Telecommunications Workers Union v Telus Communications Inc, 2016 ABQB 106

Court of Queen ’ s Bench of Alberta Citation: Telecommunications Workers Union v Telus Communications Inc, 2016 ABQB 106 Date: 20160219 Docket: 1401 05661 Registry: Calgary Between: Telecommunications Workers Union Applicant - and - Telus Communications Inc. Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J. Strekaf _______________________________________________________ I.

Introduction [ 1 ] This is an application brought by the Telecommunications Workers Union (“Union”) for judicial review of a labour arbitration award (“Award”) issued November 29, 2013 by Arbitrator Dev A. Chankasingh (“Arbitrator”). The Award denied a grievance filed by the Union on behalf of its member Shawn Tubbs (“Grievor”), seeking reimbursement for his relocation expenses, relying upon policies of his employer Telus Communications Inc (“Telus” or the “Employer”). [ 2 ] The Grievor worked for Telus in Fort McMurray from May 2006 to August 2011.

In September 2011, he moved from Fort McMurray to Invermere, BC and incurred expenses of $63,908.80 in relation to the move, for which he sought reimbursement. Telus took the position that he was entitled to a maximum of $10,000 pursuant to the 2011 Collective Agreement. The Grievor took the position that he was entitled to full reimbursement under certain policies of the Employer and the terms of a prior collective agreement.

A Grievance was filed by the Union on October 13, 2011 alleging that the denial constituted a breach of contract as it violated the Alberta Relocation Policy Grandfathering Letter dated May 9, 2011, the Northern Location Policy (“NLP”) and

Article 27 of the Collective Agreement effective November 20, 2005. [ 3 ] An arbitration hearing took place over four days on February 27, 28, March 1 and August 1, 2013, with ten witnesses called. The Arbitrator dismissed the grievance in the 55-page Award, concluding that: 1.

He did not have jurisdiction to determine the dispute raised in the Grievance as the parties excluded the Employer’s relocation practices from the 2005 and 2011 Collective Agreements and as the Relocation Policy, the 2003 NLP and the Grandfathering letter were ancillary documents that were not incorporated in and did not form part of the Collective Agreements; and 2. The Union did not establish an estoppel as it failed to prove that the Employer made a representation to the Grievor upon which he relied to his detriment. [ 4 ] The Union submits the Award and should be set aside because: 1.

The Arbitrator failed to address the argument that the Employer’s exercise of its management rights conferred jurisdiction upon the

Arbitrator over the Grievance; 2. The Arbitrator’s treatment of the estoppel argument discloses that he misconstrued relevant evidence, leading him to make illogicalfindings and to misinterpret the 2003 NLP; 3. The Arbitrator failed to consider the most salient evidence regarding what was promised to the Grievor in relation to relocationexpenses; and 4. The Arbitrator breached the requirements of procedural fairness by not permitting the Grievor to call admissible evidence. II.

Preliminary Issue [5] Rule 3.22 limits the evidence on an application for judicial review: When making a decision about an originating application for judicial review, the Court may consider the following evidence only: (

a) the certified copy of the record of proceedings of the person or body that is the subject of the application, if any; (

b) if questioning was permitted under rule 3.21, a transcript of that questioning; (

c) anything permitted by any other rule or by an enactment; (

d) any other evidence permitted by the Court. [6] The Union seeks permission pursuant to Rule 3.22(

d) to rely on an affidavit of Ivana Niblett, its National Vice-President,who was a witness in the arbitration and was in attendance and took notes throughout. Her contemporaneous notes and those taken byformer counsel for the Union are attached to the affidavit. The affidavit is sought to be used in support of the Union’s submission thatthe Arbitrator’s refusal to permit certain questioning of John Alma constituted a breach of natural justice and denial of proceduralfairness and that the Award does not adequately demonstrate the nature of the breach.

Telus opposes permission to use the affidavit onthe grounds that it is not necessary or reliable. [7] Slatter J (as he then was) outlined some of the circumstances where supplementary evidence will be permitted on anapplication for judicial review in Alberta Liquor Store Assn v Alberta (Gaming and Liquor Commission), 2006 ABQB 904, 406 AR104 at paras 40 – 41: The general rule is that judicial review is conducted based on the Return filed by the tribunal. Neither Rule 406 nor Rule 753.08 requirean affidavit in support.

The record before the tribunal is generally the record before the Court, and additional affidavits and evidence areexceptional: White v Alberta (Workers' Compensation Board Appeals Commission), 2006 ABQB 359, 57 Alta. L.R. (4th) 282, 41Admin. L.R. (4th) 141, at para 35. 41 There are some instances where supplementary evidence is allowed: White v Alberta (Workers' Compensation Board AppealsCommission), supra, at para 35. Evidence may be allowed to show bias, or a reasonable apprehension of bias, where the facts in supportof the allegation do not appear on the record.

