UNIFOR CANADA – LOCAL 594 APPLICANT - v. –, 2023 SKKB 47

KING ’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 47 Date: 2023 02 24 Docket: QBG-RG-01324-2022 Judicial Centre: Regina BETWEEN: UNIFOR CANADA – LOCAL 594 APPLICANT - and – CONSUMERS CO-OPERATIVE REFINERIES LIMITED RESPONDENT - and – AN ARBITRATION PANEL CHAIRED BY ARBITRATOR WILLIAM F.J. HOOD, K.C. RESPONDENT Counsel: Samuel J. Schonhofer and R. Turner Purcell for the applicant Eileen Libby, K.C., Lynsey M. Gaudin and Allison Graham for the respondent, Consumers Co-operative Refineries Limited No one appearing for the respondent Arbitration Panel DECISION ON JUDICIAL REVIEW ROBERTSON J.

February 24, 2023 INTRODUCTION [ 1 ] This decision addresses an application for judicial review of an arbitration award. For the following reasons, the application is dismissed.

BACKGROUND Collective Agreement [ 2 ] The applicant, Unifor Canada Local 594 [Union], and the respondent, Consumers Co-operative Refineries Limited [CCRL], were parties to a Collective Agreement for the period February 1, 2013 to January 31, 2016 [Collective Agreement] (Arbitration Exhibit J-1). Letter of Understanding #61 [ 3 ] The Collective Agreement included Letter of Understanding #61 [LOU #61]. LOU #61 is reproduced below: LETTER OF UNDERSTANDING RE: UTILIZATION OF TEMPORARY EMPLOYEES, CONSTRUCTION

SECTION EMPLOYEES AND CONTRACTORS – MAINTENANCE DEPARTMENT It is agreed that in high work load periods (i.e., turnarounds or unscheduled or scheduled shutdowns) that the above categories of employees and contractors may be used on all classes of building and Refinery/Upgrader construction work and maintenance work. It is understood that such right will not be used to displace any permanent employees currently employed in classifications covered by this Agreement. In the performance of Refinery maintenance activities the normal order of priority of work assignments will be;

a) Permanent Staff,

b) Temporary employees and/or Construction Section, and

c) Contractors to the extent possible and practical as determined by the Company. For further clarification of the above and as an integral part of this letter, the following is also agreed to: 1. Maintenance activities that may be performed by Contractors will be by unionized contractors to the extent practical and possible (i.e. assuming unionized contractors are available). Exceptions may include catalyst contractors and others such as equipment suppliers personnel or specialty maintenance personnel (e.g., compressor or gas engine maintenance). 2.

The term of this letter shall be for the duration of the Agreement. Annual “turnarounds” [ 4 ] CCRL operates oil refineries and an upgrader in the city of Regina. Those refineries require annual maintenance, referred to as “turnarounds”. At one time, the entire refinery would shut down for turnaround and Union employees would be assigned to the turnaround work. As the refinery expanded, turnarounds would be staggered during the year to avoid a general shutdown. Both Union employees from outside the maintenance department and contractors would be assigned to turnaround work.

In 2015, CCRL decided to assign the turnaround work to contractors only (Arbitration Award, paras. 1-3, 12-16, 21-22, 24-28, 30-34, 36-56, 72-73 and 75-78). Grievances [ 5 ] The Union grieved this decision by filing two similar grievances alleging that Union employees outside the construction

section were denied turnaround work in 2015 to which they were entitled under LOU #61. The grievances were described in the grievance forms as reproduced below: Grievance #07-2015 Nature of Grievance: That the Company is in violation of Letter #61, and permanent employees were not offered overtime work before Construction

Section employees and Contractors. That the Company has changed the

interpretation and application of Letter 61 and excluded permanent staff from participating in assisting the Maintenance Department in turnaround activities that Permanent staff have historically taken

part in. (Arbitration Exhibit J-2) . . . Grievance #16-2015 Nature of Grievance: That the Company is in violation of Letter #61, and permanent employees were not offered overtime work before Construction

