Rothlochston Bel Ltd. Applicant And: UNITED STEEL, PAPER v. FORESTRY, RUBBER MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND, 2022 NLSC 83

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : RothLochston BEL Ltd. v. U.S.W ., Local 6480 , 2022 NLSC 83 Date : May 17, 2022 Docket : 202101G1473 Between: Rothlochston Bel Ltd. Applicant And: UNITED STEEL, PAPER AND FORESTRY, RUBBER MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, LOCAL 6480 Respondent Before: Justice Katherine O'Brien On Judicial Review From: A decision of a consensual arbitral tribunal (James C. Oakley, Q.C., Sole Arbitrator) dated January 19, 2021. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 14, 2021

Summary: This is an application for judicial review of an arbitration award involving the discipline of an employee. The Court dismissed the application.

Appearances: Gregory M. Anthony Appearing on behalf of the Applicant Gordon N. Forsyth, Q.C. Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: William Scott & Co. v. C.F.A.W., Local P-162, [1976] B.C.L.R.B.D. No. 98, 1976 CarswellBC 518; Canada(Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Canada Post Corp. v. Canadian Union of Postal Workers, 2019SCC 67; Layman v. Layman Estate, 2016 NLCA 13; Canada Post Corporation v. L.C.U.C., (CA LA), [1987]C.L.A.D. No. 77, 32 L.A.C. (3d) 86 (Pitcher); Lumber & Sawmill Workers’ Union, Local 2537 v. KVP Co.

Ltd., (ONLA), [1965] O.L.A.A. No. 2, 1965 CarswellOnt 618; M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 SCC 59 STATUTES CONSIDERED: Judicature Act, R.S.N.L. 1990, c. J-4; Labour Relations Act, R.S.N.L. 1990, c. L-1; Arbitration Act,R.S.N.L. 1990, c. A-14 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT O'Brien, J: INTRODUCTION [1] This is a judicial review of an arbitration award made on January 19, 2021.

United Steel, Paper and Forestry, RubberManufacturing, Energy, Allied Industrial and Service Workers International Union, Local 6480 (the “Union”) grieved RothLochstonBEL Ltd.’s (“RothLochston’s”) termination of Darrell Rideout’s employment for “knowingly violating” a critical safety rule. [2] The Arbitrator found that, although Mr. Rideout had violated the rule, he had not done so “knowingly”. The Arbitratorallowed the grievance, in part.

He modified the disciplinary penalty of discharge from employment and replaced it with a penalty ofsuspension without pay to the date of the arbitration award, approximately four months. [3] This application for judicial review was heard by Justice Deborah Paquette. Sadly, Justice Paquette passed away beforerendering her decision. Pursuant to

section 32 of the Judicature Act, R.S.N.L. 1990, c. J-4, and with the parties’ agreement, I reheard thematter using the materials filed and the audio recording of the hearing that took place before Justice Paquette. [4] I have decided to dismiss the application for the reasons that follow. Background The workplace incident [5] RothLochston terminated Mr. Rideout’s employment because it determined that he had broken one of its Life Saving Rules onSeptember 13, 2020.

The Life Saving Rules are workplace safety rules that address risks having the most potential to result in seriousinjury or death. [6] RothLochston found that Mr. Rideout had broken the Life Saving Rule for fall protection (the “Fall Protection Rule”). TheFall Protection Rule requires employees to use fall protection equipment when working outside a protective environment where theycould fall over six feet.

It also requires that employees follow RothLochston’s fall protection procedure and other fall protectionrequirements. [7] RothLochston’s discipline procedure states that “knowingly violating” one of the Life Saving Rules will result in termination

of employment with cause. This policy also appears in other RothLochston documentation. Mr. Rideout acknowledged the policy in writing and testified that he knew about it. [ 8 ] On September 13, 2020, Mr. Rideout was working with a crew of four or five employees assigned to change out a motor and gearbox. Mr. Rideout was working on a platform where the motor and gearbox were located, approximately 15 to 20 feet above ground. Once removed, the motor and gearbox had to be lowered from the platform to the ground below. To do this, a

section of the guardrail surrounding the platform had to be removed. [ 9 ] At the start of the shift, Mr. Rideout’s supervisor led a toolbox talk. Toolbox talks are informal meetings that focus on safety and job hazards, usually related to the day’s work. They are commonly held on construction and industrial work sites. Prior to the toolbox talk, the supervisor had prepared certain documentation required to do the motor and gearbox change out. However, he had not completed two documents related to the guardrail removal: a Critical Control Checklist (“CCC”) and a Working at Heights Permit.

