Government of Nunavut Applicant AND: The Nunavut Employees Union (Cowx) Respondent, 2011 NUCJ 24

Nunavut v. N.E.A. 08-11-34-CVC 2011-09-01 2011 NUCJ 24 Nunavut Court of Justice La Cour de justice du Nunavut Date: 20110901 File No.: 08-11-34-CVC Registry: Iqaluit Neutral Citation: 2011 NUCJ 24 BETWEEN: Government of Nunavut Applicant AND: The Nunavut Employees Union (Cowx) Respondent Before: The Honourable Mr. Justice E. Johnson Counsel for the Applicant: Adrienne Silk Counsel for the Respondent: Michael Penner REASONS FOR JUDGEMENT I.

INTRODUCTION [ 1 ] The employee Christopher Cowx (Grievor) quit his job with the applicant because the applicant failed to take any steps to address the harassment he received from his supervisor. Arbitrator Phillip Chodos (Arbitrator) found the Grievor had voluntarily resigned and did not want to be re-instated. He found the applicant had breached the collective agreement (CA) and awarded the Grievor general damages.

He also awarded special damages for moving expenses and damages for loss of income for one year from the last day worked. [ 2 ] In this judicial review application the applicant raises the issue of the remedial competence of an arbitrator under the Arbitration Act, R.S.N.W.T. 1988, c. A-5, ss. 26 , 27 and 28 , as duplicated for Nunavut by s.29 of the Nunavut Act, S.C. 1993, c. 8, s. 41.1 ("Act"), and the CA between the parties. II. ISSUES A. Timeliness of Application B. Standard of Review C.

If the Standard of Review is "correctness," did the Arbitrator err in awarding in awarding the Grievor compensation for lost salary? D. If the standard of review is "reasonableness," was the Arbitrator's award unreasonable? III.

FACTS [ 3 ] The Grievor was employed by the applicant as a Senior Advisor of Business Development with the Department of Economic Development and Transportation (EDT) between January 17, 2005 and August 17, 2007. [ 4 ] In November 2006, Madeline Qumuatuq (MQ) became Manager of the Community Capacity Building Division of EDT and the supervisor of the Grievor. [ 5 ] Over the next few months the relationship between the Grievor and MQ deteriorated.

On February 9, 2007, the Grievor filed a harassment complaint with the applicant alleging MQ had discriminated against him on the prohibited grounds of sex and race. [ 6 ] The employee assigned to investigate the claim resigned on June 22, 2007, and a new employee was assigned to complete the investigation. [ 7 ] Before the replacement investigator completed her investigation the Grievor submitted a letter of resignation. The letter was dated July 11 and was effective July 31, 2007. The reason stated for the resignation was the applicant's inability to provide a workplace free of harassment.

[8] On July 12, 2007, the Grievor filed a complaint with the Human Rights Tribunal under the Human Rights Act, S. Nu. 2003, c. 12(HRA) complaining about the same issues he raised in his harassment complaint against the applicant. [9] On July 26, 2007, the Grievor filed a grievance under

Article 46 of the CA alleging the applicant failed to resolve his harassmentcomplaint in a timely manner. [10] On August 7, 2007, the Grievor moved to Vancouver, British Columbia and his last paid day of work was August 17, 2007. [11] The applicant applies for judicial review of the Arbitrator's arbitration award dated November 30, 2010. [12] The Arbitrator heard evidence on August 9, 10, 11, 13. The applicant argued the Arbitrator did not have jurisdiction to hear thegrievance because the Grievor resigned. The Arbitrator reserved his decision on that issue.

At the conclusion of the hearing the applicantrequested an adjournment to make its arguments on the HRA. The respondent consented to the adjournment subject to the condition thatthe parties would reconvene at the earliest opportunity and that both the grievance and the human rights complaint would be addressedwhen the Arbitrator made his damages award. [13] In his initial reasons for decision dated September 27, 2010, (First Award) the Arbitrator concluded he had jurisdiction. Hefurther concluded that the applicant had breached

Article 46 of the CA because it failed to adequately address the harassment suffered bythe Grievor. The Arbitrator, with the consent of the parties, reconvened the hearing on October 18-21, 2010, to consider the issues ofcompensation and damages, and the human rights complaint. [14] In reasons for decision, dated November 30, 2010 (Second Award), the Arbitrator awarded the Grievor general damages of$6,000 and special damages of $6000 for moving expenses because of the applicant's failure to address the Grievor's harassmentcomplaint in a timely manner.

He also awarded compensation representing his salary for one year less income earned during the oneyear period. A. Timeliness of the application (

i) Respondent's argument [15] The respondent argues the applicant did not comply with the six-week limitation period specified in

section 27 of the Act, toappeal the award of the Arbitrator. [16] One of the arguments advanced by the applicant is that the Arbitrator misapplied the common doctrine of foreseeability. At para.69 of the First Award, the Arbitrator ruled that the Grievor's resignation was a foreseeable consequence of the applicant's failure toadequately address the harassment actions.

The Second Award dealt solely with the issue of the quantum of the damages. [17] As a result, upon receipt of the First Award, the applicant had an opportunity to apply for judicial review but failed to do sowithin the six weeks specified by the Act. The Arbitrator's finding also negates the applicant's argument on prematurity because he heldthe grievance was valid. This finding was not an interlocutory award. It was final with only the issue of damages to be addressed. [18] In the alternative, the respondent argues the applicant also missed the limitation period on the Second Award.

It was sent byemail to the parties on December 1. Section 24(4) of the

Interpretation Act, as duplicated for Nunavut by s.29 of the Nunavut Act, S.C.1993, c. 8, s. 41.1, specifies that the day of an event is not to be counted but the day of the expiration is counted. Applying these rules theapplication should have been filed by January 13, 2011, and the application is out of time by one week. (ii) Applicant's Argument [19] The applicant argues that the doctrine of prematurity as articulated in Valleycroft Textiles Inc. (Trustee of) v U.N.I.T.E., Local219, [2006] lAC (4th) 65, (ON SCDC), 213 OAC 385; U.F.C.W.

Local 1400 v Wal-mart Canada Corp., 2010 SKCA89 , [2010] SJ No 415, 321 DLR (4th) 397 [Wal-Mart]; and Howe v. Institute of Chartered Accountants of Ontario,, 118 DLR (4th) 129, prevented the applicant from filing the application because the First Award was a preliminary orinterim decision of the Arbitrator. [20] As noted in Wal-Mart, this rule exists in order to prevent a multiplicity of judicial proceedings through the "splintering" of issuesby disallowing review of interlocutory decisions.

It is also aimed at avoiding applications for judicial review that eventually becomemoot in the light of a tribunal's decision. [21] The applicant notes that the Arbitrator described the first decision as a preliminary decision. The primary function of the firsthearing was to determine whether the Arbitrator had jurisdiction to hear the grievance. [22] Assuming the time starts to run with the Second Award, the applicant notes the Act does not define the word "delivered" when itstates the appeal must be filed "within six weeks after the delivery of the award to the applicant".

