Teamsters Canada Rail Conference, 2024 ONSC 3901
DIVISIONAL COURT FILE NO.: 583/23
DATE: 20240710
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Reid and Davies JJ.
BETWEEN:
Canadian Pacific Kansas City Railway
Applicant
– and –
Teamsters Canada Rail Conference
Respondent
– and –
Arbitrator James Cameron
Respondent
Tala Khouri and Felisha Jagiah, for the Applicant
Michael Church and Sukhmani Virdi, for the Respondent, Teamsters Canada Rail Conference
HEARD at Toronto: May 23, 2024
DECISION ON JUDICIAL REVIEW
REID J.
Introduction:
[1] The applicant, Canadian Pacific Kansas City Railway (“the Company”) seeks judicial review of an arbitration award issued in response to a grievance filed by the respondent, Teamsters Rail Canada Conference (“the Union”). The Company submits that the award should be quashed because it was unreasonable.
[2] Arbitrator James Cameron ruled by award dated September 18, 2023 that the Company used members of management to complete an assignment of bargaining unit work when the grievor was available, and therefore allowed the grievance. The key issue was what it means for a bargaining unit member to be “available” for an assignment.
[3] For the reasons that follow, this application is dismissed.
Background:
[4] The Union holds exclusive bargaining rights for the employees of the Company.
[5] The matter of the Company assigning managers to perform bargaining unit work has been an ongoing source of friction between the parties over the years.
[6] In April 2011, the Union filed an unfair labour practice complaint with the Canada Industrial Relations Board (“CIRB”) which resulted in a settlement on June 8, 2011[^1]. That settlement specified in part that:
Collective Agreement and local decision rules relating to calling procedures and Local Chairman notification will be exhausted before management personnel is utilized to perform bargaining unit work…
[M]anagement crews will be used when no bargaining employees are available to ensure that customer expectations are met and that Canadian Pacific remains competitive.
[7] A further unfair labour practice complaint was made by the Union to the CIRB in 2013, again alleging that managers had been assigned to perform bargaining unit work. On January 9, 2015, the CIRB issued a decision[^2] acknowledging the June 8, 2011 settlement and observing at para. 31 that “when unionized crews are available and the employer uses managers to perform bargaining unit work, it violates sections 36(1)(a) and 94(1)(a) of the Canada Labour Code[^3].”
[8] That decision went on to require the Company to provide the Union with a completed copy of the Management Crew Train Order Checklist (“the Checklist”) each time a management crew was assigned to perform bargaining unit work. The Checklist is a tool for use by management to ensure that, from the Company’s perspective, available bargaining unit members have been used and proper protocols followed before bargaining unit work is assigned to management personnel. The stated hope of the CIRB was that providing the Checklist to the Union would provide reassurance that the Company was complying with its obligations and that a corresponding reduction in the number of grievances would follow.
[9] Article 16 of the Collective Agreement establishes Auxiliary Boards, and provides in part at 16.01 as follows:
Separate Locomotive Engineer and Trainpersons auxiliary boards will be established at all home terminal locations for the calling of qualified employees under the following conditions.
(1) Employees desiring additional work when off for miles or on assigned days off may voluntarily place themselves on one or, where qualified, both auxiliary boards. In the application of this article, Engineers work will be called from the Engineers auxiliary board and Trainmen work will be called from the Trainmen auxiliary board. Employees will only be called for work for which they are qualified and familiarized.
[10] For the week starting Sunday, October 2, 2022, the grievor held an assignment in Alliston, Ontario consisting of eight-hour shifts from Monday to Friday with an 08:00 daily start time. An assignment became vacant in Scarborough, Ontario on Wednesday, October 5, 2022, starting at 21:00, which was an eight hour and 51-minute shift. The Scarborough assignment was located approximately 100 kilometres south of the Alliston assignment. Had the grievor been offered and accepted the Scarborough assignment, he would not have been able to attend at Alliston for his 8:00 a.m. shift the following day, and the Company would have had to find someone else to fill that shift.
[11] The grievor had placed himself on the Auxiliary Board and was qualified for and familiar with the work on the Scarborough assignment.
[12] A completed copy of the Checklist was provided to the Union as to the Scarborough assignment, indicating that no bargaining unit personnel were eligible and as a result, a member of management was directed to perform the assignment.
The Grievance Hearing:
[13] The parties have established an expedited arbitration process through the Canadian Railway Office of Arbitration and Dispute Resolution, (“CROA”) of which arbitrator Cameron was a member.
[14] The jurisdiction of the arbitrator is constrained to issues outlined in either a Joint Statement of Issues or, failing agreement on such a statement, in each party’s Ex Parte Statement of Issues. The latter applied in this case.
[15] The position of the Company was that Article 16 of the Collective Agreement codified which employees could be defined as “available”. It submitted that the grievor was unavailable to work the Scarborough assignment because, although he was listed on the Auxiliary Board, he was neither “off for miles” nor “on an assigned day off”. The Company also argued that calling in the grievor under the circumstances would have created a disruptive ripple effect since the grievor’s subsequent assignment would in turn have had to be filled by yet another employee.
