Canada Post Corporation Applicant And: Canadian Union of Postal Workers Respondent, 2021 NLSC 33

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Canada Post Corporation v. Canadian Union of Postal Workers , 2021 NLSC 33 Date : March 11, 2021 Docket : 201904G0145 Between: Canada Post Corporation Applicant And: Canadian Union of Postal Workers Respondent Before: Justice George L. Murphy Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: May 22, 2020

Summary: Canada Post sought judicial review of the decision of an arbitrator in which he extended the time limit for the filing of a grievance pursuant to section 60(1.1) of the Canada Labour Code . The Court found that the decision did not meet the reasonableness standard and should be quashed on the basis of errors by the arbitrator in his analysis of the section 60(1.1) issue. Appearances: Caroline M. Richard Appearing on behalf of Canada Post

Corporation David J. Roberts Appearing on behalf of Canadian Union of Postal Workers Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Canadian Union of PostalWorkers v. Canada Post Corp. (Macera Grievance, CUPW 350-95-19769, Arb. Gagnon), [2001] D.A.T.C. 56; Canada Post Corp. andC.U.P.W. (Lane) (Re), (CA LA), [2005] C.L.A.D. No. 567; Canada Post Corp. v. C.U.P.W. (1990), (NS SC), 96 N.S.R. (2d) 232, 20 A.C.W.S. (3d) 77 (N.S. S.C. (T.D.)); Dunsmuir v.

New Brunswick, 2008 SCC 9; and CUPW v.Canada Post Corporation re Judith Harvey (Goose Bay Local Grievances) (8 February 2019) STATUTES CONSIDERED: Canada Labour Code, R.S.C. 1985, c. L-2; and Canada Post Corporation Act, R.S.C. 1985, c. C-10 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Murphy, J.: INTRODUCTION [1] This is an application by Canada Post Corporation (“Canada Post”) for judicial review of a decision of Arbitrator BruceArchibald (“Arbitrator Archibald”) dated April 10, 2019 (the “Decision”). [2] The application alleges that the Decision was unreasonable and absurd and ought to be quashed and the grievance which gaverise to the Decision remitted to another arbitrator for a new hearing. background [3] Ms. Eleanor Clarke was employed with Canada Post on a casual basis in Port aux Basques, Newfoundland and Labrador.

By aletter dated April 25, 2012 (the “Termination Letter”), Canada Post purported to terminate the employment of Ms. Clarke pursuant toArticle 44.11(

b) of the Collective Agreement between Canada Post and the Canadian Union of Postal Workers (the “Union”) (the“Collective Agreement”) on the basis that she had failed to demonstrate reasonable availability in the acceptance of work assignments. [4] The Termination Letter was sent to Ms. Clarke’s last known mailing address and it was signed for and picked up by herhusband on April 27, 2012. Ms. Clarke testified before Arbitrator Archibald that the practice in their household was for her husband topick up the mail for her. [5] On September 19, 2017, the Union filed a grievance on behalf of Ms. Clarke.

It alleged that her termination was contrary to theCollective Agreement (the “Termination Grievance”). [6] The Termination Grievance was referred to Arbitrator Archibald and on March 13, 2019 the hearing of the TerminationGrievance took place. At the outset of the hearing Canada Post raised a preliminary objection to the Arbitrator’s jurisdiction to hear theTermination Grievance on the basis that it had not been filed within the time period provided for in the Collective Agreement. [7]

Article 9.10 of the Collective Agreement dealt with the time limit within which a grievance was to be filed and stipulated thatit was to be filed not later than 25 working days after the date on which the employee first became aware of the action or circumstancesgiving rise to the grievance. In this case, the Termination Grievance was filed more than five years after the Termination Letter had beensent to Ms. Clarke and picked up by her husband. [8] At the hearing of the preliminary objection before Arbitrator Archibald, the Union called Ms.

Clarke as a witness and shetestified that she had never received the Termination Letter. She further testified that she understood that a separate, earlier grievancefiled on her behalf alleging she had been wrongly passed over for work opportunities (the “Bypass Grievance”) would resolve her issueswith Canada Post. [9] The Collective Agreement provides for two arbitration procedures, specifically the regular arbitration procedure and a formal

arbitration procedure. The Bypass Grievance had been filed on May 11, 2011 and related to events which took place prior to the date of filing. It was filed under the regular arbitration procedure and alleged that Canada Post had improperly called employees into work with less seniority than Ms. Clarke. Arbitrator Wayne Thistle (“Arbitrator Thistle”) was appointed to hear the Bypass Grievance and he held a hearing on June 15, 2017. Ms. Clarke testified that she only became aware of her termination at this hearing.

Arbitrator Thistle issued his decision (the “Thistle Award”) on the Bypass Grievance on September 15, 2017. In addition to deciding that Ms. Clarke had been improperly bypassed for work, he purported to extend Ms. Clarke’s time to file a grievance regarding her termination to within 25 days from the receipt of his decision on the Bypass Grievance. He purported to do this on the factual basis that there was no evidence that Ms. Clarke was in receipt of the Termination Letter.

It was four days later on September 19, 2017 that the Termination Grievance was filed. [ 10 ] The Termination Grievance was filed under the formal arbitration procedure. In the Decision on the preliminary objection, Arbitrator Archibald concluded that the time limit for the filing of the Termination Grievance should be extended pursuant to section 60(1.1) of the Canada Labour Code , R.S.C. 1985, c. L-2 so that it could be considered on its merits. It is this Decision that Canada Post seeks to quash. issues [ 11 ] The issues to be decided on this application are as follows: a.

What is the appropriate standard of review to be applied by this Court in reviewing the Decision of Arbitrator Archibald? b. Did Arbitrator Archibald exceed his jurisdiction and commit an error of law by failing to follow arbitral jurisprudence? c. Did Arbitrator Archibald exceed his jurisdiction and commit an error of law by relying upon the arbitral award of Arbitrator Thistle in the Bypass Grievance? d.

Did Arbitrator Archibald make errors of fact and law in his assessment of whether the time limit for filing of the Termination Grievance should be extended pursuant to section 60(1.1) of the Canada Labour Code ? standard of review [ 12 ] The Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 clarified the law regarding the standard applicable to the judicial review of administrative decisions.

