Unifor Locals 1-S & 2-S Appellant/Respondent by Cross-Appeal (Applicant) v. Saskatchewan, 2023 SKCA 68

Court of Appeal for Saskatchewan Docket: CACV4130 Citation: Unifor Locals 1-S & 2-S v Saskatchewan Telecommunications, 2023SKCA 68Date: 2023-06-06Between:Unifor Locals 1-S & 2-SAppellant/Respondent by Cross-Appeal (Applicant)And Saskatchewan Telecommunications Respondent/Appellant by Cross-Appeal (Respondent)AndArbitrator Dan Ish, K.C.Non-party (Respondent) Before: Schwann, Kalmakoff and Drennan JJ.A.Disposition: Appeal dismissed; cross-appeal allowedWritten reasons by: The Honourable Mr.

Justice KalmakoffIn concurrence: The Honourable Madam Justice Schwann The Honourable Madam Justice DrennanOn appeal from: QBG-RG-00634-2022, Regina (Sask KB)Appeal heard: April 11, 2023Counsel: Gregory D. Fingas for Unifor Locals 1-S & 2-S Michael J. Phillips and Calen J. Nixon for Saskatchewan Telecommunications No one appearing for Dan Ish, K.C. Kalmakoff J.A. I. Introduction [1] Unifor Locals 1-S & 2-S [Unifor] is the certified bargaining agent for certain employees of Saskatchewan Telecommunications[SaskTel]. In October of 2019, employees in the bargaining unit began a lawful strike action.

A few days later, SaskTel locked them out.

Thelabour stoppage lasted approximately two and a half weeks and, after the employees returned to work, a dispute arose over how theirremuneration should be calculated during the pay periods that were interrupted by the labour stoppage. [2] SaskTel took the position that, in accordance with the provisions of the collective bargaining agreement [CBA] in place betweenthe parties, the employees should be paid based on an average daily wage rate, without entitlement to pay for earned days off [EDOs] thatwould have fallen during the work disruption period, and adjusted the employees’ paycheques to account for that. [3] Unifor took the view that, in the circumstances created by the labour stoppage, the employees were entitled to be paid an hourlyrate for each hour actually worked during the relevant pay period.

It said, based on the way SaskTel had adjusted their pay post-stoppage, thatsome of the employees in the bargaining unit had been shortchanged, as they had worked more hours than they were paid for. Unifor filed aGrievance and, pursuant to the terms of the CBA, the matter was referred to an arbitrator. [4] The arbitrator ruled in favour of SaskTel. He held that: (

i) the terms of the CBA provided for the employees in the bargaining unitto be paid on the basis of a daily wage rate, as opposed to being paid for hours actually worked, and (ii) because the labour stoppage hadinterrupted two EDO “blocks”, the employees were not entitled to be paid for EDOs that fell during the stoppage (SaskTel v Unifor Locals 1-Sand 2-S, (Sask LA) [Award]). [5] Unifor applied to the Court of King’s Bench for judicial review of the Award. A judge of that Court, sitting in Chambers, grantedthe application in part.

He determined that the Award was not unreasonable, except insofar as it applied to those employees who had worked therequisite number of days under the terms of the CBA to have earned their daily pay for an EDO on the day the strike began.

Accordingly, theChambers judge upheld the bulk of the Award, but made a declaration that the “employees who had worked their nine days immediately priorto October 4, 2019, and who, but for the strike beginning … would have received their EDO benefit are entitled to such benefit”. (Unifor Locals1-S & 2-S v Saskatchewan Telecommunications (25 November 2022) Regina, QBG-RG-00634-2022 (Sask KB) at para 44 [ChambersDecision]). [6] Unifor appeals against the Chambers Decision. It alleges that the Chambers judge made several errors in applying thereasonableness standard of review to the Award. SaskTel cross-appeals.

It contends that the Chambers judge erred by interfering with theAward in the way that he did. [7] For the reasons that follow, I have determined that Unifor’s appeal must be dismissed, and that SaskTel’s cross-appeal must beallowed. II. Background A. The CBA and the EDO system

[ 8 ] Unifor represents the in-scope employees of SaskTel in a long-standing bargaining unit that is certified under the Canada Labour Code , RSC 1985, c L-2 [ Code ]. That bargaining unit includes craft, clerical, administrative, and systems employees. [ 9 ] Under the terms of the CBA in place between the parties during the period relevant to this appeal, bargaining unit employees were eligible for EDOs based on the number of hours worked or scheduled to be worked.

The CBA provided that craft employees in the bargaining unit were to work an average of 37.5 hours per week (75 hours every two weeks), and that the clerical, administrative and systems employees were to work 35 hours per week (70 hours per two-week period). [ 10 ] The EDO regime operated on a system of two-week blocks, with a work week being five days. This meant each employee in the unit worked nine days every two weeks and had the tenth working day in the block as their EDO.

To accommodate this arrangement, craft employees generally worked 8 hours and 20 minutes per day for each of the nine days in order to fulfill the requirement that they work 75 hours in each two-week period. To reach their required 70 hours in each two-week period, clerical, administrative and systems employees worked 7 hours and 47 minutes per day for 9 days, with the tenth working day being an EDO. [ 11 ] The EDO regime described in the foregoing paragraphs was set out in the following provisions of the CBA:

SECTION 2- CRAFT

ARTICLE 1 – HOURS OF WORK 1. (

i) Thirty-seven and one-half (37½) hours shall constitute an average week’s work. An employee shall be paid overtime when required to work outside of regularly scheduled hours. (ii) A basic week’s work shall consist of five (5) consecutive days of not more than eight and one-half (8½) hours Monday to Saturday inclusive, and shall not exceed seventy-five (75) hours over nine (9) days of work in two (2) calendar weeks. Normal working hours shall be between 8:00 a.m. to 5:30 p.m.

However, employees may be scheduled to work shifts as required Sunday to Saturday inclusive in accordance with the guidelines outlined below. (iii) A day absent will be considered a day for the purposes of time reporting for any shift between eight (8) hours and eight (8) hours thirty (30) minutes in duration (e.g. CSL, ESL, Vacation or Holiday). (iv) Employees in Regina Network Operations and Saskatoon Mobility may be scheduled to twelve (12) hour shifts in accordance with the provisions of Appendix XV. … 3. Time Credits (

i) Employees on Sick Leave or Workers’ Compensation within a block will not have their time off credits reduced on that account. Employees who are on Casual Sick Leave or Workers’ Compensation will have days normally scheduled to work charged to sick leave or compensation. Employees who are on ESL will have weeks normally charged to work charged to Extended Sick Leave.