He was not required to do so. These documents had to be completed before the work was done, but they could have been completed at the start of the shift or later. [ 10 ] The supervisor testified that he usually obtains the CCC form and the Working at Heights Permit at the time the work is required. He said he assesses the hazards in the field when he completes the forms and then the crew goes through the CCC prior to starting the work.

This checklist identifies safety hazards (Arbitration Award, paras. 24, 42). [ 11 ] The supervisor testified that he discussed the need to cut the guardrail “at some point” with Mr. Rideout’s crew, but that they did not discuss proceeding to do it during the shift (Arbitration Award, para. 23).

The supervisor testified that he did not complete the CCC and Working at Heights Permit forms at the start of the shift because he did not know if the crew would get to the point where the guardrail would need to be cut during the shift (Arbitration Award, para. 24). [ 12 ] This testimony differed slightly from the written statement the supervisor signed after the incident (Arbitration Record, Tab 16; Arbitration Award, para. 23). In his written statement, the supervisor wrote that he advised the workers that the guardrail would need to be removed at some point during the shift.

Otherwise, his written statement was consistent with his testimony. [ 13 ] Almost three hours into the shift, Mr. Rideout decided, on his own initiative, to remove the guardrail in order to “keep himself busy”. Mr. Rideout walked down the stairs from the platform, which were adjacent to the guardrail he was about to cut, to get the tools required. The guardrail had two cross rails: a top rail and a bottom rail. Mr. Rideout cut out the bottom rail first, then the top rail. [ 14 ] Mr.

Rideout testified he did not think about the fact that he was cutting the guardrail on the edge of a platform at a height above six feet. He thought he was a safe distance from the edge of the platform. He said that he was not thinking clearly and that he just knew the job had to be done. It took Mr. Rideout from eight to ten minutes to cut the two rails. He testified that when he finished, he knew he had exposed an open hole. He then asked a co-worker to watch the hole and he left the platform to get red safety tape to tape off the area (Arbitration Award, para. 26). [ 15 ] Two safety advisors saw Mr.

Rideout cutting the guardrail. They noticed that Mr. Rideout was not wearing a fall protection harness but it was too late for them to safely intervene. They met Mr. Rideout when he came down from the platform. They advised him that he was violating a Life Safety Rule and told him to place safety tape on the platform. [ 16 ] An investigation followed. On September 16, 2020, Mr. Rideout received a letter from RothLochston terminating his employment with cause for knowingly violating the Fall Protection Rule. On September 19, 2020, the Union grieved the termination.

Following the procedures of the Collective Agreement, a sole arbitrator heard the grievance. The Arbitrator’s decision [ 17 ] At the arbitration, the Union did not dispute that RothLochston had just cause to discipline Mr. Rideout. The Union only disputed the penalty, that is, whether RothLochston had just cause to terminate Mr. Rideout’s employment. [ 18 ] The Arbitrator found that Mr. Rideout had not knowingly violated the Fall Protection Rule. Even if he had found that Mr.

Rideout had acted knowingly, the Arbitrator found that he had jurisdiction under both the Collective Agreement and the Labour Relations Act , R.S.N.L. 1990, c. L-1 , to modify the penalty. This second finding is not in dispute before me. [ 19 ] The Arbitrator found that Mr. Rideout’s actions constituted a serious disciplinary offence. He considered case authorities with respect to discipline of safety-related infractions and concluded that even without physical injury or harm the event was serious.

He reviewed cases where arbitrators upheld discharges from employment for safety-related offences. [ 20 ] The Arbitrator reviewed and applied ten principles regularly considered when assessing an appropriate penalty in labour disputes. These ten principles are found in William Scott & Co. v. C.F.A.W. , Local P-162 , [1976] B.C.L.R.B.D. No. 98, 1976 CarswellBC 518 . He also stated that the disciplinary penalty in a safety-related case should consider the principle of deterrence and reflect the importance of safety. [ 21 ] The Arbitrator found the case of Colin Osmond to be similar to that of Mr. Rideout. Mr.