The Court recognized that there was a need for greater coherence and predictability in the analysis for determining the standard of review and therefore adopted a revised framework. At paragraph 10 of the Joint Reasons for Judgment of the majority of the Court, it was stated: 10 . . . We have therefore adopted a revised framework for determining the standard of review where a court reviews the merits of an administrative decision. The analysis begins with a presumption that reasonableness is the applicable standard in all cases.

Reviewing courts should derogate from this presumption only where required by a clear indication of legislative intent or by the rule of law . [ 13 ] Thus, the presumptive starting point for the standard of review analysis is reasonableness. Vavilov outlines certain situations and circumstances where it is necessary to depart from the presumption of reasonableness; however, none of these apply to this case. Therefore, the appropriate standard of review applicable in this case is reasonableness. The parties agree on this issue.

Application of reasonableness standard [ 14 ] Vavilov also provided additional guidance for reviewing courts to follow when conducting a reasonableness review. It confirmed that the revised framework would continue to be guided by the principles underlying judicial review that were articulated in Dunsmuir v.

New Brunswick , 2008 SCC 9 , namely that judicial review functions to maintain the rule of law while giving effect to legislative intent. [ 15 ] As for the proper application of the reasonableness standard, the majority of the Court at paragraph 12 said: 12 These concerns regarding the application of the reasonableness standard speak to the need for this Court to more clearly articulate what that standard entails and how it should be applied in practice. Reasonableness review is methodologically distinct from correctness review.

It is informed by the need to respect the legislature's choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court.

In order to fulfill Dunsmuir's promise to protect "the legality, the reasonableness and the fairness of the administrative process and its outcomes", reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions: para. 28. [ 16 ] It was also made clear that the reasonableness standard is meant to recognize the specific role of administrative decision makers and that judicial restraint remains an important principle in cases of judicial review.

At paragraph 13, the majority said: 13 Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a "rubber- stamping" process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.

Thus, a reasonableness review involves the delicate balancing act of determining when it is necessary to intervene in the administrative decision making process. [ 17 ] At paragraph 15, the majority discussed the distinction between a reasonableness review and a correctness review: 15 In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness

review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker's place. [ 18 ] Vavilov confirmed that a reasonableness review must focus on the decision made by the administrative decision maker, including both the decision making process and the outcome.

It also confirmed that on such a review the court should not look at what decision it would have made, attempt to ascertain the range of possible conclusions, conduct a new analysis or seek to determine the correct solution to the problem. As the majority noted at paragraph 83: 83 . . . Instead, the reviewing court must consider only whether the decision made by the administrative decision maker -- including both the rationale for the decision and the outcome to which it led -- was unreasonable. [ 19 ] Thus, while the outcome is important, so is the process or reasoning used in arriving at the outcome.

The majority in Vavilov specifically clarified that post- Dunsmuir , jurisprudence from the Court should not be interpreted as meaning that on a reasonableness review a near exclusive focus on the reasonableness of the outcome was an acceptable approach. [ 20 ] In conducting the reasonableness review, it is important to keep in mind that the reasons of the administrative decision maker should not be assessed against a standard of perfection.

Instead, they should be assessed in light of the institutional context in which they were made and the history of the proceedings and while being mindful about the application of any specialized knowledge an administrative decision maker may have as demonstrated by their reasons. On the other side of the scale, the majority said at paragraphs 95 and 96: 95 That being said, reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it.

It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party. 96 Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines, at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion.

This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken. [ 21 ] The majority in Vavilov said that a reviewing court must develop an understanding of the reasoning process of the decision maker in order to determine whether the decision as a whole is reasonable. It directed what the reviewing court must examine to make this determination.

At paragraphs 99 and 100, the majority stated: 99 . . . To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness -- justification, transparency and intelligibility -- and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir, at paras. 47 and 74 ; Catalyst, at para. 13. 100 The burden is on the party challenging the decision to show that it is unreasonable.

Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep.

Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable. [ 22 ] The majority further went on to say that a reasonableness decision is one based on “internally coherent reasoning” and that is “tenable in light of the relevant legal and factual constraints that bear on it”. [ 23 ] In terms of internally coherent reasoning, the following was stated at paragraphs 103 and 104: 103 . . . a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis . . . .

A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken . . . or if the reasons read in conjunction with the record do not make it possible to understand the decision maker's reasoning on a critical point . . . . 104 Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. . . . [ 24 ] As regards the second criterion, tenable in light of the relevant legal and factual constraints that bear on it, it was held that to be reasonable the decision must be justified in relation to the constellation of law and facts that are relevant to the decision.

The majority did not attempt to set forth all of the legal and factual considerations that could constrain an administrative decision. It did, however, review

a number of elements that would be relevant in carrying out the reasonableness analysis. These were the governing statutory scheme;other relevant statutory or common law; the principles of statutory

interpretation; the evidence before the decision maker and facts ofwhich the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body;and the potential impact of the decision on the individual to whom it applies. [25] The majority went on to discuss each of these elements in some detail. On the element of statutory

interpretation, the majorityprovided some specific guidance to reviewing courts because of the differences in statutory

interpretation on a judicial review versuswhen the matter is before the reviewing court at first instance. At paragraph 116, the majority stated: 116 Reasonableness review functions differently. Where reasonableness is the applicable standard on a question of statutoryinterpretation, the reviewing court does not undertake a de novo analysis of the question or "ask itself what the correct decision wouldhave been": Ryan, at para. 50.

Instead, just as it does when applying the reasonableness standard in reviewing questions of fact,discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision makerand the outcome that was reached. [26] While I have specifically referred to only the element of statutory

interpretation, I must consider all relevant elements indetermining whether or not the Decision in this case is tenable in light of the relevant legal and factual constraints. [27] I will now move on to review the Decision of Arbitrator Archibald and the three substantive arguments which Canada Postalleges make the Decision unreasonable. failure to follow arbitral jurisprudence [28] Canada Post alleges that Arbitrator Archibald did not follow binding arbitral authorities dealing with the relevant provisions ofthe Collective Agreement which provide that it is the responsibility of a grievor to ensure receipt of a letter of termination once it is sentby Canada Post.

