Newfoundland v. Labracor, 2018 NLSC 14

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Newfoundland and Labrador Association of Public and Private Employees v. Newfoundland and Labrador , 2018 NLSC 14 Date : January 29, 2018 Docket : 201601G6692 Between: Newfoundland and Labracor ASSOCIATION OF PUBLIC AND PRIVATE EMPLOYEES Applicant And: Her Majesty the Queen IN RIGHT OF NEWFOUNDLAND AND LABRADOR Respondent Before: Justice Deborah J. Paquette On Judicial Review From: A Decision of a consensual arbitral tribunal (W. John Clarke, Q.C., C.Arb., C.Med., Sole Arbitrator) dated the 12th day of September, 2016.

Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 20, 2016 Appearances: Paula M. Schumph Appearing on behalf of the Applicant David G. Rodgers Appearing on behalf of the Respondent

Authorities Cited: CASES CONSIDERED: Dunsmuir v. New Brunswick, 2008 SCC 9; Canada Post Corp. v. CPAA, 2016 NLTD(G) 101; Muskrat FallsEmployers’ Assn. Inc. v. Resource Development Trades Council of Newfoundland and Labrador, 2015 NLTD(G) 150; Weir’sConstruction Limited. v. Warford (Estate), 2018 NLCA 5; C.J.A. Local 579 v Bradco Construction Ltd., (SCC), [1993]2 SCR 316; M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 SCC 59; Resource Development Trades Council ofNewfoundland and Labrador v. Long Harbour Employers Assn. Inc., 2012 NLTD(G) 114; N.L.N.U. v.

Newfoundland & Labrador(Treasury Board), 2011 SCC 62 STATUTES CONSIDERED: Labour Relations Act, RSNL 1990 c L-1 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Paquette, J.: INTRODUCTION [1] The applicant union (“Union”) seeks judicial review of an Arbitration Award dated 12 September 2016 denying shiftdifferential payments for highway maintenance employees during the compressed summer work week. [2] Pursuant to a Memorandum of Agreement (“MOA”) included in the Collective Agreement, if a majority of employees vote towork compressed summer hours, their regular eight-hour (8:00 a.m. to 4:00 p.m.), five-day work week evolves into a ten-hour (7:00a.m. to 5:30 p.m.), four-day work week with a three-day weekend.

Article 10.07 of the Collective Agreement provides that a premiumwill be paid where employees work other than between the hours of 8:00 a.m. and 5:00 p.m. The Employer and Union disagree aboutthe application of

Article 10.07 to the compressed summer schedule. The Arbitrator found that the key provisions were unclear whenread together and considered past practice and negotiating history between the parties. This revealed that since the inception ofcompressed summer work schedules, a shift differential for the hours worked beyond the eight-hour regular

schedule had not been paidwith the exception of a half hour wage differential from 4:00 p.m. to 4:30 p.m. which was paid to all employees at the time, irrespectiveof whether they were working a compressed schedule. ISSUES [3] The dispute concerns whether employees working 10-hour shifts pursuant to the MOA are entitled by the terms of theCollective Agreement to shift differential payments for the hours worked outside the regular hours of 8:00 a.m. and 5:00 p.m.

They seeka premium wage for the one hour worked before 8:00 a.m. and for the one and a half hours worked after 4:00 p.m. [4] Foremost, the Union states that the Arbitrator erred when he considered past practice and negotiating history, given the plainmeaning of the Collective Agreement and MOA. Standard of Review [5] The parties agree that the standard of review is reasonableness. As articulated by the Union, the issue before the Court iswhether the Arbitrator’s reasons, read together with the outcome, fall within a range of possible outcomes.

BACKGROUND [6] The parties entered into a province-wide Maintenance and Operational Services Collective Agreement for the term 13November 2013 to 31 March 2016. The Collective Agreement provided for a wage differential based on hours worked in a regular workweek. This is found in

Article 10.07: Clause 10.07 (

a) Effective date of signing, other than Employees whose shifts times begin and end between the hours of 0800 and 1700,employees shall be paid a premium of two dollars and thirty cents ($2.30) per hour for each hour worked between 1600 and 0800 hours.