If an employee is on sick leave or compensation for an entire block no time off credits are allowed for that block. (ii) If an employee is on Leave of Absence for Union business for a period of nine (9) working days or less in a block, time off credits in that block will not be affected. Consecutive blocks of Leave of Absence for Union business will not accumulate time off credits. (iii) If an employee is on Leave of Absence without pay, other than for Union business, for a period of five (5) days or less in a block, time off credit for that block will not be affected.

If on leave in excess of five (5) days in a block, the employee will not be entitled to time off credits in a block. (iv) No time off credit adjustments will be made in regard to new engagements or terminations which occur during a regular block. A new employee assumes the normal provisions during the first full block after engagement. When an employee resigns, whether or not such employee has taken time off in that block, no wage adjustment is made for that purpose. …

SECTION 3 – CLERICAL AND ADMINISTRATIVE STAFF

ARTICLE 1 – HOURS OF WORK 1. Thirty-five (35) hours shall constitute an average week’s work, consisting of five (5) consecutive seven (7) hours, forty-seven (47) minute days, and administered in accordance with the provisions set forth in Appendix V to this Agreement. There shall be a maximum of one (1) hour unpaid lunch between sessions. …

SECTION 4 – SYSTEMS STAFF

ARTICLE 1 – HOURS OF WORK Thirty-five (35) hours shall constitute an average week’s work and shall be administered in accordance with the provisions set forth in

Appendix V to this Agreement. … APPENDIX V MEMORANDUM OF AGREEMENT regarding Hours of Work. The hours of work for certain employees shall be as follows: 1.

SECTION 4 – CLERICAL AND ADMINISTRATIVE STAFF

SECTION 5 – SYSTEMS STAFF (

i) Subject to the provisions of

Section 4,

Article 1, and

Section 5,

Article 1 of the Agreement, the basis of the hours of work shall be thirty-five (35) hours per week. (ii) Effective October 4, 1981, the daily work period shall be seven hours and forty-seven minutes (7:47) per day and each employee shall be entitled to one (1) additional scheduled day off in each two (2) week block of time. 2. The foregoing provisions of Clauses 1 and 2 shall be administered according to the principles set forth below: (

i) The additional days off will be scheduled by the Company in such a way as to be consecutive with and extend the employee’s weekend, unless otherwise mutually agreed to. In some departments or locations, the entire office may be closed, if practicable, rather than employees having individual days off. (ii) Employees on sick leave or Workers’ Compensation within a block will not have their day off credits reduced on that account.

However, if an employee is sick on their scheduled additional day off, it will be regarded as the same as if they were sick on any normal day off; they would not be entitled to another day off in lieu of the day on which they were sick. Employees who are on Casual Sick Leave or Workers’ Compensation will have days normally scheduled to work charged to sick leave or compensation. Employees who are on ESL will have weeks normally scheduled to work charged to extended sick leave.

If an employee is on sick leave or compensation for an entire block, the additional day off is included in this time and no further credits are allowed for that block. (iii) If an employee is on Leave of Absence for Union business for a period of nine (9) days or less in a block, day off credits in that block will not be affected. Consecutive blocks of Leave of Absence for Union business will not accumulate time off credits. (iv) If an employee is on Leave of Absence without pay, other than for Union business, for a period of five (5) days or less in a block, day off credits for that block will not be affected.

If on leave in excess of five (5) days in a block, the employee will not be entitled to the additional day off in a block. (

v) No time off credit adjustments will be made in regard to new engagements or terminations which occur during a regular block. A new employee assumes the normal provisions during the first full block after engagement. When an employee resigns, whether or not such employee has taken a day off in that block, no wage adjustment is made for that purpose. [ 12 ] In September of 1999, the parties signed a Letter of Understanding [LOU], which became part of the CBA. The purpose of the LOU was to “confirm the understanding and principles … regarding what constitutes a day’s pay”.

It read as follows: It is agreed that the terms and conditions of the Collective Agreement shall apply with the following additions: 1. That the weekly wage rate will be determined by multiplying the hourly rate of the employee by the hours in the work week (which shall be 37.5 hours per week for those classifications in the Craft

Section of the Collective Agreement, and shall be 35 hours per week for all other classifications). 2. That the daily wage rate will be determined by dividing the weekly wage rate, as determined in 1. Above by five (5). 3.

That the determinations set out above apply to full-time permanent and temporary employees and shall not apply to part-time positions or those positions whose hours per week varies or is flexible. [ 13 ] All of this meant that, because each employee was entitled to take one day in each two-week working block as a day off with pay, craft employees were paid an amount equivalent to 7.5 hours (and clerical, administrative and systems employees an amount equivalent to 7 hours) for each of the ten working days during the two-week period, including the EDO. [ 14 ] The fact that, over the course of a two-week period, each employee worked nine days and had one EDO did not mean that all employees worked the first nine days of each block or that the EDO necessarily fell on the last day of the block.

The employees in the bargaining unit generally worked a standard five-day work week, and EDOs were scheduled so that they occurred on a Monday or Friday, meaning that each employee was ensured a three-day weekend every two weeks. The employees in the bargaining unit were scheduled in accordance with one of four patterns, based on the timing of their EDO. The CBA referred to the four different scheduling patterns as “Regular Friday”, “Opposite Friday”, “Regular Monday” and “Opposite Monday”.

This scheduling pattern meant that some employees would always have their EDO on the second Friday of each two-week scheduling block, while others would always have theirs on the first Friday of the two- week block, or the first Monday of the block, or the second Monday of the block.

[ 15 ] Employees in the bargaining unit were paid every two weeks. Pay periods started on a Sunday and ended on the Saturday of the following week. Full-time employees were paid, in advance, on the Thursday prior to the end of the pay period, meaning that they were paid for ten days, based on these averaging practices, regardless of the hours actually worked in that two-week period. The timesheets from a given pay period were processed in the following pay period and any required adjustments based on actual attendance and days worked were then made.

Adjustments could include deductions for no pay time, which was deducted at either seven hours (clerical, administrative and systems), or seven and a half hours (craft), for any missed days based on the averaging practices as they applied within a full EDO block. Adjustments also included extra payments for overtime, and any shift differentials such as evenings, nights, Sundays, successive Sundays, in-charge, instruct, and travel time. [ 16 ] By virtue of how SaskTel’s payroll system operated, the two-week pay periods were not synchronized with the two-week EDO blocks; they overlapped.