The two arbitral decisions referred to were the decision of Arbitrator Gagnon in Canadian Union of Postal Workers v.Canada Post Corp. (Macera Grievance, CUPW 350-95-19769, Arb. Gagnon), [2001] D.A.T.C. 56 (the “Gagnon Decision”) and thedecision of Arbitrator Cherktow in Canada Post Corp. and C.U.P.W. (Lane) (Re), (CA LA), [2005] C.L.A.D.

No.567 (the “Chertkow Decision”). [29] In the Gagnon Decision, Arbitrator Gagnon had to rule on a preliminary objection by the Union that a letter of discharge wasnull and void because it had not been given in advance of or at the same time as the discharge as required by the collective agreement.The letter had been sent to the last address the grievor had provided to the employer which was his mother’s home. It indicated that thedischarge was effective immediately.

The grievor was residing at a different address at the time and his evidence was that he read theletter the weekend following the date of same. [30] Arbitrator Gagnon denied the preliminary objection and found there had been compliance with the collective agreement. Atparagraphs 148 and 149 of the Gagnon Decision, he said: 148 When the employee is not present at work, it is difficult and sometimes impossible to serve him or her by hand with the noticestipulated in paragraph 10.01(a).

In his argument, counsel for the Employer cited a situation in which a letter providing notice of adisciplinary measure could never be delivered. He gave the example of using the delivery method of Certified Mail which would requirethe signature of a person living at the addressee's address, when no one is present at this address when the letter carrier passes on hisrounds.

He would leave a notice asking the addressee to pick up the letter at a postal outlet located at a specific address, but theaddressee of the letter might never call for the letter at the postal outlet, and after a few weeks, the letter would be returned to sender. Ibelieve that in such a case, the argument that the discharge would be null and void because the notice under paragraph 10.01(

a) hadnever been issued to the employee could not be accepted. This argument was also rejected in Hébert,13 in which Mtre. Guy E. Duludestated that it was incumbent on the employee to make the necessary arrangements to receive mail addressed to him. 149 In the instant case, the evidence reveals that the notice of discharge was delivered on 8 January 1999 to the last address the Grievorhad given to the Employer. The Employer therefore took the necessary steps to ensure that the Grievor was informed of its decision andreceived the notice.

It was incumbent on the Grievor to make the necessary arrangements to receive mail addressed to him. TheEmployer therefore imposed (prescribed, communicated) discharge on the Grievor on 8 January 1999. [31] In the Chertkow Decision, the employer by letter dated November 30, 2004 terminated the employment of the grievor. Theletter stated that his termination would be effective on receipt of the letter. The letter was sent to the address of the parents of the grievorwhich was also his address according to records of his employer.

The parents refused to accept the mail and sent it back. [32] One of the arguments before Arbitrator Chertkow was a time limits issue based on the fact the grievance was not filed untilJanuary 14, 2005, which was outside the period provided for in the collective agreement. In deciding that the grievance had been filedoutside the applicable time period, Arbitrator Chertkow addressed the issue of the obligation of the employer to provide notice of thetermination to the grievor.

At paragraphs 111 and 112, he said: 111 The evidence reveals the grievor's parents deliberately refused to accept any communications from the Corporation with respect totheir son. Had they accepted the letters from the Corporation, which were sent to them on behalf of the grievor, that would haveconfirmed to both the union and the grievor that he had been terminated on November 30, 2004. 112 I am satisfied the Corporation did all that could be expected of it with respect to its efforts to communicate with the grievor.

It wasthwarted at every instance in a misguided effort, in my view, on the part of the grievor's parents to deflect any concerns about hisemployment relationship with the Corporation. While it is understandable they were primarily concerned with their son's health, they

ought to have accepted the correspondence from the Corporation which, had they done so, might very well have caused this unfortunateand tragic case to have taken a different turn.

Simply put, the union cannot use the fact that the grievor's parents rejected the efforts ofthe Corporation to communicate with their son as a shield to avoid the consequences of failing to have his grievance filed within the timelimits of the collective agreement. [33] Canada Post argues that both the Gagnon Decision and the Chertkow Decision support their argument in this case that itcomplied with the requirement under the Collective Agreement to give Ms.

Clarke notice of the termination of her employment. [34] Canada Post goes on to argue that Arbitrator Archibald was required to follow the Gagnon Decision and the ChertkowDecision because of

Article 9.103 of the Collective Agreement which states: 9.103 The final decision rendered by an arbitrator binds the Corporation, the Union and the employees in all cases involving identicaland/or substantially identical circumstances. [35] This provision was reviewed by Richard, J. of the Supreme Court of Nova Scotia in Canada Post Corp. v. C.U.P.W. (1990), (NS SC), 96 N.S.R. (2d) 232, 20 A.C.W.S. (3d) 77 (N.S. S.C. (T.D.)) where at page 3 he stated: . . .

The subject collective agreement has a clause which is somewhat unique and which seems to establish some sort of arbitral stare decisisas a guide or directive to arbitrators. It seems that the clause is designed to add consistency to contract

interpretations across the nation. Itcould also be that the clause was intended to decrease the number of arbitrations. . . . In this case, the arbitrator found this very point had already been arbitrated between the parties. Clearly, the finding would bring thegrievance within the wording of Clause 9.43.

Even without the authority of the Douglas Aircraft case the arbitrator would feel bound bythe previous arbitration award rendered under “substantially indentical (sic) circumstances”. . . . [36] The argument of Canada Post is that the Termination Grievance before Arbitrator Archibald dealt with substantially identicalcircumstances as in the grievances which were the subject matter of the Gagnon Decision and Chertkow Decision and thereforeArbitrator Archibald was bound to follow them because of

Article 9.103. [37] It is important to remember that the Decision of Arbitrator Archibald, which is under review, is what he called a PreliminaryRuling on Timeliness. It arose because as a preliminary matter Canada Post argued that the Termination Grievance was not filed inaccordance with the time limit provided in

Article 9.10 of the Collective Agreement and should be dismissed without being heard on itsmerits. A reading of the Decision of Arbitrator Archibald reveals that he did not explicitly decide the issue of whether there had beencompliance with

Article 9.10. Instead, he decided the preliminary point on the basis of section 60(1.1) of the Canada Labour Codewhich provides: 60(1.1) The arbitrator or arbitration board may extend the time for taking any step in the grievance process or arbitration procedure setout in a collective agreement, even after the expiration of the time, if the arbitrator or arbitration board is satisfied that there arereasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension.