(

b) Effective date of signing, a Saturday and Sunday differential of two dollars and fifty-0five cents ($2.55) per hour shall be paid for each hour worked by an employee between the hours of 0001 Saturday and 2400 Sunday. If an employee qualifies for both differentials under (

a) and (

b) above, she’he shall receive both. [ 7 ] The previous

Article 10.07 which it replaced, stated: 10.07 An employee required to work shifts shall receive the following payment per hour for each hour worked in the 1600 hours to 2400 hour shift and the 2400 hour to 0800 hour shift: Effective date Rate 2008 04 01 0.72 cents [ 8 ] The MOA remained essentially unchanged in the new Collective Agreement.

It provided as follows with respect to the compressed work week: The parties to this Memorandum of Agreement recognize the majority desire of all employees, as covered by the Maintenance and Operational Services (M.O.S.) Collective Agreement, of the Department of Transportation and Works in Regional Transportation Operations, to engage in a compressed work week

schedule and thus agree: 1. A working

schedule shall be introduced during the 2001 summer maintenance period, commencing May 14 (or the nearest Monday to that date) of one year and ending September 14 (or the nearest Friday to that date) of that year. 2. The scheduled work week shall be comprised of four (4) days and the scheduled work day shall be ten (10) hours, exclusive of meal breaks which shall be of one-half (1/2) hour duration. 3. The work day will commence at 7:00 am and end at 5:30 pm, which shall include the lunch break stipulated in Clause 2. 4. Subject to Clause 10:10 of the M.O.S.

Collective Agreement, overtime shall be paid at the rate of time and one-half (1½) for hours worked in excess of the scheduled work week (40 hours) or work day (10 hours). 5. The

schedule will be designated as Monday through Thursday each week during the period specified in Clause 1. Each employee shall receive three (3) days off each weekend, unless recalled for overtime purposes. 6. Each employee shall be permitted rest periods of twenty (20) minutes in the morning and fifteen (15) minutes in the afternoon. [ 9 ] In brief, the former

Article 10.07 of the Collective Agreement established the regular work day as 8:00 a.m. to 4:00 p.m. The current Collective Agreement sets the hours at 8:00 a.m. to 5:00 p.m. with the result that the payment of the ½-hour shift differential was discontinued. This was the only shift differential paid to employees working the compressed summer

schedule and was also paid to employees working the regular hours. A witness for the Employer testified that the change to

Article 10:07 was negotiated to standardize shift differentials in all collective agreements. (Award at page 7) The Employer had introduced evidence that the compressed summer

schedule was an alternative arrangement that was intended to be cost neutral, and that it had a long history of cost neutrality. [Ellis, Hicks, Harvey at page 6] [ 10 ] The Union argued that even though the shift differential had never been paid in the past during the compressed summer work week (with the exception of ½ hour pursuant to the former

Article 10.07(a)) the Employer could not raise past practice to advance an estoppel argument because they had entered into a new Collective Agreement and the Union had not represented to the Employer that past practice would continue. Evidence disclosed that the payment of shift differential in the context of a compressed summer work week would cost the Employer approximately $965,000 during the term of the Collective Agreement. The Employer’s position was that it had relied upon that past practice and that the new wording adopted in

Article 10.07 did not end the practice of cost neutrality. [ 11 ] The Union states also that the MOA does not override

Article 10.07 and by way of example, referred to

Article 12 of the MOA: “All other provisions of the M.O.S. Collective Agreement shall continue to apply and will not be modified, abridged or otherwise altered by this Agreement.” A separate Memorandum of Agreement dealing with 12-hour shifts specifically stated that it would not “result in any additional cost to the Department.” The Union argued that the Employer could have insisted that this language be put in the MOA.

It pointed out that no evidence was presented to establish that the Union shared the Employer’s intent that the shift differential would not apply to the compressed summer schedule. [ 12 ] An application by the Employer to introduce fresh evidence was heard by the Arbitrator and was denied. ANALYSIS [ 13 ] The Supreme Court of Canada in Dunsmuir v.

New Brunswick , 2008 SCC 9 explained the reasonableness standard of review at paragraph 47: 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. [ 14 ] Recent decisions in this jurisdiction have considered the application of the reasonableness test set out in Dunsmuir . [ 15 ] In Canada Post Corp. v.