Relevant to the circumstances here, the labour disruption coincided with three different pay periods: (

a) September 22, 2019, to October 5, 2019 [first pay period]; (

b) October 6, 2019, to October 19, 2019 [second pay period]; and (

c) October 20, 2019, to November 2, 2019 [third pay period]. [ 17 ] There were two EDO blocks that were interrupted by the period of labour disruption: (

a) September 29, 2019, to October 12, 2019; and (

b) October 13, 2019, to October 26, 2019. B. The labour stoppage [ 18 ] The parties were in the process of negotiating a new CBA in the fall of 2019. When collective bargaining reached an impasse, they engaged in a strike and lockout. Unifor commenced a strike of the bargaining unit on Friday, October 4, 2019, at 12:01 a.m., and SaskTel locked out the bargaining unit on Monday, October 7, 2019.

The labour dispute was resolved on Sunday, October 20, 2019, and in-scope employees returned to work on Tuesday, October 22, 2019. [ 19 ] The employees had received their salaries for the first pay period on October 3, 2019. As noted, the job action began on October 4, 2019, meaning that in-scope employees did not work on that day. [ 20 ] During the second pay period, employees did not work at all because of the strike and lockout.

Pay statements issued to employees on October 17, 2019, reflected that SaskTel had made an adjustment, by deducting a daily rate of pay from the compensation of each employee in the bargaining unit, to account for the fact that they had not worked on October 4, 2019. This deduction was made for all in-scope employees, regardless of when they were scheduled to have their EDO during the EDO block that ran from September 29 to October 12, 2019. [ 21 ] On October 31, 2019, employees were paid for the third pay period.

In this pay statement, the daily average rate of pay for Monday, October 21, 2019, was deducted from each in-scope employee’s paycheques, because they had returned to work on Tuesday, October 22, 2019. C. The Grievance [ 22 ] On October 31, 2019, Unifor filed a Grievance, alleging that SaskTel had failed to make appropriate payment to bargaining unit members during the period in question.

While Unifor agreed that bargaining unit members were not entitled to an EDO during the labour dispute, it took the view that the affected employees were entitled to be paid for the time they had actually worked, which would normally have counted towards the accumulation of an EDO. In other words, they asserted that their pay ought to have been calculated on the basis of an hourly rate for all hours actually worked, rather than on the basis of a daily average rate for the days worked. [ 23 ] Unifor’s position was based on

Section 1,

Article 19.4 of the CBA, which reads as follows: 4. As of the effective date of this Agreement, all employees shall be given the rates of pay as specified hereinafter, corresponding to their classification and wage band. Unifor took the view that the words “rates of pay as specified hereinafter, corresponding to their classification and wage band” referred to the Wage Schedules and Hourly Salary Tables contained in

Section 5 of the CBA, and meant that employees were entitled to be paid for each hour worked at the corresponding hourly wage rate. D. The Award [ 24 ] The hearing of the Grievance proceeded over the course of three days in December of 2021. An agreed statement of facts was filed, six witnesses testified, and the parties made written and oral submissions through counsel. [ 25 ] In the Award , the arbitrator began by setting out the factual underpinning that framed his analysis of the issue the parties sought to have determined. He drew much of that from the agreed statement of facts.

The arbitrator also reviewed the testimony of the bargaining unit employees that Unifor had called as witnesses. He observed that each of those employees had worked a partial EDO block that was interrupted at the front end of the labour dispute, and another partial EDO block at the back end, which meant that, under the terms of the CBA, they had not worked enough days in either block to earn their EDOs for those blocks.

Because of how the EDO blocks operated, and the fact that SaskTel calculated their pay based on daily average rates, many employees ended up getting paid for fewer hours than they had actually worked. Others, however, ended up getting paid for more hours than they had worked, because their scheduled EDO fell at the front end of the EDO block that was interrupted at the outset of the labour stoppage.

The arbitrator summed all of this up by saying: [27] … This is the crux of the issue between the parties – when the EDO blocks were disrupted by the labour dispute should the daily wage rate average utilized in the EDO block system be used to calculate salary for a day’s work or should employees be paid for the hours actually

worked? Although only four employees were called as witnesses, the method of calculation issue resulting from the strike/lockout has impactfor nearly 2100 employees. [26] The arbitrator also reviewed the evidence given by SaskTel’s Manager of Payroll, who had testified that the pay system and the EDOsystem had been in place since 1999, when the LOU was agreed to by the parties to accommodate a new payroll system. The Manager ofPayroll said this system envisaged a ten-day work cycle over a two-week period, in which nine of the ten days of an employee’s

schedule wereactually worked and the tenth day was an EDO. She testified that the EDO blocks operated on an “all or nothing” basis, meaning that if anemployee worked an entire EDO block, they received 70 or 75 hours pay and one EDO (Award at para 31).

She also said that the EDO blockswere a “closed system” and that, subject to some exceptions set out in the CBA, the full ten-day cycle had to be worked to qualify for an EDO;EDO entitlement was not pro-rated (at para 32). [27] The arbitrator then reviewed the portions of the CBA that dealt with leaves of absence, payment of wages and wage increases, hoursof work, and time off credits.

He also referred to “Appendix V”, which set the terms for the EDO system, and the LOU, which confirmed theprinciples that the parties had agreed would define what constituted a day’s pay. [28] The arbitrator next summarized the parties’ respective positions. He recognized that the central plank of Unifor’s argument was thatCanadian employment law is built around the concept of quantum meruit, in other words, that employees are entitled to be paid for time workedunder the direction and control of an employer.

In that respect, he observed that Unifor took the view that the averaging system under the EDOregime only worked properly where a full EDO block was available and the amount of work could be averaged over ten working days in thetwo-week period, because it was only in those circumstances that employees were fully paid for the hours they worked. Unifor asserted that,where averaging could not take place on that basis, as was the case during the labour stoppage, employees were entitled to be paid their hourlywage in accordance with

Section 5 of the CBA and the Hourly Wage Tables, because the CBA made no explicit provision for any other methodof payment in those circumstances.

Unifor based this submission on its contention that strikes and lockouts were not exceptions to the averagingsystem in Appendix V that the parties had contemplated and argued that interpreting the CBA in any other way would effectively negate theemployees’ Charter-protected right to strike. [29] After reviewing the arguments SaskTel had put forth, the arbitrator recognized that the only issue to be decided was “whetheremployees should have been paid for the actual time worked during the disrupted EDO blocks or whether they should have been paid pursuantto the pay averaging system that has been in place since at least 1999” (at para 50).

He also observed that, although the principle of quantummeruit generally requires, as a matter of fairness, that employees be paid for the work they have performed, the operation of that equitableprinciple can be displaced by the express terms of a collective bargaining agreement. The arbitrator went on to conclude that, on a properinterpretation of the terms of the CBA in this case, remuneration for in-scope employees was to be determined based on the average daily wagefor actual days worked during the labour stoppage, and not on an hourly basis.