There is also no definition of deliveryin the Nunavut Rules of Court. [23]

Section 26.2 of the

Interpretation Act authorizes the Minister responsible for the Act to prescribe electronic means tocommunicate information. However, no regulations have been promulgated authorizing the use of electronic information. [24] The applicant argues that the delivery of the award did not occur until it received the hard copy on December 14, 2007, andexpired on January 25, 2011. Since the Application was filed on January 21, 2011, it was within the six weeks. (iii) Analysis [25] The Act provides two ways to challenge the award of an arbitrator.

If the submission to arbitration provides for an appeal, section27 is applicable and the appeal must be filed "within six weeks after the delivery of the award". If there is no appeal clause in the

submission a party must apply for judicial review under

section 28 and

section 29. Those sections require that the application "shall notbe made after six weeks from the delivery of the award to the applicant". [26] Since there is no appeal clause in the collective agreement this application comes under sections 28 and 29. The usual groundrelied on is that an arbitrator misconducted himself or herself. As noted at para 10 of Northwest Territories v Union of NorthernWorkers, [2000] NWTSC 31, 97 ACWS (3d) 256, this ground includes an allegation that an arbitrator exceeded his or her jurisdiction. [27] There is no magic in the label used to describe the First Award.

The Arbitrator adopted a well-worn approach used by mostadjudicative bodies and courts in the face of a jurisdictional argument. He heard all the evidence available and reserved on both issues.At para 69 he concluded he had jurisdiction to hear the grievance and then stated: I have further concluded that his resignation is a foreseeable consequence of the Employer's failure to adequately address theharassment actions that he was a victim of (as found by the Employer's own investigators).

Accordingly, it will be necessaryto reconvene this hearing in order to determine the proper quantum of compensation that the Grievor is entitled to in thesecircumstances. [28] The second hearing then convened and took place between October 18 to 21, and the Arbitrator issued what he described as a"Supplementary Award". [29] As noted by R.G. Richards J.A. in Wal-Mart, there are compelling reasons why courts should be reluctant to review interim ornon-final decisions of administrative tribunals.

He quoted with approval the following from Judicial Review In Labour Law: 15.80 Applications for judicial review brought prior to the release of a final decision have frequently been rejected by thecourts on the ground of prematurity. A combination of factors provides the basis for such a result. First, judges are reluctantto delay the proceedings of labour relations tribunals by entertaining (or encouraging) judicial review applicationsconcerning interim decisions. Second, the court's time may be used more efficiently if all possible grounds for judicialreview are dealt with in one proceeding and hearing.

Third, the application may become moot or hypothetical, depending onthe tribunal's disposition of the case. Fourth, on occasion, technical considerations arising under the particular jurisdiction'slabour relations statute or rules of procedure justify rejection of a judicial review application for prematurity . . . [30] I am satisfied that the applicant would have been premature in filing an application for judicial review after the First Award. TheSecond Award is intertwined with the First Award.

It would have been a waste of judicial resources for a judge to adjudicate a judicialreview application after the First Award. The Arbitrator could have awarded much lower damages than he did. If this had happened thefirst application may have been unnecessary. [31] There is merit in the applicant's argument about the lack of regulations for electronic communication. The evidence filed by theapplicant proves that it received the Second Award on December 14, 2010. That was the date the award was officially delivered underthe Act.

Counting forward six weeks from that date establishes that the last date for filing the application was January 25, 2011. Sincethe application was filed on January 21, 2011, it was timely. B. Standard of review (

i) Applicant's argument [32] In Dunsmuir v New Brunswick (Board of Management), 2008 SCC 9, 291 DLR (4th) 577 [Dunsmuir], the Supreme Court ofCanada held that the standard of review should be determined by the following factors: (

i) the presence or absence of a privative clause (ii) the nature of the administrative regime in which the decision maker has special expertise (iii) the nature of the question of law [33] The applicant argues that when these factors are applied to the case at bar this court should conclude that the standard of reviewis "correctness." [34] While acknowledging that

section 26 of the Act is a privative clause, the applicant argues that it is neutralized by

section 28 thatauthorizes intervention by a judge where the Arbitrator has misconducted himself. [35] The applicant acknowledges that jurisprudence such as Canadian Broadcasting Corporation v Canada, (SCC),[1995] 1 SCR 157, 121 DLR (4th) 385, and Toronto (City) Board of Education v O.S.S.T.F. District 15, (SCC), [1997]1 SCR 487, 144 DLR (4th) 385 [Ontario District 15], suggests deference to the special expertise of labour arbitrators. [36] However, relying on Toronto (City) v C.U.P.E.

Local 79, 2003 SCC 63, 2003] 3 SCR 77 [CUPE Local 79], Ontario Distrct 15and B.C.T.F. v British Columbia Public School Employees Assoc., 2011 BCCA 148, 2011 CarswellBC 682, the applicant argues thatsuch deference is removed where an arbitrator interprets the general law outside his or her expertise on a matter of central importance tothe legal system as a whole. [37] The applicant argues that the legal rationale for the Arbitrator's award changes a basic principle of labour law that is of centralimportance to the legal system.

As held in Toronto Star Newspapers Ltd. (1991), (ON LA), 12 LAC (4th) 273,[1990] OLAA No 70, and Re Cominco and United Steelworkers, Local 651, (BC LA), [1987] BCCAAA No 386, 30LAC (3d) 386, the remedies currently available to a Grievor are limited by the doctrine of "work now grieve later". A Grievor mustcontinue to work in the face of a breach of the collective agreement and seek redress by grieving and pursuing the grievance process. Inthe case at bar, the Arbitrator changed the law by awarding damages to the Grievor who had voluntarily resigned his employment. If this

court upholds the award a new option will be available to employees that will have a significant impact on labour law. [38] Section 12 (2) of the Act authorizes arbitrators to refer questions of general law to this court. Relying on CUPE Local 79, theapplicant argues this

section is an indication of legislative intent that the Arbitrator is not entitled to deference when he or she actsoutside their area of expertise. The Award effectively imports the doctrine of constructive dismissal into a labour arbitration that isoutside the Arbitrator's area of expertise.

Furthermore, the Arbitrator based his decision to award damages on the doctrine offoreseeability that is an issue of mixed fact and law beyond his area of expertise. [39] Since the Act lacks a substantive privative clause and the Arbitrator ruled in areas of law beyond his expertise the standard ofreview should be correctness.

As noted at para 50 of Dunsmuir, the application of the correctness standard means this court mayundertake its own analysis of the question and substitute its own view of the issues and provide the correct answer. (ii) Respondent's argument [40] The respondent does not take issue with the basic principles of law argued by the applicant. However, it argues that this courtshould adopt the reasoning of the Saskatchewan Court of Appeal in Saskatchewan Centre of the Arts v IATSE, Local 295 2008 SKCA136, [2008] SJ No 673 [Saskatchewan Arts Centre].