The Union had argued that the facts were such that section 60(1.1) should be invoked to extend the time for filing of the TerminationGrievance. This was an alternative argument in the event it was found that the Termination Letter had been delivered to Ms. Clarke incompliance with the Collective Agreement and accordingly that there had not been compliance with

Article 9.10. [38] One possible

interpretation of Arbitrator Archibald’s Decision is that he must have found that there had been compliance withArticle 9.10 of the Collective Agreement. Otherwise, there would have been no need for him to go on and consider section 60(1.1) sincethere would be no need to extend a time limit if such time limit had not expired. [39] However, at paragraph 22 of his Decision, Arbitrator Archibald said: 22 I do not wish to say a great deal about the validity of the Employer’s claim that there was an obvious breach of

Article 9.10 when Mr.Clarke on April 27, 2012 picked up the termination letter addressed to the Grievor, and she failed to grieve within 25 days. I cannot helpbut think that the Union’s case on the merits may have much to do with the administration of the list in relation to the Grievor’sseniority, and that the process of termination and its aftermath could be seen as relevant to those substantive arguments.

However, on itsface, the Employer’s argument that it conducted itself correctly has significant credibility, and depending on the evidence might indeedprevail (assuming that the matter may in the future go to a hearing on the merits before me). The question at this point, is, nonetheless: Isthe Union entitled to put its case on the merits before an arbitrator? In answering this question, I must determine whether Article 60(1.1)should be used to overrule the “mandatory” time limit on filing grievances found in

Article 9.10 of the Collective Agreement. [40] Those comments and other comments by Arbitrator Archibald at paragraph 25 of his Decision lead me to conclude that hedealt with the preliminary issue of timeliness on the basis of section 60(1.1) without definitively deciding whether there had beencompliance with

Article 9.10 of the Collective Agreement. [41] While the approach of Arbitrator Archibald in not deciding whether there had been compliance with

Article 9.10 but instead

going on to consider the section 60(1.1) issue might seem somewhat unusual, it is my view that the end result for him would have been the same if he had decided the Termination Grievance had not been filed in compliance with

Article 9.10. I say this based on Arbitrator Archibald’s analysis of the section 60(1.1) issue. As he saw it, the circumstances warranted the exercise of his discretion to extend time limits as permitted by section 60(1.1) and this conclusion fully disposed of the preliminary issue. It meant he did not have to do a detailed analysis of whether there had been compliance by Canada Post in providing notice to Ms. Clarke of the termination of her employment and did not have to decide on the applicability of the Gagnon Decision and Chertkow Decision.

In essence, he seems to have decided that it did not matter if there had been compliance by Canada Post with the Collective Agreement in terms of delivery of the Termination Letter and it did not matter if there had been compliance by the Union in filing the Termination Grievance because the circumstances were such that even if the time for filing had expired then it should be extended pursuant to section 60(1.1) . [ 42 ] The argument of Canada Post regarding the alleged failure of Arbitrator Archibald to follow past arbitral awards is that he was bound to conclude based on the Gagnon Decision and Chertkow Decision that Canada Post had complied with the Collective Agreement in terms of giving notice of the termination and that such a conclusion ought to have resulted in a decision to grant the preliminary objection.

This argument disregards the fact that the Decision of Arbitrator Archibald to disallow the preliminary objection was not based on whether or not there had been compliance by Canada Post with the Collective Agreement in giving notice of the termination to Ms. Clarke and by the Union in filing its grievance. Instead, it was based on section 60(1.1) of the Canada Labour Code .

I would note that neither the Gagnon Decision nor the Chertkow Decision dealt with this provision of the Canada Labour Code . [ 43 ] Arbitrator Archibald could have followed the Gagnon Decision and the Chertkow Decision and explicitly concluded that Canada Post had complied with its obligation in giving notice of the termination to Ms. Clarke. He could have gone on to conclude there had not been compliance with

Article 9.10 by the Union. Despite such conclusions, he then could have moved on to consider section 60(1.1) and concluded that the circumstances were such that he should exercise the discretion available to him to extend the time limit for filing the Termination Grievance.

The result would have been the same, namely dismissal of the preliminary objection. [ 44 ] By dealing with the preliminary objection in the manner he did, namely on the basis of section 60(1.1) of the Canada Labour Code without explicitly deciding if the Termination Grievance had been filed in compliance with the Collective Agreement, Arbitrator Archibald did not have to decide if the Gagnon Decision and Chertkow Decision were applicable to establish compliance with the requirements of the Collective Agreement for delivery of the Termination Letter.

Therefore, it cannot be said that he failed to follow this arbitral jurisprudence and

Article 9.103 of the Collective Agreement. excess of jurisdiction – improper reliance upon the arbitral award of arbitrator thistle [ 45 ] As noted earlier, under the Collective Agreement there are two different types of arbitration, namely the regular arbitration procedure and the formal arbitration procedure. The former procedure is governed by Articles 9.50 to 9.71 of the Collective Agreement and the latter procedure is governed by Articles 9.72 to 9.80. [ 46 ] In respect of the regular arbitration procedure,

Article 9.70 is of particular importance. It provides: 9.70 The decision of the arbitrator shall not constitute a precedent and shall not be referred to in subsequent arbitrations. Clause 9.103 shall not apply to such decision. [ 47 ]

Article 9.70 specifically refers to

Article 9.103 which is set forth earlier in this judgment at paragraph 34. [ 48 ] The regular arbitration procedure is an expedited procedure and the intent of

Article 9.70 is to preclude the use of arbitral decisions made under this procedure for precedential purposes. Arbitral decisions made under the formal arbitration procedure have binding precedential value by virtue of

