2024 ONSC 4074
DIVISIONAL COURT FILE NO.: DC-23-16
DATE: 20240726
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Fregeau and Trimble JJ.
BETWEEN:
The Corporation of the City of London
Applicant
– and –
Canadian Union of Public Employees, Local 101 and Michael Bendel
Respondents
Arie D. Alkema, for the Applicant
Michael Klug, for the Respondent Union
HEARD at London: 24 April 2024
J .K. TRIMBLE J.
REASONS FOR JUDGMENT
NATURE OF PROCEEDING
[1] The Applicant, the Corporation of the City of London, seeks judicial review of the decision of Arbitrator Michael Bendel of 20 March 2023 arising from a dispute between the City and the Respondent, Canadian Union of Public Employees Local No. 10. In that decision, the Arbitrator determined that 19 September 2022, proclaimed by the Government of Canada as a national day of reflection following the late Queen’s death, was a day of “…general…mourning…throughout Canada” within s. 42(a)(iii) of the Bills of Exchange Act, R.S.C. 1985, c. B-4 (the “BEA”), and therefore was a paid holiday under Article 11.1 of the Collective Agreement between the City and the Union. Therefore, the members of the bargaining unit were entitled to be compensated for the City’s refusal to treat 19 September 2022 as a paid holiday.
[2] The City seeks judicial review of the decision primarily on the basis that the Arbitrator’s failure to accept and consider evidence of historical Collective Agreements and Proclamations submitted on consent of the parties constituted a denial of procedural fairness. The City asks that the decision be set aside, and the issue remitted for a new hearing before another Arbitrator for other reasons, discussed below.
BACKGROUND
The Parties and the Collective Agreement
[3] The Collective Agreement between the parties ran from 1 January 2020 to 31 December 2023. Article 11.1 provided that all employees within the scope of the agreement who were not required to work on certain holidays would be paid at the regular rate for those holidays.
[4] Article 1.11 of the Collective Agreement defined as holidays specific enumerated days, “…and any other day declared by a competent authority to be a holiday within the BEA.
[5] Section 42(a)(iii) of the BEA provides that “…any day appointed by proclamation to be observed as a public holiday, as a day of general prayer or mourning, or as a day of public rejoicing or thanksgiving throughout Canada” shall be observed as holidays or non-juridical days.
The Death of the Queen
[6] Following the death of Queen Elizabeth II, the Governor General of Canada issued a Proclamation requesting that the people of Canada set aside 19 September 2022 as a day on which they could honour the late Queen.
[7] The Union advised the City that it considered 19 September 2022 a holiday for the purpose of Article 11.1 of the Collective Agreement. The City responded by saying that 19 September 2022 was not a holiday for the purpose of the Collective Agreement, and that it expected its employees to attend work in the usual course on that day.
[8] On 20 September 2022 the Union filed Policy Grievance 02-22 in which it alleged the City had violated Article 11.1 of the Collective Agreement. The Union requested that the City recognize 19 September as a holiday, pay the difference in wages for employees who worked that day, and make the members of the Union whole by paying all lost wages, benefits, and any other entitlement an Arbitrator may award.
The Hearing
[9] The Grievance hearing took place on 15 December 2022 and 7 February 2023 before Arbitrator Michael Bendel, an Arbitrator appointed by the Ministry of Labour pursuant to s. 48 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, to hear the grievance. The sole issue before the Arbitrator was whether 19 September 2022 was a day declared by a competent authority to be a holiday within the meaning of s. 42(a)(iii) of the BEA.
Facts Put Before the Arbitrator – Emails of 15 December 2022
[10] Before the beginning of the arbitration hearing, the parties attempted to come to an agreed statement of facts. They could not, so, in discussions with the Arbitrator they agreed to a timetable and a procedure in which the parties agreed to exchange written statement of facts, which would go before the Arbitrator and serve as the facts on which he was to proceed, subject to disagreement.
[11] By email of December 15, 2022 at 10:39 AM to the Arbitrator, the Union’s counsel submitted its statement of facts, copying the City’s counsel and representative, and the Union’s representatives.
[12] In reply at 12:01 PM that day, the City’s counsel sent to the Union’s counsel its statement of facts, copying the Arbitrator. Paragraph 9 of the City’s statement of facts referred to copies of Article 11 in various earlier Collective Agreements between the City and the Union for the period of 1 January 2000 to 31 December 2022. By further e-mail at 12:04 PM, the City’s counsel sent to the Union’s counsel, copying the Arbitrator, copies of the documents referenced its statement of facts excluding the historical Collective Agreements. The City’s counsel sent to the Union’s counsel the historical Collective Agreement provisions by email at 12:05 PM, copying the Arbitrator.