He gave the following reasons for reaching this conclusion: [53] The facts of the work surrounding the labour dispute cannot, however, be viewed in isolation but must be considered in the context ofthe provisions of the collective agreement. Although the quantum meruit principle normally applies and … is presumed to apply, a scheme ofpayment set out in the collective agreement may lead to the opposite conclusion especially with respect to a narrow set of facts within a narrowtime frame. The object of

interpretation of a collective agreement is to determine the intention of the parties, gathered from the words used inthe collective agreement provisions under consideration. Arbitrator Elliott, in the often-cited [Imperial Oil Strathcona Refinery and C.E.P., Loc.777 (Re) (2004), (AB GAA), 130 LAC (4th) 239 (Alta GAA)] case, said the words of a collective agreement are not to beconstrued in isolation but “must be read in their entire context in their grammatical and ordinary sense, harmoniously with the scheme of theagreement, its object and intention of the parties”. (At para. 40) This approach, long accepted by arbitrators and sometimes referred to as “themodern principle of

interpretation”, has been recognized by the Supreme Court of Canada in [Creston Moly Corp. v Sattva Capital Corp., 2014SCC 53, [2014] 2 SCR 633] and more recently discussed by the Alberta Court of Appeal in [Alberta Union of Provincial Employees v AlbertaHealth Services 2020 ABCA 4, [2020] 9 WWR 12]. Similarly, facts that may give rise to a prima facie claim based on the principle of quantummeruit must be considered in the context of the governing collective agreement. In the present case the collective agreement, including the 1999LOU, created a scheme of payment to accommodate earned days off.

It is within this context that the union’s claim must be assessed. [54] The two-week payroll system and the EDO structure within the system has been in place for many years. Employees are paid the dailywage rate for each day they work, which is less than the hours they actually work. The excess daily work hours are pooled and paid for as anEDO every tenth working day. The EDO pay, like each of the nine working days, is the “daily wage rate”, as defined in the 1999 LOU. Unlessotherwise provided for in the collective agreement, the two-week cycles for the purpose of obtaining an EDO is a “closed” block.

In theordinary course of events, if an employee does not work the required nine days within any predetermined block, the EDO for that block is nottaken and paid. And, importantly, the days worked within the block are paid the daily wage rate and not paid for hours actually worked. Thus,for instance, if an employee begins employment in the middle of a block they will not be entitled to an EDO until they have completed the nextscheduled full EDO block and, until that block begins, will only get paid the daily wage rate for the days worked.

Until the first full scheduledblock is completed, they are paid for fewer hours than actually worked. A similar result occurs when an employee resigns mid-block or whenfor other reasons, other than the specific exceptions recognized in the collective agreement, an employee’s EDO block is interrupted. There isno attempt, in the normal operation of the EDO blocks, to pro-rate pay or make-up for the EDO lost from a disruption in an EDO block. [55] The employer schedules the EDO blocks and has done so since they were implemented.

There was no evidence that either thescheduling or the impact of the “closed” block system resulting in a lost EDO without a proportioning of pay, as described in the last paragraph,has been previously challenged. [56] The parties have turned their minds to certain common situations that occur which would affect EDO entitlements by the normaloperation of the system. A number of specific exceptions have been agreed to in the collective agreement where notwithstanding an interruptionof an employee’s EDO block their EDO credits or entitlement will not be affected.

These exceptions include time away while on sick leave,WCB benefits, union leave less than nine days or a leave of absence for five days or less. (See

Section 2,

Article 1 and

Section 3, Appendix V)The operation of the EDO blocks for new hires and resignations, described above, are also recognized in the collective agreement. [57] It is quite accurate to describe the system as an all-or-nothing closed block. There is no recognition either in the collective agreement orin past practice of partial entitlement to an EDO or that pay be on any other basis than the daily wage rate as set out in the 1999 LOU.

While thedaily wage rate is an average based on an assumed ten-day cycle, other than the specifically recognized exceptions, the collective agreementdoes not provide for any deviations from it and there is no evidence that in practice there have been deviations from it. The EDO benefit,through numerous successive collective agreements, has been administered to allow an EDO based only on the completion of a whole EDOblock. The position of the union is that the strike/lockout warrants a deviation from the long-standing scheme.

[58] The occurrence of a strike or lockout is most certainly a signal event in the relationship between employees and their employer. There is no doubt that, as argued by the union, there is a recognized constitutional right to strike. [ Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 , [2015] 1 SCR 245] Nevertheless, it is my conclusion that I cannot ignore the clear provisions of the collective agreement pertaining to the EDO scheme.

During the course of the hearing, it seemed to me the principle of quantum meruit would lead to the conclusion that employees must get paid for their actual hours of work. Quantum meruit , however, is a presumption and not an immutable rule or principle. The provisions of the collective agreement with respect to EDO entitlement and the averaging pay scheme agreed to, including the 1999 LOU, persuade me that the quantum meruit presumption does not apply here. [59] The provisions of the collective agreement are not ambiguous.

The scheme envisaged is a closed two-week block system that contemplates the daily rate of pay – the “daily wage rate”. There are no provisions that recognize other bases of payment. To the extent that allowances or exceptions are contemplated, they are specifically and clearly written into the agreement. The language used to delineate the exceptions is exhaustive language. It is not language that contemplates a broader principle of exceptions of which the delineated examples are examples.

Rather, they are the only exceptions and an interruption to the EDO blocks because of a labour dispute is not one of them. [60] The absence of any mention of EDOs or the EDO scheme in the October 20, 2019 Memorandum of Settlement that ended the strike/lockout is also significant. The parties had extensive experience fashioning collective agreement provisions to address agreed exceptions to the EDO scheme, yet the MOS is silent on the matter. One suspects that the issue may not have been contemplated by either party when the MOS was entered into in the waning heat of the labour dispute.

Nevertheless, its absence further supports the conclusion that the normal operation of the EDO scheme should prevail. [61] The collective agreement in Art. 8(4) includes a typical provision limiting the authority of arbitrators to vary the terms of the agreement and reminding them they are “bound by the terms of the collective agreement”. While I recognize the quantum meruit presumption (see para. 53 above), I conclude the presumption is rebutted by the terms of the collective agreement. To conclude otherwise would, in my view, be contrary to Art. 8(4). [ 30 ] Accordingly, the arbitrator dismissed the Grievance.

