]ince its earliest development, the essence of the audi alteram partem rule has been to give the parties a ‘fair opportunity of answering the case against [them]..’” That rule, as it applies to factual or evidentiary matters, requires that the parties be given “a fair opportunity…for correcting or contradicting any relevant statement prejudicial to their view.”: at para. 93.
[65] Furthermore, as the Court of Appeal for Ontario stated in Imperial Oil Limited v. Communications, Energy & Paperworkers Union of Canada, 2009 ONCA 420, 96 O.R. (3d) 668, at para. 35:
[35] Boards of arbitration, like other tribunals, and, indeed, the courts, are required to base their findings of fact exclusively on evidence that is admissable before them. They enjoy no authority to base their decision on information and material not contained in the evidence before them.
[66] The Arbitrator’s notes of the mediation that preceded the 2019 Consent Award were not in evidence in the proceeding that led to the dismissal of the 2021 Grievance. Further, given the without prejudice nature of mediation discussions, there may be a real issue about the admissibility of those notes, notwithstanding the relative freedom granted to labour arbitrators with respect to the evidence that can be admitted before them.
[67] Having potentially breached procedural fairness to arrive at her conclusion in the Decision, the Arbitrator’s Supplemental Award further undermines the rationality of the Decision. In the Decision the Arbitrator states that the issue of the delineation of the duties between Assemblers and Helpers was resolved by the 2019 Consent Award. Yet, when asked for details about how, she cannot say.
[68] It may be, as the Employer argues, that the Arbitrator only looked at her notes to confirm that the issue of the delineation of the duties between Assemblers and Helpers was raised in the first grievance. If so, this is not contested, in which case, her reference to her notes may be irrelevant. However, that is not what the Decision said. It said that the reference to her notes and memory caused her to know that the issue was “resolved”.
Conclusion
[69] For these reasons the application for judicial review is allowed, the Decision is set aside and the matter is referred back for a determination by another arbitrator. The Union requested costs fixed in the amount of $14,000.00 all inclusive. The Employer made no submissions in opposition to this request. It is so ordered.
Sachs J.
I agree: _______________________________
Matheson J.
D.L. Corbett J. (Concurring):
[70] I agree with my colleague in the result, but I do so solely on the basis that the decision below is unreasonable in substance. In my view it is unnecessary to address issues of procedural fairness.
Decision Below
[71] It is clear what the arbitrator decided: the arbitrator found that the delineation between “Helpers” and “Assemblers” was raised and discussed in the prior grievance. It obviously was, and neither side seriously contests this fact. The parties settled the first grievance, and in their settlement, they did not expressly resolve general issues concerning the delineation –they did, however, agree that a remedy should be provided to individual grievors – a disposition that is inconsistent with an inference that the union acceded to management’s views on the general delineation issue – and they did agree that there were then no unresolved grievances respecting the delineation. Unresolved concerns were left to be addressed in subsequent collective agreement negotiations.
[72] From the Supplementary Award, it is clear the Arbitrator has no recollection of an agreement on the general delineation issues – had there been such an agreement, it would not have been necessary for the arbitrator to have had recourse to the Sudbury principle: there would be issue estoppel or res judicata on the basis of an agreement – and perhaps rectification of the settlement agreement to reflect the agreement.
[73] As reflected in my colleague’s review of the cases, the Sudbury principle usually arises when a union initiates and then does not pursue a grievance. It does not usually arise in cases where the parties have reached a settlement. While the Sudbury principle could arise in the context of a settled grievance, this should be unusual: where the parties have reached a settlement agreement, one would expect that they have reduced to writing the four corners of their agreement, and that anything that has not been agreed has not been resolved.
[74] And that is what lies at the heart of the unreasonableness in the decision below. The starting place for the arbitrator’s decision should have been the settlement. Its substance should have been the lens for assessing the current grievances. In this case, it is apparent that the settlement did resolve some issues – but the extent to which the issues were resolved requires findings about the meaning of the settlement agreement, and how it applies to the current grievances. The arbitrator did not undertake this analysis, and the decision cannot stand in the result: the case must go back for this analysis to be done.
[75] If an arbitrator was not able to resolve an issue respecting the application of a settlement to a subsequent grievance, the second place to look would not be in mediation discussions, but in the record of the previous grievance – notably the grievances themselves and the responses to them – the documents that would establish the issues put in play in the prior proceedings.
[76] It is not clear to me that it would ever be appropriate to examine the content of without prejudice settlement discussions in a mediation, other than, perhaps in some circumstances, to determine what had, in fact, been agreed. It is not necessary to decide this question in this case: at the fresh hearing that issue could only arise if the first two stages of analysis are insufficient to resolve the issue.
No Need to Address Issues of Procedural Unfairness
[77] My colleagues have found it necessary to address procedural fairness issues because of their reading of the arbitrator’s first decision. They conclude that the arbitrator found that there was an agreement reached during mediation on all issues concerning delineation between Helpers and Assemblers. In this context, they consider that it was unfair for the arbitrator to rely upon her own notes, and to do so without notice, disclosure, or an opportunity to address the issue with the arbitrator.
[78] I think there are real problems with this approach. The arbitrator is not a witness or a party. Their notes are protected by adjudicative privilege. I would be most reluctant to find that there would ever be a requirement that a decisionmaker disclose their notes and give the parties an opportunity to review those notes and to make argument about them, or, more broadly, to permit the parties to litigate issues respecting the manner in which a decisionmakers have reached a recollection about proceedings before them. I do not find it necessary to inquire into these issues in this case and would not do so.
Conclusion
[79] For these reasons I would dispose of the application as directed by H.J. Sachs J.
D.L. Corbett J.
Released: April 30, 2024
DIVISIONAL COURT FILE NO.:404/23
DATE: 20240230
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, D.L. Corbett and Matheson JJ.
BETWEEN:
United Food and Commercial Workers, Local 175
Applicant
– and –
La Rocca Creative Cakes and Arbitrator Janice Johnston
Respondent
REASONS FOR JUDGMENT
Released: April 30, 2024