Service Employees International Union, Local 2 v. Labatt Breweries Ontario Canada, 2024 ONSC 3881

DIVISIONAL COURT FILE NO.: DC-23-32 (London)
DATE: 20240712

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Lococo, Fregeau and Trimble JJ.

BETWEEN:

Service employees International Union, Local 2

Applicant

– and –

labatt breweries ontario Canada (LBOC), division of labatt breweries of canada lp and randy levinson

Respondents

Robert Logue and Taylor Akin, for the Applicant

Frank Cesario and Colleen Nevison, for the Respondent Labatt Breweries

HEARD at London: April 22, 2024

REASONS FOR JUDGMENT

R. A. LOCOCO J.

I. Introduction

[1] The applicant Service Employees International Union, Local 2 brings an application for judicial review of a labour arbitration decision dated June 23, 2023 (the “Decision”), reported at 2023 59207 (Ont. L.A.). The Arbitrator was the respondent Randy L. Levinson.

[2] The respondent Labatt Breweries Ontario Canada dismissed an employee for conduct that created a safety hazard for other employees. The applicant union grieved the dismissal, arguing that a period of suspension would be a sufficient penalty in all the circumstances, including the employee’s length of service. The Arbitrator decided that the dismissal was for just cause and that it was not just and reasonable to substitute a lesser penalty. The Arbitrator declined to consider in mitigation the employee’s ten years of service with Labatt before he was made a permanent employee in a “seniority” position.

[3] Among other things, the applicant submits that in deciding a lesser penalty was not sufficient, the Arbitrator failed to give sufficient weight to mitigating factors, including the employee’s pre-seniority service. The applicant asks that Arbitrator’s decision be set aside as unreasonable, and the matter remitted to a different arbitrator for determination.

[4] For the reasons below, I would dismiss the judicial review application. The union has not demonstrated that the Decision was unreasonable.

II. Background

[5] The respondent Labatt Breweries Ontario Canada (“Labatt”) operates a brewery in London, Ontario. Labatt’s employees are members of the applicant Service Employees International Union, Local 2 (the “Union”), a trade union within the meaning of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”). At all relevant times, the Union and Labatt were parties to a collective agreement for the seven-year period ended December 31, 2022 (the “Collective Agreement”), which governed the employees’ terms and conditions of work and included provisions relating to employees’ health and safety.

[6] In March 2004, Labatt hired Mike Lancaster (the “Grievor”) as a temporary employee, working full-time. In October 2014, the Grievor became a permanent employee in a “seniority” position in the packaging department. The Grievor operated a “palletizer”, which is a machine that stacks cases of full pressurized beer bottles on pallets for shipping.

[7] The Grievor was dismissed from his employment following an incident that occurred in June 2020. During the afternoon shift on June 12, 2020, a spill of cases of beer caused the bottle line to stop. The Grievor and other employees were working to clean up the spill. One case of 24 beer bottles was stuck inside and near the top of the “hoist” of one of the palletizers, several feet above ground level. The hoist is a chamber where cases are formed on a wooden pallet. The position of the case and how it was stuck inside the hoist was described as a “one in a million” occurrence: Decision, at para. 32.

[8] Without making a required risk assessment and after locking out some but not all energy sources, the Grievor climbed to the upper level of the palletizer. Without any fall protection, he reached into the hoist over an opening in an attempt to remove the stuck case. The cardboard case split open, preventing him from pulling the case up to the palletizer’s upper level. Instead, he swung the case out and let it drop to the ground. Some of the glass beer bottles shattered, creating a safety risk for workers below.

[9] Following this incident, the Grievor was sent home by the shift manager. On June 18, 2020, a “fair and just hearing” was held to consider whether the Grievor should be disciplined for his conduct, as provided for in s. 13.03 of the Collective Agreement. Section 13.03 provides in part:

No employee shall be reprimanded, suspended or dismissed except in the presence of a Shop Steward or a Union Executive member. In dismissal cases, the Union President or his/her nominees must be present. An employee may be sent home pending possible disciplinary action. The employee will be given a fair and just hearing before any disciplinary action is taken. [Emphasis added.]

