Communications, Energy v. Paperworkers Union of Canada, Local 855, 2012 ABQB 730

Court of Queen ’ s Bench of Alberta Citation: Communications, Energy and Paperworkers Union of Canada, Local 855 v. West Fraser Mills Ltd., 2012 ABQB 730 Date: 20121129 Docket: 1203 08463 Registry: Edmonton Between: Communications, Energy and Paperworkers Union of Canada, Local 855 Applicant - and - West Fraser Mills Ltd. Respondent Corrected judgment: A corrigendum was issued on November 29, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment on Judicial Review of the Honourable Madam Justice D.C. Read _______________________________________________________

Summary: A union sought judicial review of a decision of an arbitrator who on his

interpretation of a collective agreement, found that a grievor was not entitled to severance pay when another employee exercising her seniority rights ‘bumped’ the grievor from her position. Facts: [ 1 ] West Fraser Mills Ltd. ( “ West Fraser ” ) operates a pulp mill and sawmill in Hinton, Alberta. Its employees are represented by the Communications, Energy and Paperworkers Union of Canada, Local 855 (the “ Union ” ). The governing collective agreement between West Fraser and the Union in respect to the grievance here at issue was that in force between 2003 and 2008. (the “ Collective Agreement ” )

[ 2 ] In August 2006, West Fraser gave notice of job elimination to Ms. Bev Hellum, who held a position as maintenance clerk in the pulp mill. This was termed a ‘ posted ’ position in the Collective Agreement and is distinguished from ‘ line of progression ’ jobs for which some different rules applied. Under the provisions of s. 8:17(

b) of the Collective Agreement, Ms. Hellum could elect to ‘ bump ’ but only into another ‘ posted ’ position or, alternatively, to terminate her employment and take a severance allowance the value of which would be calculated based upon s. 8.17(

c) of the Collective Agreement. [ 3 ] What is known colloquially as ‘ bumping ’ is a right of a senior employee, whose position is eliminated, to take another more junior employee ’ s position in certain circumstances. Rather than resign and take the severance allowance, Ms. Hellum opted to exercise her ‘ bumping ’ right and bumped into the posted job of Transportation Clerk, a position held by Sherelyn Tocher (the “ Grievor ” ) who had been employed by West Fraser since 1987. [ 4 ] The parties are agreed that Ms.

Hellum was senior to the Grievor, had a ‘ bumping ’ right under the Collective Agreement and could validly exercise that right to take the Transportation Clerk position occupied by the Grievor. [ 5 ] Pursuant to the terms of the Collective Agreement, the Grievor, who was absent on maternity leave when the issue arose, was offered the opportunity to ‘ bump ’ into various other posted positions within the mill. Unfortunately, she found none of them acceptable as they involved shift work or changes in hours which were incompatible with her family responsibilities.

She tried one position for a day but quickly realized it was unsuitable and resigned. She sought a severance allowance, arguing that she was entitled to this under s. 8.17(

b) of the Collective Agreement. West Fraser denied the severance allowance, arguing that on its

interpretation of s. 8.17(

b) the Grievor had no right to a severance allowance. [ 6 ] The Grievor grieved the denial to an arbitrator under the Collective Agreement. J. Leslie Wallace (the “ Arbitrator ” ) heard the grievance and issued a written decision ( “ Arbitration Decision ” ) on May 22, 2012. [ 7 ] The issue before the Arbitrator was the proper

interpretation of clause 8:17 of the Collective Agreement, the relevant portions of which read as follows: 8:17 JOB SECURITY- SEVERANCE ALLOWANCE 8:17(a) [not applicable]..., or, 8:17(

b) An employee with one (1) or more years of continuous service, who has lost his/her established job, position, or classification because of mechanization, technological change, automation or permanent elimination of a position or job will have an option of terminating his/her employment and accepting a severance allowance as listed in (c); or, exercising his/her Mill Seniority rights subject to the conditions in