E. The Chambers Decision [ 31 ] Unifor then filed an originating application in the Court of King’s Bench, seeking judicial review of the Award . [ 32 ] In the Chambers Decision , the Chambers judge began his reasons by recognizing that the parties had agreed that the applicable standard of review was reasonableness. He reviewed the facts of the case and referred to the same provisions of the CBA that the arbitrator had reproduced in the Award . [ 33 ] He then turned to the application of the standard of review.

As a self-instruction, the Chambers judge quoted from this Court’s decision in AlumaSafway Inc. v The International Association of Heat & Frost Insulators and Asbestos Workers, Local 119 , 2022 SKCA 99 at paras 35–36 [ AlumaSafway ], which had in turn quoted the words of Barrington-Foote J.A. in Service Employees International Union-West v Saskatchewan Health Authority , 2020 SKCA 113 at paras 102–105 , 454 DLR (4th) 363 [ SEIU West ], as a guide to the application of the reasonableness standard in the wake of the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ]. [ 34 ] Cutting directly to the bottom line, the Chambers judge found that the arbitrator’s decision in the Award was for the most part reasonable.

He noted that the EDO system had been explicitly bargained for by both parties, and that the two-week averaging approach it provided for had replaced the “pay for every hour actually worked” approach that the Union had argued should govern. In that regard, he wrote: [21] The result of the detailed and comprehensive CBA, resulting from extensive negotiations over many years, is that employees have traded a specific right to be paid at all times for every hour worked for benefits which, overall, are more favourable than that.

One of those is for the benefit of having one day they do not have to attend at the place of employment and yet they will still be paid: the EDO, provided they meet the criteria for that benefit. This right bears certain

interpretations for the various situations which may arise and complicate the underlying premise. This is inevitable given that it is a 14-day block that is the new foundation and not a strict hourly pay arrangement. [22] The examples of how earning one's EDO occurs, and conversely when it is not earned, is therefore an apt measure. By agreement of the parties, it is only earned upon completion of 9 days of 8.33 hours or 7.78 hours respectively.

For new employees starting on the second day of the 14-day closed block they happen to be assigned, working 8 of the 9 requisite days does not entitle them to pay for the extra hours worked on those 8 days rather than an EDO on day 10. They must start the closed block over once more and work the full 9 days in order to become entitled to the day 10 EDO.

This is how it is most fairly and equitably applied in the situation of a strike as well. [23] One specific situation of benefit to the employees as recognized in the CBA is where they work 5 days and then have 5 (or less) days off, which time is characterized as "unpaid leave". The result is that, without working the full 9 days, they nonetheless still receive the 10th day as an EDO for which they are paid the daily rate. This is a situation in which the employees have given up a strict " hourly pay for hourly work" when they start with SaskTel.

Thus, while they do not work 9 days at 8.33 or 7.78 hours respectively, they are paid for a 10th day, being an EDO. They have agreed they will not be paid strictly for every hour worked in such a situation. It is a benefit to them. The closed 2-week block system takes on the one hand and gives back on the other. [24] This form of trade-off is at the core of the CBA and has been for many decades. Application in a logical, appropriate and consistent manner when the strike interrupted the cycle occurred through the arbitrator’s decision but for the one circumstance.

It is not within the realm of reasonable that the lone exception to this closed 2-week block system and the resulting earning of an EDO is found in the situation of a strike. It is rationale and logical as well as transparent and understandable that the arbitrator would conclude that the various trade-offs as they affect the other aspects of earning or not earning an EDO govern an ambiguity such as arises here. [ 35 ] The Chambers judge then addressed Unifor’s argument that the Award was unreasonable for having displaced the principle of quantum meruit .

On that point he also found that, because the “pay for each hour worked” position had been bargained away, this argument could not succeed (see paras 25–26). [ 36 ] As for Unifor’s contention that the Award was unreasonable because it could not be justified in light of s. 247 of the Code , the Chambers judge also found no traction in that argument. He determined that the Code was inapplicable in the circumstances.

[ 37 ] In the end, the Chambers judge determined that the Award was reasonable, except for one aspect. He concluded that it was unreasonable for the arbitrator to have found that the employees for whom October 4, 2019, would have been an EDO under the applicable scheduling pattern were not entitled to be paid for that day.

In that respect, he said that because those employees had already “completed doing everything they possibly could to earn their daily pay for their EDO on Friday October 4, 2019”, a finding that they were not entitled to that pay under the CBA “defies both logic and common sense and is not supported on the facts or the law” (at para 28).

The Chambers judge reached this conclusion because, although the CBA made specific provisions for several other situations in which employees did not get paid for their EDO day if they did not complete the full “work” portion of a block (i.e., starting their employment in mid-block, or resigning, being terminated or transferred before the end of the last working day in a block), there was no circumstance mentioned in the CBA that deprived them of entitlement to EDO pay if they had worked the full 9 work days of a given block.

He said: [32] The fact that each employee who completed their ninth workday on Thursday, October 3 and could do nothing more to earn their EDO, yet was denied their entitlement to the EDO benefit based on a lawful strike occurring on their tenth day, makes the arbitrator’s conclusion on that particular point unsustainable. [33] Given there are a number of other scenarios where an employee would work less than their full nine 8.33 hour days and not be entitled to an EDO or any portion thereof or to any pay for the .33 hours worked on each of those days makes the arbitrator's conclusions, in all other respects, reasonable. … [42] I find the arbitrator’s Decision in all respects but one to be justified, transparent and intelligible.

I am, however, satisfied that there are shortcomings in the conclusion that those employees who had done everything required of them to qualify for the EDO benefits prior to October 4, 2019 do not receive such benefits. I find that this aspect of the Decision does not exhibit the requisite degree of justification, intelligibility and transparency that it can remain unaddressed. On this particular point, the departure from a fair, logical and justifiable outcome is more than trifling and is not merely superficial.

The flaws inherent in that particular conclusion are sufficiently significant that this aspect of the Decision is unreasonable. [ 38 ] Having reached that conclusion, the Chambers judge upheld the Award , except to the extent of making a declaration that “the employees who had worked their nine days immediately prior to October 4, 2019, and who, but for the strike beginning on October 4, 2019, would have received their EDO benefit, are entitled to such benefit” (at para 44). III. Unifor’s appeal A.

The governing framework [ 39 ] In an appeal from a judicial review decision, this Court’s role is to determine whether the Chambers judge selected the appropriate standard of review and correctly applied it. There is no dispute that the applicable standard of review in this case is reasonableness.