Article 9.103. [ 49 ] Canada Post argues that Arbitrator Archibald improperly relied on the Thistle Award in making his decision. While acknowledging Arbitrator Archibald’s specific statement that the Thistle Award was not binding on him, Canada Post argues that an analysis of paragraphs 23, 24, 25, 31, and 32 of the Decision demonstrates that the Thistle Award was in fact a significant and integral part of Arbitrator Archibald’s Decision. It is further argued by Canada Post that Arbitrator Archibald would not have reached the conclusion he did if he had ignored the Thistle Award and that by not doing so he failed to respect

Article 9.70 of the Collective Agreement. [ 50 ] The Union does not dispute the meaning and effect of

Article 9.70, namely that arbitration awards made under the regular arbitration procedure have no binding effect and are not to be relied on as precedents or referred to in future proceedings; however, it is argued that Arbitrator Archibald did not disregard

Article 9.70. They point to the fact that he explicitly stated he was not bound in any way by the conclusions of Arbitrator Thistle. They argue that his reference to the Thistle Award and the circumstances that surrounded it was only for the purpose of assessing the context in which the parties conducted themselves in the manner they did. The Union says that Arbitrator Archibald did this as part of his assessment of the factors related to the application of section 60(1.1) and that in doing so he did not contravene

Article 9.70 and committed no reviewable error. [ 51 ] In order to assess this issue, it is necessary to examine certain comments Arbitrator Archibald made regarding the Thistle Award. At paragraph 21 of his Decision he says: 21 . . . I do not believe that I am bound by Arbitrator Thistle’s efforts to provide an extension, but I conclude that the fact that he purported to do so is a matter to be considered in the Code section 60(1.1) analysis. [ 52 ] Then at paragraphs 23 and 24, he said: 23 Before moving to the Code section 60(1.1) analysis, it is necessary for me to explain why I am unwilling to rely on Arbitrator Thistle’s purported extension of the

Article 9.10 time limit. Needless to say, I am very attuned to the purpose of

Article 9.70 of the Collective Agreement which provides that regular arbitration decisions do not constitute precedents and “shall not be referred to in subsequent arbitrations.” This rule, that regular arbitrations are not precedents and shall not be referred to subsequently as such , is

reinforced by the second sentence in

Article 9.70 which states that clause 9.103, which states that “the final decision rendered by an arbitrator binds [the parties],” shall not apply to regular arbitration awards. The reasoning in

part is that in such processes the parties proceed more informally in order to solve individual disputes rather than create precedents for future cases (in addition to resolving the case at hand). Nonetheless, with the full understanding of the parties, I read Arbitrator Thistle’s award, which flowed from a regular or expedited and informally processed case, not because it was to be seen as a general precedent, but rather because it was part of the very factual background which arguably had a legitimate impact on how the parties behaved in relation to the procedural evolution of the case itself.

This was not the prohibited use of a decision as a precedent in accordance with a purposive understanding of

Article 9.70. 24 The “use” of the Thistle Award by the Union was thus in the context of a regular and thus informal proceeding where Arbitrator Thistle purported to extend the deadline for the subsequent termination case beyond the 25 deadline of

Article 9.10. Despite the Employer’s suggestion that the issue for Arbitrator Thistle was “by-pass and compensation”, whereas the issue in the instant case is “termination or possible reinstatement,” Arbitrator Thistle may have had a sense that the Grievor felt her problems related to her position on the temporary list and the use of the list-a broader characterization of the issues. The Thistle hearing was already 6 years down the road from the filing of the case before him, and 5 years down the road from the termination.

He perhaps thought that in an admittedly regular informal context, it might be helpful for all parties if he gave them a nudge by purporting to “authorize” an extension. It was arguably practical and pragmatic advice, but it is not clear as to the legal foundation upon which it rested.

Arbitrator Thistle made no pretense of operating pursuant to section 60(1.1) of the Canada Labour Code , but made what he thought would be a helpful ruling in a regular arbitration award which could not become the basis for a disruptive precedent. [ 53 ] Finally he said at paragraph 25: 25 Given the unclear juridical foundation for Arbitrator Thistle’s purported extension of the

Article 9.10 time limit, and given its enunciation as an obiter dictum in an award flowing from a regular arbitration proceeding, I cannot regard it as binding upon me. However, its factual impact on the parties cannot be ignored by me in sorting out its implications for the

interpretation and application of Canada Labour Code section 60(1.1) . . . . [ 54 ] In my view, it is clear that Arbitrator Archibald was quite alive to the two different arbitration procedures provided under the Collective Agreement and the meaning and effect of

Article 9.70 thereof. It is also clear that he did not consider himself bound by the purported extension of the

Article 9.10 time limit granted by Arbitrator Thistle in his decision on the Bypass Grievance. In fact, he even questioned the jurisdiction of Arbitrator Thistle to grant such an extension. However, he believed it was okay for him to consider the Thistle Award as part of the factual background in terms of how the parties behaved in relation to the procedural evolution of the Termination Grievance. He felt it could be used in this context in examining whether to invoke section 60(1.1) . He did not believe this was a violation of

Article 9.70 because he did not believe he was using the Thistle Award for precedential purposes. [ 55 ] I do not see anything improper, generally speaking, with considering an award made under the regular arbitration procedure, such as the Thistle Award, as part of the factual background against which an arbitrator must decide whether he should extend a time limit under section 60(1.1). I agree with Arbitrator Archibald that this does not constitute using the Thistle Award as a precedent and otherwise would not be a use of that Award in a manner contrary to

Article 9.70. [ 56 ] The foregoing being said, the fact that it is not contrary to

Article 9.70 in and of itself to review an award made under the regular arbitration procedure as part of the factual background when considering whether to grant relief under section 60(1.1) does not mean that an award is always relevant and always properly considered as part of the factual background review when undertaking the section 60(1.1) analysis. That, in my view, is something which is very much case or factual specific. I will consider the appropriateness of the consideration of the Thistle Award by Arbitrator Archibald in this case when reviewing the section 60(1.1) issue next.