CPAA , 2016 NLTD(G) 101, Orsborn, J. discusses the reasonableness standard established by the Supreme Court of Canada at paragraphs 28 and 70: 28 The explicit direction from the Supreme Court of Canada is that judges are to look at a decision as an organic whole and must not, in effect, go through a tribunal's ruling with a fine tooth comb searching for error. A review for reasonableness must accord respect to the arbitrator's factual and legal conclusions. The reviewing judge's agreement or disagreement with the decision is irrelevant. 70 The arbitrator was required to assess reasonableness.

The concept of reasonableness does not lend itself to the formulation of fixed and immutable conclusions or to a particular reasoning process. One arbitrator's assessment of reasonableness might differ from that of another arbitrator. I am bound to give significant deference to the decision of an arbitrator operating within his core jurisdiction. This direction applies with even more force when reviewing an arbitrator's own determination of reasonableness.

The reviewing judge must look at the decision as a whole, not be critical of arguments not addressed and, where appropriate, supplement the reasons given by the arbitrator. The underlying policy is to allow the effective and efficient operation of the grievance resolution process without undue interference, intervening only when absolutely necessary. [ 16 ] Orsborn, J. in Muskrat Falls Employers’ Assn. Inc. v.

Resource Development Trades Council of Newfoundland and Labrador , 2015 NLTD(G) 150 analyzes the adequacy of reasons in the context of whether the decision falls within the range of reasonable outcomes at paragraphs 25 and 26: 25 The Newfoundland and Labrador Nurses' Union decision instructs that if an arbitrator is 'alive to the question at issue', and has crafted a reasonable outcome, a reviewing court should not interfere.

I take this to mean that if it is apparent that the arbitrator has understood the question raised by the grievance and has answered the question raised by the grievance, an outcome within the range of reasonable outcomes will be considered reasonable, even in the absence of reasons. 26 The decision thus suggests that, at least in the labour relations grievance arbitration context, an arbitrator's reasons, or lack thereof, have little role to play in assessing a decision for reasonableness.

Unless the offered reasons demonstrate an "egregious error", a reviewing court should be very hesitant to find unreasonableness in the reasoning of the arbitrator. In balancing any faults in the reasoning process and expediency in decision-making, the balance will favour expediency. [ 17 ] The Newfoundland and Labrador Court of Appeal in Weir’s Construction Limited v. Warford (Estate) , 2018 NLCA 5 applied the Dunsmuir test for reasonableness at paragraph 36: 36 In

summary, the applications judge erred in his assessment of the reasonableness of the commission’s decision and in his determination that the decision was unreasonable.

The Commission canvassed appropriate authority, considered relevant factors, including the language of the legislation and the statutory context and purpose, gave reasons, and adopted a meaning of “as a result of an accident involving the use of a motor vehicle” that “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” ( Dunsmuir , at paragraph 47 ). [ 18 ] The Union submits that the Award is unreasonable because the Arbitrator considered the past practice of the parties instead of considering the plain meaning of the language employed in the Collective Agreement.

It places considerable emphasis on the new wording of

Article 10.07 in support of its position that the decision of the Arbitrator was unreasonable. The Union submits that the language in

Article 10.07 had changed, thereby ending any estoppel argument. The arguments advanced by the Union were considered by the Arbitrator and are reflected in his Award. [ 19 ] The Arbitrator examined

Article 10.07(

a) and the MOA at page 19 of the Award: Is this collective agreement clear and the meaning free from doubt?

Article 10.07 (

a) states that, other than employees whose shift times begin and end between the hours of 8 am and 5 pm, employees shall be paid a premium for each hour worked between 4 pm and 8 am. There appears to be no patent ambiguity in that clause. If the employee’s shift begins and ends between 8 am and 5 pm, they are excluded from shift differential. … There is no definition of “shift” in this collective agreement, only that if a shift begins and ends between 8 am and 5 pm the employees working that shift will not be entitled to a shift differential for time worked between 4 pm and 8 am.