Osmond was a RothLochston employee who violated the Fall Protection Rule in August 2020. He also violated another Life Safety Rule related to locking out equipment to isolate it before performing work. Mr. Osmond’s disciplinary file was entered into evidence before the Arbitrator. [ 22 ] The file revealed that, following its investigation, RothLochston accepted that Mr. Osmond believed, albeit mistakenly, that he was not working above six feet and that he was not required to lock out the equipment. RothLochston concluded that because he was operating under mistaken beliefs, Mr.

Osmond had not knowingly violated the Life Safety Rules. RothLochston disciplined Mr. Osmond with a seven-day suspension. [ 23 ] Having found that Mr. Rideout did not violate the Fall Protection Rule knowingly and considering the circumstances of both

cases, the Arbitrator concluded it would be inconsistent with the discipline imposed in Mr. Osmond’s case to uphold a discharge from employment in Mr. Rideout’s case. Having regard to all the factors he considered, which I have merely summarized above, the Arbitrator found that the just and appropriate discipline for Mr. Rideout was suspension without pay to the date of the arbitration award. [ 24 ] On judicial review before this Court, RothLochston submits that the Arbitrator made two main errors. First, that he erred in determining the legal test for “knowingly violating” the Life Saving Rules.

Second, even if he was correct in his formulation of the test, he erred in applying it and his finding that Mr. Rideout did not knowingly violate the Fall Safety Rule was unreasonable. ISSUES [ 25 ] I must first decide what standard of review to apply to the Arbitrator’s decision. I then must consider the following: a. His consideration of the phrase “knowingly violated”; and b. His finding that Mr. Rideout did not “knowingly violate” the Fall Safety Rule.

STANDARD OF REVIEW [ 26 ] Both parties submit that I should review the Arbitrator’s decision on a standard of reasonableness. [ 27 ] The Supreme Court of Canada revisited the law of judicial review in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 and its companion case Canada Post Corp. v. Canadian Union of Postal Workers , 2019 SCC 67 . Following these decisions, I must presume that the review is done on a standard of reasonableness. This presumption can be rebutted in two situations.

The first is where the legislature has indicated that it intends a different standard or set of standards to apply. The second is where the rule of law requires that the standard of correctness be applied ( Vavilov , para. 17 ). The rule of law exception does not apply in this case. The exception for legislative intent requires further consideration. [ 28 ] RothLochston sought judicial review of the Arbitrator’s decision pursuant to section 14(1) of the Arbitration Act , R.S.N.L. 1990, c. A-14 (the “ Act ”): 14.

(1) Where an arbitrator or umpire has misconducted himself or herself, or an arbitration or award has been improperly procured, the court may set the award aside. [ 29 ] I asked counsel to make submissions on the standard of review, in particular for findings of fact. Both sides provided helpful briefs on this issue, for which I am thankful. Both agreed that judicial reviews of labour arbitration awards conducted under section 14(1) of the Act should be done on a standard of reasonableness for both questions of law and of fact. [ 30 ] I agree with their conclusion.

There is nothing in the wording of section 14(1) of the Act that suggests a legislative intention to derogate from the standard of reasonableness. As such, following Vavilov , reasonableness must apply for all questions raised during the review, including those of fact. Additionally, there is nothing in the Collective Agreement to suggest the parties intended to differentiate between the Arbitrator’s findings of fact and his findings of law, or mixed law and fact. [ 31 ] Moreover, this position is consistent with jurisprudence that considered section 14(1) of the Act prior to Vavilov . Most notably, in Layman v.

Layman Estate , 2016 NLCA 13 at paragraph 17 , the Newfoundland and Labrador Court of Appeal stated that findings of fact are reviewable under section 14(1) . [ 32 ] Accordingly, I will review the Arbitrator’s decision on a standard of reasonableness. LAW: JUDICIAL REVIEW ON A REASONABLENESS STANDARD [ 33 ] In Vavilov and Canada Post Corp. , the Supreme Court of Canada gave lower courts new guidance with respect to the standard of reasonableness. I will highlight the most important holdings of these cases relevant to the present one: a.

The starting point for any judicial review is the decision maker’s reasons for decision. b. The burden is on the party challenging the decision to show that it is unreasonable. c. To be reasonable a decision must be acceptable and defensible on the facts and the law in terms of the outcome and the justification or rationale given. d. A r easonableness review is not a line-by-line treasure hunt for error. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic. e.

Reasonable decisions are logically coherent with a rational chain of analysis. They bear the hallmarks of justification, intelligibility, and transparency. They are made within the legal and factual constraints relevant to the decision. f. Reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given. The reviewing court should consider contextual factors such as the governing statutory scheme, the evidence, the submissions of the parties and past practices and decisions. g.