Were there errors of fact and law by Arbitrator Archibald in his section 60(1.1) Canada Labour Code analysis rendering his Decision unreasonable? [ 57 ] Section 60(1.1) of the Canada Labour Code is set forth earlier in this judgment at paragraph 37. [ 58 ] Arbitrator Archibald relied in part on the decision of Arbitrator Outhouse in the unreported case of CUPW v. Canada Post Corporation re Judith Harvey (Goose Bay Local Grievances) (8 February 2019) in his assessment of section 60(1.1).

In the Harvey decision, Arbitrator Outhouse reviewed the factors that should be considered when deciding whether to exercise the discretion to extend the time for taking any step in the grievance process or arbitration procedure pursuant to section 60(1.1).

The factors he identified were as follows: a. nature of the grievance; b. whether the delay occurred in launching the grievance or at some later stage; c. whether the grievor was responsible for the delay; d. reasons for the delay; e. length of delay; f. whether the employer could reasonably have assumed the grievance had been abandoned; g. whether any other party would be prejudiced by granting the extension; h. length of employment; and

i. language used by the parties in establishing the time limit. [ 59 ] At paragraph 25 of his decision (partially set forth earlier at paragraph 53), Arbitrator Archibald after concluding the purported extension of the

Article 9.10 time limit by Arbitrator Thistle was not binding on him said as follows: 25 . . . However, its factual impact on the parties cannot be ignored by me in sorting out its implications for the

interpretation and application of Canada Labour Code section 60(1.1) . The parties had a ruling from a long-time, respected arbitrator named in the Collective Agreement’s Atlantic Regional roster, which purported to give the Union and the Grievor a crack at challenging the termination, even if it appeared to be out of time under

Article 9.10. The Employer did not challenge the ruling by taking it on judicial review. The Union might have had legitimate concerns about a duty of fair representation complaint if it failed to act, but, in any event, it took immediate action to file the Grievance on the termination. The Grievor’s evidence on March 13, 2019 was that she thought that her original 2011 grievance would resolve her issues about her treatment on the list, and Arbitrator Thistle gave her some assurances on this score, even if he cautioned that the termination situation would have to be dealt with in a separate grievance.

How do these facts, among others, sit with the factors identified by Arbitrator Outhouse, in the

interpretation and application of section 60(1.1)? [ 60 ] This indicates that Arbitrator Archibald believed that in assessing the

interpretation and application of section 60(1.1) he needed to consider the factual impact on the parties of the purported extension of the

Article 9.10 time limit by Arbitrator Thistle along with the factors outlined by Arbitrator Outhouse in the Harvey decision. [ 61 ] No issue was taken by either of the parties with the finding of Arbitrator Archibald that the factors identified by Arbitrator Outhouse in the Harvey decision were the appropriate factors to be examined in assessing the section 60(1.1) issue.

However, Canada Post argued that Arbitrator Archibald erred in the manner in which he assessed the factors from Harvey which he considered in making his Decision under section 60(1.1) . [ 62 ] In terms of specifics, Canada Post argued Arbitrator Archibald erred in his assessment of the factor, reasons for the delay, in part by relying on his finding that Ms. Clarke did not personally receive the Termination Letter.

In respect of the factor, length of the delay, Canada Post alleged error on the part of Arbitrator Archibald because of his finding that the system of dealing with grievances between the parties was the reason for the long delay.

In relation to the factor whether the employer could reasonably have assumed the Termination Grievance had been abandoned, Canada Post argued that Arbitrator Archibald erred in his conclusion that he doubted the statement of Canada Post that they believed the Termination Grievance had been abandoned. [ 63 ] A further argument by Canada Post was that Arbitrator Archibald erred by considering the Thistle Award and its factual impact on the parties in his section 60(1.1) analysis. [ 64 ] The Union argued that there was nothing improper about the manner in which Arbitrator Archibald assessed the factors he considered.

It contended that Arbitrator Archibald reviewed the relevant factors based on the evidence before him and made certain factual findings. It went on to argue that these findings of fact were entitled to considerable deference, especially in the context of a discretionary decision such as under section 60(1.1) . [ 65 ] I agree that findings of fact of an arbitrator are entitled to considerable deference; however, I do not believe that the errors alleged by Canada Post can properly be characterized as findings of fact made by Arbitrator Archibald. [ 66 ] In terms of the statement of Arbitrator Archibald that Ms.

Clarke did not personally receive the Termination Letter, it does not appear to me that Canada Post is challenging that finding of fact which Arbitrator Archibald made on the basis of hearing the testimony of Ms. Clarke who testified before him. As a Judge sitting on judicial review, I can think of no lawful basis on which to interfere with that finding of fact. The complaint of Canada Post, as I see it, is not with this finding of fact.

Instead, the complaint is with the fact that Arbitrator Archibald relied on this finding of fact as a reason for the delay when there was no requirement for personal delivery under the Collective Agreement and where based on arbitral jurisprudence there had been compliance with the Collective Agreement in the delivery of the Termination Letter. [ 67 ] As for the finding of Arbitrator Archibald that the system and not Ms. Clarke was responsible for the length of the delay, this does not constitute a finding of fact.

Instead, it is a conclusion he reached based on the information before him. [ 68 ] I will now examine Arbitrator Archibald’s assessment of section 60(1.1) including whether in looking at the relevant factors he considered facts which he should not have or failed to consider facts he should have.

If he did, I will then consider whether that renders his ultimate conclusion in respect of section 60(1.1) unreasonable. [ 69 ] In terms of the factor, reasons for the delay, Arbitrator Archibald said that the reasons were threefold, namely: a. the grievor did not personally receive the Termination Letter; b. the grievor did not find out about the termination until the Thistle hearing; and c. Arbitrator Thistle had purported to extend the time for filing the grievance for three months after the issuance of his decision; and concluded these were favourable to Ms.

Clarke and weighed in favour of granting an extension under section 60(1.1) . [ 70 ] Canada Post argues the fact Ms. Clarke did not personally receive the Termination Letter does not weigh in favour of granting an extension in the circumstances considering: a. there was no requirement to personally deliver the Termination Letter; b. based on arbitral jurisprudence, Canada Post had complied with the Collective Agreement in terms of how they sent the Termination Letter to Ms. Clarke; and

c. the facts established that the Termination Letter sent by mail to Ms. Clarke in compliance with the Collective Agreement had been picked up by Ms. Clarke’s husband. [ 71 ] As for the fact Ms. Clarke did not personally receive the Termination Letter, I do not see that as significant given there was no obligation on Canada Post to personally deliver the Termination Letter. This is a situation where the parties by the Collective Agreement had agreed on a process by which notifications such as the Termination Letter were to be sent to individuals such as Ms. Clarke. The process did not require personal delivery.

