City of Calgary Applicant - v. -, 2017 ABQB 662

Court of Queen’s Bench of Alberta Citation: Calgary (City) v Canadian Union of Public Employees, Local 37, 2017 ABQB 662 Date: 20171101 Docket: 1601 11578 Registry: Calgary Between: City of Calgary Applicant - and - Canadian Union of Public Employees, Local 37 Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.C. Kubik _______________________________________________________ Introduction [ 1 ] The matter before the Court is an application for Judicial Review of the decision of Arbitrator P.A.

Smith delivered August 19, 2016 and involves sexual harassment, in the form of an isolated incident of sexual touching, which resulted in termination of the Grievor’s employment. Arbitrator Smith, although finding that misconduct giving rise to discipline occurred, determined that dismissal was excessive and directed the reinstatement of the Grievor following a 9 month unpaid suspension and participation in an orientation process including the City’s Respectful Workplace Policy.

Position of the Parties [ 2 ] The City of Calgary seeks Judicial Review of that decision and specifically requests that Arbitrator Smith’s decision be

quashed, and in that event, that the Court not remit the matter for re-hearing because the facts could only lead to one reasonable result, intheir view termination.

Alternatively, should the decision be quashed, they seek to have the matter remitted for a re-hearing. [3] The City relies on four arguments: • That the Arbitrator’s conclusion that the sexual assault was not sufficiently serious misconduct was not supported by either thefacts or the law; • That the Arbitrator failed to weigh the significance of the evidence of the employee’s dishonesty and failure to acceptresponsibility for his conduct; • That the Arbitrator misstated the City’s submission on why it departed from its policy on progressive discipline, which led to anunsupported conclusion on the evidence; and • That the Arbitrator considered irrelevant and improper factors in determining that the sexual assault was less serious and that theemployee was unlikely to re-offend. [4] These arguments go to the issues of characterization of the misconduct, proportionality of the discipline imposed andreasonableness of the discipline substituted by the Arbitrator. [5] The Union argues that Arbitrator Smith’s decision was reasonable and should not be disturbed. [6] The matter is properly before the Court for Judicial Review pursuant to the provisions of the Labour Relations Code, R.S.A.2000, C.L-1.

Standard of Review [7] As set out by the Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 , [2008] SCJ No 9, thestandard of review is reasonableness. A reviewing Court is tasked with considering whether the Arbitrator’s decision-making wasreasonable in terms of both outcome and reasoning, and when viewed as a whole was justified, transparent and intelligible and fell withina range of possible acceptable outcomes having regard to both the facts and the law.

A reviewing Court is required to show deferencewith respect to the decision-making process of the Arbitrator in relation to both facts and law. [8] As noted in Law Society of New Brunswick v Ryan, 2003 SCC 20 , [2003] SCJ No 17: Where the appropriate standard of review is reasonableness simpliciter, a court must not interfere unless the party seeking review haspositively shown that the decision, taken as a whole, was unreasonable.

A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal fromthe evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenablein the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing courtmust not interfere. This means that a decision may satisfy the standard if it is supported by a tenable explanation even if this explanationis not one that the reviewing court finds compelling.

It also means that a reviewing court should not seize on one or more mistakes whichdo not affect the decision as a whole. It is important to remember that there will not often be only one “right answer” to an issue reviewedagainst the reasonableness standard. Decision [9] After reviewing the Return, the written submissions of the parties, and hearing oral argument, I dismiss the application forJudicial Review.

Reasons for Decision [10] Arbitrator Smith provided cogent written reasons which outlined the facts, the position of the parties, the law and herdecision. [11] In articulating her decision she enunciated the three part test set out in Wm. Scott & Co. (Re), [1976] BCLRBD No 98: First, has the employee given reasonable and just cause for some form of discipline by the employer? If so, was the employer’s decisionto dismiss the employee an excessive response in all the circumstances of the case?

Finally, if the arbitrator does consider dischargeexcessive, what alternative measure should be substituted as just and equitable? • Characterization the Misconduct [12] In addressing the first part of the test, Arbitrator Smith was required to weigh competing factual versions of the event ofmisconduct, and undertake a credibility assessment. She outlined the legal test and factors to be applied in assessing credibility andreviewed in detail the evidence before her.

After concluding that she accepted the Complainant’s evidence she found that sexualharassment in the form of physical touching of the Complainant’s breast had occurred and was a violation of the City’s RespectfulWorkplace Policy which both defined sexual harassment to include unwelcome physical contact and set out the potential consequencesof such activity, including various progressive discipline measures and termination. She found the conduct to be just cause for some form

of discipline. [13] The finding that misconduct occurred was not under review in this application. The Applicant submits, however thatArbitrator Smith’s characterization of the misconduct as not serious or at the “lower end” of sexual harassment, resulted in herassessment under the second part of the Wm Scott & Co. (Re) test being unreasonable. Specifically, the Applicant argued that sexualassault cannot be characterized as anything but the most egregious of sexually harassing behavior.