While reviewing courts should ensure the decision under review is justified in relation to the relevant facts, deference to decision makers includes deferring to their findings and assessment of the evidence. Reviewing courts must pay respectful attention to decision makers’ demonstrated expertise when considering whether an outcome reflects a reasonable approach given the consequences and the operational impact of a decision.

h. Before a decision can be set aside for being unreasonable, the reviewing court must be satisfied that there are sufficiently seriousshortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. i. If a decision is reviewed on a standard of reasonableness, and it meets this standard, then the court will not interfere and thedecision will be upheld. j.

If, having conducted a review based on these principles, the court decides that the administrative decision maker’s decision shouldnot be upheld, then usually the court will remit the matter back to the administrative decision maker for reconsideration. In some limitedcases, the court may simply make the decision it determines should have been made.

Issue 1: consideration of “knowingly violated” RothLochston’s argument [34] RothLochston submits that the Arbitrator erred in determining the legal test for “knowingly violating” by defining“knowingly” as meaning a deliberate or intentional violation of the Fall Protection Rule and assessing it solely on a subjective standard. [35] RothLochston submits that the Arbitrator failed to provide any analysis supporting this

interpretation and that, as a result, hisdecision lacks the transparent and intelligible justification that is required to meet the reasonableness standard. [36] Further, RothLochston submits that the definition the Arbitrator applied is incorrect. RothLochston relies on Canada PostCorporation v. L.C.U.C., (CA LA), [1987] C.L.A.D. No. 77, 32 L.A.C. (3d) 86 (Arbitrator: Pamela C. Pitcher), acase in which an arbitrator considered the meaning of “knowingly” in the context of an employment policy that prohibited an employeefrom knowingly driving a corporate vehicle without an appropriate and valid driver’s licence.

In Canada Post Corporation v. L.C.U.C.,the arbitrator interpreted “knowingly” to mean that the employee had actual knowledge of the inappropriateness or invalidity of hisdriver’s license or that he had good reason to know and thus should be imputed with the knowledge. RothLochston submits that theArbitrator should have considered an

interpretation of “knowingly” that included imputation of knowledge. [37] RothLochston goes further by submitting that the Arbitrator should have considered that reckless or negligent behavior in thecontext of a breach of safety rules is akin to a deliberate violation. RothLochston states that, even if he rejected this

interpretation, theArbitrator should have expressly considered whether “knowingly violated” should be assessed on an objective standard. [38] Additionally, RothLochston submits that the definition the Arbitrator used is unreasonable because it provides an absurd resultin that only those cases where there is an admission of a breach, regardless of the circumstances, would result in a finding of a knowingviolation. The Union’s argument [39] The Union submits that RothLochston has mischaracterized this issue as the determination of a legal test.

The Union submitsthat the Arbitrator made a finding of fact in interpreting what “knowingly violated” means in the context of RothLochston’s disciplinepolicy. [40] The Union states that the arbitral test for reviewing whether a unilateral employer policy is a reasonable exercise ofmanagement rights in a unionized workplace is well settled law. It derives from Lumber & Sawmill Workers’ Union, Local 2537 v. KVPCo. Ltd., (ON LA), [1965] O.L.A.A. No. 2, 1965 CarswellOnt 618 and is generally known as the “KVP test”.

One ofthe requirements of the KVP test is that the unilaterally imposed rule or policy be clear and unequivocal. The Arbitrator found that theLife Saving Rule was clear and unequivocal. [41] The Union submits that the Arbitrator’s

interpretation of “knowingly” to mean “deliberately” is consistent with the ordinaryand common sense meaning of the word as it would be understood by employees in the context of a workplace policy. The Unionsubmits that it is also consistent with dictionary

definitions of the word. As the Arbitrator adopted the ordinary and common sensedefinition, the Union submits that no detailed analysis was required. [42] Even so, the Union disagrees that the Arbitrator did no analysis. It notes that the Arbitrator considered in detail how theemployer had applied the term in Mr. Osmond’s case. [43] The Union also disagrees that the Arbitrator’s

interpretation of the phrase has an “absurd” result in that a “knowing violation”can only be established if an employee admits to a breach. The Union points to parts of the Arbitrator’s decision where he considered analternative scenario that might have lead him to conclude there was a knowing violation, even in the face of a denial by Mr. Rideout. [44] The Union submits that it would have been unreasonable to interpret “knowingly” to include reckless or negligent behaviorbecause tradespeople would not understand the term that way.

