United Food v. Commercial Workers, 2012 ABQB 372

Court of Queen ’ s Bench of Alberta Citation: United Food and Commercial Workers Canada, Local 401 v. Canada Safeway Ltd., 2012 ABQB 372 Date: 20120607 Docket: 1003 11130 Registry: Edmonton In the Matter of the Labour Relations Code , R.S.A. 2000, c.

L-1; And in the Matter of grievances filed by United Food and Commercial Workers Canada, Local 401, #2008DMA154 and 2008DMA156; And in the Matter of an Arbitration Award pursuant to a Collective Agreement between United Food and Commercial Workers Canada, Local 401 and Canada Safeway Ltd.; And in the Matter of an Arbitration Award issued by Arbitrator John Moreau, Q.C., on June 4, 2010. Between: United Food and Commercial Workers Canada, Local 401 Applicant - and - Canada Safeway Ltd. Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.

Strekaf _______________________________________________________

I. Introduction The United Food and Commercial Workers Canada, Local 401 (the “Union”) has applied for judicial review of an arbitral award issued on June 4, 2010 (“Award”). II. Background Facts [ 1 ] The Union and Canada Safeway Ltd. (the “Employer”) were parties to two Collective Agreements for retail employees and for meat/deli employees, respectively, which were to expire on March 17, 2007. The Union and the Employer entered into new Collective Agreements for each group of employees on February 26, 2008, which were to expire on March 20, 2010 (the “New Collective Agreements”).

On April 11, 2008, the Union filed grievances pursuant to the two New Collective Agreements claiming that the Employer was not paying 18 employees hired prior to 2003 at the rates specified in the New Collective Agreements. The grievances were heard before an Arbitrator on October 13 and 14, 2009 and April 16, 2010. The Arbitrator issued an Arbitration Award dated June 4, 2010 dismissing both grievances. [ 2 ] Both New Collective Agreements provided that “The Employer agrees to pay all persons covered by the terms of the Agreement the

Schedule of Wages as set out in Appendix “A” of the Agreement during such time as this Agreement is in force...”. Each Appendix A contained wage scale schedules for different classifications of employees which provided wage rates based upon the total career hours of the employee increasing at 500 hour intervals. Further increases to all rates were provided for on March 2, 2008, March 16, 2008 and March 15, 2009.

Separate wage scales were provided for employees hired prior to June 21, 2003, as well as those hired before and after February 26, 2008. [ 3 ] The grievances claim that 11 retail and 7 meat/deli employees hired prior to June 21, 2003 were being paid at a lower rate than the lowest rate shown on their respective wage schedules, being 5,000 and 9,500 hours respectively.

All of these employees had fewer career hours worked than the commencement number of hours shown on their schedule. [ 4 ] The Employer had paid these 18 employees at the rate that they had been paid under their old Collective Agreements for their accumulated service hours, plus increments of $0.25 effective March 2, 2008 and March 16, 2008. This incremental increase is what the Employer had been proposing for employees other than those in the highest category of accumulated service hours who were receiving larger increases.

The Employer claimed that there had been no intention to pay these employees at the lowest rates shown on the wage schedules (which would have resulted in an increase for these employees beyond that received by other employees), but that a portion of the tables dealing with the wage rates for employees with fewer than 5,000 hours for retail employees and 9,500 hours for meat/deli employees had been dropped from the table in the course of the negotiations due to a clerical error. III.

The Award [ 5 ] At the outset of the arbitration proceedings the Union had argued that Appendix A was clear on its face and that there was no need to hear evidence of the bargaining history. The Employer’s position was that Appendix A was ambiguous and that evidence of the bargaining history was relevant.

The Arbitrator determined that the New Collective Agreements were ambiguous and that it was appropriate to consider extrinsic evidence of the bargaining history between the parties. [ 6 ] In summarizing the key events that took place during the last bargaining round between the parties in early February 2008 which led to the New Collective Agreements that were ratified on February 26, 2008, the Arbitrator noted:

(

i) The Employer prepared many draft wage scale proposals in the Appendix A format that went back and forth between the parties. (ii) The Employer’s proposal dated February 8, 2008 at 3:31 pm for pre-2003 employees showed a current starting wage of $7.90 for employees with a “0” hour which escalated at 500 hour increments to $11.30 for 4,500 hours. The 5,000 hour wage step incorporated proposed rate increases to the current starting wage during the new contract period escalating at $0.25 increments on three milestone dates, being the date of ratification, March 2008 and March 2009.

The only exception was at the 10,000 hour wage step which had larger incremental increases. (iii) A change was made in the schedules put on the table by the Employer on February 9, 2008 at 11:51 pm which dropped the bottom part of the wage scales for pre-2003 and post-2003 clerks below 5000 hours and 3000 hours, respectively. The only other change was the hourly increases at 10,000 hour wage step at the top end of the range.