As such, in the Applicant’ssubmission, the behavior on its face calls for presumptive dismissal, with the analysis of any mitigating factors to be weighed against themisconduct in assessing the proportionality of the discipline implemented. [14] In framing the issue of the seriousness of the misconduct, Arbitrator Smith had regard to the nature of the misconduct and theaggravating factor of the Grievor’s failure to admit his misconduct and apologize for it.

She also, however, noted his testimony at theArbitration Hearing which included an acknowledgment that he had learned from the process that no touching was permissible and thathe would not do it again. Further, she indicated that he stated that if he was reinstated to the workplace he would take additional trainingif required.

As such she specifically considered dishonesty as one of the factors to be weighed in her categorization of the misconduct. [15] Arbitrator Smith reviewed in detail the cases provided by both counsel for the City and counsel for the Union relative tomisconduct involving sexual harassment in its various forms, including sexual touching. She distinguished the cases put forward by theCity, primarily on the basis that in all of those cases the workers harassed were regular co-workers of the Grievors.

The circumstances ofthose cases also include multiple incidents of harassment of multiple co-workers. [16] Arbitrator Smith cited the case of Re Canadian National Railway Co. and C.B.R.T. and G.W., (CA LA), 1 LAC (4th) 183 which discussed in detail the arbitral categorization of misconduct in the nature of sexual harassment. As set out in thatcase, sexual harassment involves a continuum of behavior which can be categorized in two ways – sexual coercion and sexualannoyance.

Sexual coercion is said to involve sexual harassment resulting in a direct consequence to the worker’s employment status.Sexual annoyance, on the other hand, is harassing conduct that does not have a direct link to any job benefit or harm. Rather it creates atoxic work environment, either through repeated requests for sexual favours or through taunts, lewd comments or physical contact.

Asrelates to dishonesty, Arbitrator Smith cited McKinley v BC Tel, 2001 SCC 38 , [2001] 2 SCR 161 as authority for theproposition that a single act of dishonesty does not always mandate termination, noting the principle of proportionality to be the guidingconsideration. She utilized this framework to characterize the nature of the misconduct committed by the Grievor as sexually annoyingbehavior at the lower of end of the spectrum of sexually harassing behaviour. In coming to this conclusion she considered and weighedmultiple factors including: (

i) that the event in question involved physical contact of a sexual nature; (ii) that the event was an isolatedincident and did not involve persistent conduct on the part of the Grievor; (iii) that there was no pattern of conduct involving otheremployees as derived from evidence of another female co-worker who had worked regularly with the Grievor; and (iv) that the Grievorhad failed to admit his misconduct and apologize for it, an aggravating factor.

All of these factors were relevant considerations inassessing the nature of the misconduct. [17] Arbitrator Smith recited evidence from the Complainant to the effect that this incident was one of many she experienced in amale dominated work environment and that she reported the incident because it was time to draw the line. She also commented that theComplainant did not appear to be traumatized by the event.

Although commentary as to motivation for reporting and the Complainant’semotional reaction to the event is irrelevant to categorizing the nature of the Grievor’s misconduct, that commentary is not fatal to theoverall reasonableness of Arbitrator Smith’s decision. It is clear in her written reasons that Arbitrator Smith was live to changingattitudes about sexual harassment, its effect on employees and the over-arching duty of employers to protect employees from unwantedsexual advances.

However, she was also required to, and did, consider the particular circumstances of the misconduct before her. [18] The City argued that the application for Judicial Review raised important policy issues regarding the protection of womenfrom sexual violence in the workplace and that this evidence, considered in the context of categorizing the misconduct as less serious,trivialized such misconduct, representing a serious step backward in the efforts by women to achieve workplace equality. As noted inCanada (Attorney General) v.

Boogaard 2015 FCA 150, the freestanding policy views of the Court have no place in a reasonablenessreview. Rather, the Court is required to consider only the evidentiary record, the legislation and case law, rule of law and constitutionalstandards to determine whether the Arbitrator’s decision was within the margin of appreciation.

As such it is not for this Court toconsider public policy arguments in determining the reasonableness of the Arbitrator’s decision. [19] In light of the evidentiary record and the case law and arbitral jurisprudence before her, Arbitrator Smith’s categorization ofthe misconduct was within the range of possible outcomes and was reasonable. • Proportionality of the Discipline [20] In reviewing Arbitrator Smith’s analysis of the second part of the test, it should be noted that she set out the factors listed inWm Scott & Co (Re), Supra specifically noting that “the point of the overall inquiry is that arbitrators no longer assume that certainconduct taken in the abstract, even quite serious employee offences, are automatically legal cause for discharge.” It is important to noteat this juncture the comments of Mr.