As RothLochston drafted the policy unilaterally and chose not to use thewords “reckless” or “negligent”, it would be unreasonable and unfair to now read those words in. Analysis of Arbitrator’s decision as a whole [45] To determine the reasonableness of the Arbitrator’s award, I have to step back from the specific failings alleged byRothLochston to evaluate his reasons as a whole. This enables me to better understand and assess the context of the impugned decisions. [46] In his reasons, the Arbitrator set out the nature of the grievance and then reviewed the evidence in detail.

He next summarizedthe positions of both parties. In the following section, entitled “Considerations”, he analyzed the issues raised and came to hisconclusions. [47] In his analysis, the Arbitrator reviewed the relevant sections of the Collective Agreement, RothLochston’s applicable policies

and procedures, and applicable case law. He focused on the key issue of whether Mr. Rideout had “knowingly violated” the Fall Protection Rule. He noted that there was no significant dispute about the facts of the incident and reviewed those. He identified evidence that he considered relevant to the issue of knowing violation, analyzed it, and concluded that Mr. Rideout had committed a serious safety violation but had not knowingly violated the Fall Protection Rule.

He then went on to consider an appropriate penalty for the violation. [ 48 ] Generally, the Arbitrator’s decision is logically ordered, rational, and intelligible. I have no difficulty understanding what the Arbitrator decided and why. That being said, this overarching rationality does not preclude there being specific shortcomings in the Arbitrator’s reasoning that are significant enough to render his decision unreasonable. As such, I must give careful consideration to the failings alleged by RothLochston.

Analysis of the Arbitrator’s consideration of the meaning of “knowingly” [ 49 ] RothLochston’s characterized the Arbitrator’s consideration of the phrase “knowingly violated”, as deciding upon and applying a “legal test”. To the extent that the idea of a legal test suggests that there was one correct articulation, I disagree with this view. The Arbitrator interpreted the words in the context of RothLochston’s workplace policy and I have to analyze his

interpretation through a reasonableness lens. [ 50 ] Although the Arbitrator did not explicitly define “knowingly”, upon reading his decision as a whole, his

interpretation is readily apparent. He interpreted the word to mean “deliberately” and distinguished it from “carelessly”. [ 51 ] The Arbitrator found that RothLochston’s policy complied with the KVP test, one requirement of which is that it must be “clear and unequivocal”. This evidences that the Arbitrator did not find anything unclear or ambiguous about the phrase “knowingly violated”. Although the Arbitrator did not cite any definition, the Union filed an excerpt from the Concise Oxford Dictionary before this Court, which defines “knowingly” as “consciously, intentionally”.

Deliberately is another synonym for these words. [ 52 ] I cannot agree with RothLochston’s contention that the Arbitrator’s definition of “knowingly” is absurd because it results in findings of knowing violation only in cases where the employee admits a breach.

This conclusion does not accord with the following passage from the Arbitration Award at paragraph 44: Had the Grievor and the crew been informed at the toolbox talk, or at any other time before doing the work, that the CCC and the Working at Heights Permit would be required before cutting the handrails, then the Grievor could not credibly claim he had no knowledge of the need for fall protection before he completed the task. [ 53 ] It is clear from this passage that had Mr.

Rideout maintained that he did not knowingly violate the Fall Protection Rule in these hypothetical circumstances, the Arbitrator would not have believed him. The Arbitrator was not merely accepting Mr. Rideout’s stated subjective state of mind. [ 54 ] Does it matter that the Arbitrator did not conduct a detailed analysis of his

interpretation? Or that he did not use the words “objective” or “subjective”? Or that he did not discuss why he was rejecting negligence or recklessness as part of the definition of “knowingly”? My answer to all three questions is “no” and I will explain why. [ 55 ] First, the Arbitrator was not engaged in an exercise akin to a judge’s

interpretation of a statute. The context is different. The courts have long recognized the particular expertise of labour arbitrators in relation to disputes involving collective agreements and disciplinary procedures (see e.g. M.A.H.C.P. v. Nor-Man Regional Health Authority Inc. , 2011 SCC 59 , paras. 45 to 49 ). The policy was written to inform trades people about Life Saving Rules and the consequence of not following them. The Arbitrator chose a meaning for “knowingly” that is consistent with its ordinary meaning.