That being so, our task is to step into the shoes of the Chambers judge and review the decision of the arbitrator in accordance with that standard (see: Teamsters Canada Rail Conference v Canadian National Railway Company , 2021 SKCA 62 at para 41 , 327 LAC (4th) 322; Amalgamated Transit Union Local 615 v Saskatoon (City), 2021 SKCA 93 at paras 94–45 , 86 CLRBR (3d) 1 [ Amalgamated Transit Union ]; AlumaSafway at para 33 ; Saskatchewan Polytechnic Faculty Association v Saskatchewan Polytechnic , 2022 SKCA 30 at para 21 ; and Liao v Saskatchewan (Economy) , 2022 SKCA 137 at para 13 , 6 Admin LR (7th) 163). [ 40 ] In SEIU West , Barrington-Foote J.A., dissenting but not on this point, summarized the framework that is to be applied post- Vavilov when a decision made by an administrative tribunal is reviewed for reasonableness.

In that regard, he wrote: [102] … [In Vavilov ], the majority confirmed the reasonableness standard requires the reviewing court to answer two questions; that is, “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 Paper Corp. v North Cowichan (District) , 2012 SCC 2 , [2012] 1 SCR 5] at para. 13” (at para 99).

For analytical purposes, the Court described two kinds of fundamental flaws as a convenient way to discuss the issues that may show a decision to be unreasonable (at para 101). First, is there “a failure of rationality internal to the reasoning process”? Second, is the decision “in some respect untenable in light of the relevant factual and legal constraints that bear on it”? (at para 101).

The Court emphasized that in order to justify setting aside a decision, the flaws must be “sufficiently central or significant”, not superficial or peripheral (at para 100). … [105] …[R]easonableness is a deferential standard and must be sensitive and respectful of the role of the delegated decision maker. It is not a “line-by-line treasure hunt for error” ( Vavilov at para 102 ). The court’s function is to “ensure the legality, the reasonableness and the fairness of the administrative process” ( Dunsmuir v New Brunswick , 2008 SCC 9 0 at para 28 , [2008] 1 SCR 190).

However, reasonableness review must also be robust. … See also: Amalgamated Transit Union at para 93 ; and AlumaSafway at para 35 . B.

Issues [ 41 ] Unifor contends that the bottom-line result in the Award , namely that the remuneration for employees in the bargaining unit who worked partial EDO blocks because of the labour stoppage was to be determined based on the daily average wage for each day worked, rather than on the basis of an hourly wage for each hour worked, is unreasonable. [ 42 ] While Unifor breaks this down into four separate allegations of unreasonableness, I find considerable overlap in its first two lines of argument. Accordingly, I would recast the questions for determination on the appeal as follows: (

a) Was the arbitrator’s conclusion that the employees’ entitlement to remuneration should be determined by the LOU and Appendix to

the CBA, as opposed to the Hourly Wage Tables, unreasonable? (

b) Was the arbitrator’s conclusion that the employees’ entitlement was not determined by the principle of quantum meruit unreasonable? (

c) Was the arbitrator’s decision unreasonable for failing to give effect to applicable provisions of the Code and the Canada Labour Standards Regulations , CRC, c 986 [ Regulations ]? C. Analysis 1.

Was the arbitrator’s conclusion that the employees’ entitlement to remuneration should be determined by the LOU and Appendix to the CBA, as opposed to the Hourly Wage Tables, unreasonable? [ 43 ] Unifor builds its argument under this heading around the principle that wages are the essence of what employees bargain for in the labour relations world, and the corresponding presumption that employees will be paid for the work they perform. Unifor posits that the conclusion reached in the Award is unreasonable, because it amounts to a departure from this presumption that is not factually or legally justified.

Unifor says the reasoning that led the arbitrator to the result he reached in the Award was flawed, as he relied on a “bare declaratory statement as to the CBA’s content and meaning” rather than properly considering and interpreting the actual language and structure of the CBA. [ 44 ] I would not give effect to this argument. As Vavilov instructs, a reasonableness review entails a “sensitive and respectful, but robust, evaluation of administrative decisions” (at para 12).

This requires a reviewing court to “examin[e] the reasons provided with ‘respectful attention’ and [seek] to understand the reasoning process followed by the decision maker to arrive at its conclusion” (at para 84, citing Dunsmuir v New Brunswick , 2008 SCC 9 at para 48 , [2008] 1 SCR 190). Applying these principles to the examination of the Award in this case, I see no failures of rationality in the arbitrator’s decision-making process, and no lack of justification for the outcome in light of the factual and legal issues involved.

In short, this aspect of the Award bears the necessary hallmarks of reasonableness. I say this for several reasons. [ 45 ] As a starting point, the path the arbitrator followed to interpret the CBA, given the evidence before him and the parties’ submissions, was clear and logical. He analysed the facts, considered the language of the CBA, and took into account the context and history of the relationship between Unifor as bargaining agent for the employees and SaskTel. The arbitrator’s reasons demonstrate that he was very much alive to the governing presumption that employees will be paid for work they perform.

He also recognized that this presumption stood to be considered “in the context of the provisions of the” CBA ( Award at para 53 ), and observed that, while the quantum meruit principle ordinarily applies where services are provided by an employee, it can be displaced by contractual provisions, such as those in a collective bargaining agreement. [ 46 ] The arbitrator also explicitly recognized and applied the principles that govern the

interpretation of collective agreements. In this regard, he cited the modern principle of

interpretation endorsed by the Supreme Court of Canada in Sattva Capital Corp. v Creston Moly Corp. , 2014 SCC 53 at para 47 , [2014] 2 SCR 633 [ Sattva ]. He also referred to the decision in Alberta Union of Provincial Employees v Alberta Health Services , 2020 ABCA 4 , [2020] 9 WWR 12 [ Alberta Health ], which described the interpretive approach to be followed by labour arbitrators in relation to collective agreements as follows: [36] Arbitrators apply general principles of contract

interpretation, albeit to a specialized type of contract, the collective agreement. As such, they must discern the intention of the parties from the written words.

But the words must be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the agreement and the intention of the parties: Brown & Beatty at 4:2100, UNA, Local 121 R v Calgary Health Region (Rockyview Hospital) , 2007 ABCA 341 at paras 28-32 , Arbitration Award at paras 31-32 . [ 47 ] The Sattva approach, as adapted to the labour relations context by Alberta Health , is also consistent with the jurisprudence from this Court.

See, for example: P & H Milling Group a Division of Parrish & Heimbecker, Limited Saskatoon v United Food and Commercial Workers Local 1400, 2023 SKCA 14 at para 12 , 478 DLR (4th) 604. [ 48 ] Having self-instructed in that fashion, the arbitrator proceeded to consider the operation of the payroll system and the EDO structure that had been in place for many years. He examined the evidence about how that system had operated and concluded that it had always been a “closed block” system.