[10] The President of the Union was present with the Grievor at the fair and just hearing, along with another palletizer operator. At that hearing, the Grievor explained his reasoning for his actions, but did not attempt to justify his conduct and expressed his regret for putting “production before safety”: Decision, at para. 67.

[11] On June 24, 2020, Labatt terminated the Grievor’s employment, based on a health and safety infraction. The Union provided a “Grievance Form” to Labatt the same day, grieving the Grievor’s dismissal.

III. The Arbitration

[12] The grievance proceeded to a grievance arbitration before the Arbitrator, as provided for in s. 15.05 of the Collective Agreement: see LRA, s. 48. The eight-day arbitration hearing took place in the period from October 2021 to June 2022.

A. Matters in issue before the Arbitrator

[13] At the arbitration, there was no dispute that the Grievor failed to follow certain required safety protocols, although the Union argued that any safety violations were not deliberate: Decision, at paras. 3-6, 8, 11. The parties did not dispute that the Grievor failed to follow a safety protocol known as a Non-Routine Risk Assessment (“NRRA”) before attempting to dislodge the beer case stuck in the palletizer: Decision, at paras. 3, 8. There was also no dispute that he violated the Lock Out Tag Out (“LOTO”) safety protocol by not locking out all required electrical and pneumatic sources of energy: Decision, at paras. 4, 8. However, the parties disagreed about whether the Grievor violated the “Working at Heights” safety protocol, which required an employee to have fall equipment, training, and a permit to work at a height greater than three metres. The level at which the Grievor was working was the disputed matter: Decision, at para. 5.

[14] The parties did not dispute that the Grievor’s actions justified discipline, but they disagreed about the penalty imposed: Decision, at para. 8. The parties’ respective positions at the arbitration hearing are summarized below.

B. Labatt’s arbitration position

[15] Labatt argued that the Grievor’s discharge was warranted by the severity of his safety infractions and his reckless behaviour that endangered him and his co-workers: Decision, at para. 9. Dismissal was not precluded by the “London Brewery Behavioural Change Process” (the “Grid”), an agreed-upon five-step discipline guideline (Step 5 being dismissal) set out in tabular form that is normally followed to determining the level of discipline to be imposed in a specific case. Deterrence for safety infractions was important and outweighed any potential mitigating factors, thereby justifying dismissal in this case: Decision, at para. 10.

C. Union’s arbitration position

[16] The Union argued that the Grievor should be reinstated. Labatt should have applied Step 3 of the Grid by suspending the Grievor, rather than dismissing him, dismissal being a stark departure from past discipline. The Grievor did not deliberately violate any safety protocol and acted inadvertently when he exposed his co-workers to broken glass by releasing the case of beer. Deterrence did not outweigh mitigating factors, including the Grievor’s 16 years of service, his age, and his clean discipline record: Decision, at paras. 10-12.

IV. The Arbitrator’s Decision

[17] On June 23, 2023, the Arbitrator issued the Decision, upholding the Grievor’s termination and dismissing the Union’s grievance. The Arbitrator found that the Grievor’s dismissal was for just cause and that it was not just and reasonable to substitute a lesser penalty: Decision, at paras. 13, 70, 94. The Arbitrator, at para. 71, set out some guiding principles regarding safety violations, including that “[s]afety infractions are among the most severe workplace offences, given the potential consequences.” At para. 73, the Arbitrator described the serious nature of the Grievor’s misconduct in the following terms:

The scope of [the Grievor’s] proven course of reckless misconduct viewed in its totality is egregious…. [The Grievor] put production before safety. As a result, he disregarded multiple known safety protocols such as NRRA, LOTO and Working at Heights. He was indifferent to creating risks for himself and others. Moreover, [the Grievor] continues to fail to appreciate fully the risk he created for others by swinging and dropping the case…, even though he knew there were others around the Palletizer and a potential for others to walk into the area. [Emphasis in original.]