[13] By mail at 1:35 PM, the Union’s counsel confirmed to the City’s counsel, copying the Arbitrator, that the Union agreed with an amended version of the City’s statement of facts. Those amendments did not affect the documents referred to in the City’s original statement of facts. The Union’s counsel also confirmed his understanding that the City’s counsel had already sent to the Arbitrator the exhibits referenced in the City’s statement of facts.
[14] By email at 1:39 PM, the City’s counsel wrote to the Union’s counsel, copying the Arbitrator, confirming that earlier that day she sent the exhibits referred to in the City’s statement of facts, including copies of the applicable provisions of the historical Collective Agreements.
[15] To complete the documentation, on 7 February 2023, the second day of the hearing, the City entered additional documents into evidence to which the Union did not object:
a) The Proclamations issued 25 January 1901 naming Saturday 2 February 1901 “as a day of general mourning to be observed by all persons throughout our Dominion of Canada” following the death of Queen Victoria on January 22, 1901;
b) The Proclamations issued 30 January 1901 naming Saturday 2 February 1901 “as a Public Holiday to be observed as a general day of mourning by all persons throughout our Dominion of Canada” also following the death of Queen Victoria;
c) The Proclamations issued 21 January 1936 naming Tuesday 28 January 1936 “as a Public Holiday to be observed as a Day of General Mourning by all person throughout our Dominion of Canada” following the death of King George V; and
d) The Workers Mourning Day Act, S. C. 1991, c. 15.
[16] In sum, the parties agreed that the City would be relying on previous Collective Agreements and Proclamations, and how the parties treated the death of the Sovereign or other member of the Royal Family under the historical Collective Agreements.
Arbitrator’s Decision, 30 March 2023
[17] The Arbitrator found that the parties, in a clear and unambiguous way, delegated to the Government of Canada the power to add holidays to the Collective Agreement by incorporating a reference to s. 42(a)(iii) of the BEA. Further, the Arbitrator was satisfied that the Proclamation of 19 September 2022 was a day of general mourning throughout Canada within s. 42(a)(iii) of the BEA. To support this conclusion, the Arbitrator relied on the French text of the Proclamation, which he found was “narrower or more specific”. While the English version of the Order in Council and Proclamation lacked the word ‘mourning’, the French language version of both contained the word “deuil” which is also found in the French version of s. 42(a)(iii) of the BEA.
[18] More significantly, the Arbitrator rejected the City’s argument that the Union was estopped from bringing this grievance, having not grieved the failure to treat the death of the Sovereign or other member of the Royal Family as a holiday under previous Collective Agreements. The City argued that the Union’s silence about the City’s failure to recognize the death of the Sovereign as a holiday in the past amounted to a representation that the Union intended to relinquish its contractual rights in this respect.
[19] In rejecting the estoppel argument, the Arbitrator said, beginning at the top of p. 18:
How might estoppel apply in the present case? The evidence is clear that, before September 2022, the union had never claimed that employees were entitled to a holiday where the day in question had been proclaimed as a holiday for the purposes of paragraph 42(a)(iii) of the Bills of Exchange Act. Specifically, no claim was made on the occasion of the day of mourning on the death of Elizabeth the Queen Mother in April 2002, or on the death of Prince Philip in April 2021, or the day of mourning for the victims of the September 11, 2001, attacks in the United States. It is arguable that the union’s silence on those occasions could be interpreted as acquiescence tantamount to a representation that it did not intend to make a claim for a holiday in respect of comparable days of general mourning in the future. See, e.g. the discussion of this concept in Re Drug Trading Co. and U.S.W.A., Loc, 3313 (Pension), 1998 30106 (ON LA) (R. Brown), and the endorsement of the concept in Nor-Man Regional Health Authority, supra, in paragraph 19.
The present Collective Agreement, for the period from January 1, 2019, to December 31, 2022, which was ratified on October 16, 2018, was filed in evidence. However, none of the predecessor agreements was filed. (While no evidence was presented on the history of the contract language, counsel for the union stated in his submissions that the present language in Article 11,1 had been part of the Collective Agreement since “at least 2000”, although, elsewhere in his submissions, he stated that the day of mourning for the victims of the September 11 attacks had preceded the introduction of the current contract language.) While the record indicates that the present language in Article 11.1 was in force at the time of the holiday proclaimed in respect of the death of Prince Philip, I am left in considerable doubt as to whether it was in the Collective Agreement at the time of the death of Elizabeth the Queen Mother (in April 2002) or at the time of the 9/11 attacks on the United States of America (in September 2001).