Justice Laskin in Port Arthur Shipbuilding (1976) 67 CLLC 14,024 on the analysis required inlabour arbitration with respect to the assessment of reasonable discipline arising from misconduct: The collective agreement leaves the extent of discipline (be it as light as a warning or as heavy as discharge) at large under the formula of“proper cause.” By this I mean that there are no fixed consequences for specified types of misconduct. This is so even in respect of aviolation of such a specific prohibition as involved in

article 11.03. The reason is simple; experience has shown that there must be apragmatic and not a cut and dried, Medes and Persians approach to discipline. Employers and unions are, in my opinion, wise to leaveroom in collective agreement administration (which includes arbitration) for consideration of the worker as an individual, and not assimply part of an indistinguishable mass.

The formulae of ‘just cause’ or ‘proper cause’ or ‘reasonable cause’ or ‘just and proper cause’which are found in collective agreements join to the pragmatic case by case approach a sensible individualization in the assessment ofpunishment for misconduct. Whether the qualifying word be ‘proper’ or ‘just’, it expresses a duty to act according to the circumstancesof the case in which an issue of discipline, reaching perhaps to discharge, arises.

[21] This summarizes the requirement for a contextual and proportionate analysis of the misconduct and mitigating factors, as wasundertaken by Arbitrator Smith, in considering the appropriateness of the discipline imposed. [22] Arbitrator Smith specifically noted that there was no rule requiring automatic discharge in the case of sexual harassment(Community Living South Muskoka v Ontario Public Service Employees Union (Walla Grievance), (ON LA), 92 LAC (4th) 384), and that the underlying question for her determination, was whether the Grievor could safely be placed back in theworkplace in the face of obligations on employers to provide a safe working environment.

This was consistent with both the City’s ownpolicy and the case law and arbitral jurisprudence. She specifically recognized that she was required to apply the principle ofproportionality in balancing the severity of the conduct against the sanction imposed.

The principle of proportionality left open to her theweight to be ascribed to the Wm Scott & Co. (Re) factors. [23] In so doing she balanced what was determined to be a “low level” incident of sexual harassment against the mitigating factors,including the Grievor’s length of service, clean disciplinary record, and the economic hardship which termination would effect, havingregard to the current economy, Grievor’s level of education, lack of training and language barriers.

Having regard to the both themitigating factors and the nature of the offence Arbitrator Smith concluded dismissal from employment was excessive. Again, thisdetermination was within the range of possible outcomes based on the evidentiary record and the law and was reasonable. • Reasonableness of the Discipline Substituted [24] Arbitrator Smith exercised the power reserved to her under the Labour Relations Code to substitute disciplinary action.

Indetermining the disciplinary action to be substituted, Arbitrator Smith analyzed the City’s own Progressive Discipline Policy which didnot foreclose lesser sanctions than outright dismissal in cases of physical assault or sexual harassment and expressed a philosophy ofrehabilitation.

She questioned why the City had chosen immediate dismissal in the face of these provisions and concluded, based on thedirect evidence of Gary Daudlin that they determined this was not an appropriate case for application of the City’s ProgressiveDiscipline Policy because the Grievor could not be placed back in the workplace if he could not be trusted to tell the truth. Her ownassessment of the appropriate disciplinary action was reasoned based on all of the facts.

Arbitrator Smith found that the Grievor could bereturned to the workplace at minimal risk to other co-workers as there was no evidence of a pattern of conduct, there was minimalnecessary contact between he and the Complainant, and he had acknowledged in testimony that the conduct was wrong and that hewould never have any physical contact with other employees if returned to the workplace.

In coming to that conclusion she took intoconsideration the nature and gravity of the offence, the initial dishonesty about the conduct and the obligation of the City to provide asafe and respectful workplace as well as the deterrent effect what amounted to a nine month suspension without pay. Such a findingreflected a reasonable outcome in the context of the Progressive Discipline Policy and the particular circumstances of the case and issupported by the evidentiary record.

Conclusion [25] In conclusion, Arbitrator Smith’s decision-making process was justified, transparent and intelligible and the outcome fellwithin the range of possible, acceptable outcomes based on the facts and law which were before her. As such, her decision wasreasonable and should not be quashed on judicial review. Costs [26] The Respondent is awarded the costs of the Judicial Review. The parties may arrange to speak to costs if they cannot come toan agreement. Heard on the 19th day of September, 2017. Dated at the City of Calgary, Alberta this 1st day of November, 2017.

J.C. Kubik J.C.Q.B.A. Appearances: Ms. Rebecca Andersen and Avril Fisher, The City of Calgary for the Applicant Ms. Roxana Jangi, McGown Cook Barristers & Solicitors for the Respondent