Telus Communications Inc. Applicant - v. -, 2013 ABQB 355

Court of Queen ’ s Bench of Alberta Citation: Telus Communications Inc v Telecommunications Workers ’ Union, 2013 ABQB 355 Date: 20130620 Docket: 1201 15455 Registry: Calgary Between: Telus Communications Inc. Applicant - and - Telecommunications Workers ’ Union Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.T. McCarthy _______________________________________________________ Introduction and Facts [ 1 ] This is an application for judicial review of a decision of a labour arbitrator (the “Arbitrator”).

There is little dispute as to the underlying facts which, briefly stated, are as follows. [ 2 ] Jarrod Underwood (the “Grievor”) was employed by the Applicant, Telus Communications Inc. (“Telus”) from April 3, 2006 to July 12, 2011. The Grievor was a service technician and was based in Fort McMurray. As a service technician, it was the Grievor’s job to install and service Telus equipment.

Such technicians carry out their work at customers’ homes and businesses and, consequently, work largely without direct supervision. [ 3 ] The Grievor is a member of the Telecommunications Workers’ Union (the “Union”) and the terms of his employment are governed by a collective agreement between Telus and the Union (the “Collective Agreement”).

Article 10.01 of the Collective Agreement provides that Telus cannot terminate an employee other than for just cause.

[ 4 ] In June 2011, the Grievor asked to have July 3, 2011 off to play in a slo-pitch tournament. This request was denied on the grounds that no other technicians were available that day to complete scheduled work. [ 5 ] On July 3, 2011, the Grievor texted his manager at 7:47am, saying “Sorry, due to unforeseen circumstances, I cannot make it in today, nrms [sic] not answering yet, will continue to try”. The Grievor’s manager testified at the arbitration hearing that he had previously told the Grievor to call, rather than text or email, if he could not make a scheduled shift.

The Grievor denied remembering this conversation, but the Arbitrator stated that this denial was “less than convincing”. [ 6 ] The Grievor texted again at 9:36am, indicating that he was still unable to get through to dispatch. The evidence at the arbitration hearing was that dispatch called the Grievor at 10:00am and again at 1:00pm, but got no answer. [ 7 ] The Grievor’s manager testified that he was suspicious about the Grievor’s illness, given the prior request to have the same day off. He testified that he went to the tournament location and observed the Grievor pitching at approximately 11:45am.

However, he did not confront the Grievor at that time. [ 8 ] The Grievor was scheduled for six jobs on July 3, 2011, as well as a seventh job he had arranged independently with a customer. None of these jobs was completed on that date and the Grievor admitted that he had made no attempt to contact the customer with the independently arranged job. [ 9 ] The Grievor reported for work on July 4, 2011 and was called into a meeting with his manager.

When questioned about his absence the previous day, the Grievor said that he had woken up during the night before with a severe case of diarrhea, which persisted into the morning of July 3, 2011. [ 10 ] The Grievor admitted to having gone to the ball park at around 10:45am. He indicated that he was still sick, but was able to manage his illness at the ball park, but would not have been able to do so at a customer’s home. He asserted twice that he had only been watching, not playing.

However, when confronted with having been observed by his manager, he stated that he was only pitching and not batting. [ 11 ] The Grievor did not claim a sick day for July 3, 2011, but admitted at the arbitration hearing that he had intended to and likely would have but for the disciplinary action. [ 12 ] The only prior disciplinary action taken against the Grievor was a three-day suspension in April 2008 for consuming alcohol in a company vehicle while on duty.

While the Collective Agreement provides for removal of a suspension from an employee’s file after two years, the Grievor did not request such removal in this case. [ 13 ] As a result of this incident, Telus terminated the Grievor. [ 14 ] The Union grieved the termination and the matter proceeded to arbitration on May 14 and July 4, 2012. The Arbitrator gave his decision (the “Award”) on October 24, 2012. The Award reinstated the Grievor and substituted a one-month suspension for the termination. [ 15 ] Telus sought judicial review of the Award on various grounds, as set out below. Standard of Review

[ 16 ] It appears to be common ground that the standard of review in this case is reasonableness. It is well-established that, except in certain circumstances, such as human rights disputes, labour arbitrators are entitled to considerable deference. [ 17 ] The parties, however, differ somewhat in their approaches to the reasonableness standard.