Section employees and Contractors. That the Company has changed the

interpretation and application of Letter 61 and excluded permanent staff from participating in assisting the Maintenance Department in turnaround activities. (Arbitration Exhibit J-3) [ 6 ] The grievances proceeded to arbitration before a panel chaired by Arbitrator William F.J. Hood, K.C. [Arbitrator]. The hearing was prolonged, with hearings on September 19-20, 2016, December 19-20, 2017 and January 8 and October 31, 2018 (Arbitration Award, page 1). Denysiuk Award [ 7 ] During the arbitration hearings, another arbitration panel chaired by Sheila Denysiuk, K.C. issued a decision dated July

23, 2018 involving the same parties and the same issue over assignment of turnaround work at the same refinery, but for a turnaround in2016: Unifor Canada, Local 594 v Consumers’ Co-operative Refineries Limited, (Sask LA) [Denysiuk Award]. [8] The Denysiuk Award dismissed the Union grievance on the basis of that arbitration panels’

interpretation of LOU #61,at paras. 95-101: 95. In our view, the Employer has broad latitude in assigning work to contractors, particularly in periods of high workload. This isspecifically recognized in LOU 61. There are restrictions on the Employer, therefore the right is not unfettered. The first restriction is aprohibition on displacing permanent employees. The second restriction is a requirement to observe “the normal order of priority” of workassignments. Importantly, the latter restriction is only “to the extent possible and practical” as determined by the Employer. 96.

On the issue of displacement, we are not satisfied that assigning additional overtime to contractors results in displacement ofpermanent employees as that term is properly and reasonably defined. We agree with the authorities and cases cited by the Employerthat “displacement” requires the removal of a right held by existing employees. In our view, assigning extra overtime hours as occurredhere, cannot be said to result in displacement of bargaining unit employees. Further, in our view, the term cannot be interpreted sobroadly as to create an independent right where one doesn’t otherwise exist. 97.

All bargaining unit scaffolders worked significant overtime in the 2016 turnaround. For this grievance to succeed, the Union mustestablish that bargaining unit scaffolders had some right to be assigned the same overtime as contractors. The Board is of the view thatthe Collective Agreement and LOUs do not provide such a right. 98. In reaching this conclusion, the Board recognize that LOU 61 sets out an order of priority for work assignments. The Employerargues that an assignment of “work” is different than an assignment of “hours” and that what occurred in this case was an assignment ofwork to contractors.

In other words, the Employer can assign work packages to contractors and it shouldn’t matter whether the hoursinvolved in completing the work packages are greater than the hours of work, or packages of work, assigned to bargaining unitemployees. The Board sees merit in the Employer’s argument about the proper

interpretation of “work assignments”. 99. Even absent this argument, the fact is that the order of priority of assignments, be they work assignments or assignments of hours,is determined by the Employer on the basis of what is “possible and practical”. Based on the evidence, the Board is satisfied that thescaffolding work performed by contractors isn’t interchangeable with the work performed by bargaining unit employees. 100. It is not disputed that Brock-Steeplejack was behind

schedule almost from the start. The Employer met to review the issue anddetermined that it was necessary to assign more hours so that Brock-Steeplejack could complete its work. It wasn’t practical to assignthat work to bargaining unit employees. As well, we accept that the work Brock-Steeplejack was doing was a priority since it was tied toproduction. After considering all of the evidence, the Board concludes that the Employer had valid business reasons in deciding toallocate more hours to Brock-Steeplejack in the circumstances. 101.