Contrary to what Unifor asserts, I do not view the arbitrator’s determination on that point as a mere conclusory statement; but rather a conclusion based on a full consideration of the evidence before him and the language of the CBA and LOU, which he found to be unambiguous. The arbitrator gave thorough reasons for his conclusion that paid careful attention to what the relevant provisions of the CBA and the LOU actually said.

He observed that the parties had turned their minds to various situations that would affect EDO entitlements, as well as various exceptions that they agreed would not affect EDO entitlements. He also considered the history of the relations between the parties and noted the absence of instances of the EDO structure ever having been treated as anything other than a closed block system. [ 49 ] Reading the Award as a whole, I am unable to find any fatal flaws in the arbitrator’s logic. His path of reasoning is clear and cogent and is directly tied to the evidence that was before him.

It is apparent that he approached the problem by considering the language of the CBA in its entirety, and by interpreting it in the fashion required by the governing jurisprudence. In the end, in my respectful view, he settled on an

interpretation that the language of the CBA can comfortably bear, and one that is justified in light of the facts and the law. [ 50 ] Accordingly, this argument cannot succeed. 2. Was the arbitrator’s conclusion that the employees’ entitlement was not determined by the principle of quantum meruit unreasonable? [ 51 ] The second branch of Unifor’s argument is that it was unreasonable for the arbitrator to have concluded that the presumption of quantum meruit had been displaced by the explicit terms of the CBA.

Unifor describes the arbitrator’s decision in this respect as a “stark departure from foundational principles of labour relations without a meaningful legal or factual justification”. I take this to be an allegation that this aspect of the Award lacks the hallmark of justification described in Vavilov . [ 52 ] I would not give effect to this argument either.

[53] At its core, quantum meruit is a remedy grounded in the notion of equitable compensation. In the employment context, a claim basedin quantum meruit is a claim for the value of services rendered where a contract does not provide explicit terms for remuneration. The arbitratorprovided an apt description of the quantum meruit principle, and an accurate

summary of Unifor’s argument in that respect in the Award, whenhe said: [52] The presumption in any employer-employee relationship must be that work or service will be paid. Unpaid work results in an unjustenrichment for the party receiving the benefit of the work. The equitable principle of quantum meruit requires, as a matter of equity or fairness,that employees get what they deserve for the services they have rendered pursuant to a contract, in this case the collective agreement. InBrantford (City) v. C.U.P.E., Local 181 [2000] O.L.A.A.A.

No. 844 (referred to as para. 103 of the Insurance Corp. of B.C.), ArbitratorArmstrong described the principle of quantum meruit as follows: Put simply, this doctrine means that where work is done or service performed and the benefit of the work or service is accepted by the employeror contractor, there is a presumption that the provider of the work or service will be paid – and where the amount of payment is not stipulated,that it will be based on a calculation that is fair and reasonable.

The presumption that work will be paid should easily lead to the conclusion that the employees who worked during the disrupted EDO blocksprior to and following the labour dispute will be paid for 7.78 hours for each day worked by clerical employees and 8.33 hours for each dayworked by craft employees. This is the union position. [54] As described earlier, the arbitrator ultimately rejected Unifor’s argument on this point because he concluded that the presumedapplicability of the equitable principle of quantum meruit had been rebutted by the express terms of the CBA. I see nothing unreasonable in thatconclusion.

The principle of quantum meruit is conceptually distinct from a contract and, in the employment context, its applicability for thepurposes of determining entitlement to remuneration is generally limited to situations where: (

a) no contract exists; (

b) the contract does notprovide for terms of payment; or (

c) the contract is unenforceable (see, for example: Koliniotis v Tri Level Claims Consultants Ltd. (2005), (ON CA), 257 DLR (4th) 297 at para 34 (Ont CA)). [55] In my view, the reasons provided in the Award demonstrate that the arbitrator fully considered the quantum meruit principle and wasaware of its presumed general application in the circumstances before him. In fact, as can be seen from the passage I have reproduced above, hemade direct reference to, and quoted from, relevant arbitral jurisprudence on that point.

However, he also recognized that the presumption ofquantum meruit can be rebutted by the express language of a collective agreement and made a factual determination that the terms of the CBAin this case contained clear and unambiguous terms regarding remuneration. As I see it, the conclusion reached by the arbitrator on this point isnot only clear and well-articulated (in other words, transparent and intelligible), it is also well-justified in light of the factual and applicablelegal matrix. [56] Accordingly, I see no merit in this branch of Unifor’s submissions. 3.

Was the arbitrator’s decision unreasonable for failing to give effect to applicable provisions of theCode and Regulations? [57] Finally, Unifor argues that it was unreasonable for the arbitrator to have interpreted the CBA in a fashion that effectively overrodeprovisions of the Code and the Regulations. In particular, it points to s. 247 of the Code, which reads as follows: Payment of wages 247 Except as otherwise provided by or under this Part, an employer shall (

a) pay to any employee any wages to which the employee is entitled on the regular pay-day of the employee as established by the practice ofthe employer; and (

b) pay any wages or other amounts to which the employee is entitled under this Part within thirty days from the time when the entitlement tothe wages or other amounts arose. [58] The portions of the Regulations that Unifor says the arbitrator failed to apply can be found in ss. 6 and 20, which read, in relevantpart, as follows: Averaging 6

(1) Where the nature of the work in an industrial establishment necessitates that the hours of work of certain employees be irregularlydistributed with the result that those employees (

a) have no regularly scheduled daily or weekly hours of work, or (

b) have regularly scheduled hours of work that vary in number from time to time, the hours of work of each of those employees in a day and in a week may be calculated as an average over an averaging period of two or moreconsecutive weeks. …

(10) Where an employee whose hours of work are averaged pursuant to subsection (1) terminates the employee’s employment during theaveraging period, the employer shall pay the employee’s regular rate of wages for the actual hours worked during the completed part of theaveraging period. … Determination of Hourly Rate of Wages

(1) Subject to subsections (2) and (3), for the purposes of calculating and determining the regular hourly rate of wages of employees who arepaid on any basis of time other than hourly, an employer shall divide the wages paid for work performed by the number of hours required toperform the work.

(2) The regular hourly rate of wages for the purposes of paragraph 174 (1)(

s) and subsections 174(4) and (5), 197(1) and 205(2) of the Act maybe the rate agreed on under a collective agreement that is binding on the employer and the employee.