In that case the Court of Appeal held that the assessment of damages arising out of acollective agreement was not an issue of central importance to the legal system since it involved some considerations that were quitedifferent from common law dismissal cases. These considerations call into play the special expertise of labour arbitrators that requiredeference by a court and the application of the reasonableness standard of review. (iii) Analysis [41] In Ontario District 15, Cory J. noted the specialized skill of Arbitrators does not extend to the

interpretation of outside legislationor the common law. In those situations the standard of review is correctness: [39] It has been held on several occasions that the expert skill and knowledge which an arbitration board exercises ininterpreting a collective agreement does not usually extend to the

interpretation of "outside" legislation. The findings of aboard pertaining to the

interpretation of a statute or the common law are generally reviewable on a correctness standard. SeeUnited Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., (SCC),[1993] 2 S.C.R. 316, at pp. 336-37. An exception to this rule may occur where the external statute is intimately connectedwith the mandate of the tribunal and is encountered frequently as a result. See Canadian Broadcasting Corp. v.

Canada(Labour Relations Board), (SCC), [1995] 1 S.C.R. 157, at p. 187, per Iacobucci J. [42] Similarly at para 62 of CUPE Local 89, Lebel J. noted that, where the main issue is clearly a question of law that is of centralimportance to the legal system, it is unnecessary for the reviewing court to perform a detailed pragmatic and functional analysis in orderto reach a standard of correctness. [43] Dunsmuir was published shortly after the release of the trial judgment in Saskatchewan Arts Centre.

Sherstobitoff J. carried outthe standard of review analysis that would have been carried out by the trial judge if Dunsmuir had been argued stating: [11] In this case we have ss. 25(1.1) and (1.2) of The Trade Union Act, R.S.S. 1978, c. T-17, of which the Supreme Courtof Canada, in Canada Safeway v. RWDSU, Local 454, (SCC), [1998] 1 S.C.R. 1079 has said, at para. 59,although it is "not a true privative clause, it is very close to it." We have a discrete and special administrative regime inwhich the decision maker has special expertise.

These factors point to a high degree of deference to the decision maker. [12] The final factor is the nature of the question of law. The issue in this case can hardly be said to be of centralimportance to the legal system since it involves only the enforcement of collective bargaining agreements by labourarbitration boards.

Furthermore, as will be discussed later in this judgment, the assessment of damages in cases such as thisinvolve some considerations quite different from those in common law wrongful dismissal cases, and these considerationscall into play the special expertise developed by labour Arbitrators. [44] As noted by Jones & de Villars, a privative clause is a statutory provision that purports to oust the inherent jurisdiction of thesuperior courts to review the legality of actions taken by statutory delegates.

Statutes use a variety of wording that state the delegate'sdecision is "final", "binding", "conclusive", "not subject to appeal", "unappealable", or "not subject to be questioned".

As held in Dayco(Canada) Ltd v C.A.W., (SCC), [1993] 2 SCR 230, [1993] SCJ No 53, this type of privative clause is weaker than afull privative clause such as the one considered in Pasiechnyk v Saskatchewan (Worker's Compensation Board), (SCC),[1997] 2 SCR 890, [1997] SCJ No 74, where the wording of the statute goes on to state that the decision may not be removed bycertiorari. [45] In Saskatchewan Arts Centre, the Court of Appeal considered the privative clause in the Saskatchewan Trade Union Act, RSS1978, c T-17, and noted the comments of the Supreme Court of Canada in Canada Safeway v.

RWDSU, local 454, (SCC), [1998] 1 SCR 1079, 160 DLR (4th) 1, about that privative clause stating: [11] In this case we have ss. 25(1.1) and (1.2) of The Trade Union Act, R.S.S. 1978, c. T-17, of which the Supreme Courtof Canada, in Canada Safeway v. RWDSU, Local 454, (SCC), [1998] 1 S.C.R. 1079 has said, at para. 59,although it is "not a true privative clause, it is very close to it." We have a discrete and special administrative regime inwhich the decision maker has special expertise. These factors point to a high degree of deference to the decision maker. [46] The privative clause in the Act states: "26.

Subject to sections 27 and 28, an award made by an Arbitrator or by a majority of Arbitrators or by an umpire is finaland binding on all the parties to the reference and the persons claiming under them."

[47]

Section 12 of the Act requires an Arbitrator to state a "special case" for the opinion of a judge on a question of law "if so directedby a judge".

Section 28 authorizes a judge to set aside an award for misconduct or improper procurement. [48] These limitations on the jurisdiction of an Arbitrator suggest the privative clause in the Act falls into the weaker category. As aresult less deference is required. [49] In Saskatchewan Arts Centre, the only issue was the assessment of damages because the employer did not appeal the finding thatthe Grievor had been wrongfully dismissed. As a result, the Court concluded that the issue was not of central importance to the legalsystem.

However, in the case at bar there is a significant legal issue about the legal effect of a resignation prior to the filing of agrievance. As a result, I am satisfied that the legal issues are of central importance to the legal system and outside a labour arbitrator'sspecialized area of expertise. [50] I conclude that the standard of review is correctness. C. If the standard of review is correctness, did the Arbitrator err in awarding in awarding the Grievor compensation for lostsalary? (

i) Applicant's argument [51] The applicant argues that the Arbitrator made four errors of law that can be analyzed as sub-issues as follows: (

a) Awarding compensation for losses that were a direct result of the Grievor's resignation (

b) Misapplying the doctrine of foreseeability (

c) Incorporating the legal doctrine of constructive dismissal (

d) Damage award not rationally connected to breach C.i.1 Awarding compensation [52] As noted in Waddams and in Red Deer College v Michaels [1976] 2 SCR 324, (SCC) [Red Deer], SaskatchewanArts Centre, and Re Babine Forest Products and U.S.W.A., Loc 1-424, [2006] BCCAAA No 175,155 LAC (4th) 396, it is a basicprinciple of contract law that plaintiffs may not recover damages that they could reasonably have avoided. The applicant argues that theGrievor's damages were not caused by the applicant's breach of

Article 46 of the CA but rather by his decision to resign his position. TheGrievor had the option of continuing to work while pursuing a grievance but instead resigned and incurred the damages. [53] The Arbitrator erred in law when he held that the Grievor's damages were caused by the applicant's breach of

Article 46 of theCA. C.i.2 Misapplication of Foreseeability [54] As held in Hadley v Baxendale (1854), 9 Exch 341 at 354-355 [Hadley], damages for a breach of contract are limited to those thatcan be fairly and reasonably be considered as either arising naturally from the breach of the contract, or that would have been in thecontemplation of both parties at the time the contract was made. Where one party claims to recover the expenses incurred from a breachof contract it is for a court to determine what was reasonably foreseen or reasonably contemplated by the parties.

As noted in Hadley,Kienzle v Stringer (1981), (ON CA), 35 OR (2d) 85, 130 DLR (3d) 272 [Kienzle] and Murano v Bank of Montreal(1988), 41 OR (3d) 222, , it is the Court that must determine whether it is appropriate to impose this risk on the otherparty. [55] In awarding the Grievor damages, the Arbitrator mischaracterized the doctrine of foreseeability.