There is no doubt that the Employer could have given more overtime to bargaining unit employees and had them continue workingon the backlog of running maintenance. The question isn’t whether bargaining unit employees had available work; it is whether theCollective Agreement and LOUs required the Employer to equalize the hours. In our view, the answer to that question is no. Arbitrator Hood Award’s adoption of Denysiuk Award

interpretation [9] The Arbitrator issued its Award dated January 19, 2022 dismissing the Union grievances: Unifor Canada – Local 594v Consumers Co-operative Refineries Limited, (Sask LA) [Hood Award]. [10] The Hood Award at paras 137 – 176 considered the Denysiuk Award (referred to in the Hood Award as the ScaffolderDecision). The Hood Award at paras 186-188 and 193 summarized its understanding of the Denysiuk Award’s

interpretation of LOU#61: 186. The Scaffolder Decision held that the Employer had a broad latitude in assigning work to contractors, particularly in periods ofhigh workload including turnarounds, and that this was specifically recognized in LOU #61. 187. The Scaffolder Decision recognized that there were two restrictions on the Employer in the right to assign work to contractorsduring turnarounds. The right or discretion of the Employer was not unfettered. The first restriction is the prohibition on displacingpermanent employees.

The second restriction is that the Employer shall observe the “normal order of priority of work assignments”referred to in the second paragraph of LOU #61 only “to the extent possible and practical” as determined by the Employer. 188. Permanent employees who are members of the bargaining unit have priority to the work assignments during turnaround overtemporary employees and contractors who are not members of the bargaining unit, only to the extent the Employer determines it“possible and practical”. . . . 193.

Valid business reasons are sufficient to justify the Employer’s determination that it was not “possible and practical” to follow thepriority of assigning the work during the turnarounds to permanent non-maintenance employees. [11] The Hood Award held, at paras. 196, 198 and 203, that the Denysiuk Award’s

interpretation was “binding”, “notwrong” and “correct”. [12] Both the Denysiuk Award at para 95 and the Hood Award at paras 187 and 191 agreed that LOU #61 prohibiteddisplacing Union employees by contractors. Hood Award decision

[13] Under the heading “Analysis”, the Hood Award made a number of findings: a) “there is no ambiguity in LOU #61 regarding the work assignments for the performance of maintenance activities during the springand fall turnarounds in 2015.” (para. 178) b) “permanent non-maintenance employees have no right to be assigned maintenance work during turnaround;” (para. 179(a)) c) “permanent non-maintenance employees have no right to be provided overtime opportunities during turnaround beyond which theEmployer determines is necessary.” (para. 179(b)) d) “permanent employees who are members of the bargaining unit have priority to the work assignments during turnaround overtemporary employees and contractors who are not members of the bargaining unit, only to the extent the Employer determines it‘possible and practical’.” (para. 179(c)). e) “While recognizing that overtime opportunities were created in the past when the Employer assigned non-maintenance employeesto work in maintenance during the turnaround, there is no right or entitlement in the Collective Agreement of the employees to beassigned overtime.

The discretion to assign overtime or to create overtime opportunities rests entirely with the Employer in the CollectiveAgreement. Accordingly, we find there was no right to overtime for non-maintenance employees during the 2015 turnarounds.” (para.204) f) “the past practice does not create an estoppel in the present case.” (para. 217) g) “In the past, the number of non-maintenance employees selected to work maintenance during turnaround was not consistent. Itvaried from department to department and from year to year.

The selection and assignment of the non-maintenance employees was at thediscretion of the Employer. It appears that it was tied to the necessity as determined by the Employer.

Starting in 2015, and for validbusiness reasons, the Employer determined that it was no longer necessary or desirable for non-maintenance employees to abandon theirregular processing duties to perform maintenance during turnaround. (para. 219) h) “The Employer was exercising its management rights as it has done in the past, with a different decision for valid businessreasons.” (para. 220) [14] The Hood Award at para 223 dismissed both grievances. ISSUES [15] The judicial review application raised the following issues: 1. Should the record be supplemented by adding the affidavit evidence filed by both parties? 2.

What is the standard of review? 3. Is the Hood Award, in particular in its

interpretation and application of LOU #61, unreasonable? AFFIDAVITS TO SUPPLEMENT RECORD [16] The Arbitrator filed the Hood Award and exhibits from the arbitration hearing which constitute the record for judicialreview.