Considerations of subjective versus objective tests are a regular part of a judge’s reasoning, but “administrative justice” does not always look like “judicial justice” ( Vavilov , para. 92 ). [ 56 ] Second, there is no evidence before me that Canada Post Corporation v. L.C.U.C. was before the Arbitrator or that RothLochston had argued before him that “knowingly” should be interpreted to include carelessness or recklessness. Certainly, these arguments were not included in the Arbitrator’s

summary of RothLochston’s submission (Arbitration Award, para. 33). [ 57 ] An administrative decision maker’s failure to address central issues and concerns raised by the parties can be grounds for a finding of unreasonableness. The principles of justification and transparency require that the decision maker demonstrate that the parties were heard and that the decision maker was alive to the key issues raised ( Vavilov , paras. 127-128 ). However, RothLochston has not raised a failure to consider key submissions as a ground of unreasonableness before this Court.

The onus is on RothLochston to establish unreasonableness, and if this had been a concern, I would have expected RothLochston to have raised it. [ 58 ] The Arbitrator was operating in the context of a policy that had to clearly and unambiguously communicate to workers the circumstances under which they could lose their jobs. He chose a definition of “knowingly” that is consistent with the ordinary meaning of the word. In my view, doing so did not require any significant analysis to be justified, intelligible or transparent.

There is no evidence that he failed to address a submission arguing for a broader definition that would include negligence. As such, I do not find anything unreasonable about the Arbitrator’s consideration and

interpretation of “knowingly”. [ 59 ] Although RothLochston alleges two main failings in the Arbitrator’s reasoning, and it makes sense for me to discuss each of them separately, my review cannot be done piecemeal. As such, my consideration of how the Arbitrator defined “knowingly violated” must inform my assessment of how he applied that definition to Mr. Rideout’s case under issue 2. Issue 2: the finding that Mr. Rideout did not “knowingly violate” the Fall Safety Rule RothLochston’s argument

[ 60 ] In making this finding of fact, RothLochston submits that the Arbitrator failed to properly assess Mr. Rideout’s credibility, failed to consider key evidence, and made inconsistent findings. RothLochston also submits that the Arbitrator engaged in “circular reasoning”. In RothLochston’s view, the Arbitrator’s conclusion is an “absurd” finding that is not supported by the facts before him. The Union’s argument [ 61 ] The Union disagrees that the Arbitrator failed to consider any relevant evidence.

In the alternative, it submits that he was not required to address each piece of evidence or address every line of possible analysis (citing Vavilov , para. 27 .) [ 62 ] The Union stresses that the factual findings of the Arbitrator should be given great deference and that there is no cause to interfere with them. The Union submits that there are no shortcomings in his reasoning that impair justification, intelligibility or transparency. Analysis of the finding that Mr.

Rideout did not knowingly violate the Fall Safety Rule [ 63 ] As a starting point, I must keep in mind the following direction from Vavilov at paragraph 125 : It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings.

The reviving court must refrain from “reweighing and reassessing the evidence considered by the decision maker”. [ 64 ] Nevertheless, a reasonable decision must be justified in light of the facts, and I must consider whether the Arbitrator fundamentally misapprehended or failed to consider evidence before him. [ 65 ] All of the evidence that RothLochston submits the Arbitrator failed to consider in assessing Mr. Rideout’s actions, was referenced in the decision: a. Safety stand down. In August 2020, RothLochston had a “safety stand down” as a result of a number of safety incidents.

Work was stopped and employees, including Mr. Rideout, were given presentations about safety. b. Mr. Rideout’s post-incident statement. c. Mr. Rideout’s letter to RothLochston following his termination. d. RothLochston’s other policies and procedures that required employees to assess risks before they acted. [ 66 ] I do not find the Arbitration Award to be unreasonable simply because the Arbitrator did not specifically mention this evidence in the

section of the decision in which he considered the central issue of whether Mr. Rideout had acted knowingly. In assessing the decision as a whole, it is clear that the Arbitrator was alive to all of this evidence. [ 67 ] This evidence was relevant to the central issue, but to varying degrees. I note that it was undisputed that Mr. Rideout knew about the Fall Protection Rule and had participated in the safety stand down. Also, there was nothing in his statement or his letter that was inconsistent with the Arbitrator’s findings that he did not act knowingly.