Both sides refer to the oft-quoted description from Dunsmuir v New Brunswick , 2008 SCC 9 , 1 SCR 190 at para. 47 : Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

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. [ 18 ] Telus also refers to the Supreme Court of Canada’s subsequent judgment in Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 , 1 SCR 339 at para. 59 : Reviewing courts cannot substitute their own appreciation of the acceptable solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” ... There might be more than one reasonable outcome.

However, as long as the process and outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. [ 19 ] Telus then goes on to review a number of cases and distills these principles, as set out in its brief: (

a) Decisions may be unreasonable in rationale or in result. In either case, they must be quashed by the reviewing court. (

b) A decision is unreasonable in result if its end result is not defensible under any line of analysis. Such decisions should be quashed and not remitted back to the tribunal since, in such cases, there is no line of reasoning which could possibly justify a different result. (

c) A decision is unreasonable in rationale if it does not meet the necessary standard of “justification, transparency or intelligibility” in the decision making process. This will be the case if: (

i) The reasoning is faulty or illogical; (ii) The decision does not consider all of the relevant factors or accord those factors proper weight; (iii) The decision considers irrelevant factors; (iv) The decision misapplies the relevant legal test; (

v) The decision is based on findings of fact or assumptions for which there is no evidence, or in respect of which the preponderance of evidence points to contrary findings;

(vi) The decision reaches a conclusion that does not follow logically from its findings of fact; (vii) The decision resolves an important finding of fact solely on the basis of onus as opposed to a weighing of the evidence; or (viii) The decision is based on a finding of credibility which is not properly articulated in the reasons. (

d) The standard of justification, transparency and intelligibility is necessary to preserve the integrity of the administrative process. Litigants have a right to understand a decision affecting them and courts have a duty to understand administrative decisions on judicial review. A decision that does not meet the requisite standard must be quashed regardless of whether or not the court could invent reasons justifying the decision after the fact. (

e) Where an administrative decision does not meet the requisite standard of justification, transparency and intelligibility, it should be quashed and remitted to a newly constituted board for fresh consideration.

Curial deference should not be used to correct fatal flaws in the reasoning process since such an exercise would usurp the proper role of administrative tribunals to decide matters within their assigned areas of jurisdiction. [ 20 ] By contrast, the Union quotes paras. 14, 15 and 16 of Newfoundland and Labrador Nurses ’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , 3 SCR 708 for the proposition that a more “organic” approach is to be preferred: It is a more organic exercise - the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. ...

In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision- making process of adjudicative bodies with regard to both the facts and the law” ... This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. ...

In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [ 21 ] Despite the different approaches advocated by the parties, it is clear that both the decision-making process and the decision itself come into play in the assessment of reasonableness.

Nevertheless, I take the Supreme Court’s comments in Newfoundland as a caution against parsing the decision too minutely. [ 22 ] With the foregoing in mind, I now proceed to assess the reasonableness of the Award. Reasonableness of the Award [ 23 ] As noted above, Telus attacks the reasonableness of the Award on several grounds. I will review each of these in turn. A. The Arbitrator failed to weigh the evidence and make a proper finding as to whether the Grievor was lying when he claimed to be too sick to report for work

[24] Telus notes that just cause for disciplining an employee must be established on a balance of probabilities. Since the causerelied upon by Telus in terminating the Grievor was allegedly falsely calling in sick, the question of whether the Grievor was in fact sickwas central to the issue of just cause. [25] Telus argues that, instead of weighing the evidence and making a determination on a balance of probabilities, the Arbitratorsimply relied on the fact that Telus had no direct evidence that the Grievor was not sick.

As examples, Telus points to these statementsmade by the Arbitrator at pp. 26 and 28 of the Award: The grievor’s account of his illness was plausible, as was his explanation about being able to deal with the diarrhea at the ball park butnot in a customer’s home. TELUS had no evidence that he had not been sick during the night and early morning or did not have to usethe washroom at the ball park...

As to the grievor being “dishonest” because he intended to claim a sick day, the first answer is that he was sick and was entitled to claima sick day; there is no proof otherwise... [26] Telus asserts that the Arbitrator should have assessed the Grievor’s credibility and considered the other available evidencerather than requiring Telus to prove that the Grievor was lying.