What is at issue is not whetherthe Grievor's decision to resign was foreseeable in light of the circumstances at the time of the breach of the collective agreement, butrather whether the losses were in the reasonable contemplation of the parties at the time of contracting. As noted by Swan, an analysis offoreseeability is foremost an analysis of the risks that the parties can be said to have assumed at the time of contracting.

In determiningwhether the parties have agreed to bear a given risk, the first point of reference must be the contract itself. [56] The question to be determined in this case is what risks the applicant agreed to assume when the CA was signed. To answer thisquestion the Court should examine the CA.

It contains a comprehensive grievance regime for dealing with contraventions of theagreement. [57] The applicant argues that the CA demonstrates an intention on the part of the parties that a party who breaches a provision of theCA would face the risk that an Arbitrator would issue an award of specific performance enforcing adherence to the provisions. Becauseof this comprehensive mechanism for responding to breaches of the CA, the applicant cannot reasonably be said to have agreed toassume the risk that an employee would respond to a breach of the CA by resigning his or her job.

C.i.3 Constructive dismissal [58] The applicant could find no arbitral award in which an Arbitrator awarded wages and benefits to an employee whose resignationwas found to be voluntary and binding. As held in McGavin Toastmaster v Ainscough, [1976] 1 SCR 718, (SCC)[McGavin], unionized employees are subject to a collective bargaining regime that completely supplants common-law concepts such asrepudiation.

Because of this comprehensive regime governing risk allocation, the applicant cannot reasonably be said to havecontemplated the type of damages awarded to the Grievor. [59] The right to unilaterally quit the employment contract is one that is enjoyed only by an employee. As noted in Brown & Beattyand Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association, (1978)

(ON LA), 18 LAC (2d) 7, [1979] OLAA No 50 [Toronto Police Commissioners], once an employee has tendered his resignation theemployment contract is at an end. [60] As noted in Eschin and Fantini and Southern Ontario Newspaper Guild, Local 87 v Toronto Star Newspapers Ltd. (1991), (ON LA), 12 LAC (4th) 273, [1991] OLAA No 70 [Toronto Star], the doctrine of constructive dismissal is a common-lawdoctrine.

It holds that, where an employer commits a repudiatory breach of the employment contract that deprives the employee ofsubstantially all of the benefits bargained for, the employee who has quit will be deemed to have been constructively dismissed, and willbe entitled to damages in the form of notice. [61] Williams and Toronto Star, have written that, in the unionized context, both courts and arbitrators have consistently refused toapply the doctrine of constructive dismissal.

The doctrine has been held to be inapplicable in a unionized environment where thecollective agreement has supplanted common law concepts such as constructive dismissal. [62] Finally as noted in McGavin, Toronto Star and Re Courtyard Inn and Hotel, Restaurant, Culinary & Bartenders Union, Local 40[unreported judgment] at para 137[Courtyard Inn], arbitrators have also held that in a unionized context the contract is not between theindividual and the employer, but rather between the union and the employer. An individual employee is therefore not a party to thecontract, and may not treat a breach as repudiation.

There is no self-help remedy available and Grievors' may not take matters into theirown hands by quitting and then seeking damages. Rather than quit and seek damages, a unionized employee must "work now and grievelater". The only exception is where an employee believes himself or herself to be in imminent danger. [63] The Arbitrator has characterized his award of wages as flowing from the contract doctrine on foreseeability. The applicant arguesthat the Arbitrator erred in making his unprecedented award in favor of the Grievor who had resigned his position.

In doing so hemisapplied the common-law doctrine of constructive dismissal to a unionized employee. C.i.4 Damage award not rationally connected to breach [64] The Arbitrator's award of damages to the Grievor was disproportionate and not rationally connected to the applicant's breach ofArticle 46 of the collective agreement.

As held in Canada Safeway Ltd. v R.W.D.S.U., Local 454, (SCC), [1998] SCJNo 47, 79 ACWS (3d) 945 at 181 [Canada Safeway], an arbitrator's order granting a remedy must be rationally connected to the allegedbreach and in line with the remedies. [65] The Arbitrator erred by failing to apply the CA properly to the Grievor's grievance. The dispute fell under the terms of the CAthat provided remedies for various breaches of the agreement. By awarding wage damages that are available to an employee who wasterminated the Arbitrator effectively converted the Grievor's harassment grievance into a termination grievance.

The Arbitrator foundthat, in essence, that the applicant's actions caused the Grievor to resign his job.

As a result the applicant ought to be liable for damagesflowing from the termination of employment in the same way that it would have been had it terminated the Grievor without just cause. (ii) Respondent's Argument C.ii.1 Awarding compensation [66] The Arbitrator relied on the International Brotherhood of Electrical Workers, Local 254 v Calgary (City) (Harlow Grievance),[2004] AGAA No 26, 2004 WL 3327748 [Harlow], to help him determine the appropriate measure of damages and compensationflowing from the employer's breach of

Article 46 of the CA. In Harlow, the Arbitrator imported the common-law calculation of damagesin lieu of notice into the collective bargaining arena. It is this imported common law principle, long accepted in arbitral jurisprudence,that the Arbitrator relied on for his calculation of damages. He had clearly rejected the applicability of the constructive dismissalprinciple, having found that the Grievor clearly exhibited the objective and subjective elements of a voluntary resignation.

At paragraph40 of the Second Award, the Arbitrator explicitly states that, having concluded that there had been no breach of the Human Rights Act,S. Nu. 2003, c.12, the finding of constructive dismissal was not an option available to him. [67] Instead, the Arbitrator found the applicant had breached

Article 46 of the CA. There was ample evidence before the Arbitrator tomake the finding that the applicant had breached

Article 46. At paragraph 69, he noted the applicant's own investigation report explicitlystated that harassment had occurred. C.ii.2 Misapplication of foreseeability [68] The respondent argues that it is improper for this court to make a factual determination about the intent of the parties at the timeof contracting. The applicant had ample opportunity at the arbitral hearings to introduce evidence of its contractual intent but failed to doso. The applicant also failed to raise the issue before the Arbitrator at either hearing.

The purpose of the judicial review is not to allowfor the introduction of evidence that should properly have been introduced before the original decision maker. [69] In the arbitration award of Paula Knopf dated May 16, 2006 between the applicant and Public Service Alliance of Canada[Kellett], the Arbitrator awarded damages to the Grievor for breach of

Article 46. While this does not preclude the applicant frommaking this application it does point to the fact that the applicant was aware of the arbitral treatment of a breach of

Article 46 but did notchallenge the applicability of the damages framework. It can be inferred that at all material times during the Grievor's harassmentcomplaint and subsequent grievance process the applicant was fully aware of the liability that could flow from its breach of

Article 46including the prospect of damages being awarded to the Grievor. [70] The doctrine of foreseeability was applied in an arbitral milieu at para. 26 of Okanagan College v Okanagan College FacultyAssn. (Fu Grievance), [2008] BCCAAA No 57, 171 LAC (4th) 342 [Okanagan]. C.ii.3 Constructive dismissal [71] At paragraph 40 of the Second Award, the Arbitrator considers and then rejects the applicability of the doctrine of constructive

dismissal on the grounds that the human rights complaint was not made out in this case. Instead he drew from his own arbitralexperience on the subject of constructive dismissal in Industrial, Wood, and Allied workers of Canada, Local 1000 v Norceram productsInc., a Division of Dometic Corp. (Vivarais grievance), [2004] OLAA No 919 [Vivarais]. The Arbitrator's reliance on Harlow clearlyindicates that he based the award of lost wages on the application of the common law doctrine of damages in lieu of notice.