Sometimes breaches of the rules of natural justice will not be apparent from the record, andevidence to demonstrate the grounds of the application may be filed: Western Canada Wilderness Committee v British Columbia(Ministry of Forests, South Island Forest District), 2002 BCSC 1260, 45 Admin. L.R. (3d) 161, 50 C.E.L.R. (N.S.) 56 at paras 26-27,aff'd other grounds 2003 BCCA 403, 185 B.C.A.C. 58, 15 B.C.L.R. (4th) 229. Extrinsic evidence might exceptionally be allowed onother issues, like standing.

Where a tribunal makes no, or an inadequate record of its proceedings, affidavits are permissible to show whatevidence was actually placed before the tribunal: Canadian Union of Public Employees v Montreal (City), (SCC),[1997] 1 S.C.R. 793, at para 86. [8] The Arbitrator addressed John Alma’s evidence, the question objected to and his reason for upholding that objection inconsiderable detail at paras 25 – 28 of the Award: Mr. Alma applied for employment with Telus in spring 2006. He was interviewed in Fort McMurray by Scott Wellicome. During thatinterview, Mr.

Wellicome discussed the benefits which Telus offered to its employees, including a paid move out of Fort McMurray aftera certain period of time, which he understood to be 3 years. Mr. Alma was impressed with this particular benefit since he stated that itwould be expensive for him to move out of Fort McMurray in the future. He accepted a position with Telus in June 2006, moved to FortMcMurray in July 2006 and commenced employment on July 17, 2006. Mr. Alma attended several meetings in Fort McMurray where recruitment and retention of employees was discussed.

He gave anexample of a meeting in 2008 with Michael Deitrich, a general manager with Telus in Alberta. At that meeting, an increase in theNorthern Living Allowance was discussed as well as grandfathering. Mr. Deitrich advised that nothing was going to change foremployees hired prior to July 2006 since they were still grandfathered. That is, the “oldtimers” were grandfathered to the terms that theywere hired under, including the paid relocation set out in the 2003 Northern Location Policy. Mr.

Alma testified it was difficult for Telus to recruit and retain employees in Fort McMurray due to the wages offered by the oil sandscompanies and their contractors. He recalled a meeting with Darren Entwistle, who was the CEO of Telus at that time. At that meetingMr. Entwistle announced the increase in the Northern Living Allowance to $3,500 per month. Mr. Entwistle also stressed the financialimportance of Telus’ business in Fort McMurray, which amount to about 30% of Telus’ overall revenues. Mr. Alma was then asked by the Union’s counsel whether he believed that he should have been grandfathered as well.

Counsel for theEmployer objected to that question on the basis that the evidence being solicited as not relevant to the issues raised in the Grievance, andwould be prejudicial to Telus’ case. Counsel for the Union submitted that Mr. Alma’s evidence would corroborate the Grievor’s

evidence in that both the Grievor and Mr. Alma received the same representations from Mr. Wellicome in their interviews and on their hire. Counsel stated that the Union was not seeking a determination of Mr. Alma as a grandfathered employee. I upheld the Employer’s objection. At that point Mr. Alma had already testified about what he was told by Mr. Wellicome in his interview. Presumably, this was similar to what the Grievor would testify to and would corroborate the Grievor’s evidence about what Mr. Wellicome had told him.

Therefore, any potential corroboration of the Grievor’s anticipated testimony was already achieved. More importantly, whether Mr. Alma believed that he should have been grandfathered was not relevant to Mr. Tubbs’ Grievance, which is an individual grievance that seeks remedies unique to Mr. Tubbs. Allowing this evidence from Mr.

Alma would also have resulted in an expansion of the Grievance before me, and could have potentially lengthened the hearing. [ 9 ] The decision whether to have a complete record of all of the evidence taken on the Arbitration was a procedural matter within the discretion of the Arbitrator. The Niblett affidavit is not necessary as the Award itself provides a sufficient record to deal with the issues raised on this application. The Union’s application for permission to rely on the Niblett affidavit is denied. III.

Standard of Review [ 10 ] The standard of review for decisions of labour arbitrators is generally reasonableness: Communications, Energy v Paperworkers Union of Canada , Local 30 v Irving Pulp & Paper, Ltd , 2013 SCC 34 , 2 SCR 458 at para 7 . In Dunsmuir v New Brunswick , 2008 SCC 9 , 1 SCR 190, the Supreme Court explained this standard 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. [ 11 ] The parties agree that reasonableness is the appropriate standard of review for the first three issues raised by the Union, but differ with respect to the fourth issue. The Union submits that the Award is not entitled to deference on the question of whether the Arbitrator breached the Union’s right to procedural fairness and natural justice.