In Clause 3 of the M.O.A. is stated that the work day will commence at 7am and end at 5:30 pm including the break. This is the shift for the summer season. That shift does not begin and end between 8:00 am and 5:00 pm. By setting that schedule, all hours worked between 4:00 pm and 8:00 am in the

summer are at premium/differential rates. Does it make sense for the parties, having determined that hours worked outside of an 8 to 5shift shall be at premium or differential rates, to then set about writing a clause in a memorandum which would, knowing that situation,guarantee a differential/premium for all employees covered? In my opinion, without convincing evidence, it does not make sense. [20] He wrote that he had “considerable doubt” about the relationship between

Article 10.07 of the Collective Agreement and theMOA, when examined side-by-side, writing at pages 19 and 20: In the present case, I have considerable doubt about the meaning of the relationship between

article 10.07 of the Collective Agreementand the Memorandum of Agreement for Compressed Work Week-Highway Maintenance. The words of

article 10.07, as argued by theunion, appear to be consistent with the

interpretation put forward by the union. The words of

article 3 and 4 of the Memorandum appearto make sense standing alone. However, when the two sit side-by-side there appears to me to be confusion. Why would an employerpay a premium of $2.30 per hour to all shift workers, except those whose shifts begin and end between 8 am and 5 pm (which apparentlyno shifts do in the summer), for all hours worked between 4 pm and 8 am. There is a conflict between the two situations which I amunable to reconcile. … The lack of clarity is heightened when, on the face of it, the change in work day

schedule is done simply at therequest of the majority of the employees at a cost of in excess of $900,000 in total to the employer. … In order to properly assess whether the doubt is baseless or justified, it is my view that a review of the bargaining history of these twoparties is justified in the circumstances. [21] The Arbitrator further analyzed the revised

Article 10.07 with its predecessor and the wording of the MOA in the previousCollective Agreement at page 21: While it is true that

Article 10.07 changed in the March 31, 2016 expiry agreement, the effect of the change has no bearing on what theunion is presently asserting. The old wording of

article 10.07 spoke of payments to employees who worked the shift between 4 pm andmidnight and between midnight and 8 am. The new language of

article 10.07 speaks of payments to employees who work between 4 pmand 8 am which is the identical time frame as in the 2012 agreement, only worded slightly differently. Evidence of emailcommunications between various managers and Ms. Ellis confirmed that no managers in the various divisions of the department had paidthe shift differential in the summer

schedule now claimed by the union. [22] He notes at pages 21 and 22: … Nowhere in this new

article 10.07 is there any mention of a change in the practice of not paying shift differential on the revisedsummer

schedule which practice had been ongoing for quite some time prior to the March 31, 2016 expiry agreement. It is clear thatchanges were made in

article 10.07 but I am not convinced that those changes were such as would give the employer any warning thatthe previous practice of not paying the requested shift differential in the compressed work week was now at an end and from now on theemployer would be expected to pay shift differential simply at the request of a majority of employees which could amount in total to inexcess of $900,000. There was no evidence from either side of what actually occurred at negotiations or whether this issue was evenaddressed by the parties. … … In short, while there is some change in the wording in

article 10.07 of the current collective agreement, in my opinion, that change isnot sufficient or sufficiently directed at the issue alleged by the union to convince me that a change in the method of dealing with this situation had occurred. [23] The Arbitrator had reviewed the law as it relates to the consideration of extrinsic evidence, writing at page 18: Extrinsic Evidence The next issue for resolution is if, and the extent to which, extrinsic evidence can be used otherwise in this case.

As pointed out inMitchnick and Etherignton, Labour Arbitration in Canada, (2d ed.) at page 399: “At common law, evidence extrinsic to a written agreement, or ‘parole evidence’, is generally inadmissible to contradict, vary, add to orsubtract from the terms of the agreement. Where the terms of the written agreement are ambiguous, however, extrinsic evidence, suchas past practice of negotiating history, may be admissible as an aid to

interpretation in order to resolve the ambiguity. At page 400 the authors go on to explain that: “The ‘parole evidence rule’ precludes the admission of extrinsic evidence unless an ambiguity, either ‘patent’ or ‘latent’, can be shown. Language that is patently ambiguous is unclear on its face; language is said to be latently ambiguous when certain facts relating to itsnegotiation or application reveal a lack of clarity.

