Sofina Foods / Lilydale Ltd. Applicant - v. -, 2016 ABQB 566

Court of Queen’s Bench of Alberta Citation: Sofina Foods v United Food and Commercial Workers Union, Local 401, 2016 ABQB 566 Date: 20161011 Docket: 1501 10398 Registry: Calgary Between: Sofina Foods / Lilydale Ltd. Applicant - and - United Food and Commercial Workers Union, Local 401 Respondent _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice R.J. Hall _______________________________________________________ [ 1 ] Sofina Foods dismissed Mr. Rong from its employ. Mr. Rong’s union filed a grievance and the matter proceeded to arbitration before Mr. W.

McFetridge. Mr. McFetridge determined that the events in question did not justify Mr. Rong’s dismissal and he instead ordered that Mr. Rong be suspended for two weeks without pay.

Sofina Foods has submitted the matter to this court for Judicial Review. [ 2 ] The parties agree the standard of review applicable to a labour arbitration decision is reasonableness, except in the limited circumstance where there is a question of law of central importance to the legal system and outside the specialized expertise of the adjudicator. [ 3 ] The Alberta Court of Appeal provides guidance on applying the reasonableness standard in Boyd v Alberta (Workers’ Compensation Board) 2016 ABCA 380 , at paras. 45-46 : 45 The Supreme Court of Canada makes clear that when the standard of review is reasonableness: “the reviewing court`s role is not to posit alternate

interpretations of the evidence; rather, it is to determine whether the tribunal’s

interpretation is unreasonable. When

applying a standard of reasonableness simpliciter, “the reviewing court’s view of the evidence is beside the point; rather, the reviewingcourt should have asked whether the Committee’s conclusion on this point had some basis in the evidence ...” 46 In terms of the comments about omissions in the reasons, it must be recalled that tribunals are not held to a standard ofperfection. The proper inquiry is whether, in light of the evidence and the statutory task before them, the tribunal’s reasons explain thebasis of its decision. [4] The thrust of the Employer’s argument before me is that Mr.

Rong was dismissed for 3 reasons, identified in the Arbitrator’sdecision at paragraph 51; for refusing to follow directions from a shipping clerk, for pushing the shipping clerk and for lying about whathappened during the investigation. The Arbitrator was charged with determining, firstly, if the stated grounds for discipline in fact hadoccurred; and if so what the appropriate discipline was.

The Employer maintains that the Arbitrator failed to determine the existence ofall 3 grounds for discipline, then went on to consider only the failure to follow directions, and pushing of the shipping clerk. [5] The Arbitrator found that the shipping clerk gave a directive which the clerk was empowered to do. He found that Mr. Rongdid not follow the directive. He found the shipping clerk confronted Mr. Rong a second time, stood in the way of Mr. Rong and againdirected what Mr. Rong was to do, but that Mr. Rong pushed the shipping clerk aside.

He found that Mr.Rong then reported the shippingclerk to the Plant Superintendent that same evening, maintaining that the shipping clerk had violated safety procedures by entering intothe trailer. He found, however, that the shipping clerk had not entered into the trailer and had not violated the safety procedures, havingreviewed a video from a security camera in the area. He found that, once faced with the video, Mr.

Rong was surprised, then stated hemust have been mistaken about where the shipping clerk was. [6] The Arbitrator found that the shipping clerk was not knocked over and was not harmed; there were no punches thrown; itwas an impulsive reaction by Mr. Rong after a long day that included overtime; and there was no evidence that Mr. Rong intended toharm the shipping clerk. [7] The Arbitrator never made an overt finding as to whether Mr. Rong had been dishonest in the investigation. He did notdetermine whether Mr. Rong lied when he reported a safety violation by the shipping clerk, or was simply mistaken.

He did notdetermine whether Mr. Rong had lied about the occurrence during the investigation. [8] The Arbitrator treated the causes for discipline as being that Mr. Rong had refused to follow a directive and had pushed theshipping clerk. He applied the analysis suggested in William Scott & Co v CFAW, Local P 152 [1976] B.C.C.R.B.D. No 98 (WilliamScott), giving his reasons for his conclusions, at para. 67 of his decision. He found, ultimately, that discipline was warranted, but notdismissal. He substituted instead a 2 week suspension without pay.

In doing so, he did not consider dishonesty in the investigation asbeing one of the grounds for discipline. Sofina Foods says that is the reviewable error here. [9] As I have stated, the Arbitrator never did make a finding as to whether Mr. Rong had been dishonest. Instead, he treated this,not as an occasion of dishonesty by Mr. Rong, but rather a denial of wrongdoing. He held that, while such denial could not mitigate theappropriate discipline, it could not be used as an aggravating factor justifying more serious discipline. [10] To my mind, the Arbitrator has failed to make a necessary finding of fact.

One of the causes the employer has given for Mr.Rong’s dismissal is that Mr. Rong was dishonest; in reporting that the shipping clerk had breached a safety rule; and in responding to thecomplaint by the shipping clerk. It is necessary to the analysis to be conducted, that the Arbitrator first determine, as a finding of fact,whether such dishonesty occurred. If not, then it is not a cause to be considered when weighing the appropriate discipline. If, however,the Arbitrator determines that Mr.

Rong was dishonest, the Arbitrator is required to consider and weigh that dishonesty in determiningappropriate discipline. [11] This is not simply an omission in the Arbitrator’s reasons. It is a failure to make a necessary finding of fact. To fail to makethe finding of fact, or to ignore items of evidence that the law requires the Arbitrator to consider, is an error of law central to the legalsystem.

See Canada (Director of Investigation and Research, Competition Act v Southam Inc., (SCC), [1997] 1 SCR748 at para 41. [12] I find, that the failure of the Arbitrator to make the necessary findings of fact is a reviewable error. It is both incorrect andunreasonable to fail to determine whether the employer’s stated causes for dismissal in fact occurred. [13] Accordingly, I remit this matter to Arbitrator McFetridge to make the necessary findings of fact, relating to the cause(

s) fordiscipline, then to apply the William Scott analysis to the facts as he finds them. [14] The Employer shall have its costs of the Judicial Review. Heard on the 13th day of September, 2016. Dated at the City of Calgary, Alberta this 11th day of October, 2016.

R.J. Hall J.C.Q.B.A. Appearances: Paul D. McLean Mathews, Dinsdale & Clark LLP for the Applicant David Williams / Vanessa Cosco Chivers Carpenter for the Respondent