This issue deals with a procedural evidentiary decision made by the Arbitrator that falls within the scope of s. 61 of the Canada Labour Code, which states: An arbitrator or arbitration board shall determine their own procedure, but shall give full opportunity to the parties to the proceeding to present evidence and make submissions to the Arbitrator or arbitration board. [ 12 ] I find that this type of discretionary decision is also subject to review on a standard of reasonableness, having regard to the criteria set out in Dunsmuir at para 64 . IV. Analysis A.

Management Rights Issue [ 13 ] The Arbitrator concluded that the Grievor was entitled to maximum reimbursement of $10,000 for his relocation expenses on his move to Invermere pursuant to

Article A15.01 of the 2011 Collective Agreement. To the extent that the Grievor was grandfathered to the rights that existed under the 2005 Collective Agreement and Telus’ relocation “practices”, the Arbitrator found that those practices did not form part of that Collective Agreement.

Article 12.08 expressly provided that an Arbitrator did “not have any power to alter or change any of the provisions of this Agreement, or to substitute any new provisions for any existing provisions thereof, and in reaching his or her decision will be bound by the terms and provisions of this Agreement”. [ 14 ] The Union submitted that even if the policies were outside the scope of the Collective Agreements, an alleged breach of the exercise of the Employer’s management right conferred jurisdiction on the Arbitrator and required him to determine if Telus had exercised its management rights in a fair and reasonable manner when it refused to provide the Grievor with a full freight move.

The Union argues that the Arbitrator failed to address this issue. [ 15 ] The Arbitrator concluded at paras 124 to 126 of the Award that he did not have jurisdiction to determine whether the Employer exercised its management rights under the relocation policy reasonably or unfairly in the circumstances based upon the approach adopted in Calgary (City) v Canadian Union of Public Employees , Local 38 (Corporate Travel Plan Grievance) , [2004] AGAA No 8: The Union also argues that I have the jurisdiction to determine whether the Employer breached the management rights clause in the 2005 Collective Agreement by exercising its management rights unfairly and unreasonably.

The union in Calgary (City) advanced this same argument. In that decision, in discussing the parties’ agreement to leave matters such as the travel reimbursement policy out of their collective agreement, the board stated as follows: 71. ...It is also a reality of collective bargaining that the parties rarely either intend or achieve a collective agreement that makes every aspect of the work relationship amenable to a grievance. 72. Quite frequently important aspects of the relationship will be left more or less to management discretion, or will be otherwise excluded from arbitration.

Is a dispute about such matters, clearly involving terms and conditions of employment, which could be the subject of collective bargaining, any the less something falling within the ambit of collective agreement arbitration within the meaning of

Weber ? In our view they are not. They remain within the ambit of the collective agreement in the sense that, if the parties intended legal consequences arising from those facts, it is to the collective agreement that one would look to find those consequences. Similarly, the collective agreement might indicate their intention to leave the matter to management’s discretion or to exclude it from arbitration.

In some cases, as Weber allows, the matter will be dealt with by the application of statutory provisions or the general law in so far that law forms part of the law of the workplace to be dealt with through arbitration. On the issue of the employer’s exercise of its management rights, the board concluded as follows: 82. ...we find that this is a situation where the parties have deliberately left this matter to a City policy, despite the opportunity to address it more directly in bargaining.

To accept jurisdiction over the matter, either under the broader view of Weber (supra) or the principles set out in Metropolitan Toronto (supra) would go beyond the jurisdiction vested in us by the collective agreement’s terms and would amount to an unjustified amendment of that agreement. As a result the Board does not have jurisdiction to hear the grievance. As in Calgary (City) , the Parties here, in

Article 27.01 of the 2005 Collective Agreement left the issue of reimbursement for relocation costs to the discretion of the Employer. The Parties agreed that employees would be reimbursed for the relocation costs “in accordance with Company practices”. They further agreed that those “Company practices” do not constitute a part of the 2005 Collective Agreement. The “Company practices” related to reimbursement of relocation costs are set out in the Employer’s Relocation Policy and the 2003 Northern Location Policy. These Policies were in place when the Parties negotiated the 2005 Collective Agreement.

Presumably the Union was satisfied with that arrangement since the manner in which relocation expenses would be reimbursed (as set out in those Policies) was not incorporated into that Collective Agreement, nor was reference made to those Policies in that Collective Agreement. Therefore, I conclude, like the board in Calgary (City) , that to accept jurisdiction as urged by the Union would be beyond my jurisdiction and an amendment or alteration of the 2005 Collective Agreement. This is specifically prohibited by