In my assessment, both can be reasonably interpreted as statements from someone who knew the rule but did not realize at the time that he was breaking it. [ 68 ] In assessing Mr. Rideout’s actions, it is clear that the Arbitrator considered that Mr. Rideout should have analyzed the risks before he acted (Arbitration Award, para. 44). He also considered the safety stand down as an aggravating factor in his consideration of penalty (Arbitration Award, para. 50). [ 69 ] In short, I do not find that the Arbitrator fundamentally misapprehended or failed to consider evidence.

The weight he chose to give the evidence in making findings of facts is due deference. [ 70 ] Nor do I find that the Arbitrator engaged in circular reasoning. RothLochston argued that it is circular, or nonsensical, that in assessing whether Mr. Rideout acted knowingly, the Arbitrator considered the fact that his supervisor had not reviewed the CCC or Working at Heights Permit at the tool box meeting, yet he found that it was Mr. Rideout’s responsibility to identify job hazards before he acted. With respect, I do not see any logical failure here. It is possible that Mr.

Rideout knew the Fall Protection Rule, should have assessed the risks before he acted, but yet did not knowingly violate the Fall Protection Rule when he carelessly cut the guardrail as he did. This line of reasoning highlights the distinction between intentional and negligent actions, but is not illogical. [ 71 ] There was evidence before the Arbitrator to support his finding that Mr. Rideout acted carelessly, not knowingly. Most significantly, there was Mr. Rideout’s testimony. I do not agree that the Arbitrator failed to assess Mr. Rideout’s credibility.

As I reviewed above in paragraphs 52 and 53, it is clear that he did. [ 72 ] Additionally, the Arbitrator identified internal consistency in Mr. Rideout’s evidence. The Arbitrator found the fact that Mr. Rideout sought safety tape immediately after he cut the guardrail to be consistent with his denial that he knew in advance that by cutting the rail he would be violating the Fall Protection Rule. The search for internal consistency is a common feature of a credibility assessment.

The Arbitrator could perhaps have been more detailed or structured in his credibility analysis, but I do not find that this shortcoming renders his decision unreasonable. [ 73 ] My role is not to parse the Arbitrator’s decision looking for errors. I must ensure that I can trace his reasoning without encountering any fatal flaws in its overarching logic. To the extent that different parts of his decision can be read harmoniously with each other , they should be. For example, the Arbitrator accepted that Mr. Rideout decided to cut the guardrail because he was not busy with other work.

He also found that when he engaged in the cutting, he was busy and did not think about what he was doing. I do not see these findings as inconsistent because they can be read harmoniously. Likewise, the Arbitrator’s characterization of Mr. Rideout’s actions as a

“momentary aberration” is not at odds with the fact that it took Mr. Rideout 8 to 10 minutes to cut the guardrail. To find inconsistency here would be to lose sight of the logic of the reasons as a whole. CONCLUSION [ 74 ] The Arbitrator interpreted “knowingly” in the context of the Life Safety Rules to mean “deliberately”. The Arbitrator received all of the evidence, including Mr. Rideout’s denial that he acted knowingly . He considered that Mr. Rideout could be being untruthful and he assessed Mr. Rideout’s credibility against other evidence before him.

He did not fundamentally misapprehend or fail to consider any evidence. He made a finding of fact that Mr. Rideout did not knowingly violate the Fall Protection Rule. He justified his reasons for doing so. His decision is intelligible and logically coherent. In short, RothLochston has not established on a balance of probabilities that the decision is unreasonable. [ 75 ] RothLochston challenged the Arbitrator’s determination of penalty on the basis that his finding that Mr. Rideout had not knowingly violated the Fall Protection Rule was unreasonable.

RothLochston did not challenge the penalty independent of that finding. However, for completeness, I will address it briefly. [ 76 ] The Arbitrator found that Mr. Rideout’s actions constituted a serious disciplinary offence. Given his finding that Mr. Rideout did not act knowingly, his holding that the previous case of Mr. Osmond was similar to that of Mr. Rideout, is logical and sound. The Arbitrator decided a penalty for Mr. Rideout that was similar to that of Mr. Osmond, but more severe. Both men received a suspension, but Mr. Rideout’s was for a longer time, about four months as compared to seven days.

The Arbitrator’s reasons justifying the penalty are clear and coherent. In short, his decision on penalty is reasonable. DeCISION [ 77 ] RothLochston’s application for judicial review is dismissed. The Union shall have its costs taxed on the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D, Rule 55 , Appendix 1, Scale of Costs, Column 3. _____________________________ Katherine O'Brien Justice