The Union sought to supplement the record by filing an affidavit of Richard Exner sworn May 20, 2022 [Exner Affidavit].CCRL responded by filing affidavits of Jody Eckert sworn August 15, 2022 and Wayne Sakires sworn August 16, 2022. [17] The general rule about what constitutes the record on judicial review was stated by Denning L.J. in R v NorthumberlandCompensation Appeal Tribunal, Ex Parte Shaw, [1952] 1 All ER 122 (CA) at 131: … I think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication, butnot the evidence, nor the reasons, unless the tribunal chooses to incorporate them.

If the tribunal does state its reasons, and those reasonsare wrong in law, certiorari lies to quash the decision. The next question which arises is whether affidavit evidence is admissible on an application for certiorari. When certiorari is granted onthe ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary. When it isgranted on the ground of error of law on the face of the record, affidavit evidence is not, as a rule, admissible, for the simple reason thatthe error must appear on the record itself: see R. v.

Nat Bell Liquors, Ltd. [(1922), (UK JCPC), 65 DLR 1 (JCPC)]. … [18] This statement of the general rule was endorsed by the Court of Appeal for Saskatchewan in Saskatchewan (Workers’ Compensation Board) v Gjerde, 2016 SKCA 30 at para 35, 395 DLR (4th) 331 [Gjerde].

The court in Gjerde went on at para. 44 to statemodern exceptions to the general rule under which the usual record could be supplemented by affidavit evidence: [44] In my view, the appropriate approach to when the “record” should be supplemented on judicial review was set out by Stratas J.A.of the Federal Court of Appeal in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012FCA 22 at paras 19 and 20, 428 NR 297.

After acknowledging the general rule that judicial review should be restricted to the evidentiaryrecord that was before the Board when it made its decision, Stratas J.A. went on to recognize there will be exceptions to that general rule,including evidence (

i) that provides general background (as opposed to addressing the merits) in circumstances where that informationmight assist in understanding the issues for judicial review, (ii) to bring to the attention of the judicial review court procedural defectsthat cannot be found in the evidentiary record such as fraud, bribery, or bias, and (iii) to highlight the complete absence of evidencebefore the administrative decision maker when making a particular finding. (See also Keeprite Workers’ Independent Union andKeeprite Products Ltd. (1980), (ON CA), 29 OR (2d) 513 (CA); Mr. Shredding Waste Management v New Brunswick

(Minister of Environment and Local Government) , 2004 NBCA 69 at para 64 , 274 NBR (2d) 340 ; Connolly v Canada (Attorney General) , 2014 FCA 294 at para 20 , 466 NR 44 .) To these I would add the exception highlighted by Hartwig [2007 SKCA 74 , 304 Sask R 1 ] and SELI [ 2011 BCCA 353 , 336 DLR (4th) 577 ] where, in appropriate circumstances, evidence may be received by a reviewing court to elucidate the record upon which the administrative body’s reasons were based. [ 19 ] The Union argued the Exner Affidavit was admissible under exceptions to the general rule for: general background, where the information might assist in understanding the issues for judicial review; evidence of procedural defects that could not be found in the evidentiary record, such as fraud, bribery or bias; evidence to establish the complete absence of evidence to support a particular finding of fact; and evidence required to clarify the record upon which the reasons were based. [ 20 ] CCRL argued that none of the affidavits should be admitted, but that if the Exner Affidavit was admitted, then its affidavits should be admitted as well. [ 21 ] Whether additional evidence is needed will depend on a number of factors, including the adequacy of the decision under review.

The Hood Award is well-organized and thorough. It contains 223 paragraphs written over 45 pages and is organized in six parts: Part Title Paragraphs I. Introduction 1 - 11 II. The Facts 12 – 84 III. The Issue 85 IV. The Law 86 – 176 V. Analysis 177 – 222 VI. Conclusion 223 [ 22 ] The Exner Affidavit purports to review the evidence presented at the arbitration hearing. But the Hood Award already reviews the evidence of witnesses in detail under the heading “The Facts” at paras. 17 – 80.