[18] At para. 74, the Arbitrator found that the given the “egregious nature” of the Grievor’s misconduct, Labatt was “was justified in exercising its right to skip steps on the Grid and discharge [the Grievor] for just cause, in these circumstances” (emphasis in original). At para. 75, the Arbitrator noted that the list of offences under “Behaviour” under Step 3 of the Grid that would justify suspension included “Violation of safety rules (ie PPE)”, but the Grid also included the following Note at the bottom below the Grid table:

Note: The above list is not to be inclusive of offences. Normally, discipline involved will follow the grid above. However, the final decision as to level of action will depend on the seriousness of the offence, time elapsed since the last offence, and all other relevant facts such as the seniority of the employee and other mitigating factors. [Emphasis in original.]

[19] In making his decision, the Arbitrator also relied on a 2015 arbitration decision between the parties (from arbitrator Barry Stephens) in Labatt Breweries of Canada (London) and Service Employees International Union Local 2 (MacIntosh), unreported (August 11, 2015), at paras. 27-28. In that case, the arbitrator noted that the five-step process in the Grid “is not a blueprint or database of specific penalties. Rather, it is a guideline to discipline.” The arbitrator in that case also found that “the employer has the right to skip steps on the grid if an employee engages in serious egregious behaviour”.

[20] The Arbitrator found, at para. 83 of the Decision, that in deciding to terminate the Grievor’s employment, Labatt did not err when it did not consider in mitigation the Grievor’s ten years of service as a temporary employee. Citing the “nature of a temporary employment relationship” as set out in the Collective Agreement (which conferred “no rights or benefits under the Collective Agreement except where specifically stated therein” and did not confer “seniority as a result of time worked”), the Arbitrator found that “the parties in the Grid have not treated seniority to be synonymous with service. Instead, viewed objectively, they intended it to relate only to full-time employment.”

[21] In making the Decision, the Arbitrator noted, at para. 90, that he considered factors supporting reinstatement, including “5.7 years of seniority, a discipline free record and his honesty during the fair and just hearing”, but concluded that “these potentially mitigating factors are outweighed by several factors and militate against reinstatement.” At para. 91, the Arbitrator again referred to the Grievor’s “egregious” misconduct, “putting production before safety”, disregarding “multiple safety protocols”, “indifferent to creating risks for himself and others”, resulting in “no reasonable degree of confidence or trust that [the Grievor] would work safely in the future.” At para. 92, the Arbitrator also stated that reinstatement would “send a mixed message to the bargaining unit about the necessity and importance to always follow safety protocols” and would “undermine the importance of deterrence.”

[22] The Arbitrator also stated, at para. 93, that he considered “this exceptional matter to materially differ from any other case at the Brewery”, noting that “no similar matter involved violations of NRRA, LOTO, Working at Heights and an employee swinging and dropping a case of beer, as happened here” (emphasis in original).

[23] In summary, at para. 94, the Arbitrator concluded the Grievor was discharged “for just cause” and that it was “not just and reasonable in all the circumstances to substitute another penalty for the discharge.”

[24] On August 3, 2023, the Union filed a Notice of Application for Judicial Review of the Decision.

V. Jurisdiction and standard of review

[25] The Divisional Court has jurisdiction to hear this application for judicial review: Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2, 6(1).

[26] The standard of review for a labour arbitration award is reasonableness: United Food and Commercial Workers Union, Local 175 v. Copper River Inn and Conference Centre, 2021 ONSC 5058 (Div. Ct.), at para. 16. The party challenging the decision has the burden of showing that it is unreasonable: Canada (Minister of Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 100.

[27] Section 48(17) of the LRA provides:

Substitution of penalty

(17) Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances.