Section 8:18. 8:17(

c) Severance allowance will be calculated by.. [emphasis added] [ 8 ] The Union sought judicial review of the Arbitration Decision. [ 9 ] For reasons set out in his decision, the Arbitrator preferred the

interpretation of s. 8:17 urged by West Fraser and dismissed the grievance. [ 10 ] The Arbitrator ’ s reasons may be summarized as follows. Having regard to the principles of

interpretation, and considering the contractual context of the Collective Agreement as a whole, the parties intended that

section 8:17(

b) apply only to employees whose

posted jobs were eliminated because of one of the named events and not to those whose jobs were affected because they were bumped out of their position or to those affected by a serial demotion unless they were special cases as set out in the Collective Agreement. To decide otherwise would render other parts of the Collective Agreement, particularly parts of s. 8:19 redundant. Issues: -What is the standard of review? -Applying the standard of review to the Arbitrator ’ s decision, should it be disturbed? What is the Standard of Review: [ 11 ] It is common ground that when considering a labour arbitrator ’ s

interpretation and application of a collective agreement provision, the standard of review is one of reasonableness. [ 12 ] This standard was described in Dunsmuir v. New Brunswick , 2008 SCC 9 , at para 47 as follows: Reasonableness is a deferential standard... A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of .. justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 13 ] This standard requires a court to inquire into both the reasons and the outcome of the decision: United Nurses of Alberta, Local 301 v. Capital Health Authority (University of Alberta) 2009 ABCA 202 at para 7 . When considering the

interpretation of a collective agreement, the relevant inquiry is not whether a judge reviewing the decision agrees with the

interpretation but “ whether the

interpretation was reasonable; that is, were the reasons intelligible and transparent and the result one of the possible legal outcomes available, not necessarily the most likely ” : United Nurses , ibid at para 9. On a reasonableness standard, should the Arbitrator ’ s decision be disturbed: [ 14 ] The Union argues that the Arbitrator ’ s

interpretation was unreasonable because it was not within the range of acceptable outcomes based upon the facts and the law. The Union argued that once the Arbitrator concluded there was no ambiguity in the wording of s. 8:17(b), without reference the entirety of the Collective Agreement, his consideration of other provisions of the Collective Agreement was unnecessary and caused him to fall into error and interpret s. 8:17(

b) in a fashion which was unreasonable and contrary to its plain wording. In particular, the Union points out that at re-numbered paragraph 24,the Arbitrator concluded the ordinary meaning of the words ‘ a position or job ’ created a presumption that they referred to any job because of the use of the indefinite

article ‘ a ’ . He contrasted this usage with the words ‘ his/her established job ’ used earlier in the same provision which he said clearly referred to the particular job of the affected employee. The Union pointed out that as the Arbitrator found the use of the word ‘ a ’ in reference to the position or job, occurring in such close proximity to the use of ‘ his/her established job ’ created a strong presumption as to the meaning of ‘ a ’ in the context, there was no need to go any further.

Having reached this conclusion, the Union argued that the Arbitrator had found no ambiguity in the provision and should have gone no further. The Arbitrator should have concluded in respect to the Grievor that because she lost ‘ her established job ’ and because the reason was ‘ permanent elimination of a position or job ’ (being the elimination of Ms.

Hellum ’ s job), by the plain wording of s. 8:17(b), the Grievor had and should have been afforded the option of terminating her employment and receiving a severance allowance. [ 15 ] The Union ’ s alternate position was that even if the Arbitrator could reasonably conclude that the word ‘ a ’ used in the context was ambiguous and could, therefore, have referred to the context of the Collective Agreement as a whole in order to aid in interpreting what the parties intended in s. 8:17(b), the Arbitrator erred in his conclusion that the

interpretation of s. 8:17(

b) urged by the Union would render redundant other provisions of the agreement, notably s. 8:19(a). On the contrary they said, these provisions were necessary because otherwise because of s. 8:09(

b) no worker in a line of progression job would be entitled to severance. [ 16 ]

Section 8:19(

a) is reproduced below:

8:19(

a) The Company will give the Union and affected employees a minimum of one hundred and eighty (180) days notice of the elimination of a job, position or classification. 8:19(a)(

i) The affected employee(

s) given the one hundred and eighty (180) days notice under this

Section shall: Within one hundred and fifty (150) days of receipt of such notice inform the Company in writing of his decision in respect to the options he has available to him under

Article 8:17(

b) or, if applicable, Within one hundred and fifty (150) days of receipt of such notice inform the Company in writing of his intention to move down the line of progression provided the employee has the necessary qualifications and ability to perform the work. 8.19(a)(ii) If a frozen or grandfathered employee is affected by this

Section (ie forced to move to a different job in the line), then this employee shall be granted the same two (2) options in this