In support of its position, Telus points to these comments from theBritish Columbia Court of Appeal in Faryna v Chorny (1952), (BC CA), 2 DLR 354 at para. 11: The test must reasonably subject [the witness’] story to an examination of its consistency with the probabilities that surround thecurrently existing conditions.

In short, the real test of the truth of the story of a witness in such a case must be its harmony with thepreponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in thoseconditions... [27] Telus argues that the preponderance of evidence accepted by the Arbitrator suggests that the Grievor falsely called in sick. [28] For its part, the Union asserts that “the Arbitrator concluded that the grievor’s account of his illness was plausible” and that it“must be concluded that the Arbitrator concluded that the grievor was ill”. [29] In my view, the Arbitrator’s approach to determining the question of the Grievor’s illness was unreasonable.

In essence, theArbitrator required Telus to prove a negative, namely that the Grievor was not sick. This places an unreasonable burden on Telus. B. If the Arbitrator did find that the Grievor was sick, this finding was unreasonable [30] This argument is similar to that set out above. Under this heading, Telus asserts, first, that the Arbitrator failed properly toassess the evidence and the credibility of the Grievor and, second, that the Arbitrator’s conclusion that the Grievor was sick was contraryto the preponderance of evidence.

The Union, by contrast, argues that this conclusion is one that was open to the Arbitrator given theevidence before him, including the testimony of the Grievor. [31] Again, having reviewed the evidence and keeping in mind the comments of the Court in Faryna, I find that the Arbitrator’sconclusion was unreasonable. As Telus points out, the only evidence in support of the conclusion that the Grievor was sick was histestimony to that effect; all of the other evidence suggests otherwise.

It is also noteworthy that the Arbitrator questioned the Grievor’scredibility in other aspects of his evidence, stating that the Grievor was “less than convincing” about not remembering the instructions tocall rather than text. C. The Arbitrator’s reasons are illogical

[ 32 ] Telus’ next argument is that the Award is “simply illogical”. The Arbitrator appeared to accept the Grievor’s contention that he was sick, but still imposed a one-month suspension. If the Grievor genuinely was sick, his only offence was lying about having played baseball. Telus’ position is that a one-month suspension for this offence alone would be unduly severe and suggests that the Arbitrator must have based this penalty on some other rationale that is not set out in the Award, thus preventing meaningful review.

The Union’s response is simply that the Arbitrator has broad remedial authority and that deference is owed to his determination of the penalty. [ 33 ] While a one-month suspension solely for lying about playing baseball would seem harsh, it does not necessarily follow that the Arbitrator must have made his decision based on some other, unspoken motivation. Taken alone, this would be insufficient to persuade me that the Award is unreasonable. Nevertheless, I will take it into account along with the other evidence and arguments in assessing the reasonableness of the Award. D.

The Award suggests that an employee can be too sick to attend work, yet sufficiently well to play baseball [ 34 ] Next, Telus argues that the Award suggests that an employee may be too sick to work, yet well enough to play baseball, a conclusion it characterizes as illogical and unreasonable. Telus also asserts that such a liberal approach to sick leave deprives it of its ability to manage its workplace and to discipline employees for unauthorized absences.

Telus states in its brief that “Allowing such claims would enable employees to honestly take sick days for minor ailments only to carry on more pleasurable activities which they deem themselves well enough to pursue.” [ 35 ] The Union, however, points out that the Arbitrator addressed this issue by noting the difficulties associated with attending at customers’ homes and businesses while suffering from diarrhea. Further, the Union pointed out that it is not uncommon for people to suffer from illnesses that render them capable of doing some things but not others.

The Union gave two examples: first, an employee with a cold or the flu may be capable of working but stay home to avoid spreading the infection and second, an employee may have an injury that restricts his or her physical abilities but does not impair the ability to carry out ordinary tasks such as grocery shopping. [ 36 ] I take the Union’s point that not every illness that requires an employee to miss work will render that employee entirely incapacitated. One likely would not quarrel with an employee who missed work because of illness but got out of bed to read or watch television.

Nevertheless, I am of the view that the conclusion that an employee who is too sick to work could still pitch in a baseball game defies logic and common sense. [ 37 ] Further, while I can appreciate that attending at customers’ homes and businesses while suffering from diarrhea might carry with it some awkwardness, it seems to me unreasonable to conclude that the problem could be so severe as to merit missing work, yet be manageable from the pitcher’s mound. [ 38 ] Parsing sick leave to this extent creates an unworkable standard and is therefore unreasonable. E.