I should add that it seems obvious to me that the employer could easily have adduced conclusive evidence on the history of the present language in the Collective Agreement. It is also obvious that the onus was on the employer to adduce evidence in support of its claim of estoppel.
Accordingly, all I know about the history of the present language of Article 11 of the Collective Agreement is that it was in force at the time of the death of Prince Philip. [Emphasis in original.]
[20] He concluded by saying “… the union’s failure to assert a claim to a holiday on April 17, 2021, on the occasion of the mourning of the death of Prince Philip, cannot reasonably be interpreted as an abandonment by the union of its rights to all subsequent holidays proclaimed as days of general mourning.”
ISSUES
[21] The issues set out in the factums are:
Did the Arbitrator’s failure to accept and consider evidence of the historical Collective Agreements submitted on consent of the parties constitute a denial of procedural fairness or otherwise impugn his award?
Is the award unreasonable due to one or more of the following flaws:
a. A lack of rational chain of analysis within the Arbitrator’s reasons on key findings and conclusions;
b. The Arbitrator’s failure to consider evidence of past historical Collective Agreements that were before him in interpreting Article 11.1 of the Collective Agreement and assessing the Applicant’s estoppel defence;
c. The Arbitrator’s failure to accurately state and apply the established test for interpretation of bilingual statutory instruments to the Proclamations issued September 13, 2022; and
d. The Arbitrator’s refusal to consider historical Proclamations?
- What is the appropriate remedy?
[22] These issues can be reduced to three:
Did the Arbitrator fail to consider evidence of the historical Collective Agreements and Proclamations in respect of Article 11.1?
If the answer to question 1 is “yes”, was the Arbitrator’s decision unreasonable because the Arbitrator failed to consider evidence of the historical Collective Agreements and Proclamations in respect of Article 11.1?
Was the Arbitrator’s decision unreasonable because the Arbitrator failed to accurately state and apply the test for interpretation of bilingual statutory instruments to the Proclamations issued September 13, 2022?
JURISDICTION
[23] The Divisional Court has jurisdiction to hear an application for judicial review of arbitration awards pursuant to ss. 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
STANDARD OF REVIEW
[24] The Supreme Court of Canada has established that reasonableness is presumptively the appropriate standard of review for decisions of administrative decision makers: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 23. This applies to the judicial review of labour arbitration decisions: United Food and Commercial Workers Union, Local 175 v. Copper River Inn and Conference Centre, 2021 ONSC 5058 (Div. Ct.).
[25] The Court’s role is not to review the evidence before the Arbitrator and substitute the decision it would have made in his place, but to consider whether the Arbitrator’s decision was “based on an internally coherent and rational chain of analysis and … is justified in relation to the facts and law that constrain the decision maker”; Vavilov, at para. 85.
[26] Under the Vavilov standard of reasonableness, a reviewing court will begin by reading a tribunal’s written reasons to “understand the reasoning process followed by the decision maker to arrive at its conclusion”: Vavilov, at para. 84. A reasonable decision is justified, transparent and intelligible, and contains no “fatal flaws in its overarching logic”: Vavilov, at paras. 99, 102.
[27] A decision is not reasonable if, read in its context and with a mind to the evidence before the decision maker, “fail[s] to reveal a rational chain of analysis”: Vavilov, at para. 103. It must be “possible to understand the decision maker’s reasoning on a critical point” and the decision should not “exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise”: Vavilov, at paras. 103-04.
[28] A decision is also unreasonable if it fails to consider some aspect of the evidentiary record or is unreasonable in light of the evidence. As stated in Vavilov, at para. 126, the reasonableness of a decision “may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it” or where the decision maker has “relied on irrelevant stereotypes and failed to consider relevant evidence”.
[29] Finally, a decision may be untenable if it fails to reasonably address the parties’ positions and submissions: Vavilov, at para. 127.
[30] Given the Supreme Court of Canada’s dicta, above, I do not accept the City’s position that the Arbitrator’s alleged failure to accept and consider historical Collective Agreements is an issue of procedural fairness which attracts the standard of review of correctness.
ANALYSIS OF THE ISSUES
Issue 1: Did the Arbitrator fail to consider evidence of the historical Collective Agreements and Proclamations in respect of Article 11.1?
Positions of the Parties
The City
[31] The City submits that in a string of emails passing between the parties on 15 December 2022, which were copied to the Arbitrator, it put before the Arbitrator its statement of facts and the historical Collective Agreements. In the statement of facts, it referred not only to the historical Collective Agreements but also to historical Proclamations similar to that of the Government of Canada’s of 13 September 2022. Further, at the outset of the second day of the hearing on 7 February 2023, the City provided to the Arbitrator and the Union the historical Proclamations referred to in its statement of facts. The Union did not object to the statement of facts dealing with the historical Collective Agreements and Proclamations or placing them into evidence.