This is awell-established and accepted incorporation of the common law into the arbitral milieu as noted in Brown and Beatty and Re andToronto Hydro-Electric System and C.U.P.E., Local 1, (ON LA), [1994] OLAA No 108, 43 LAC (4th) 378 [TorontoHydro]. [72] Although the recent arbitration decision in Hay River Health and Social Services Authority v.

Public Service Alliance of Canada[2010] CLAD No 407, 201 LAC (4th) 345 [Hay River], notes there is a trend away from a strict application of the common-law doctrineof damages in lieu of notice, it does not indicate that the traditional orthodox approach was flawed but rather was incomplete inrecognizing the inherent value of a unionized job versus a nonunion position.

C.ii.4 Damage award not rationally connected to breach [73] The Arbitrator noted in paragraph 46 of the Second Award that there was little in the way of guidance in arbitral jurisprudence orfrom court decisions for the unique circumstances presented in this grievance. As such he relied on what precedent did exist and appliedthe rulings in Kellett and Harlow. Kellett was a Nunavut precedent that established a benchmark for an award of damages. However, theGrievor in that case did not suffer any lost wages and the ruling was no guidance on that issue.

As a result the applicant cannotconclusively establish just proportionality, as a spectrum of precedent has yet to be established. [74]

Article 46 of the CA does not contain a penalty clause, nor provide any direction as to the means of treating a breach by theemployer. As noted in Getsco Technical Services Inc. v International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,Forgers and helpers, Lodge 359, (BC LA), [2003] BCCAAA No 290, 122 LAC (4th) 1, this fact does not prevent theArbitrator from relying on arbitral jurisprudence and its incorporation of the common law doctrine of damages. [75] Finally, the parties specifically contemplated the awarding of lost wages in the CA by including

Article 35.23 (

a) that expresslyconfers power on the Arbitrator to award compensation in discipline or other alleged violations of the CA. (iii) Analysis C.iii.1 Arbitrator's reasons for decision [76] Since most of the arguments center on the impact of the Grievor's resignation on the CA and the remedies permitted, it is usefulto review what happened before the Arbitrator and what he said on this issue. [77] At the first hearing, the applicant argued the Arbitrator had no jurisdiction to hear the grievance because the Grievor had freelyand voluntarily resigned his employment.

The Arbitrator decided he would hear evidence about the Grievor's history and, if he foundthat he had jurisdiction, the evidence would apply to any of the substantive issues. [78] After reviewing the facts and arguments he stated: [62] My jurisdiction is predicated, of course, of the filing of a grievance. While there appears to be some confusion aboutthe actual timing of the grievance, the "Grievance Form" is clearly and unambiguously dated July 26, 2007. The Grievorapparently submitted his resignation to Mr. Suvega, the ADM, on July 11, 2007, in which he noted that his last day of workwould be August 17, 2007.

It would appear that the Grievor filed his grievance subsequent to submitting his letter ofresignation; however, it is clear that the matters giving rise to his grievance occurred during the course of his employment.In any event, the Employer did not raise any timeliness issue with respect to the filing of the grievance. Rather, in respect ofthe jurisdiction issue the Employer is relying on the substance of the grievance, which, it submits, deals with "constructivedismissal." [79] After reviewing

Article 46 the Arbitrator determined that he had jurisdiction stating: [65] In light of this provision, it cannot be seriously denied that the Employer has certain quite specific obligations withrespect to maintaining a harassment-free workplace (as was acknowledged by Mr. Malhotra) and that an employee has theright to seek enforcement of these obligations through the grievance process. This is in essence what the Grievor has done inthis instance.

While the Grievor did resign from his position prior to the resolution of his grievance, and prior to the issuanceof the harassment report, this does not alter the essential nature of his grievance, nor does the fact that the remedy he seeksdeals with compensation for lost wages, travel expenses, etc. that flows from his resignation. Whether the claimedcompensation is reasonable under the circumstances is not a matter going to my jurisdiction.

The appropriate compensation,if any, that the Grievor is entitled to is dependent on a determination as to whether his resignation and the costs that flowedtherefrom is a foreseeable consequence of the Employer's failure to adequately, and in a timely fashion address hisharassment complaint. [80] At paragraphs 66 and 69, the Arbitrator found that the resignation was not justified despite the employer taking six months toinvestigate and submit a report on the harassment allegations.

Nevertheless, he concluded the applicant, though aware of the harassment,failed to provide some form of separation for the Grievor from his supervisor. In light of the circumstances, he believed the Grievor'sresignation was foreseeable.

He concluded that a hearing on the issue of the quantum of compensation should be held as expeditiously aspossible. [81] In the first paragraph of the Second Award, the Arbitrator noted again that there was no dispute that both the grievance andhuman rights complaint arose during the Grievor's course of employment and that he had jurisdiction to address both issues. [82] At the second hearing, the Grievor expanded on the evidence he gave at the first hearing, particularly about his efforts to replace

the salary he lost after his resignation. After reviewing the arbitral jurisprudence, including his decision in Vivarais, the Arbitratorconcluded there was objective and subjective evidence that the Grievor's resignation was voluntary, stating: [44] In considering these principles in light of the facts in this case, I must conclude that the evidence demonstrates thatMr. Cowx not only exhibited the objective act of quitting by submitting an unequivocal letter of resignation, but alsofollowed that up by his departure from Nunavut within the time frame indicated in his letter.

Furthermore, his conductclearly demonstrated that at all times following his letter of resignation he had a continuing and subjective intent to quit. AsMs. Silk has pointed out in her submissions, Mr.

Cowx testified that he in fact had no desire at any time following his letterof resignation to continue to maintain or continue his employment relationship with the Government of Nunavut. [83] Nevertheless, the Arbitrator concluded that the Grievor's resignation was an entirely foreseeable consequence of the applicant'sfailure to properly address his complaint and proceeded to an analysis of the proper measure of damages. He noted that there was littlejurisprudence to guide him except for the Harlow decision.

In awarding the Grievor loss of income for one year, he applied the reasoningin Harlow stating: [48] [ . . .] the Arbitrator applied the common law principles respecting damages for wrongful dismissal. He also tookinto consideration that the Grievor was subject to harassment and that this was an "aggravating factor," which should bereflected in the award of damages.