[28] Previous case law indicates that a reviewing court owes deference to an arbitrator’s exercise of discretion on appropriate remedy in a labour arbitration. “Judicial deference is particularly apt in the context of the exercise of an arbitrator’s discretion on remedy”: St. Catharines (City) v. St. Catharines Professional Fire Fighters’ Assn., 2017 ONSC 7638 (Div. Ct.), at para. 11; see also Toronto Transit Commission v. Amalgamated Transit Union, Local 113, 2022 ONSC 2766 (Div. Ct.), at para 30; Brampton (City) v. Canadian Union of Public Employees, Local 831, 2021 ONSC 466 (Div. Ct.), at paras, 11, 21; Air Canada v. Canadian Union of Public Employees, Air Canada Component, 2020 ONSC 5927 (Div. Ct.), at para 38.

VI. Parties’ positions on judicial review

[29] The Union submits that the court should set aside the Decision as unreasonable and remit the grievance to a different arbitrator for determination.

[30] The Union says that the Decision runs contrary to previous arbitral jurisprudence that has interpreted how an arbitrator is to exercise their discretion to substitute a penalty other than dismissal under section 48(17) of the LRA. The Union submits that the Arbitrator erred in declining to consider as a mitigating factor the Grievor’s ten years of service before he was made a permanent employee in a seniority position. By doing so, the Arbitrator failed to consider “all the circumstances” as required by the closing words of s. 48(17). The Union also argues that the Arbitrator erred in interpretating the Grid as excluding consideration of length of service as a mitigating factor given the references in the Grid to “all other relevant facts” and “other mitigating factors”.

[31] Labatt disagrees. Labatt submits that the Union has not established that the Decision was unreasonable.

[32] Labatt argues that given the Grievor’s egregious and reckless misconduct that endangered the safety of other employees, the Arbitrator reasonably decided not to exercise his discretion under s. 48(17) to reinstate the Grievor and substitute the lesser penalty of suspension. Labatt says that the Arbitrator properly considered relevant mitigating factors, including the Grievor’s years of seniority (which is not synonymous with service), and reasonably concluded that those factors were not sufficient to justify a lesser penalty. Labatt submits that the Decision was consistent with the terms of the Collective Agreement and the Grid and did not conflict with established arbitral jurisprudence. Labatt also argues that the Union’s focus on the issue of service as grounds for its application overlooks the full scope and context of the Arbitrator’s reasoning, which emphasized the “egregious” and “exceptional” nature of the Grievor’s misconduct. That issue does not rise to the level of warranting setting aside the Decision.

VII. Analysis

[33] As explained below, I have concluded that the Union has not discharged its burden of establishing that the Decision was unreasonable.

A. The Arbitrator did not err in his consideration of “service” and “seniority” in exercising his discretion under s. 48(17)

[34] The Union submits that the Arbitrator’s refusal to consider the Grievor’s service as a mitigating factor was unreasonable because it was inconsistent with previous arbitral jurisprudence and contrary to the requirement in s. 48(17) to consider “all the circumstances” when determining penalty.

[35] The Union says that even though there is no system of stare decisis in labour arbitration, the arbitral jurisprudence forms an important part of the legal context in which reasonableness review is undertaken. Where an arbitral consensus exists, it raises a presumption that subsequent decisions will follow those precedents because consistent rules and decisions are fundamental to the rule of law: see Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, at paras. 74-80; Copper River Inn, at para. 22.

[36] In prior discipline decisions relating to the exercise of discretion under s. 48(17) (or other equivalent statutory provisions), arbitrators in Canada have adopted the approach set out in William Scott & Co. v. C.F.A.W., Local P-162, 1976 CarswellBC 518 (B.C.L.R.B.). In that decision, the Chair of the B.C. Labour Relations Board repeatedly emphasized the importance of an employees’ service when determining the appropriate disciplinary penalty: see William Scott, at paras. 7, 9, 13. In that decision, at para. 11, the Board adopted the framework set out in an earlier Ontario arbitration decision, Re United Steelworkers of America, Local 3257 and Steel Equipment Co. Ltd. (1964), 14 L.A.C. 356 (Ont. L.A.). In Steel Equipment, at pp. 357-58, the arbitration board outlined ten non-exclusive factors for consideration when assessing aggravating and mitigating factors in discipline matters and listed the “long service of the grievor” as a key mitigating factor.