A version of this wage scale was incorporated in the New Collective Agreement. (iv) The pre-2003 meat/deli employees’ wage scale only had two levels specified, 9,500 hours and 10,000 plus hours. (

v) One of the Union negotiators testified that he asked one of the Employer negotiators in the 2:30 am negotiations whether the 11:51 pm proposal “captures everybody” and was advised that “we believe it does.” The Employer negotiator does not recall that discussion. (vi) There was no specific discussion at the bargaining tables with respect to pre-2003 clerks who had less than 5,000 hours or of collapsing the wage scale at the lower hour levels. [ 7 ] The issue facing the Arbitrator was whether pre-2003 retail employees who had less than 5,000 hours should be paid at rates shown for 5,000 hours, being the lowest wage scale shown on the applicable table as was asserted by the Union, or whether they should be paid at their previous rate under the old Collective Agreement plus $0.25 increases at each of the milestone dates as had been done by the Employer.

The same issue applied with respect to pre-2003 meat/deli employees who had less than 9,500 hours. [ 8 ] In delivering his decision, the Arbitrator concluded that “there was no ‘meeting of the minds’ with respect to guaranteeing the minimum wage corresponding to 5,000 hours to this group of pre-2003 employees.

The changing of the template by the Employer during the late-night negotiations was clearly a clerical error that occurred for reasons of efficiency and nothing more.” In dismissing the grievances he concluded by stating: Although it would have been clearly preferable for the parties to have drafted a full wage scale beginning at “0” hours on p. 120 of Appendix A for the pre-2003 employees, I do not find on the evidence before me a basis to conclude that the Union has met the onus of proving that the 5,000 hours was a minimum hourly rate agreed to at the time of bargaining for these pre-2003 employees.

The absence of the wage scale starting at “0” hours was simply a clerical error which cannot form the basis of a monetary claim. Accordingly, the Employer’s

interpretation of the collective agreement for pre-2003 retail employees based on accumulated hours starting at the 2003 (“current”) hourly rates followed by $0.25 increments on March 2, 2008, March 16, 2008 and March 15, 2009 is upheld as the appropriate

interpretation of Appendix A. The same reasoning applies to the pre-2003 employees with less than 9500 hours in the Meat/Deli collective agreement. III. Standard of Review [ 9 ] The Supreme Court of Canada has provided guidance on the standard of review to be applied on an application for judicial review of an administrative tribunal’s decision in a number of recent decisions including Dunsmuir v. New Brunswick , 2008 SCC 9 [2008] 1 S.C.R. 190, Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011]1 SCR 160 and Alberta Information and Privacy Commissioner v. Alberta Teachers ’ Association , 2011 SCC 61 , [2011] 3 SCR 654. In Smith , the Court stated at para.. 26 :

Under Dunsmuir , the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of "general law 'that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise'" ( Dunsmuir , at para. 60 citing Toronto (City) v. C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77, at para. 62 ); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a "true question of jurisdiction or vires" (paras. 58-61).

On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the

interpretation of the tribunal's enabling (or "home") statute or "statutes closely connected to its function, with which it will have particular familiarity" (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras 51 and 53-54). [ 10 ] The key issues in this case involve the

interpretation of the New Collective Agreements and the evidence considered by the Arbitrator in that regard, which attract a review standard of reasonableness. IV. The Parties ’ Positions [ 11 ] The Union’s position is that the Arbitrator erred: 1. By admitting and using extrinsic evidence of the parties’ negotiations to interpret the agreements in the absence of ambiguity and without finding the presence of an ambiguity; 2. By relying on evidence that was not clear and unequivocal which demonstrated a shared intention of the parties; 3. By adopting an unreasonable

interpretation of the New Collective Agreements; and 4. By implicitly unilaterally applying the doctrine of rectification in circumstances where the conditions precedent had not been established. [ 12 ] The Employer’s position is that the Arbitrator’s decision was reasonable because: 1. Extrinsic evidence is admissible to resolve or establish the existence of an ambiguity in a collective agreement. 2. The wage scales were patently ambiguous because they failed to address the applicable wage rate for the 18 pre-2003 employees who had fewer hours than the lowest wage scale. 3.

The Arbitrator effectively concluded that the agreements were ambiguous. He referred to and quoted legal principles that the object of interpreting a written instrument is to determination the intention of the parties and that evidence is admissible if an agreement is ambiguous to explain the ambiguity but not to vary the terms of the agreement immediately prior to examining the negotiations that led up to ratification. 4. The elimination of the wage scales for pre-2003 retail employees below 5000 hours and meat/deli employees below 9,500 hours was the result of a clerical error. 5.

The Award is not unreasonable as the 18 employees would receive the same $0.25/hour increase from their previous wage rate at the three milestone dates as all other employees, with the exception of employees in the highest category of accumulated service hours

who were receiving larger increases. By contrast, the Union’s position is unreasonable as it would give the 18 employees a salary bumpthat was inconsistent with the increases provided to other employees, which was never discussed between the parties. 6. The Arbitrator merely interpreted and did not amend or rectify the agreements. 7. If the Arbitrator did implicitly rectify the agreements, that was a matter within his jurisdiction and was done to reflect the trueagreement reached between the parties. V.