Canada Post complied with the Collective Agreement and the Termination Letter was picked up by Ms. Clarke’s husband. To hold in such circumstances that the fact Ms. Clarke did not personally receive the Termination Letter was a factor weighing in her favour in terms of the reasons for the delay is, in my view, to render the procedure provided for in the Collective Agreement for delivery of notifications such as the Termination Letter largely meaningless. It also renders

Article 9.103 largely meaningless. [ 72 ] The effect of such a finding is to impose a higher burden of personal delivery on Canada Post. It means that Canada Post could comply with the agreed procedure as set forth in the Collective Agreement but without going further to personally deliver a notification such as the Termination Letter then Canada Post risks a ruling under section 60(1.1) extending the time limit for filing a grievance.

I do not agree that the absence of personal delivery in circumstances where the parties have agreed that personal delivery is not required can be properly characterized as a reason for delay weighing in favour of granting an extension under section 60(1.1) . [ 73 ] As for the fact that Ms. Clarke did not find out about her termination until the Thistle hearing being a fact weighing in favour of granting an extension, I see it as being no different than the first reason relied on by Arbitrator Archibald, namely that Ms. Clarke did not personally receive the Termination Letter.

The essence of each of these facts is that Ms. Clarke did not know about her termination within the time period during which the grievance was required to be filed under the Collective Agreement. I do not see this as significant considering the circumstances of this case for the same reasons that I do not see it as significant that Ms.

Clarke did not personally receive the Termination Letter. [ 74 ] As for the third reason Arbitrator Archibald found for the delay in filing the Termination Grievance, namely Arbitrator Thistle’s purported extension to the time limit for filing same, I do not understand how that could have been seen as a reason for the delay. Arbitrator Thistle’s decision was not issued until September 15, 2017 and the Termination Grievance was filed four days later.

Arbitrator Thistle’s purported extension of time limits was evidently the reason why the Termination Grievance was filed, not a reason for the delay in filing. [ 75 ] In my view, the facts relied on by Arbitrator Archibald to reach the conclusion that the reasons for the delay in filing the Termination Grievance were favourable to Ms. Clarke do not support such a conclusion. [ 76 ] As for the factor, length of the delay, Arbitrator Archibald found that it was outrageously long but concluded that this could not be attributed to Ms. Clarke.

Instead, he concluded the system was at fault and therefore the impact of the long delay on the section 60(1.1) analysis should be reduced. From a reading of his Decision, the sole fact on which Arbitrator Archibald based his conclusion that the system and not Ms. Clarke was responsible for the delay was that it took until 2017 for the Bypass Grievance (from May 2011) to make it to a hearing before Arbitrator Thistle. Arbitrator Archibald said if the Bypass Grievance had been heard in a matter of months rather than years, Ms. Clarke would have discovered the fact of her termination in a more timely manner.

This may very well be an accurate statement by Arbitrator Archibald; however, to make the leap from this statement to the conclusion that the system was at fault for the delay fails to take into consideration the many other possible reasons why Ms. Clarke did not discover the fact of her termination earlier. It ignores the fact that Ms. Clarke must bear some responsibility for the fact that she did not see the Termination Letter shortly after it was sent to her and picked up by her husband.

It ignores the fact that the Union controls the grievance procedure under the Collective Agreement and was copied on the Termination Letter sent to Ms. Clarke. It ignores the fact that neither the Union nor Ms. Clarke made any inquiry to Canada Post regarding the status of Ms. Clarke’s employment for the period of more than five years between Ms.

Clarke’s termination and the hearing before Arbitrator Thistle in June of 2017 despite the fact she was not called in for any shifts during this period. [ 77 ] In looking at the factor, length of delay, and, in particular, who was responsible for same, Arbitrator Archibald failed to consider a number of facts which he ought to have considered.

He also reached a conclusion about the system being at fault which was not supported on the facts before him. [ 78 ] Canada Post also takes issue with the manner in which Arbitrator Archibald considered the factor, whether the employer could reasonably have assumed the grievance had been abandoned. [ 79 ] In respect of this factor, Arbitrator Archibald concluded that the evidence on the notion of abandonment was inconclusive and should not weigh heavily on the outcome of whether an extension should or should not be granted.

He reached his conclusion in part based on the fact that Canada Post did not present any evidence that it had actually assumed that any dispute over Ms. Clarke’s termination had been abandoned. He further based his conclusion on the fact that the Bypass Grievance from May 2011 was still ongoing. [ 80 ] I fail to see the connection between the fact the Bypass Grievance was still ongoing and the question of whether Canada Post could reasonably have assumed the Termination Grievance had been abandoned.

Arbitrator Archibald seemed to attempt to draw a connection when he said, “After all, the Grievor’s case before Arbitrator Thistle was that she had a right to be on the list and was being by-passed”. This is an accurate statement; however, it should be noted that the Bypass Grievance was filed in May of 2011 and the termination occurred some 11 months later in April of 2012. The evidence before Arbitrator Archibald established that Ms. Clarke had continued to be offered numerous work assignments after the Bypass Grievance was filed in May of 2011 up to shortly before her termination.

Therefore, Canada Post still considered Ms. Clarke to be an employee up until April of 2012 when it issued the Termination Letter and sent it to Ms. Clarke. She was not offered any work assignments thereafter, a period of more than five years up to the time the Termination Grievance was filed and during which time there was no inquiry by either Ms. Clarke or the Union regarding the employment status of Ms. Clarke.

[ 81 ] Being bypassed for work and being terminated from one’s position are drastically different things. Despite the fact there was an ongoing grievance relating to certain bypass incidents, Canada Post continued to offer work assignments to Ms. Clarke, as it was required to do. However, after a review of Ms. Clarke’s availability for work and a determination that it was unacceptable, a decision was made to terminate the employment of Ms. Clarke. This occurred some 11 months after the Bypass Grievance was filed and while the Bypass Grievance was still ongoing. No action was taken by the Union or Ms.