[37] Arbitrators have adopted the framework in William Scott and Steel Equipment in subsequent discipline decisions across Canada: see Canada Post Corp. v. Canadian Union of Postal Workers (Can. L.A.), at paras. 48, 51; Zehrs Markets Inc. v. UFCW, Local 175 & 633, 2006 CarswellOnt 9907 (Ont. L.A.), at para. 85; International Union of Elevator Constructors, Local 50 v. OTIS Canada Inc., at para. 34. This framework has also been recognized as authoritative in influential textbooks on labour arbitration in Canada: see Donald Brown, David Beatty & Adam Beatty, Canadian Labour Arbitration, loose-leaf, 5th ed. (Toronto: Thompson Reuters Canada Limited, 2019, loose-leaf updated 2024), ch. 7.67; Morton G. Mitchnick & Brian Etherington, Labour Arbitration in Canada, 3rd ed. (Toronto: Lancaster House, 2018), pp. 287-290.

[38] The rationale for considering the “long service of the grievor” has been described by various arbitrators as tied to the investment that an employee makes in their employment, an investment that increases with time, sometimes referred to as “service equity” or “trust equity”. That factor “represents a form of investment made by the employee which an arbitrator is required to give some weight in carrying out the review mandated in the legislation”: MacMillan Bloedel Ltd. v. I.W.A.-Canada, Local 1-85, Re (1993), 33 L.A.C. (4th) 288 (B.C. L.A.), at p. 304; see also UNITE HERE, Local 75 v. Fairmont Royal York Hotel (Ont. L.A.). Failure to consider an employee’s full years of service has resulted in the overturning of other arbitration decisions in discipline matters: see University of British Columbia v. Canadian Union of Public Employees, Local 116 (B.C.L.R.B.), at para. 48, reconsideration dismissed, 2001 33288 (B.C.L.R.B.), at paras. 28, 30; Bart v. McMaster University, 2016 ONSC 5747, 133 O.R. (3d) 592 (Div. Ct.), at para. 188.

[39] The Union submits that given this arbitral consensus, a strong presumption arose that the Arbitrator should have considered not only the Grievor’s 5.7 years of seniority but also his full 16 years of service (and the resulting service equity) as a mitigating factor. The Union argues that the Arbitrator’s failure to consider the Grievor’s full service was an unreasonable departure from that consensus, which the Arbitrator failed to justify in the Decision. The Union says that the Arbitrator’s reasoning was premised on a “false dilemma” (see Vavilov, at para. 194) – that he had to choose between seniority and service as the relevant mitigation factor – which was not consistent with arbitral jurisprudence. The Union also submits that the Arbitrator’s failure to consider the Grievor’s full length of service was contrary to the statutory mandate to consider “all the circumstances” when determining whether it was just and reasonable to substitute a lesser penalty under s. 48(17).

[40] As explained below, I have concluded that the Union has not established that the Arbitrator unreasonably departed from established arbitral jurisprudence or failed to consider “all the circumstances” in declining to consider the Grievor’s 16 years of service in mitigation of penalty.

[41] In response to the Union’s submission relating to failure to follow the arbitral consensus, Labatt does not dispute that length of service is one of the mitigating factors included in the non-exclusive list of ten factors identified in William Scott, Steel Equipment and other previous decisions that an arbitrator may consider when determining the appropriate penalty. However, as explained further below, I agree with Labatt that the Union’s reliance on arbitral jurisprudence fails to adequately address differing factual bases for previous decisions, including the terms of the relevant collective agreement and the “egregious” and “exceptional” nature of the Grievor’s misconduct. As the arbitration board went on to state in Steel Equipment, at p. 358, “[e]very case must be determined on its merits and every case is different bringing to light in its evidence differing considerations which a board of arbitration must consider.”

[42] As addressed further below, Labatt justifiably takes issue with the Union’s submission that the Arbitrator’s reasoning was premised on the “false dilemma” of having to choose between service and seniority as a mitigating factor. As the Divisional Court noted in Cornwall (City) v. Cornwall Professional Fire Fighters Assn., 2011 ONSC 3922, 282 O.A.C. 384 (Div. Ct.), at para. 10, “‘service’ and ‘seniority’ are not interchangeable terms. They do engage different concepts.”