Having read the Hood Award and read the affidavits filed by both parties, I find it neither necessary nor useful to admit the affidavits for the purpose of judicial review. [ 23 ] I find the record filed by the Arbitrator is complete and sufficient for judicial review. I therefore decline to admit any of the affidavits.

STANDARD OF REVIEW [ 24 ] Both parties agree that the standard of review of the merits of an arbitration award is reasonableness, based upon Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ] . [ 25 ] The applicant on judicial review has the onus of demonstrating that the decision is unreasonable: Vavilov at paras 99 - 101 : [99] A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable.

To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir [2008 SCC 9 , [2008] 1 SCR 190 ], at paras. 47 and 74 ; Catalyst [2012 SCC 2 , [2012] 1 SCR 5 ] at para. 13. [100] The burden is on the party challenging the decision to show that it is unreasonable.

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

Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable. [101] What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it.

There is, however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. REASONABLENESS OF AWARD Position of Union [ 26 ] The Union argued that the Hood Award failed to justify an erroneous conclusion about the proper

interpretation and application of LOU #61. The Union accepts that LOU #61 gives CCRL some flexibility in assignment of turnaround work between Union employees and contractors. But the Hood Award went too far such that the exception which allowed for some contractor work has become the rule in removing Union employees from any turnaround work. There is a leap in reasoning in which the Arbitrator, having accepted the

interpretation of LOU #61 from the Denysiuk Award , failed to apply that

interpretation by skipping over the question of whether it was “possible and practical” to assign Union employees to turnaround work. Instead, it substituted a test of “valid business reasons” such that CCRL is now given complete discretion over assignment of turnaround work between Union employees and

contractors. That effectively reverses the “normal order of priority” which put Union employees first in line for turnaround work. Thisdecision thereby guts the purpose of LOU #61. Position of CCRL [27] CCRL emphasized that the Union bears the burden of showing that the Hood Award is unreasonable. CCRL argued thatthe Union is, under the guise of judicial review, attempting a “re-do” of the arbitration which is not the purpose of judicial review.Moreover, the Union is trying to argue a different case than that presented to the Arbitrator.

The Hood Award must be evaluated on theevidence and argument presented at the arbitration. The Hood Award bears the hallmarks of reasonableness: justification; transparency;and intelligibility. Both the reasoning and the outcome are reasonable, having regard to the findings of fact and applicable law. Deference to decision-maker [28] The reasonableness standard entails a measure of defence to the administrative decision-maker.

The court should deferif the decision can be rationally supported by the evidence and is a reasonable result, even if the court might have relied on differentreasons or come to a different result. [29] In R v G.F., 2021 SCC 20 at para 69, 459 DLR (4th) 375, the Supreme Court of Canada cautioned that “Appellate courtsmust not finely parse the trial judge’s reasons in a search for error”. Although expressed in the context of appellate review, that cautionapplies equally to judicial review.

In Vavilov at para 100 the Supreme Court made the same point about the reviewing courtoveremphasizing “a minor misstep” in the decision under review. [30] The Union pointed out statements in the Hood Award that, read in isolation, might initially appear objectionable. Butthe decision must be read and evaluated in its entirety. So even if I might quibble with some of the reasons, that does not make thedecision unreasonable if the resulting decision is within a range of reasonable outcomes. Put another way, did the decision-maker get itright or at least right enough to pass muster on the standard of reasonableness?

Interpretation of the Collective Agreement [31] In P&H Milling Group a Division of Parrish & Heimbecker, Limited Saskatoon v United Food and CommercialWorkers Local 1400, 2023 SKCA 14 [P & H], McCreary J.A. for the Court of Appeal reviewed the accepted approach to interpretingcollective agreements. The court, at para. 11, quoted from Arbitrator Pelton’s decision in Seiuwest (Successor to Service EmployeesInternational Union, Locals 299) v Saskatoon Regional Health Authority, (Sask LA) at paras 87–88 [SEIU-West].The court went on at para. 12 to endorse that approach: [12] Viewed in its labour relations context, the method set out in SEIU-West is consistent with the approach to contractual

interpretationtaken by the Supreme Court of Canada in Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633, and CornerBrook (City) v Bailey, 2021 SCC 29, 460 DLR (4th) 169. The core principle of this approach is that the language of a collectiveagreement must be interpreted purposefully and in its context.