Consistent with the latter concept, courts have held that where a party alleges latentambiguity in the agreement, extrinsic evidence may be admissible not only to resolve the ambiguity, but also to prove the existence of anambiguity in the first place.” See generally Noranda Metal Industries Ltd. v. IBEW, Local 2345 (1983), (ON CA), 44O.R. (2d) 529 (C.A.)and Leitch Gold Mines Ltd. v. Texas Gulf Sulphur Co. Inc. (1968), (ON SC), 3 D.L.R. (3d) 161

(Ontario High Court). [24] He stated that a consensus appeared to have been established “over the years” that a wage differential not be paid whereemployees voted to work a compressed summer schedule, writing at page 22: Based purely upon the language of

article 10.07 of the collective agreement standing alone and clause 3 of the Memorandum ofAgreement standing alone the union

interpretation has some merit. However, that changes when the two articles are examined side-by-side. In light of the dealings between the parties over the years I must deny the grievance.

If there is to be an end to the previouspractice and a beginning of a new more expensive practice, I would have expected to see evidence that the parties directed their minds tothat issue in collective bargaining and that evidence should have been presented at the hearing. [25] The Arbitrator was satisfied that it was appropriate to review the bargaining history between the parties in aid of hisinterpretation of the Collective Agreement and MOA.

Reasonableness of Award [26] The Union submits that the use of extrinsic evidence was unreasonable because the Arbitrator should only have considered theplain meaning of the Collective Agreement and MOA. The Employer states that having found the interaction between the MOA andArticle 10.07 unclear, it was reasonable that he relied upon extrinsic evidence of past practice in order to understand the ambiguity, all inreliance upon relevant jurisprudence. [27] In C.J.A.

Local 579 v Bradco Construction Ltd., (SCC), [1993] 2 SCR 316 the Supreme Court of Canadaconsidered an arbitrator’s use of extrinsic evidence and held that the Arbitrator’s decision to use extrinsic evidence is reviewable on thestandard of reasonableness, writing at paragraphs 47 and 48: 47 Section 84(1) of The Labour Relations Act, 1977 provides that the arbitrator may receive and accept such evidence as he deemsadvisable whether or not it would be admissible in a court of law.

By s. 84(1), the legislator has specifically indicated that the arbitratorneed not concern himself with the common law rules governing the admission of extrinsic evidence, including the debate as to whetheran ambiguity need be patent or latent or even exists at all. In dealing with a similar provision in the Ontario Labour Relations Act, theOntario Court of Appeal stated in Noranda Metal Industries Ltd., Fergus Division v.

I.B.E.W., Local 2345 (1983), (ON CA), 44 O.R. (2d) 529, that the provision was designed "to permit an arbitrator to rely on relevant evidence even where suchevidence is not admissible in a court of law" (p. 538). While provisions such as these do not oust judicial review completely, they enablethe arbitrator to relax the rules of evidence. This reflects the fact that arbitrators are often not trained in the law and are permitted toapply the rules in the same way as would be done by reasonable persons in the conduct of their business.

Section 84(1) evinces alegislative intent to leave these matters to the decision of the arbitrator. Accordingly, an arbitrator's decision in this regard is notreviewable unless it is shown to be patently unreasonable. While failure to give effect to a rule of privilege or an exclusionary rule ofevidence which embodies an important aspect of public policy might, without more, attract review, the use of extrinsic evidence tointerpret a collective agreement is very much in the core area of an arbitrator's function.

In this regard, the Court is not apt to interveneprovided the approach adopted by the arbitrator with respect to the use to be made of the evidence assists in determining the trueintention of the parties. 48 The arbitrator in this case was of the opinion that he was entitled to rely on the Harris report if the terms of the agreement were notclear and unambiguous. In my view, this was not an unreasonable approach. He was not required to attempt to apply the rules of evidenceas to what constitutes ambiguity, but merely to reasonably conclude that the collective agreement was unclear.

In this regard, thefollowing statement by Gonthier J. in the National Corn Growers case is instructive [p. 1371]: The first comment I wish to make is that I share the appellants' view that in circumstances where the domestic legislation is unclear it isreasonable to examine any underlying international agreement. In interpreting legislation which has been enacted with a view towardsimplementing international obligations, as is the case here, it is reasonable for a tribunal to examine the domestic law in the context ofthe relevant agreement to clarify any uncertainty.