[43] As the Arbitrator noted in the Decision, at para. 83, consideration of the Collective Agreement’s provisions relating to “the nature of a temporary employment relationship” was relevant in determining the extent to which “seniority” as opposed to “service” should be considered as a mitigating factor in this case. As noted above, the Collective Agreement by its terms conferred “no rights or benefits under the Collective Agreement except where specifically stated therein” and did not confer “seniority as a result of time worked”. As discussed further below, the Arbitrator reasonably concluded that Labatt did not err in not considering the Grievor’s service as a temporary employee as a mitigating consideration, given those terms of the Collective Agreement and the clear language of the Grid. The Arbitrator’s exercise of discretion in making that determination is entitled to deference: St. Catharines Professional Fire Fighters, at para. 11.

B. The Arbitrator did not err by interpretating the Grid as excluding consideration of an employee’s pre-seniority service as a mitigating factor

[44] The Union takes issue with the Arbitrator’s interpretation of the Grid as excluding consideration of an employee’s pre-seniority service as a mitigating factor when determining whether to substitute a lesser penalty. Among other things, the Union argues the Arbitrator’s reasons for doing so do not exhibit an “internally coherent and rational chain of analysis” that meets the reasonableness test: see Vavilov, at para. 85. The internal rationality of a decision may be called into question if the reasons exhibit “clear logical fallacies”, which may include “circular reasoning, false dilemmas, unfounded generalizations or an absurd premise”: Vavilov, at para. 104.

[45] The Union submits that while the Arbitrator does not explicitly say so in the Decision, his reasoning is implicitly premised on the “false dilemma” that he had to choose between seniority or service as the relevant mitigating factor for determining whether to substitute a lesser penalty in place of dismissal. The Union argues that this approach was not consistent with the rationale behind service as a mitigating factor in previous arbitration decisions. The Union says that service speaks to rehabilitative potential – in this case, service equity arising from an additional ten years of pre-seniority full time employment. In contrast, seniority is more closely associated with the impact on the employee since most benefits under a collective agreement (order of layoff, job posting rights, etc.) are tied to seniority. The Union says that given that distinction, it was illogical to rely on provisions in the Collective Agreement relating to the rights of temporary employees, who accumulate service equity but not seniority with the passage of time. The Union argues that by doing so, the Arbitrator erred in conflating two distinct concepts, service and seniority.

[46] The Union also submits that there was nothing in the Grid’s language stating that an arbitrator was required to consider seniority to the exclusion of other mitigating factors. On the contrary, the Note below the Grid table expressly indicated that “all relevant facts” should be considered, of which seniority was the stated example. This point was underscored by the fact that the word “seniority” was preceded by the words “such as”, and immediately followed by the phrase “and other mitigating factors”.

[47] Among other things, the Union also challenges the Arbitrator’s reliance on arbitrator Stephens’ prior arbitration decision relating to the Grid. In the Decision, at para. 78, the Arbitrator highlighted passages from the Stephens decision stating that the Grid “is not a blueprint or database of specific penalties. Rather, it is a guideline to discipline” and that “the employer has the right to skip steps on the grid if an employee engages in serious egregious behaviour”. The Union notes that the Stephens decision, at para. 27, also provided that “as both parties acknowledge, no discipline grid can anticipate every type of transgression, let alone the unique circumstances that might be relevant to the level of discipline in a specific case.” The Union submits that the Arbitrator’s reasoning was not internally coherent in finding on one hand that it was not necessary to follow the Grid because it was not possible to anticipate every circumstance that would be relevant to the level of discipline justified in each case, but on the other hand refused to consider a relevant circumstance because it is not specifically mentioned in the Grid.

[48] I do not agree with the Union’s reasoning, which is not in keeping with the deference to be afforded to an arbitral decision. It is also not consistent with the Supreme Court’s warning against treating reasonableness review as a “line-by-line treasure hunt for error”: Vavilov, at para. 102; Irving Pulp & Paper, at para. 54, citing Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 70, at para. 14.