The Award appears to consider as a mitigating factor the fact that Telus did not confront the Grievor on the ball park or otherwise attempt to lessen the impact of his absence on customer service [ 39 ] As noted in the facts above, the Grievor’s manager did not confront him upon finding him at the baseball field. There was some dispute between the parties as to the relevance of this fact and its effect on the Award. [ 40 ] Telus characterized the Arbitrator’s reference to this fact as a finding that Telus had not done all that it could to mitigate the negative impact of the Grievor’s absence on customer service.

It submits that this is an irrelevant consideration and that reliance upon it renders the Award unreasonable. [ 41 ] The Union submits that the manager’s failure to confront the Grievor at the ballpark and to order him to work was relevant to Telus’ assertion that the absence was serious because of its impact on customers.

[ 42 ] In my view, the parties’ approaches to this issue are not as different as they seem to suggest. In any event, however, I find for two reasons that the manager’s failure to confront the Grievor at the ballpark is irrelevant to the issue of whether he was improperly absent from work. [ 43 ] First, the starting proposition is that the Grievor has an obligation to be at work as scheduled unless he has a valid reason for being absent.

The Union’s approach would seem to impose upon Telus an obligation to follow up on employee absences and to issue an additional directive to attend work where the absence seems to be invalid. [ 44 ] Second, the Union’s argument seems to be that the Grievor’s absence was serious enough to warrant discipline only if Telus can establish that customer service was affected. If that were so, the corollary would be that it would be acceptable for the Grievor to be absent from work if customers would not be affected or if it could not be shown that customers would be affected.

This, too, is contrary to the Grievor’s primary obligation to attend work as scheduled. [ 45 ] Therefore, to the extent that the Arbitrator relied on the manager’s failure to confront the Grievor, that reliance was unreasonable. F. The Award did not take into account a number of important principles in determining whether discharge was the appropriate penalty 1.

Arbitrators should not interfere with disciplinary decisions so long as they are reasonable, regardless of whether or not they might have decided the matter differently [ 46 ] Telus asserts that there is a well-established principle in the arbitral jurisprudence that labour arbitrators should not “fine tune” managerial decisions and should interfere only if those managerial decisions are unreasonable.

It points to a number of decisions in which arbitrators have declined to interfere with disciplinary decisions that were “on the high end of reasonable”, even where the arbitrator would have been inclined to impose a less severe penalty.

While Telus acknowledges that the Arbitrator considered this argument, it asserts that he failed to give it appropriate weight. [ 47 ] The Union argues that arbitrators are entitled to adjust the penalties imposed by employers and that the Arbitrator in this case did not act unreasonably in doing so. [ 48 ] While I do not think that an arbitrator has an unrestricted ability to interfere with a disciplinary decision, I would not characterize what the Arbitrator did in this case as “fine tuning”.

This argument might carry weight if, for instance, Telus had imposed a three-day suspension on the Grievor and the Arbitrator had substituted a two-day suspension. However, termination of employment is the ultimate disciplinary sanction and the Arbitrator had the authority to overturn that termination, if appropriate. The question is whether he acted reasonably in doing so in this case. 2.

Abusing sick leave and persistent dishonesty are among the most serious workplace offences [ 49 ] Telus asserts that dishonesty is one of the most serious forms of workplace misconduct and that dishonesty in the context of sick leave is particularly serious as such absences are prone to abuse and difficult to monitor.

It cites several cases in which dishonesty in respect of sick leave has been found to justify termination and argues that the Arbitrator failed to give appropriate weight to this case law. [ 50 ] The Union argues that dishonesty is serious because of its impact on the trust between employer and employee. It points out that the Arbitrator addressed the issue of trust in this case and found that it had not been destroyed beyond repair.

[ 51 ] I find that the Arbitrator’s conclusion that the trust relationship between Telus and the Grievor had not been irreparably damaged was coloured by his view of what dishonest conduct had occurred. As noted above, the Arbitrator proceeded on the basis that the Grievor was in fact sick on the day in question, a conclusion I have found to be unreasonable. Therefore, the only dishonesty the Arbitrator would have considered was the Grievor’s initial failure to admit that he had been playing baseball, rather than just sitting at the ballpark watching.