As the Supreme Court has directed: “To do so, a decision-maker must readthe contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstancesknown to the parties at the time of formation of the contract” (Sattva [2014 SCC 53, [2014] 2 SCR 633] at para 47). [32] I pause here to acknowledge that P & H was decided after argument on judicial review. But P & H does not change thelaw.

Rather, it provides the most recent and authoritative restatement of the law. [33] The Hood Award at para 83 reproduces relevant provisions of the Collective Agreement, including letters ofunderstanding. Under the heading “Interpretation of the Collective Agreement”, the Hood Award at para 88 quotes from Arbitrator Elliott in Imperial Oil Strathcona Refinery and C.E.P., Local 777 (Re) (2004), (AB GAA), 130 LAC (4th) 239 (AltaLA) at paras 39-47 [Imperial Oil].

Arbitrator Pelton in SEIU-West at para 85 cited Imperial Oil and then quoted from it at paras. 87-88.So the approach approved by the Court of Appeal in P & H is the same as stated in the Hood Award at para 88. [34] The Hood Award at para 177 said it would apply the principles of

interpretation stated by Arbitrator Elliott in ImperialOil. From my review of the Hood Award, that approach was followed in the analysis at paras. 180-184 and 200. The Arbitratorinterpreted LOU #61 in light of the entire Collective Agreement, including other provisions such as the presence of a “managementrights” clause in

article 2.2 and right to contract work outside the bargaining unit in

article 2.3. (The Hood Award at para 185 notes thatthe Denysiuk Award similarly considered these two articles in its

interpretation of LOU #61.) While not determinative, these and otherprovisions could be relevant to the proper

interpretation of LOU #61. [35] The Union argued that the Arbitrator failed to give meaning to all of the words of LOU #61, in particular to “the normalorder of priority” and “to the extent possible and practical”. But the Hood Award expressly referred to those words at paras. 187 and 193,so the Arbitrator did consider those words in coming to its decision. [36] It is true that the Hood Award does not delve deeply into the wording of LOU #61. But that is likely because the HoodAward adopted the Denysiuk Award, which had already provided that analysis. The Union took the position at the arbitration hearingthat the Denysiuk Award’s

interpretation of LOU #61 was “simply wrong” (Hood Award at para 197). That takes us to the Arbitrator’sadoption of the Denysiuk Award. Adoption of the Denysiuk Award [37] In Brewers’ Warehousing Co. and Int’l Union of Brewery, Flour, Cereal, Malt, Yeast, Soft Drink & Distillery Workersof America, Local 278C (1954), 5 LAC 1797 (QL) (Ont LA) at para 6, Arbitrator Bora Laskin (as he then was) explained when and howan arbitrator should follow or depart from prior arbitral decisions: 6. …

It is not good policy for one Board of Arbitration to refuse to follow the award of another Board in a similar dispute between the same parties arising out of the same Agreement where the dispute involves the

interpretation of the Agreement. Nonetheless, if the second Board has the clear conviction that the first award is wrong, it is its duty to determine the case before it on principles that it believes are applicable. … [ 38 ] In P & H at paras 13-14, the Court of Appeal discussed the relevance of previous arbitral decisions in assessing reasonableness.

While arbitrators are not bound by a strict doctrine of stare decisis , arbitrators who depart from established arbitral authority without explanation run the risk of a finding of unreasonableness. [ 39 ] The Arbitrator was not required to follow or adopt the analysis of LOU #61 from the Denysiuk Award . But there were good reasons to do so. [ 40 ] First, the Denysiuk Award involved the same parties and the same basic issue of the

interpretation and application of LOU #61, albeit for the 2016 turnaround. Neither party challenged the Denysiuk Award . While the Arbitrator gave varying reasons for adopting the Denysiuk Award , the final reason given in the Hood Award at para 203 was that the Denysiuk Award was “correct”. In other words, the Arbitrator agreed with its reasoning and result.