[49] The Union submits that the Arbitrator erred in failing to consider the Grievor’s “service”. To the contrary, the Decision reflects that the Arbitrator was well-aware of how long the Grievor had been employed with Labatt but found that Labatt’s decision to consider only the Grievor’s seniority under the Grid was reasonable in the circumstances and on a plain reading of the Grid.

[50] The Arbitrator directly considered the Union’s argument that Labatt ought to have considered the Grievor’s service as a mitigating factor and that, if it had, the Grievor’s service would have resulted in a lesser penalty. The Arbitrator found that based on a plain reading of the Grid, it was clear that the parties intended to consider seniority (and not service) for the purposes of determining appropriate discipline levels. At paras. 81-83, the Arbitrator reasoned:

81. The Union argued the Company’s decision-making process was flawed because it did not consider Mr. Lancaster’s service from working as a temporary employee for some 10 years as a mitigating factor. The Union argued it would be manifestly unfair and arbitrary to ignore Mr. Lancaster’s pre-seniority service in this workplace. The Company argued the Grid speaks only to seniority and that the parties have not treated it to be synonymous or interchangeable with service, for purposes of the Grid.

82. The “Note” to the Grid provides, in part, “However the final decision as to the level of action will depend on the seriousness of the offence, time elapsed since the last offence, and all other relevant facts such as the seniority of the employee and other mitigating factors.” [emphasis added]

83. I must conclude the Company did not err when it did not consider Mr. Lancaster’s service as temporary employee, in these circumstances. It is important to note the nature of a temporary employment relationship. Appendix “E” of the collective agreement concerns “Temporary Employees”. Paragraphs 3 and 4 are relevant for this question. Paragraph 3 provides “Temporary employees shall have no rights or benefits under the Collective Agreement except where specifically stated therein.”. Paragraph 4 provides, in part, “Temporary employees do not acquire seniority as a result of time worked.” Given this specific context, and consistent with it, the parties in the Grid have not treated seniority to be synonymous with service. Instead, viewed objectively, they intended it to relate only to full-time employment.

[Emphasis in original.]

[51] In addition to not being inconsistent with arbitral jurisprudence, the Arbitrator’s reasoning and conclusion accord with the express terms of the Grid, which refers to “seniority” and not to “service”. It also accords with the Collective Agreement, which distinguishes between years of seniority (accrued only by permanent employees under the Collective Agreement) and total years of service (which would include prior temporary employment with Labatt).

[52] The Arbitrator did not, as the Union suggests, choose between considering service and seniority. Rather, the Arbitrator found, based on a transparent, logical and reasonable interpretation of the Grid and the Collective Agreement, that the parties did not intend to consider service in applying the Grid for discipline decisions.

[53] Based on the parties’ objective intention as expressed in the language of the Grid, the Arbitrator considered the Grievor’s years of seniority as a mitigating factor weighing in favour of a lesser penalty. The Arbitrator considered that factor along with all the other circumstances that were relevant to the issue of appropriate penalty, including the Grievor’s discipline free record, his honesty in the “fair and just” hearing, the Grievor’s “egregious” misconduct and its “exceptional” nature, the reasons for his misconduct (prioritizing production over safety), and his failure to appreciate the risks for himself and others: Decision, paras. 90-91, 93.

[54] It is clear from the Decision that the Arbitrator considered the circumstances relevant to the matter and the penalty imposed on the Grievor, as required under section 48(17) of the LRA. The Arbitrator concluded in his discretion that these factors were outweighed by the aggravating factors, which he carefully enumerated. That discretionary conclusion is supported by clear and logical reasoning and is entitled to significant deference.

VIII. Disposition

[55] Accordingly, I would dismiss the application for judicial review with costs in the agreed amount of $6,250 all inclusive, payable by the applicant Union to the respondent Labatt.

Lococo J.

I agree

Fregeau J.

I agree

Trimble J.

Date of Release: July 12, 2024