He specifically noted that, because the Grievor had retained collective bargaining rights,he was not awarding damages for loss of bargaining unit membership and rights flowing from the Collective Agreement. [84] Finally, he applied Kellett to award the Grievor $6000 in general damages and $6000 in special damages. C.iii.2 Legal impact of resignation [85] In Cominco, the employees quit their jobs at Kimberly on February 13, because they had received layoff notices and hadpreviously been offered employment at a mine in Pine Point, Northwest Territories.

The employees understood the employment at PinePoint would continue for a period of two years. On April 4, the employees received layoff notices for the jobs at Pine Point. The PinePoint layoff crystallized the grievance and it was well after the employees had quit their jobs in Kimberly. [86] The Arbitrator found the resignations were voluntary and as a result he had no jurisdiction to hear the grievance. [87] The legal basis for the Cominco holding flows from the nature of the collective bargaining relationship.

As held in McGavinunionized employees are subject to a collective bargaining regime that completely supplants common-law concepts such as repudiation.The right to unilaterally quit the employment contract is one that is enjoyed only by an employee. As noted in Brown & Beatty andToronto Police Commissioners once an employee has tendered his resignation the employment contract is at an end. [88] As held in Re Toronto Star Newspapers Ltd. and Southern Ontario Newspaper Guild, [1990] OLAA No 70, (1991) (ON LA), 12 LAC (4th) 273 [Toronto Star], the doctrine of constructive dismissal is a common-law doctrine.

It holds that, wherean employer commits a repudiatory breach of the employment contract that deprives the employee of substantially all of the benefitsbargained for and the employee resigns, he will be deemed to have been constructively dismissed and will be entitled to damages in theform of notice. [89] Toronto Star also noted that in the unionized context, both courts and arbitrators have consistently refused to apply the doctrine ofconstructive dismissal.

The doctrine has been held to be inapplicable in a unionized environment where the collective agreement hassupplanted law concepts such as constructive dismissal. [90] Finally as noted in McGavin, Toronto Star and Courtyard Inn at para 137, arbitrators have also held that in a unionized contextthe contract is not between the individual and the employer, but rather between the union and the employer. An individual employee istherefore not a party to the contract, and may not treat a breach as repudiation.

There is no self-help remedy available and employeesmay not take matters into their own hands by quitting and then seeking damages. Rather than quit and seek damages, a unionizedemployee must "work now and grieve later". The only exception is where an employee believes himself or herself to be in imminentdanger. [91] In paragraph 63 of the First Award the Arbitrator noted that the "Grievance Form" of July 26 stated: "Failure of the GN to follow up and resolve a harassment complaint in a timely fashion.

Complaint was filed February 13/07and is unresolved as of July 26/07." [92] At paragraph 27 of the First Award, the Arbitrator also found that the Grievor never received confirmation from any sourceaccepting his resignation, although there were some discussions about cashing out vacation time. [93] The Arbitrator correctly distinguished the fact situation before him from that in Cominco and concluded that the grounds for thegrievance crystallized when the harassment complaint was filed on February 13, 2007.

Although the Grievor submitted his resignationon July 11, it was never accepted by the applicant and was not effective until the last day of work on August 17. C.iii.3 Damages in lieu of reinstatement [94] The thrust of the applicant's argument is that the Arbitrator erred when he awarded the Grievor damages for loss of income thatoccurred after the last day worked. The applicant argues that loss of income beyond that date can only be awarded where an employee iswrongfully terminated and reinstatement was not appropriate.

Since the Arbitrator found the Grievor had voluntarily resigned he erred inlaw in awarding him damages for loss of income. The only basis to award damages where an employee has resigned is to apply thecommon law principle of constructive dismissal. That principle is not applicable where a collective agreement is operative. [95] The Arbitrator clearly found the resignation was voluntary and that constructive dismissal was not applicable, stating at para 40 of

the Second Award: With respect to the latter, while Mr. Penner argued that constructive dismissal is well recognized and accepted in the contextof human rights law, he quite correctly acknowledged that the notion of constructive dismissal has not been accepted in thecontext of the law respecting collective agreements.

Having concluded that there has been no breach of the Human RightsAct in respect of this matter, we are confined to the realm of collective agreement rights and obligations, and accordingly, afinding of constructive dismissal is not an option. [96] However, as noted earlier, the Arbitrator relied on Harlow. He also indicated that in awarding damages the Arbitrator took intoaccount the aggravating factor of the harassment suffered by the Grievor.

He also took into consideration that the Grievor was subject to harassment and that this was an "aggravating factor," whichshould be reflected in the award of damages. [97] The Arbitrator then noted that it was reasonably forseeable that the Grievor would take up to a year to find a position to earn theincome he had to forego when he left Nunavut.

"[49] I believe that it was reasonably foreseeable that in Mr.Cowx's circumstances it would take him up to a year to be ina position to earn the income that he had to forgo when he left Nunavut." [98] The applicant argues that these principles are only applicable where an employee has been wrongfully dismissed. They are notapplicable where an employee voluntarily resigns his employment.

Counsel for the applicant was not aware of any cases where thecommon law principle of reasonable notice damages had been applied where the employee had resigned in a situation where they couldhave grieved under a collective agreement. [99] There is merit in this argument. As noted in Hay River, arbitrators have authority to award the common law reasonable noticetype damages in exceptional circumstances where the continuation of the employment is no longer viable. However, in all the casesreviewed in Hay River, the employee was wrongfully terminated and reinstatement was no longer viable.

The union grieved thedismissals and eventually the Arbitrator had to decide whether reinstatement was appropriate. When the Arbitrator found thatreinstatement was not appropriate the employee was awarded damages that were calculated using the same principles used by courts inwrongful dismissal cases. [100] This measure of damages has evolved and arbitrators now use a number of methods to calculate the damages.

As noted inSaskatchewan Arts Center: [17] As noted in Brown and Beatty, at 2:1421, in cases of wrongful dismissal where the grievor is not reinstated,arbitrators have, until recently, always applied the common law principles for the assessment of damages, calculating areasonable period of notice of dismissal, and compensating the grievor for that period, subject to the duty to mitigate. It isonly in recent years that a few arbitration awards have moved to the position adopted by the board in this case. These are theawards referred to in para. 155 of the award quoted in para. [3] above. See also: Canvil v.

I.A.M.A.W., Lodge 1547 (Stone),(2006), (ON LA), 152 L.A.C. (4th) 378 (Marcotte) and Casselholme Home for the Aged v. C.U.P.E.,Local 146 (Morabito) Re, (2006), 159 L.A.C. (4th) 251 (Slotnick). [101] The only legal basis to award damages in the face of a resignation is the common law principle of constructive dismissal.

Thatprinciple is not applicable to arbitrations under a collective agreement and was correctly rejected by the Arbitrator. [102] Unless there is some other legal basis for awarding these damages, it appears there is some merit to the applicant's argument thatthe Arbitrator converted the Grievor's harassment grievance into a termination grievance and granting a remedy that was available in atermination similar to what the Arbitrator did in Canada Safeway. C.iii.4 Other authority to award damages for breach of CA [103] In Harlow, the Grievor's manager sexually harassed her for a period of months.