(3) For the purposes of subsection (1), (

a) the wages paid for work performed do not include vacation pay, general holiday pay, other holiday pay, bereavement leave pay and wagespaid for any hours of overtime; and (

b) the number of hours required to perform the work does not include hours for which an overtime rate of wages has been paid. [59] Unifor’s argument under this heading is an assertion that, since labour arbitrators are obligated to apply the governing statutoryframework when interpretating collective agreements, the Award was unreasonable because the arbitrator failed to apply the legislativeprovisions that overrode the terms of the CBA.

Unifor says that, as benefit-conferring legislation, s. 247 of the Code and ss. 6 and 20 of theRegulations must collectively be understood as requiring that employees be paid for all hours their employer directs them to work. [60] In support of this branch of its argument, Unifor cites two arbitral decisions: Bistro Aubergine Inc. (Re), (BCEST); and Charter Bus Lines of B.C. Ltd. v Schatz, 2017 CarswellNat 3759 (WL) (Dorsey).

In each of those decisions, arbitrators found that,under the governing legislation (s. 247 of the Code in Schatz and analogous provisions of British Columbia’s Employment Standards Act,RSBC 1996, c 113 in Bistro Aubergine), employees were entitled to be paid for training sessions they had attended at the employer’s directionprior to actually beginning their employment.

Unifor says the circumstances of the employees in those cases were analogous to thecircumstances of its members, who worked the hours they did only because SaskTel had directed them to and, as such, were entitled to be paidfor all of their time. [61] I am not persuaded by Unifor’s argument on this front. [62] First, I do not find the decisions in Bistro Aubergine and Schatz to be applicable to the present context.

As I read those decisions, theaspect of the dispute that related to the operation of the legislative provisions in question was whether the training sessions constituted “work”,such that the provisions were engaged. There is no dispute of that nature here. [63] Second, I see nothing in the Award that suggests the arbitrator interpreted the CBA in a fashion that is inconsistent with theprovisions of the Code or the Regulations Unifor had identified.

In that respect, I agree with SaskTel’s assertion that s. 247 of the Code isnothing more than a requirement that employees be paid the wages to which they are entitled on their regular payday in accordance with theemployer’s established practices.

In this case, all of that is encompassed in the express terms of the CBA, and the arbitrator found that SaskTelhad met that obligation. [64] Moreover, and in any event, s. 168(1.1) provides that the Division of the Code in which s. 247 resides does not apply in situationswhere a collective agreement “confers on employees rights and benefits at least as favourable” as the minimum standards required under theCode respecting “length of leave, rates of pay, and qualifying periods for benefits”.

In that regard, as SaskTel points out, the EDO provisions ofthe CBA provided employees with benefits in respect of leave, pay and other matters that were more favourable than the minimums requiredunder the Code. [65] Third, I also agree with SaskTel’s submission that neither s. 6 nor s. 20 of the Regulations have any application to the circumstancesof this case.

Section 6, from its plain language, applies to situations where employees have no regularly scheduled hours of work, or where theirscheduled hours of work are irregular. Neither of those scenarios describe the situation here. [66] As for s. 20, it deals with the determination of employees’ hourly wage rates.

As SaskTel points out in its factum, in the present casethe hourly wage – where it may have been applicable – was not in dispute, and the parties had a collective agreement that set out precise termsgoverning the rate at which employees were paid. [67] In the result, I am unable to accept Unifor’s argument that the arbitrator was unreasonable to have not given effect to these provisionsof the Code and the Regulations. D. Conclusion with respect to Unifor’s appeal [68] For the foregoing reasons, in my respectful view, Unifor’s appeal must be dismissed. IV.

Sasktel’s cross-appeal [69] In its cross-appeal, SaskTel argues that, by finding certain employees in the bargaining unit to have been entitled to be paid for anEDO on the day the strike began, on the basis that they had “completed doing everything they possibly could to earn their daily pay for theirEDO on Friday October 4, 2019” (Chambers Decision at para 28), the Chambers judge failed to correctly apply the reasonableness standard ofreview.

The central theme of SaskTel’s submission is that the Chambers judge erred because, on the evidence that was before the arbitrator,there were no employees who fell into that category and, accordingly, there was no basis for the Chambers judge to have found that particularaspect of the Award to be unreasonable and, thus, no basis to have interfered with it. [70] Once again cutting directly to the bottom line, I agree with SaskTel’s position. The Chambers judge’s approach to this questionreflects an erroneous application of the reasonableness standard of review and must be set aside.

The reasons for this are straightforward. [71] The arbitrator held that the provisions of the CBA were unambiguous, and that they provided for EDO entitlement to be earned on ablock-by-block basis so that, in order for EDO entitlement to arise within an individual block, an employee had to work nine days in that EDOblock. Putting this another way, employees in the bargaining unit did not become entitled to an EDO by simply working nine consecutive days;

they had to work nine days within the EDO block in question to earn that entitlement, regardless of where in that block (i.e., Regular Monday, Regular Friday, Alternate Monday, or Alternate Friday) their EDO fell. [ 72 ] The undisputed evidence before the arbitrator was that the applicable EDO block began on Sunday, September 29, 2019. This meant there were not nine days between the start of that EDO block and the day the strike began, on October 4, 2019.

It follows, then, that none of the employees in the bargaining unit could possibly have worked enough days within the EDO block to have earned their EDO entitlement.

Or, as SaskTel states it in its factum: “No employee had, by virtue of working nine consecutive days prior to October 4, 2019, done ‘everything they possibly could’ to earn an EDO in the September 29 EDO block”. [ 73 ] In light of that, it is apparent the Chambers judge’s conclusion that there were employees who had worked enough days within the applicable block to have earned their EDO was the product of a misapprehension of the evidence because, based on the evidence that was before the arbitrator, there were clearly no such employees.

This misapprehension led the Chambers judge to measure the reasonableness of that aspect of the Award against an inappropriate yardstick. That was an error, and it calls for this Court to intervene. [ 74 ] Accordingly, I would allow SaskTel’s cross-appeal because, absent the Chambers judge’s erroneous understanding of the evidence, there was no basis for him to have interfered with the Award . V.

Conclusion [ 75 ] For the foregoing reasons, I would dismiss Unifor’s appeal, allow SaskTel’s cross-appeal, set aside the declaration made in paragraph 44 of the Chambers Decision , and reinstate the Award in its entirety. [ 76 ] In light of its success on the appeal and the cross-appeal, and the consequent variation of the Chambers Decision , I would award costs to SaskTel, both in this Court and in the Court of King’s Bench, calculated in the usual way. “Kalmakoff J.A” Kalmakoff J.A. I concur. “Schwann J.A” Schwann J.A. I concur. “Drennan J.A.” Drennan J.A.