[32] Further, the City submits that in making its argument at the grievance that the Union is estopped from bringing the grievance because of its failure to do so with past Proclamations given that Article 11.1 of all the past Collective Agreements was the same, it made reference to the historical Collective Agreements and Proclamations.
[33] In his reasons, the Arbitrator acknowledged at page 18 of his reasons that the Union did not take the position it took with respect to the 13 September 2022 Proclamation, with the Proclamations of a day of mourning following the death of Prince Philip or the Queen Mother, or following the 9/11 attack in the U.S. The Arbitrator said, however, that only the Collective Agreement then in place was put before him. He said “…none of the predecessor agreements was filed” but noted that the Union conceded that the current wording of Article 11.1 had been in place since 2000.
[34] The City conceded that it never specifically asked the Arbitrator to mark as exhibits to the hearing the historical Collective Agreements or Proclamations.
The Union
[35] The Union submits that the City’s oblique reference in its statement of facts to the historical Collective Agreements and Proclamations as ‘exhibits’ is not sufficient to make them exhibits at the hearing which the Arbitrator could consider. The City ought to have put them before the Arbitrator (either at the hearing or before) and asked that they be made exhibits to the hearing. Estoppel was the City’s issue. The City had the onus. It is clear from the Arbitrator’s decision that he did not accept them into evidence.
Analysis
[36] On the whole of the Arbitrator’s decision, and considering the evidence on this Application, it is clear to this Court that the Arbitrator merely overlooked or forgot that the historical Collective Agreements and Proclamations were before him. I say this for the following reasons:
The Arbitrator was copied with each email in the 15 December 2022 string of email in which the City’s statement of facts and the historical Collective Agreements were put before him. These emails were sent pursuant to the agreed-to procedure set before the Arbitrator.
It was clear from that string of email that the City intended to rely on those historical Collective Agreements and Proclamations.
The historical Proclamations were put before the Arbitrator on the second day of the arbitration.
The Union did not oppose any of these documents going before the Arbitrator.
The City referred to the historical Collective Agreements and Proclamations when it made its estoppel argument before the Arbitrator.
The Arbitrator did not expressly decide to not accept into evidence the historical documents, or any other evidence. In this respect I do not accept the Union’s argument that this Court should infer that the Arbitrator made a specific decision about not accepting the historical documents.
Issue 2: Was the Arbitrator’s decision unreasonable because the Arbitrator failed to consider evidence of the historical Collective Agreements and Proclamations in respect of Article 11.1?
Positions of the Parties
The City
[37] The City submits first, that the Arbitrator’s failure to consider the historical Collective Agreements and Proclamations was a denial of its right to be heard and a breach of the duty of procedural fairness. Second, the Arbitrator’s failure to consider the historical Collective Agreements and Proclamations rendered the decision unreasonable. The award determined legal rights between the parties without considering the historical Collective Agreements and Proclamations which the City and Union agreed would be placed into evidence.
The Union
[38] The Union submits the City was not denied procedural fairness. It had the benefit of a fair and open hearing in which it participated fully and exercised its right to be heard. The City had the ability to enter the historical Collective Agreements and Proclamations into evidence and to confirm this with the Arbitrator. It’s failure to have the Collective Agreements marked resulted in the Arbitrator not admitting these documents into evidence. There is no procedural unfairness.
Analysis
[39] Looking at the decision and the record before this Court, insofar as the Arbitrator’s decision addressed the City’s estoppel argument, the decision is unreasonable since the Arbitrator did not consider the historical Collective Agreements and Proclamations placed before him.
[40] As stated in Vavilov, at paras. 103-04, a decision is not reasonable if, read in its context and with a mind to the evidence before the decision maker, it fails to reveal a rational chain of analysis, if it fails to take into account the evidentiary record, or is unreasonable in light of the evidence. As stated in Vavilov, at para. 126, the reasonableness of a decision “may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it”.
Issue 3: Was the Arbitrator’s decision unreasonable because the Arbitrator failed to accurately state and apply the established test for interpretation of bilingual statutory instruments to the Proclamation issued 13 September 2022?
Positions of the Parties
The City
[41] The City submits that the Arbitrator provided no analysis of his interpretation of the meaning of the applicable words in Article 11.1, in the Proclamation, or in s. 42(a)(iii) of the BEA.