The City of Calgary attempted to place theGrievor back in the workplace after removing the manager from that work site, but the reintegration effort failed, at least in part due toretaliation by other employees in the workplace against the Grievor. After some months on disability, the Grievor was placed in anotherposition at the City that involved a similar rate of pay, but lower gross income because of the difference in shifts and opportunities forovertime. The Union sought damages for breach of human rights legislation and the collective agreement.

The arbitration board foundthat the Grievor was sexually harassed, and that the City's remedial efforts to place her back in the workplace were not successful ineliminating the Grievor's losses. [104] The Board found the City had breached the Alberta Human Rights Act, RSA 2000, c A-25.5, and the collective agreement, andconcluded it had authority under the legislation to compensate for loss of income. [105] The Board awarded the Grievor loss of income similar to what would have happened if she had been wrongfully dismissed fromher job. [106] In this case the Arbitrator found there was no breach of the HRA, thereby removing that basis for awarding damages.

C.iii.5 Remedial authority of Arbitrator [107] The applicant's arguments raise the same remedial authority of an arbitrator issue considered in Lethbridge and SaskatchewanArts Centre. The Arbitrator had to rule on facts that were unique and had no arbitral precedent to assist him. He correctly found that theapplicant had breached

Article 46 of the collective agreement by failing to deal with the Grievor's complaint about the harassment by hissupervisor. The Arbitrator correctly concluded that the Grievor had voluntarily resigned and acknowledged he could not rely on the legal

principle of constructive dismissal. He also found that the applicant had not breached the HRA. [108] Finding himself in uncharted waters, the Arbitrator turned to basic principles of contract law to provide a remedy for the breachof

Article 46. Without much analysis he found the resignation was foreseeable and then awarded damages representing the difference inthe Grievor's income from employment and that actually earned for the year following his last day worked. Was it within his authority togrant this remedy? [109] In Lethbridge, the appellant employer hired the respondent Grievor as a Scheduling Coordinator. In this position, the Grievorwas required to implement an electronic scheduling system for courses offered by the College.

The College dismissed the Grievor on thegrounds that she failed to meet deadlines and that her work was incomplete. The Grievor and the respondent , Alberta Union ofProvincial Employees, grieved the dismissal, alleging dismissal without just cause, in contravention of the collective agreement.

Thearbitration board found the Grievor's circumstances reflected a non-culpable deficiency on the basis that her inability to meet therequirements of her position was due to incompetence. [110] In fashioning a remedy, the board concluded that it could substitute a financial award under s. 142(2) of the Code against theappellant. Owing to a bona fide reorganization of the workplace, the Grievor's previous position no longer existed.

The board rejectedthe possibility of ordering the employer to make efforts to find another position because that would neither guarantee the Grievoremployment, nor provide a lasting solution. The board awarded the Grievor damages in the amount of four months' salary, having takeninto consideration common law principles such as age, length of service and the nature of her position.

The board also reasoned that shewas unable to handle the duties and responsibilities of her position, and would not have been able to improve her performance orlengthen her employment to any significant extent even with prior warnings. [111] The Supreme Court of Canada concluded that the award of the arbitration board was reasonable and within the authorityconferred by

section 142 of the Alberta Labour Code, SA 2000, c L-1, stating:

(1) Subject to subsection (2), no arbitrator, arbitration board or other body shall by its award alter, amend or change theterms of a collective agreement.

(2) If an arbitrator, arbitration board or other body determines that an employee has been discharged or otherwisedisciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction thatis the subject-matter of the arbitration, the arbitrator, arbitration board or other body may substitute some other penalty forthe discharge or discipline that to the arbitrator, arbitration board or other body seems just and reasonable in all thecircumstances. [112] Iacobucci J. concluded that arbitrators had broad remedial powers in fashioning an appropriate remedy stating: [53] Decisions in which exceptional circumstances have been found are widely disparate on the facts.

A review of suchdecisions highlights the difficulty with which bright-line distinctions may be marked between culpable and non-culpableconduct in assessing whether circumstances sufficiently exceptional exist so as to justify the board's refusal to reinstate.While culpable conduct is far more likely to lead to a poisoned or inhospitable work environment than conduct characterizedas non-culpable, the consequences of the conduct and not its characterization should be the primary focus of the remedialinquiry.

It bears repeating that arbitrators are equipped with broad remedial jurisdiction to secure prompt, final and bindingsettlement of disputes arising out of the

interpretation or application of the collective agreement and disciplinary action takenby employers. [54] For arbitration to be effective, efficient and binding it must provide lasting, practicable solutions to workplaceproblems. Commensurate with the notion of exceptional circumstances as developed in arbitral jurisprudence is the need forarbitrators to be liberally empowered to fashion appropriate remedies, taking into consideration the whole of thecircumstances. To rob arbitrators of access to the full breadth of the employment context risks impairing their role as finalarbiters of workplace disputes.

Arbitrators are well positioned on the front lines of workplace disputes to weigh facts andassess credibility as the circumstances warrant. [113] As noted in Saskatchewan Arts Centre, silence in the legislation and the collective agreement on the remedial powers of anarbitrator does not prevent the Arbitrator from granting an effective remedy. [14] . . .The legislation and the collective agreement are both silent as to the remedial powers of an arbitration board.However, it has long been established that legislation compelling the referral of disputes between parties to a collectiveagreement to final and binding arbitration clothes the arbitration board with the power to grant effective remedies to rectifythe breach even in the absence of specific authority to do so.

See Polymer Corp. (1959), 10 L.A.C. 51 (Laskin), aff'd. (ON SC), 26 D.L.R. (2d) 609 (Ont. H.C.J.), aff'd. (ON CA), 28 D.L.R. (2d) 81 (Ont. C.A.),aff'd. (SCC), [1962] S.C.R. 338 sub nom. Imbleau v. Laskin, where an award of damages by an arbitrator wasupheld. [114] The authority granted to an arbitrator is more limited under the Act and CA. The act is silent while

Article 35.23 of the CAstates: The arbitrator has all the powers granted to arbitrators under

section 12 of the Arbitration Act in addition to any powerswhich are contained in this Agreement. An arbitrator in a discipline case has the power to rescind, alter or amend thedisciplinary decision, including the ability to reinstate the grievor with full or partial compensation for lost wages, or theability to award compensation in discipline or other alleged violations of the collective agreement. [emphasis added] [115] However, I am satisfied that the words underlined above are sufficient to authorize the Arbitrator to grant the remedy he didprovided his analysis satisfied the legal requirements of mitigation and foreseeability.