Article 12.08 the 2005 Collective Agreement. Even if I have jurisdiction to address this issue, I find that for the reasons set out below, based on the evidence before me, the Employer exercised its management rights fairly, reasonably and consistently in its

interpretation and application of the Relocation Policy and the 2003 Northern Relocation Policy. [ 16 ] I am satisfied that the Arbitrator considered the relevant evidence and authorities and that his decision that he lacked the jurisdiction to deal with this issue was reasonable. B. Misconstruction of the Evidence [ 17 ] The Union submits that the Arbitrator misconstrued the evidence before him, leading to an unreasonable

interpretation of the 2003 NLP that all that was grandfathered was the ability to transfer out of Fort McMurray on the basis of a Compassionate Transfer. The estoppel argument is based on the Grandfathering Letter dated May 9, 2011, which stated in part: Re: Northern Location Policy – Grandfathering Relocation Provision Dear Shawn; You are presently covered by the provisions of the Northern Location Policy. This revised Northern Location Policy, which came into effect March 1, 2008, superseded and replaced all other policies and directives (both written and verbal) prior to that date.

The exception to this policy is the continuation of relocation benefits for team members residing in Fort McMurray as of July 1, 2006. The following Relocation provisions from the August 2003 Northern Location Policy Apply: Relocation After Regular employees have been working in a qualifying community for a minimum of three years, they are eligible to apply on postings if they wish to transfer out of the qualifying community. If after the conclusion of the fourth year they are unsuccessful via the posting process, they will then be eligible to apply for a Compassionate Transfer.

The Compassionate Transfer Policy and the Relocation Policy to or from either community will be followed for any employee transfers, except as otherwise noted in this policy. Note: the Compassionate Transfer Policy applies only to transfers within Alberta. [ 18 ] Telus submits the Arbitrator’s rejection of the Union’s

interpretation of the 2003 NLP does not establish that he misconstrued the evidence or came to an unreasonable conclusion. [ 19 ] The Arbitrator specifically rejected the Union’s

interpretation of the 2003 NLP (which was reproduced in Appendix A of the Grandfathering Letter).

He provided a detailed analysis of his reasoning at paras 136 – 150 of the Award and concluded that “the only representation that was made to the Grievor was that he would be entitled to a Compassionate Transfer after serving in Fort McMurray for 3 years and being unsuccessful in acquiring a posted position after his fourth year there”. [ 20 ] I am satisfied that the Arbitrator reasonably concluded that the 2003 NLP did not provide a right to a “full freight transfer” to any person who left Fort McMurray for another posting after three years. C.

Failure to Consider Relevant Evidence [ 21 ] The Union submits that the Arbitrator failed to consider the following relevant evidence in dismissing the estoppel claim:

• That a number of employees received full freight moves from qualifying communities pursuant to the NLP but not as compassionate transfers; • That the Grievor initially received some of the benefits of a full freight transfer, being paid days off work for house hunting and moving, to which he would not have been entitled under the Collective Agreement which the Union submitted was an acknowledgement that he had a broader entitlement. [ 22 ] Some of the alleged evidence not addressed in the Award with respect to the first issue is outlined in the Niblett affidavit that I have already determined I am not prepared to consider.

In any event, even if there was evidence before the Arbitrator that other employees received full freight moves, that does not establish that the Grievor is entitled to one. With respect to the second issue, I note that

Article A15.01(

a) of the 2005 Collective Agreement merely limited reimbursement of expenses to $10,000. The fact that days off were provided by the Employer beyond the requirements in the Collective Agreement does not create an entitlement to receive additional benefits. [ 23 ] The Union has not established that the Arbitrator unreasonably failed to consider relevant evidence in dismissing the estoppel claim. D. Breach of the Rules of Procedural Fairness [ 24 ] The Union submits that the Arbitrator breached its right to procedural fairness and natural justice by refusing to permit it to present relevant evidence.

The evidence at issue is that of John Alma outlined above. As set out above, the Arbitrator explained in paras 25 – 28 of the Award why he considered that evidence to be irrelevant and why he was concerned that it might lead to an expansion of the Grievance and a lengthening of the hearing. The Arbitrator heard evidence from Mr. Alma regarding representations that had been made to him but drew the line at an attempt to solicit Mr. Alma’s opinion as to whether the Grievor should have been grandfathered. Mr.

Alma’s personal views about his own situation are not relevant to the issues before the Arbitrator which dealt with the Grievor’s circumstances. I am satisfied the Arbitrator’s determination to reject this evidence was reasonable. [ 25 ] In the event I am wrong about the applicable standard of review on this issue, I am also satisfied that the decision to exclude the evidence was correct and did not constitute a breach of natural justice. V. Conclusion [ 26 ] The application is dismissed.

If the parties are unable to agree on how costs should be addressed, they are at liberty to provide me with written submissions within 30 days. Heard on the 29 th day of April, 2015. Dated at the City of Calgary, Alberta this 19th day of February, 2016. J. Strekaf J.C.Q.B.A. Appearances: Richard L. Edgar, Moore Edgar Lyster for the Applicant John R. Gilmore, Bennett Jones LLP for the Respondent