Clarke in relation to the termination which had much more serious implications for Ms. Clarke than simply being bypassed. Arbitrator Archibald seems to be suggesting that the fact the Bypass Grievance was ongoing casts doubt on the position of Canada Post that they were entitled after five years to assume that any grievance in respect of the termination had been abandoned.

The fact the Bypass Grievance was ongoing does not, in my view, support a finding of doubt regarding the claim of Canada Post that it assumed the Termination Grievance had been abandoned. [ 82 ] Arbitrator Archibald also seems to have concluded that because Canada Post did not present any evidence to establish that it had actually assumed that any dispute over Ms. Clarke’s termination had been abandoned then he could not find that they had made this assumption. Such logic, in my view, is flawed.

Simply because no evidence was presented on this issue did not prove that the assumption of abandonment on the part of Canada Post did not exist. The absence of evidence on a point such as this is not surprising as I can think of no reason why Canada Post would document or otherwise make a record of an assumption of abandonment. [ 83 ] Canada Post took the position before Arbitrator Archibald that after five years it was entitled to assume that any grievance or the termination had been abandoned. Given all these circumstances, this was a reasonable position, in my view, for a number of reasons.

Firstly, five years, as noted by Arbitrator Archibald, was an outrageously long period of time by any standard. Such a length of time without a grievance having been filed or any inquiry why Ms. Clarke had not been called in for shifts or any communication from Ms. Clarke or the Union regarding the termination supports the reasonableness of an assumption on the part of Canada Post that the grievance had been abandoned.

Overall, I see no evidence which would tend to cast doubt on the reasonableness of the assumption of abandonment on the part of Canada Post. [ 84 ] I am not entirely certain why or how Arbitrator Archibald believed the purported extension of the

Article 9.10 time limit by Arbitrator Thistle factually impacted the parties and that such factual impact was something he needed to consider in his assessment of the section 60(1.1) issue. It must be remembered that the purported extension of the

Article 9.10 time limit was contained in the Thistle Award that was issued on September 15, 2017. Thus, any factual impact from the purported extension could only have started on that date. I can see no factual impact of the purported extension of the time limit other than it caused the Union to file the Termination Grievance. I say this because, as noted by Arbitrator Archibald, Ms. Clarke became aware of the existence of the Termination Letter on June 15, 2017 during the hearing before Arbitrator Thistle on the Bypass Grievance. This did not result in the filing of a grievance by the Union in regard to the termination. I referred earlier to

Article 9.10 of the Collective Agreement and the requirement to file a grievance within 25 working days of the person becoming aware of the circumstances giving rise to the grievance. No grievance was filed within the 25 working day time period from June 15, 2017. However, once the Thistle Award containing the purported extension of time limit was issued, the Termination Grievance was filed four days later on September 19, 2017. [ 85 ] I fail to see how such a factual impact is relevant at all to the section 60(1.1) issue.

As Arbitrator Archibald himself seemed to recognize, Arbitrator Thistle had no jurisdiction whatsoever to grant the purported extension. Further, even if it could be said that Arbitrator Thistle had the jurisdiction on the Bypass Grievance to grant such an extension (which he clearly did not), the Thistle Award was not binding on Arbitrator Archibald by virtue of

Article 9.70 of the Collective Agreement. Arbitrator Archibald recognized this as well. [ 86 ] When discussing the factual impact, Arbitrator Archibald made reference to the fact Canada Post did not challenge the purported extension of the time limit on judicial review and the fact the parties had a ruling from a long-time respected arbitrator (Arbitrator Thistle) which purported to give the Union and Ms. Clarke a crack at challenging the termination. I fail to see any connection whatsoever between these facts and the section 60(1.1) issue.

Arbitrator Archibald seems to be saying that because Arbitrator Thistle purported to grant an extension and Canada Post did not seek judicial review of such a ruling then somehow that needed to be considered by him in his assessment of section 60(1.1). The implication is that this weighed in favour of granting an extension. I do not agree with such a conclusion. I see no basis whatsoever how a purported extension of the

Article 9.10 time limit which was unlawful for lack of jurisdiction and, in any event, not binding by virtue of

Article 9.70 of the Collective Agreement should have had any impact whatsoever on the section 60(1.1) analysis. [ 87 ] I am mindful of the fact that my role on a reasonableness review is not to simply arrive at my own conclusion in respect of whether an extension of a time limit under section 60(1.1) should have been granted in this case. Instead, it is to determine whether the Decision, including both the rationale for it and the outcome, was reasonable. [ 88 ] I have determined that the Decision on the section 60(1.1) issue does not meet the reasonableness standard.

While Arbitrator Archibald properly identified the relevant factors from the Harvey decision, which he needed to consider, he erred, in my view, in his assessment of those factors in the circumstances of this case. In particular, he relied on facts to support his conclusion that the reasons for the delay in filing the Termination Grievance were favourable to Ms. Clarke when such facts did not support such a conclusion.

In looking at the length of the delay and the party responsible for same, he failed to consider facts which were relevant to this issue and reached a conclusion about the system being at fault which was not supported on the facts before him. Further, in looking at whether the employer could reasonably have assumed the grievance had been abandoned, he concluded he had doubt about Canada Post’s claim that it had assumed abandonment but relied on facts in reaching that conclusion which did not support it. Finally, he relied on the factual impact on the parties of the purported extension of the

Article 9.10 time limit by Arbitrator Thistle when there was only minimal factual impact and the purported extension should not have been a consideration on the section 60(1.1) analysis. These errors are sufficiently serious, in my view, that the Decision cannot be said to exhibit the requisite degree of justification, intelligibility, and transparency, the hallmarks of reasonableness as identified in Vavilov . disposition and costs [ 89 ] Given my determination that the Decision does not meet the reasonableness standard, it is quashed.

The Termination Grievance is remitted to another arbitrator for a new hearing. Canada Post shall be entitled to its costs on a party and party basis according to

Column 3 of the Scale of Costs under Rule 55 of the Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D . _____________________________ George L. Murphy Justice