The Arbitrator was entitled to do so. [ 41 ] Second, the same policy reasons supporting the doctrine of comity (where judges of the same court will usually follow prior decisions, although not bound to do so) – reducing uncertainty over the law and the need for litigation – apply equally to arbitral law. [ 42 ] The fact that the Union did not challenge the Denysiuk Award is no bar to judicial review of the Hood Award . But the Arbitrator’s decision to follow that decision as persuasive authority is a factor in favour of reasonableness.

Test of possible and practical [ 43 ] The Union argued at the arbitration hearing that the Denysiuk Award was wrongly decided. I note this because decisions are informed by and respond to the arguments made at the hearing. The Union now accepts the Denysiuk Award , so the Union and CCRL agree it provides the proper test for CCRL to assign turnaround work other than in the “normal order of priority”. [ 44 ] The Union argued that the Hood Award failed to properly apply the test of whether it was “possible and practical” to assign work to Union employees.

I agree that was the test to apply, recognizing the test is broader than those three words. [ 45 ] The test required CCRL to show that the “normal order of priority”, which puts “Permanent Staff” first and “Contractors” last, was not “possible and practical as determined by the Company”. The words “as determined by the Company” qualify the preceding words, but they do not negate the purpose of LOU #61.

That purpose is to both protect and promote Union employment and to provide a measure of flexibility to CCRL in the assignment of turnaround work. [ 46 ] The Denysiuk Award expressly found it was not “possible and practical” to assign work in accordance with the “normal order of priority”. The Union’s argument, as I understand it, is that the Arbitrator only went so far as to find CCRL had “valid business reasons” to assign work other than in “the normal order of priority” ( i.e. to contractors).

The Arbitrator, the Union argues, failed to complete the analysis by deciding whether those “valid business reasons” made it not “possible and practical” to assign turnaround work to the grievors, in accordance with “the normal order of priority”, under which the Union employees have priority over contractors. If “valid business reasons” are sufficient, unrelated to what is “possible and practical”, then CCRL has carte blanche or unfettered discretion to assign turnaround work to contractors. [ 47 ] If that was the result, I agree it would be contrary to LOU #61.

But I do not read the Hood Award in that way. [ 48 ] The Hood Award found there were “valid business reasons” for CCRL’s decision not to assign Union employees to turnaround work in 2015. The Union argued that the Arbitrator erred in equating “possible and practical” with “valid business reasons”.

There are three answers to this. [ 49 ] First, the “valid business reasons” accepted in para. 194 of the Hood Award reflect the evidence summarized at paras. 71 and 78. [ 50 ] Second, the words in LOU #61 “to the extent possible and practical” are qualified by the following words “as determined by the Company.” Those qualifying words must be given meaning.

From my reading of the Hood Award , the Arbitrator interpreted these words as giving CCRL greater latitude in deciding what was “possible and practical”, in particular with regard to “valid business reasons”, consistent with its management rights. [ 51 ] Third, the Arbitrator’s finding is consistent with other arbitration decisions relied upon by CCRL.

In Shell Canada Products Ltd. v Communications, Energy and Paperworkers Union of Canada, Local 848 (1997), 47 CLAS 271 (QL) (Ont LA) at para 63 [ Shell ], Arbitrator Snow concluded from his review of case authorities that “’possible’ includes an element of practicality and that whether something is possible includes an element of business judgment.” In Western Grocers (Re) (2000), 60 CLAS 181 (QL) (Man LA) at para 112, Arbitrator Hamilton held that: 112 … what is or is not “possible” falls to be determined within the context of bona fide and reasonable business realities.