C.iii.6 Mitigation of damages [ 116 ] The applicant argues that it did not cause the loss of wages incurred by the Grievor. They were caused by the Grievor's decision to resign. The Grievor's resignation and move out of Nunavut prevented the applicant from remedying the breach of

Article 46, similar to what occurred in Hallett. The Grievor only engaged the grievance process to get damages rather than to resolve the dispute. [ 117 ] As noted by Waddams , while this argument is usually framed as a failure to mitigate, it is really an issue of causation. [ 118 ] As held in Red Deer, the Defendant has the onus of proof that the Plaintiff could reasonably have avoided some part of the loss claimed.

As noted by Laskin J. in Red Deer, the onus is not light one. [ 119 ] The Arbitrator found that the Grievor's resignation was not justified but then went on to say that the applicant was at fault for the way they handled the harassment complaint: [66] In my view, while it is unfortunate that the Employer took some six months to investigate and submit a report on the harassment allegations, and clearly in so doing it did not respect its own time-lines as set out in its own policies, I do not believe that this is a sufficient justification or basis for the Grievor taking the step of submitting his resignation.

However, it should have been clear to management that the problems that the Grievor was having with Ms. Qumuatuq were ongoing and were continuing even after the harassment complaint was filed. As the Employer itself has implicitly acknowledged, the proper course of action in those circumstances would, as a minimum, require some form of separation of the Grievor from Ms. Qumuatuq's supervision. While that was clearly contemplated by management, it is also clear that it was never acted upon. No explanation of any kind has been given in this proceeding as to why that was the case.

In light of those circumstances, I believe that the Grievor's response to resign was in fact foreseeable. [ 120 ] The Grievor's decision was not taken lightly and he had no ulterior motive in resigning and then seeking damages in the arbitration. The Arbitrator noted the applicant did not call any witnesses to contradict the following evidence from the Grievor as summarized at paras 28 and 29 of the First Award. [28] The Grievor elaborated on the reasons for his resignation.

He stated that, as a result of his experiences, he was suffering anxiety issues, that it was causing trouble in his marriage and he had lost faith in the Employer's willingness to deal with the matter. He stated that he cooperated in every way, and he invoked the accepted procedure, including taking escalating steps and speaking to his supervisor. He also reflected on Mr. Suvega's comment about treating Ms. Qumuatuq took with "crystal gloves." These and other comments convinced him that there was more concern about Ms. Qumuatuq's reaction to his complaint than the complaint itself. He had also spoken to Ms.

Westwell about this matter and she never offered him any other option, nor did Doug Workman, the president of the Nunavut Employees Union. He also spoke with all of his directors, but again no one offered him any options. Mr. Suvega did raise the idea of a change in reporting relationships late in the process and also offered him stress leave when he indicated he would be resigning. However it appeared that nothing would change subsequently. [29] The Grievor maintained that a change in reporting relationships would not work.

While it would have eased some of the general issues, the overall toxic environment and rumors from Ms. Qumuatuq was building in the workplace. He noted that Mr. Ganesan had asked him if he was a member of the Ku Klux Klan; apparently, Ms. Qumuatuq had asked Mr. Ganesan if the Grievor was a member. He viewed this as yet another example of Ms. Qumuatuq spreading rumors about him. [ 121 ] I interpret the Arbitrator's comments as meaning that, although the Grievor's resignation did not follow the arbitral rule of "work now and grieve later", it was understandable.

That is another way of saying the Grievor's actions were reasonable and that he could not reasonably have avoided the loss. [ 122 ] Given the lack of response to the harassment complaint, it was reasonable for the Grievor to conclude that his health and marriage would not survive a grievance process that was bound to be lengthy and that he had to resign and find a new job. [ 123 ] The Arbitrator did not apply the common law notice principle of damages in lieu of notice but rather what was a reasonable period to find a new job.

Given the difficulties in finding comparable employment in a small market with a very high cost of living, the Arbitrator's conclusion was reasonable. He also took into account that the Grievor had to mitigate his damages and deducted any other income he earned during the one-year period, thereby avoiding the error made by the arbitration board in Saskatchewan Arts Centre. [ 124 ] I am satisfied that the Arbitrator was correct in finding that the Grievor's decision to resign was caused by the applicant and that the mitigation requirement was satisfied.

C.iii.7 Forseeability [ 125 ] Finally, the applicant argues that the Arbitrator misapplied the doctrine of foreseeability. First, It argues that the foreseeability test is applicable to the time when the CA was made, not at the time of the breach. Second, relying on Kienzle, the applicant argues that the test is about forseeability of risk.

The parties could not reasonably have foreseen that an employee would terminate the employment contract instead of using the grievance procedure and then obtain damages as if they had been wrongfully dismissed. [ 126 ] Attempting to analyze the intentions of the parties at the time of the execution of the CA is artificial and unhelpful in view of the lack of evidence provided by the applicant. [ 127 ] A more realistic and helpful approach is to apply the comments in Kienzle.

In that case, Zuber J.A. noted the policy considerations behind the words "reasonably foreseeable" or "within the contemplation of the parties" used in Hadley stating: [21] It may be helpful to recognize that in using the terms "reasonably foreseeable" or "within the reasonable

contemplation of the parties" courts are not often concerned with what the parties in fact foresaw or contemplated. (I leave aside those cases where the disclosure of special facts may lead to the conclusion that a party has assumed an extraordinary risk.) The governing term is reasonable and what is reasonably foreseen or reasonably contemplated is a matter to be determined by a court.

These terms necessarily include more policy than fact as courts attempt to find some fair measure of compensation to be paid to those who suffer damages by those who cause them. (See Reiter & Swan, Studies in Contract Law, (1980), p. 61, study 3, Katherine Swinton, "Foreseeability: Where Should the Award of Contract Damages Cease?"). [ 128 ] The Arbitrator balanced the policy considerations behind the employer's breach of the CA and the remedy needed to put the Grievor back in the same position he would have been in if the breach had not occurred. [ 129 ] Another policy consideration is the applicant's concern that the Arbitrator's award will open the floodgates by changing the basic principle of labour law to "work now and grieve later".

It will undermine the grievance procedure that is fundamental to collective agreements and lead to resignations in the face of harassment. I am satisfied that this concern is not well founded. The facts in this case are unique and will be easily distinguished in other cases. They will remind employers about the importance of taking quick action to address the harassment and remind unions about the importance of responding quickly by filing a grievance if the employer fails to act. [ 130 ] I am satisfied that the Arbitrator was correct in concluding that the resignation was reasonably foreseeable. IV.

CONCLUSION [ 131 ] The Arbitrator did not apply the principles of constructive dismissal in awarding the Grievor loss of wages. He correctly applied basic contract law to grant a remedy as he was authorized to do under the general remedial powers possessed by arbitrators and

Article 35.23 of the CA. [ 132 ] If I am incorrect about the standard of review being "correctness," it follows that I find the Arbitrator's findings met the reasonableness standard. [ 133 ] The application is dismissed and the respondent is awarded costs. As noted in Nunavut v Nunavut Teachers 2010 NUCJ 18 , 2010 CarswellNun 15, the tariff is out of date. The respondent is awarded lump sum costs of $3500 inclusive of disbursements.