[42] The City relies on the two-step process for statutory interpretation of bi-lingual statutes set out in R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at paras. 27-30:
Determine whether there is an irreconcilable difference between the two versions off the statue. If there is, then:
Determine whether the common or dominant meaning is, according to the ordinary rules of statutory interpretation, consistent with Parliament’s intent.
[43] In determining whether there is discordance for the first part of the Daoust test, the court must use a purposive and contextual approach, the steps for which are:
If one version is ambiguous, but the other is not, the meaning that is common to both versions is the version that is plain and unambiguous.
If neither version is ambiguous, or they both are, then the common meaning is normally the narrower versions.
[44] The City argues that the Arbitrator misstated and improperly applied the two-step procedure of statutory interpretation from Daoust in several ways. First, the Arbitrator erred by determining what the narrower view of the s. 42(a)(iii) of the BEA and Proclamation first, was when he should have determined first whether neither or both the French and English versions of the BEA were ambiguous. It is only when neither or both the versions are ambiguous that the narrower view is considered to be the dominant one. Second, the Arbitrator failed to apply a contextual and purposive approach when he applied a test of which was the authentic meaning. Finally, after the Arbitrator determined his view of the narrower version, he failed to offer any analysis of whether the common or dominant meaning is consistent with Parliament’s intent.
The Union
[45] The Union submits that a) the Arbitrator’s reasons provide an internally coherent, rational chain of analysis that supports the Arbitrator’s conclusion, and b) the decision is rational, logical, and intelligible.
[46] Further, the Union argues that a more extensive analysis was not required because the meaning of relevant parts of the Proclamation and of s. 42(a)(iii) of the BEA were straightforward and obvious. Article 11.1 incorporates by reference “any other day declared by competent authority to be a holiday within the meaning of the BEA”, and s. 42(a)(iii) provides that a day appointed by Proclamation to be observed as a day of general mourning throughout Canada is a legal holiday or non-juridical day.
Analysis
[47] With respect to the interpretation of the Proclamation and s. 42(a)(iii) of the BEA, I find the Arbitrator’s decision was reasonable. The decision displays an internally coherent and rational chain of analysis that supports the Arbitrator’s conclusion about the interpretation the Proclamation and s. 42(a)(iii). The decision is rational, logical, and intelligible. He applied the correct law.
[48] This is not a case where one version of the Proclamations was ambiguous and the other, not. Rather, both versions were clear. The Arbitrator held that the French and the English versions of the Proclamation and s. 42(a)(iii), while clear, differed from each other and could not be reconciled. Therefore, the more narrow version had to be adopted. Because the French version of the Proclamation and s. 42(a)(iii) included the word “deuil” (meaning “mourning”, in English) but the English version did not include the word “mourning”, the French version was the narrower version of the Proclamation and s. 42(a)(iii) therefore applied.
APPROPRIATE REMEDY
[49] In light of our finding that the Arbitrator’s decision was unreasonable in that he failed to consider the evidence before him of the historical Collective Agreements and Proclamations, what is the remedy?
Positions of the Parties
The City
[50] The City submits that the only reasonable remedy is to quash the award and remit it for a new hearing on all issues before a new Arbitrator. The same Arbitrator may have difficulty divorcing himself from his previous logic or conclusions.
The Union
[51] The Union submits that if this Court were to find the award to be unreasonable in any way, it should remit the matter to the same Arbitrator for reconsideration of the unreasonable portions of the award provided the issue to be remitted is distinct and severable, and one that the initial Arbitrator could address efficiently.
Analysis
[52] I would order that the City’s issue of estoppel be remitted to the same Arbitrator, and direct that he consider the issue anew, including the evidence of the historical Collective Agreements and Proclamations. This is the most efficient course as the Arbitrator is familiar with the dispute. There is no reason offered (e.g., bias) that overrides the efficiency argument such that the issue should be remitted to another Arbitrator. In this case, the Arbitrator merely overlooked or forgot to consider the evidence of historical Collective Agreements and Proclamations.
COSTS
[53] The parties agreed that the costs awarded to the successful party should be $8,000 on a partial indemnity basis, subject to offers made.
[54] Since each of the parties was partially successful on the appeal, there will be no costs order.
Trimble J.
I agree:
Lococo J.
I agree:
Fregeau J.
Released: July 26, 2024
2024 ONSC 4074
DIVISIONAL COURT FILE NO.: DC-23-16
DATE: 20240726
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Fregeau and Trimble JJ.
BETWEEN:
THE CORPORATION OF THE CITY OF LONDON
Applicant
– and –
Canadian Union of Public Employees, Local 101 and Michael Bendel
Respondents
REASONS FOR JUDGMENT
J. K. TRIMBLE J.
Released: July 26, 2024