Indeed where the text of the domestic law lends itself to it, one should also strive toexpound an

interpretation which is consonant with the relevant international obligations. That passage was referring to the

interpretation of statutory provisions which implemented an international agreement, but I see noreason why it should not be equally applicable to the

interpretation of an agreement such as a collective agreement. [28] Subsection 88(1) of the Labour Relations Act, RSNL 1990 c L-1 is similar to the Ontario statute referred to in Bradco. Itprovides: 88(1) An arbitration board appointed under a collective agreement or in accordance with this Act (

a) may determine its own procedure, but shall give full opportunity to the parties to the proceeding to present evidence and makesubmissions to it; (

b) has in relation to a proceeding before it, power to

(

i) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath or affirmation and to produce those documents and things that the arbitration board considers necessary to the full investigation and consideration of a matter that is within its jurisdiction and before it in the proceeding, (ii) administer oaths and affirmations, (iii) receive and accept the evidence and information on oath, affidavit or otherwise that the arbitration board considers desirable, whether admissible in a court of law or not, and (iv) enter the premises of an employer where work is being done by an employee and inspect and view work, materials, machinery, appliances or articles there and interrogate persons respecting a matter that is before the arbitration board in the proceeding; and (

c) has power to determine a question as to whether a matter referred to the arbitration board is arbitrable. [underlining added] [ 29 ] The Union advances that the Arbitrator relied upon his personal opinion to find an ambiguity, in disregard to the rules of evidence, thereby exceeding the standard of reasonableness. I disagree. I am satisfied that the Arbitrator’s finding that

Article 10.07 of the Collective Agreement and the MOU were unclear arose from his analysis of the record before him. He also reviewed the caselaw and arbitral jurisprudence in his decision to consider past practices of the parties and their negotiating history. This evidence demonstrated that over the course of the long history of compressed summer schedules of shift differential payments as sought here, had never been paid. [ 30 ] As the Supreme Court of Canada explained in Bradco , the Arbitrator was entitled to rely on the extrinsic evidence as an aid to

interpretation upon his finding that the provisions were unclear when read together. [ 31 ] The Union also argues that the Arbitrator misconstrued the principle of estoppel, without sufficient evidence. The Employer submits that an arbitrator can fashion estoppel to the unique circumstances of labour relations. The extrinsic evidence had established the long-standing practice that a shift differential was never paid during the compressed summer work week, other than payment of one- half hour. The Arbitrator found that nothing in the changes made to

Article 10.07 would have alerted the Employer to the Union’s intention to change the practice, which involved considerable cost to the Employer. [ 32 ] In M.A.H.C.P. v. Nor-Man Regional Health Authority Inc. , 2011 SCC 59 the Supreme Court of Canada addressed the use of estoppel in the

interpretation of collective agreements. The Court stated at paragraph 5: “Labour arbitrators are not legally bound to apply equitable and common law principles - including estoppel - in the same manner as courts of law.

Theirs is a different mission, informed by the particular context of labour relations.” The standard of review for the application of estoppel in the context of labour relations is reasonableness ( Nor-Man at para. 4). [ 33 ] Writing for the Court, Fish, J. explained the unique position of the Arbitrator in fashioning a remedy such as estoppel in the field of labour relations at paragraphs 27, 28, 44, 49 and 51: 27 For the sake of clarity, I pause here to mention that the arbitrator never mentioned "promissory estoppel". Nor did he purport to apply the doctrine of promissory estoppel as a matter of law.

Rather, like the precedents on which he relied, the arbitrator simply referred to the remedy he awarded as an "estoppel". 28 In fairness to the Court of Appeal, I acknowledge that the estoppel applied by the arbitrator resembles promissory estoppel more closely than any of the other estoppels identified by this Court in Ryan v. Moore , 2005 SCC 38 , [2005] 2 S.C.R. 53 (S.C.C.), at para. 52 . It nonetheless remains an arbitral remedy and not a strict application by the arbitrator of the doctrine of promissory estoppel applicable in courts of law. 44 Common law and equitable doctrines emanate from the courts.

But it hardly follows that arbitrators lack either the legal authority or the expertise required to adapt and apply them in a manner more appropriate to the arbitration of disputes and grievances in a labour relations context. 49 Labour arbitrators are uniquely placed to respond to the exigencies of the employer-employee relationship. But they require the flexibility to craft appropriate remedial doctrines when the need arises: Rigidity in the dispute resolution process risks not only the disintegration of the relationship, but also industrial discord.