As I have found that the dishonesty was more extensive than that, I also find that the Arbitrator’s conclusion that the trust relationship between Telus and the Grievor could be repaired was unreasonable. 3. Lying and continuing to lie when confronted about the true reason for an absence will often justify

summary dismissal in itself [ 52 ] Telus cites a number of cases for the proposition that lying about misconduct may justify termination even if the underlying offence might otherwise be excused. It asserts that the Arbitrator failed to consider this principle or to give it due weight and that that failure renders the Award unreasonable. [ 53 ] On the other hand, the Union states that the Arbitrator characterized the Grievor’s statements as half-truths and errors in judgment.

It also notes that the Grievor eventually did acknowledge having been at the ballpark and played baseball. [ 54 ] As with the previous argument, I am of the view that the Arbitrator was unduly influenced by his conclusion that the Grievor had not lied about being sick. His treatment of the Grievor’s dishonesty was unreasonable because he failed to appreciate the full extent of that dishonesty. 4. General deterrence is an important factor in evaluating disciplinary decisions [ 55 ] Telus asserts that the Arbitrator failed to give proper consideration to all of the relevant factors.

It sets out a large number of factors that have been considered in other cases and states that the following are relevant in this instance: (

a) the need for general deterrence of dishonesty or abuse of sick leave; (

b) the Grievor’s short service record and young age; (

c) the Grievor’s previous suspension for misconduct while unsupervised; (

d) the Grievor’s failure to come clean until confronted with irrefutable evidence and his continued evasiveness thereafter; (

e) the fact that the Grievor’s conduct was not a momentary aberration and appeared to have been premeditated; (

f) the fact that the Grievor’s text messages at 7:47am and 9:36am were worded evasively so as to conceal his true motivations for failing to report to work; (

g) the fact that the Arbitrator found the Grievor’s testimony less than convincing at arbitration; and (

h) the fact that the Grievor’s manager testified unequivocally that he could no longer trust the Grievor. [ 56 ] The Union notes that the Arbitrator stated at p. 31 of the Award what he considered to be the appropriate penalty “in all the circumstances”. It argues that there must be a presumption of compliance when an arbitrator states that he looked at all the

circumstances. [57] I find that it was not unreasonable for the Arbitrator not to place much weight on the Grievor’s previous suspension. Giventhe length of time that had elapsed between the two incidents, the different types of misconduct involved and the fact that the Grievorcould have had the previous suspension removed from his record had he chosen to do so, I am satisfied that the Arbitrator did not actunreasonably in declining to rely on it. [58] However, in light of the other factors, particularly the Grievor’s dishonesty, I find that the Arbitrator’s conclusion and theAward were unreasonable. G.

The Appropriate Remedy [59] As I have found that the Arbitrator’s approach and conclusion were unreasonable, the Award must be quashed. The remainingquestion is whether this matter should be remitted for redetermination by another arbitrator. [60] Telus’ position is that the appropriate remedy depends upon the nature of an arbitrator’s error. It asserts that if a decision isunreasonable in result, the reviewing court ordinarily will quash it without remitting it for rehearing. The reason for this is that the factscould lead to only one reasonable result and a rehearing would serve no useful purpose.

By contrast, if a decision is unreasonable inrationale, the proper approach is to remit it for rehearing. [61] In this case, Telus argues that the Award is unreasonable in result and that the only reasonable conclusion is that the Grievor’smisconduct justified his termination. Therefore, it asks that I quash the Award without remitting the matter for rehearing. [62] The Union argues that this Court does not have jurisdiction to decide what an arbitrator’s findings should be or what remedyan arbitrator should award.

It argues that this Court’s authority is solely to either quash or uphold the decision. [63] The case law is clear that the usual remedy when the decision of an administrative tribunal is quashed is to send the matterback for re-adjudication. There is, however, authority for the proposition that there are circumstances in which it is appropriate for thereviewing court to quash the decision without returning it to the tribunal. [64] There have been a number of cases in Ontario in which this has been the result. In Corp. of the Canadian Civil Liberties Assn.v.

Ontario (Civilian Commission on Police Services) (2002), (ON CA), 61 OR (3d) 649 (CA), the Court of Appealmade these comments at para. 92: In making this declaration I recognize that I am departing from the traditional remedy of quashing the decision under review andremitting the matter back to be dealt with by the administrative body. There is, however, guidance in the decision of the Supreme Courtin Renaud v. Société de l’assurance automobile du Québec et al., (SCC), [1999] 3 S.C.R. 855; 249 N.R. 2.