Section (

i) which must be exercised within the original one hundred and eighty (180) day notice period. 8:19(a)(iii) Any employee permanently displaced from the line of progression after this process is complete will be subject to the conditions of 8:17(b) [ 17 ]

Section 8:09(

b) reads as follows: 8:09(

b) In a reduction of the working force in any line of progression, employees will be demoted step by step down their line of progression. [ 18 ] I reject the Union ’ s first position that the Arbitrator concluded that the wording of s. 8:17(

b) was clear and unambiguous. He did not. The Arbitrator began his analysis by pointing out that the word ‘ a ’ on its plain meaning, is indefinite. However, in his reasons, he indicated clearly that this

interpretation was only attractive “ without more ” and created only a “ presumption ” , albeit a strong one given “ the different formulations occur so close together in the same

article of the collective agreement, and so the difference is less easily attributed to simple inattention or casual inconsistency ” . [ 19 ] The Arbitrator then noted that interpretive presumptions based upon ordinary words may be overcome when considered in the context of the agreement as a whole. Well aware that his responsibility was to determine what the parties intended by their use of the

article ‘ a ’ in this Collective Agreement, he went on to consider a number of other provisions. This caused him to conclude that the parties ’ intended to restrict application of s. 8:17(

b) to the particular employee whose job had been eliminated and that in using the word ‘ a ’ the parties meant to refer only to the job of the person whose position was eliminated for one of the stated reasons and not to those who became affected as a result of someone else ’ s decision to ‘ bump ’ or move down the line of progression into their position. [ 20 ] He set out a number of reasons for coming to this conclusion but most importantly, concluded that the Collective Agreement should be interpreted to avoid redundancy if possible. He found that if the

interpretation of s. 8:17(

b) urged by the Union was accepted, the effect would be to render redundant provisions such as s. 8:19(

a) which is outlined above. [ 21 ] By his reasoning, the effect of s. 8:19(

a) is to specifically address what would occur for a frozen or grandfathered line of progression employee or one at the bottom of the line of progression, who loses his position after a serial bumpdown which could occur when a job is eliminated. He said that if s. 8:17(

b) were to be interpreted in the suggested fashion so that it applied to all employees in a serial bumpdown, then s. 8:19(a), particularly s. 8:19(a)(iii), would be superfluous. As well, the bracketed explanatory words of s. 8:17(a)(ii) would be unnecessary. [ 22 ] It was based upon this contextual approach, that the Arbitrator concludes that s. 8:17(

b) must be read as restricting the availability of a severance allowance only to those employees who have lost their own position and not to those who lose their position because another employee who has lost his or her own position elects to bump them, subject to the exceptions set out in s. 8:19(a).

[ 23 ] In respect to s. 8:09(b), the arbitrator comments only that it prescribes “ serial demotion rather than bumping as the general rule in reductions that occur within lines of progression ” . [Arbitration Decision para 17] [ 24 ] In my view, the Arbitrator ’ s reasons were intelligible and transparent. While the

interpretation of s. 8:17(

b) urged by the Union is a reasonable one, the Arbitrator ’ s

interpretation is also reasonable and one of the possible legal outcomes available. As the Court of Appeal has noted in decisions such as United Nurses, op cit at para 8 and 9, in judicial review on a reasonableness standard, the function of the judge is not to analyze the specific reasoning of the decision maker below to determine if there are defects sufficient to render the decision unreasonable. Nor is it the reviewing judge ’ s function to substitute his or her view of a correct

interpretation for that of the decision maker below. The judge ’ s role is to ask if whether taken as a whole, any of the reasons adequately support the decision. [ 25 ] In my view the Arbitrator ’ s do. His decision is worthy of deference and should not be disturbed. Heard on the 27 th day of November, 2012. Dated at the City of Edmonton, Alberta this 29 th day of November, 2012. D.C. Read J.C.Q.B.A. Appearances: Patrick Nugent Chivers Carpenter Lawyers for the Applicant Dwayne W. Chomyn, Q.C. Neuman Thompson for the Respondent _______________________________________________________ Corrigendum of the Reasons for Judgment on Judicial Review of

The Honourable Madam Justice D.C. Read _______________________________________________________ The citation has been corrected. It should read: Communications, Energy and Paperworkers Union of Canada, Local 855 v. West Fraser Mills Ltd., 2012 ABQB 730