[16] The Union did not agree that the grievor was unavailable. It argued that the employer must call on bargaining unit employees that are rested and available for work when extra bargaining unit assignments arise before assigning management personnel even if that would cause a ripple effect. The Union argued that the Auxiliary Board provisions were a red herring. They did not apply to the assignment in question in that they simply created an “opt-in” mechanism for employees who were qualified and wanted to pick up extra shifts when they were not on assignment. The Union also argued that the question of availability of bargaining unit personnel was to be answered by the Company in each case, without an obligation on the employees to offer themselves as available and that Article 16.01 does not detract from the Company’s overarching obligation to avoid using management personnel to perform bargaining unit work unless no bargaining unit employees are available.
The Grievance Award:
[17] After reference to each party’s Ex Parte Statement of Issues, the arbitrator identified the uncontroversial propositions that the protection of bargaining unit work is critical to all unions and that running an efficient operation is critical to all companies. He also referenced the history of disputes and CIRB proceedings between the parties on the issue of bargaining unit work being performed by management personnel. He observed that the Company took its usual procedural steps in this case, and that the grievor had not been identified by the Company as being available for the Scarborough assignment.
[18] The arbitrator set out the main dispute between the parties: whether bargaining unit employees holding assigned positions with known schedules were available to be called in for extra work if they were listed on an Auxiliary Board but were not on a scheduled day off or off for miles.
[19] Arbitrator Cameron noted the preamble to the Checklist which provides that: “Management crews should only be utilized after all other contingencies have been exhausted and no running trades employees are available.” He found that all other contingencies had not been exhausted. He disagreed with the Company that no running trades employees were available and allowed the grievance.
[20] In making his decision, the arbitrator did not accept the Company’s position that “an employee is only available for work when the conditions of the Auxiliary Board are met”. He agreed with the Union that Article 16 did not apply to this grievance. He found that even if assigning the grievor to do the work in Alliston would have caused a ripple effect for the following day, there was no issue that another bargaining unit member could have been found to fill that gap. He also found that “[t]he price of the ripple effect is far smaller than the cost of breaching a fundamental labour relations principle, and the agreement and relationship between the parties.”
[21] Since the grievor was the only claimant for the extra hours by way of grievance, the arbitrator did not have to deal with competing claims amongst bargaining unit members.
The Standard of Review:
[22] As the parties agree, the applicable standard of review is reasonableness, and the onus is on the applicant to show that the decision is unreasonable.[^4] 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.[^5]A reasonableness review requires the court to consider both the reasoning process and the outcome.[^6]
[23] The deferential standard of reasonableness requires the reviewing court to respect administrative decision makers, especially where they have specialized expertise, rather than consider whether the court itself would have reached a different conclusion.[^7] The focus must be on whether the decision was demonstrably unreasonable.
[24] As recently summarized by Gillese J.A. of the Ontario Court of Appeal:
[55] Vavilov states that the reasonableness review approach is based on the following principles. Courts are to intervene in administrative matters only if it is truly necessary to safeguard the legality, rationality, and fairness of the administrative process. Such reviews start from the principle of judicial restraint and respect for the distinct role of decision makers (para. 13). The reviewing court should respect administrative decision makers and their specialized expertise, should not ask how they themselves would have resolved an issue, and should focus on whether the applicant has demonstrated that the decision is unreasonable (para. 75).
[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.[^8]
Analysis and Conclusion:
[25] The arbitrator’s award was an arbitral decision of CROA. CROA is a highly specialized tribunal, with a fixed roster of arbitrators, designed to provide an expedited arbitration process allowing for quick and final resolutions to labour disputes in the Canadian railway industry.
[26] CROA has been recognized by reviewing courts as attracting a high degree of deference.[^9] This court has observed that CROA decisions are generally brief, deal with the interpretation of collective agreements, and are released quickly, in order to provide “a fluid and efficient mechanism to manage employment relations in a complex industry.”[^10]
[27] Arbitral expertise notwithstanding, it is still necessary for there to be no fatal flaw in the logic of the decision and for there to be a line of analysis that can lead the arbitrator from the evidence to the conclusion reached.[^11]
[28] The Company submits that it was unreasonable for the arbitrator to have failed to identify a breach of the Local Decision Rules, the Board Order, the Collective Agreement or the Canada Labour Code. The arbitrator noted, without criticism, that the Company provided the required Checklist to the Union. However, by allowing the grievance, the arbitrator clearly found that the Company breached the collective agreement and the Code because a member of management had performed bargaining unit work when the grievor was qualified and available. In finding this breach the arbitrator emphasized the 2015 CIRB decision which specifically held (as noted above) that “[i]n general, the use of managers to perform bargaining unit work on a regular or frequent basis threatens the security of the bargaining unit and a union’s exclusive bargaining rights, and thereby constitutes a violation of sections 36(1)(a) … of the Code.” He continued his reference to the 2015 CIRB decision which noted that the protocol developed by the parties as a result of their settlement on June 8, 2011 contemplated a “limited exception to this general rule.” The mandated Checklist that was developed pursuant to this protocol contains a note at the top that states: “Management crews should only be utilized after all other contingencies have been exhausted and NO running trades employees are available. Smart and effective use of management crews is essential in order to avoid unnecessary conflict.”