51 Reviewing courts must remain alive to these distinctive features of the collective bargaining relationship, and reserve to arbitratorsthe right to craft labour specific remedial doctrines. Within this domain, arbitral awards command judicial deference. [34] Nor-Man confirmed that an Arbitrator’s finding that an estoppel was established must be reviewed on the standard ofreasonableness. This principle was noted by the Newfoundland and Labrador Court of Appeal in N.A.P.E. v.

Newfoundland andLabrador Health Board Association, 2012 NLCA 81 at paragraph 21: 21 Following the release of the decision of the applications judge, the Supreme Court of Canada rendered decisions in M.A.H.C.P. v.Nor-Man Regional Health Authority Inc., 2011 SCC 59, [2011] 3 S.C.R. 616 (S.C.C.) ("Nor-Man") and on the appeal from the NLNUdecision of this Court, 2011 SCC 62 , [2011] 3 S.C.R. 708 (S.C.C.).

The decision in Nor-Man held that applications of thedoctrine of estoppel by labor arbitrators will be reviewed on the standard of review of reasonableness, reversing the Manitoba Court ofAppeal finding that a correctness standard of review applied. This decision also effectively reversed the standard of review of correctnessapplied by this Court in the NLAPPE decision. [35] In support of the position that the Adjudicator unreasonably applied estoppel, the Union refers to Resource DevelopmentTrades Council of Newfoundland and Labrador v. Long Harbour Employers Assn.

Inc., 2012 NLTD(G) 114. [36] There, the court pointed out that the Arbitrator had considered extrinsic evidence to determine whether a past practice existedsuch as would support estoppel. The evidence, however, did not disclose a past practice in relation to the computation of work week, theissue in that case: 22 The Arbitrator then went on to comment that there was no evidence of a representation by the LHEA about the board allowance orthe starting day of the rotation prior to the settlement of the terms of the Collective Agreement.

In this regard he found that this presentcase distinguishes itself from other cases where there was a longstanding work practice by an employer over successive collectiveagreements and, in reliance on the practice, the union did not seek to negotiate applicable language in the collective agreement. He statedthat in the present case there was no evidence of a detrimental reliance by the RDTC on a work practice when it negotiated theCollective Agreement. The practice in which the RDTC relies commenced after the Collective Agreement was in effect.

He found thatthe practice was that the LHEA established a seven-day rotation starting on Wednesday and under which employees were paid fourteendays' board allowance. The LHEA changed the starting day to Monday and reduced the board allowance to seven days. In thesecircumstances, the Arbitrator found that it was not established that the RDTC or the Teamsters Union relied on a practice to theirdetriment.

Therefore, detrimental reliance, one of the essential elements of estoppel, was not proven and he concluded that the principleof estoppel does not operate in the circumstances of this case. [37] I am satisfied that the Arbitrator was alive to the issues raised before him and reached a reasonable outcome. (N.L.N.U. v.Newfoundland & Labrador (Treasury Board), 2011 SCC 62 at para. 26) He sets out the legal principles governing the use of extrinsicevidence and carefully canvasses the positions of the parties. Once he determined that the interaction of

Article 10.07 and the MOA wasunclear, the use of extrinsic evidence established that there had been a long practice in which the compressed summer

schedule operatedas an alternative arrangement that did not trigger the payment of a shift premium. The Union had not presented evidence that it hadadvanced an intention to implement “a new, more expensive practice”. Its sole reliance on new wording in

Article 10.07 failed as theArbitrator concluded that the change was not directed to the issue now advanced by the Union. He accordingly denied the Union’sposition that the practice of cost neutrality ended with the negotiation of the new

Article 10.07. The authoritative decisions referred toabove relating to the use of extrinsic evidence in the area of past practice and negotiating history and the ambit of estoppel in the area oflabour relations support the reasonableness of the Award. [38] In accordance with the standard of reasonableness as articulated by the Supreme Court of Canada, I find that the Awardpresents “justification, transparency and intelligibility” in the Arbitrator’s reasoning process. (Dunsmuir at para. 47) disposition [39] The application is dismissed.

The Employer is entitled to its costs in accordance with the Rules of the Supreme Court, 1986,S.N.L. 1986, c. 42, Sch. D, Scale of Costs, Column III. _____________________________ DEBORAH J. PAQUETTE Justice