In theunusual circumstances of that case, as here, the complaint had previously been the subject of review on two or more occasions and nouseful purpose would have been served by remitting the matter back to the administrative body. I note that in Barreau du Québec v.Lachance, [2000] J.Q. No. 317 (S.C.), the Quebec Superior Court similarly stated that it would be “inutile” or useless to send the matterback to the administrative body.

Coincidentally these decisions reflect the recommendation made by the English Law Commission in its1994 report Administrative Law: Judicial Review and Statutory Appeals: from Lord Woolf, J. Jowell, & A.P Le Sueur, Principles ofJudicial Review (London: Sweet & Maxwell, 1999) at p. 582 that on rare occasions where no other outcome would be appropriate, thereviewing court may make the order the administrative body should have made. [65] The Ontario Divisional Court referred to this authority in Ontario Human Rights Commission v Farris, 2012 ONSC 3876, 100CCEL (3d) 251 at para. 62:

In Stetler v. The Ontario Flue-Cured Tobacco Growers’ Marketing Board, 2009 ONCA 234 at para. 42, 93 Admin. L.R. (4th) 312 theCourt of Appeal states: While “[a] court may not substitute its decision for that of an administrative decision-maker lightly or arbitrarily”, exceptionalcircumstances may warrant the court rendering a final decision on the merits. Such circumstances include situations where remitting thecase would be “pointless”, where the tribunal is no longer “fit to act”, and cases where, “in light of the circumstances and the evidence inthe record, only one

interpretation or solution is possible, that is, where any other

interpretation or solution would be unreasonable”:Giguère v. Chambre des notaires du Québec, 2004 SCC 1 , [2004] 1 S.C.R. 3, at para. 66. [66] Most recently, the Ontario Court of Appeal addressed this issue (albeit in a somewhat different context) in United States ofAmerica v Leonard, 2012 ONCA 622, 112 OR (3d) 496 at para. 92: ... as recognized in the case law, there are cases where it will be appropriate for a court to exercise a statutory power simply to set aside adiscretionary decision, namely where remitting the case for reconsideration would be “pointless” because, “in light of the circumstancesand the evidence on the record, only one

interpretation or solution is possible, that is, where any other

interpretation or solution would beunreasonable”: Stetler v. The Ontario Flue-Cured Tobacco Growers’ Marketing Board, 2009 ONCA 234, leave to appeal to S.C.C.refused, [2005] S.C.C.A. No. 428, at para. 42, citing Giguère v. Chambre des notaires du Québec, 2004 SCC 1, [2004] 1 S.C.R. 3, atpara. 66. ... [67] Finally, the British Columbia Court of Appeal in Canadian Airlines International Ltd. v Canadian Air Line Pilots Assn.(1997), (BC CA), 39 BCLR (3d) 131 declined to remit the matter back to an arbitrator, saying at para. 75: However, even if the chambers judge was incorrect in his

interpretation of what the arbitrator would have done, there is another reasonfor declining to send the matter back: I have held that the remedy awarded was patently unreasonable, both because the allegedmitigating factors did not apply and because if due regard had been paid to the employer’s position it would have been clear that theemployment relationship could not be restored. It is clear that any award by the arbitrator other than a decision to uphold the employer’sdismissal would have been patently unreasonable.

There is no need to remit the matter back to the arbitrator. [68] In my view, on the evidence before him, the Arbitrator could not reasonably have arrived at the conclusion that the Grievorwas sick. The only reasonable conclusion on the evidence is that the Grievor lied about being sick and that his termination was justified.Remitting this matter to a different arbitrator to arrive at the only reasonable conclusion serves no useful purpose. [69] In the result, the Award is quashed and the termination of the Grievor is upheld. [70] If necessary, the parties may make an appointment to speak to costs.

Heard on the 16th day of April, 2013. Dated at the City of Calgary, Alberta this 20th day of June , 2013. J. McCarthy J.C.Q.B.A.

Appearances: John Gilmore Bennett Jones LLP for the Applicant, Telus Communications Inc. William J. Johnson, Q.C. McGown Johnson for the Respondent, Telecommunications Workers’ Union