[29] In finding that the grievor was available for work, the arbitrator concluded, crucially, at paras. 24 and 25 of the award as follows:
I do not agree that an employee is only available for extra work when the conditions of the Auxiliary Board are met. I agree with the Union submission that the Auxiliary Board conditions of on assigned days off or off for miles do not apply to Mr. Bobier. The reality is that the grievor could have worked this extra shift, even in the middle of his work week.
Had he done so, it might have caused a ripple effect for the following day, but another bargaining unit member could have done this work. The price of the ripple effect is far smaller than the cost of breaching a fundamental labour relations principle, and the agreement and relationship between the parties.
[30] In accepting the Union submission, Arbitrator Cameron rejected the Company position that employees holding assigned positions with known schedules will only be called in for extra work if they have indicated their wish to do so by signing up on an Auxiliary Board and where the call-in occurred on one of the employees’ assigned days off or when they are off for miles. He concluded that the provisions of the Auxiliary Board only apply to employees who desired additional work and were either “off for miles” or “on assigned days off.” The grievor was neither but was available for work. The arbitrator’s conclusion was consistent with the provisions of Article 16.01 that “Employees desiring additional work when off for miles or on assigned days off may voluntarily place themselves on [the auxiliary board].” The arbitrator was entitled to come to that conclusion on the evidence and his decision attracts deference. It is neither unjustified in relation to the facts and law, nor does it lack an internally coherent and rational chain of analysis.
[31] The Company submits that it was unreasonable for the arbitrator to have failed to analyse whether the existing call-in procedures were properly utilized. That submission would only be significant if a breach of the procedures was alleged. It was not. As noted, the Company and the Union were operating on different interpretations of the Auxiliary Board as to which employees were “available”.
[32] The Company submits that it is an absurd, and therefore unreasonable result to find that its responsibilities for call-ins applies to all qualified employees who are not at work when the vacancy occurs, with the potential to create a cascading disruption to operations. As noted above, had the grievor been offered and accepted the Scarborough assignment, he would have been unable to perform his assignment the next day in Alliston, which the Company would have had to fill with another employee. The Union’s response was that bargaining unit employees, approximately 80 per cent of whom are working off a “spare board”, can be called in with a minimum of two and a half hours notice. Employees are typically available, and as such any disruption to Company operations would be minimal at most.
[33] In coming to his conclusion that the grievor was “available”, the arbitrator was obviously aware of both the existing call-in practice and the disagreement by the parties about the application of the Auxiliary Board to the circumstances. The written record presented to the arbitrator was extensive. The expertise which members of CROA bring to the process is considerable.
[34] Looking at both the reasoning process of the arbitrator as can be gleaned from his award, the record that was before him, and the outcome, the Company has not satisfied its onus of demonstrating that the award was unreasonable. As a result, the application is dismissed.
Costs:
[35] By agreement, there will be an award of $5,000 costs inclusive of GST and disbursements, payable by the applicant to the respondent.
Reid J.
I agree
Sachs J.
I agree
Davies J.
Released: July 10, 2024
Teamsters Canada Rail Conference, 2024 ONSC 3901
DIVISIONAL COURT FILE NO.: 583/23
DATE: 20240710
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Reid and Davies JJ.
BETWEEN:
Canadian Pacific Kansas City Railway
Applicant
– and –
Teamsters Canada Rail Conference
Respondent
decision on judicial review
Released: July 10, 2024
[^1]: CIRB files 28757-C and 28758-C [^2]: Teamsters Canada Rail Conference v. Canadian Pacific Railway Company, 2015 CIRB 755 [^3]: R.S.C., 1985, c. L-2 [^4]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 100. [^5]: Vavilov, at para. 85. [^6]: Vavilov, at para. 87. [^7]: Vavilov, at para. 75. [^8]: Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780 at paras. 55 and 61. [^9]: See for example Canadian Pacific Railway Company v. Teamsters Canada Rail Conference, 2023 ONSC 5109 (Div Ct) at para. 9 and Canadian Pacific Limited c. Fraternité des préposés à l'entretien des voies/Brotherhood of Maintenance of Way Employees at para.s 48-50 [^10]: Canadian National v. Teamsters Canada, 2020 ONSC 7286, (Div Ct) at para. 21. [^11]: Unifor Local 2002 v. Air Canada, 2022 ONSC 2319 (Div Ct) at para. 24.