Analysis [13] The Arbitrator’s decision to admit extrinsic evidence was a reasonable exercise of his authority. [14] The Arbitrator was asked to interpret the Agreement and was not asked to rectify the Agreement. While he made no expressreference to the doctrine of rectification, that is the effect of his decision.

By dismissing the grievances, the Arbitrator endorsed theEmployer’s approach to pay the 18 employees based on their current hourly rates plus the $0.25 increments on the three milestone dates.The Arbitrator implicitly rectified the New Collective Agreements by adding wage scales for pre-2003 retail employees with less than5,000 hours and pre-2003 meat/deli employees with less than 9,500 hours that were comparable to those provided for all employeesother than those with more than 10,000 hours. [15] Both the Union and the Employer concede that the Arbitrator had the jurisdiction to apply the doctrine of rectification: Public Service Alliance of Canada v.

Nav Canada, (2002), (ON CA), 212 DLR (4th) 68(Ont. C.A.) [16] The Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, supra,provided guidance to reviewing courts when considering implicit decisions of a tribunal per Rothstein, J. (writing for the majority) atparas 50 - 53: .......Where the reviewing court finds that the tribunal has made an implicit decision on a critical issue, the deference due to the tribunaldoes not disappear because the issue was not raised before the tribunal.

In the present case, the adjudicator, by completing the inquiry, implicitly decided that extending the 90-day period for completion of aninquiry after the expiry of that period did not result in the automatic termination of the inquiry. However, as the issue was never raisedand the decision was merely implicit, the adjudicator provided no reasons for her decision. It is therefore necessary to address how areviewing court is to apply the reasonableness standard in such circumstances.

In Dunsmuir, the majority explained (at paras. 47-48): In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within thedecision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes whichare defensible in respect of the facts and law. ...

We agree with David Dyzenhaus where he states that the concept of "deference as respect" requires of the courts "not submission buta respectful attention to the reasons offered or which could be offered in support of a decision": "The Politics of Deference: JudicialReview and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 ... . Obviously, where the tribunal's decision is implicit, the reviewing court cannot refer to the tribunal's process of articulating reasons, norto justification, transparency and intelligibility within the tribunal's decision-making process.

The reviewing court cannot give respectfulattention to the reasons offered because there are no reasons.

However, the direction that a reviewing court should give respectful attention to the reasons "which could be offered in support of a decision" is apposite when the decision concerns an issue that was not raised before the decision maker. In such circumstances, it may well be that the administrative decision maker did not provide reasons because the issue was not raised and it was not viewed as contentious. If there exists a reasonable basis upon which the decision maker could have decided as it did, the court must not interfere.

Rothstein, J. went on at para 55 to state: In some cases, it may be that a reviewing court cannot adequately show deference to the administrative decision maker without first providing the decision maker the opportunity to give its own reasons for the decision. In such a case, even though there is an implied decision, the court may see fit to remit the issue to the tribunal to allow the tribunal to provide reasons.

However, remitting the issue to the tribunal may undermine the goal of expedient and cost-efficient decision making, which often motivates the creation of specialized administrative tribunals in the first place. Accordingly, remitting the issue to the tribunal is not necessarily the appropriate option available to a court when it is asked to review a tribunal's implied decision on an issue that was not raised before the tribunal. Indeed, when a reasonable basis for the decision is apparent to the reviewing court, it will generally be unnecessary to remit the decision to the tribunal.

Instead, the decision should simply be upheld as reasonable. On the other hand, a reviewing court should show restraint before finding that an implied decision on an issue not raised before the tribunal was unreasonable. It will generally be inappropriate to find that there is no reasonable basis for the tribunal's decision without first giving the tribunal an opportunity to provide one. This, of course, assumes that the Court has thought it appropriate in the particular circumstances to allow the issue to be raised for the first time on judicial review.

Care must be taken not to give parties an opportunity for a second hearing before a tribunal as a result of their failure to raise at the first hearing all of the issues they ought to have raised. [ 17 ] The Arbitrator was asked to interpret the New Collective Agreements and was not asked to consider the issue of rectification. In his decision, he considered extrinsic evidence regarding the negotiations between the parties, which is the type of evidence that would typically be examined on a claim for rectification.

He ultimately concluded that the absence of a wage scale below 5000 hours for the pre-2003 employees was simply a clerical error. The implied decision of the Arbitrator was to rectify the new Collective Agreements. I am of the view that the Arbitrator’s decision was reasonable and must be upheld, having regard to the standard of review applicable in the circumstances. VI. Conclusion [ 18 ] The application for judicial review of the Award is dismissed. If the parties are not able to agree upon how costs should be addressed then they are at liberty to provide written submissions on costs within 30 days.

Heard on the 5 th day of December, 2011. Dated at the City of Edmonton, Alberta this 5 th day of June, 2012. J. Strekaf J.C.Q.B.A. Appearances:

Kevin Tamblyn for the Applicant Joyce Mitchell for the Respondent