From this perspective, the meaning to be given to the phrase ‘where possible’ in a given situation is to be determined by what is ‘reasonably practical’, meaning that reasonable business considerations can be taken into account. … [ 52 ] There was no argument that the business reasons relied upon by CCRL were bogus or not bona fide . As shown in the arbitration decisions relied upon by CCRL, arbitrators will scrutinize the employer’s reasons. For example, in Westfair Foods Ltd. v United Food and Commercial Workers, Local 777 , [2001] BCCAAA No 435 (QL) (BC LA) at paras 2-3, Arbitrator Thorne wrote:

2. … In my view, the phrase “as determined by the Company from time to time” which is contained in Appendix “A’” does not grant onto the Company an unfettered right to do whatever it wishes in the administration of its incentive programs, without any challenge whatsoever from the Union by way of a grievance.

Were such a right to exist, it would run contrary to the accepted arbitral principle that, at the very least, management is not free to exercise its discretionary rights in an arbitrary, discriminatory or bad faith manner. … Like most other BC arbitrators, I subscribe to the fundamental principle set out in the Simon Fraser University case ( supra ), [ Re: Simon Fraser University and Association of University and College Employees, Local 6 [

(1983) BCLRB No. 169/83 at pp. 344 & 347]] that a party who has a discretion must exercise it “reasonably” so as not to defeat the legitimate rights and expectations of the other parties to the collective agreements.

Were I to agree with the Company’s position that it has the right to administer its incentive programs in any way that it wishes, without challenge from the Union, the result would clearly defeat the legitimate rights and expectations of the Union. … [ 53 ] I agree with the Union that the Arbitrator was similarly obliged to scrutinize CCRL’s reasons to be satisfied that they were “valid”, which the Arbitrator expressly did, and that those reasons justified CCRL’s assignment of turnaround work in terms of what was “possible and practical”.

Again, the Union contended the Arbitrator missed this last step. [ 54 ] The Hood Award was not as explicit in applying the test as was done in the Denysiuk Award at para 100 : “It wasn’t practical to assign that work to bargaining unit employees.” Other arbitral decisions provided by CCRL were also explicit in applying similar tests. [ 55 ] In Shell at para 70, Arbitrator Snow found the test was not met. 70.

Apparently the Employer concluded that the package of assignments which met both its desire to assign the junior person to the unpopular position and its obligation to rotate the swing position was not as desirable as the one which the Employer adopted. However, the Employer is not free to simply make those assignments which it thinks best from a business or operational standpoint. It has agreed with the Union that it will rotate the swing assistant position “whenever possible”.

In my view the Employer failed to give adequate consideration to its collective agreement obligation to rotate the swing assistant position “whenever possible”. [ 56 ] In United Automobile Workers, Local 1075 v Canadian Car Co. (1958), 8 LAC 313 (QL) (Ont LA) at para 7 , Cooper C.C.J. found the test was met. 7. … Practical in a labour as well as a commercial agreement can be strictly but should be liberally interpreted. It must be construed to mean practical, business-wise, or economically practical, as well as merely physically practical.

In the case under review could it be said to be practical from a business or economic point of view to call in the grievors to do the work that three men who are on the job in any event and are necessary there to carry out the operation, could do in the same hours they are employed? In other words would it be business practical to pay the vehicle driver, switchman an diesel operator to sit by and do nothing when they could be otherwise employed to the company’s advantage?

I think not. [ 57 ] From my reading of the Hood Award , although expressed in different words, the Arbitrator did apply the same test as in the Denysiuk Award and found, on the facts of this case, it was met. [ 58 ] The Hood Award at para 195 , immediately following its

summary of the business reasons put forward by CCRL, stated that “it was not possible and practical to assign” Union employees in the 2015 turnaround: 195.

We find the Employer had valid business reasons to determine that it was not possible and practical to assign the permanent non- maintenance employees maintenance work during the turnarounds. [ 59 ] The Hood Award at para 219 concluded that “Starting in 2015, and for valid business reasons, the Employer determined it was no longer necessary or desirable for non-maintenance employees to abandon their regular processing duties to perform maintenance during turnaround.” [ 60 ] Reading the decision in its entirety, I infer that the Arbitrator was satisfied that it was not “possible and practical” to assign 2015 turnaround work to the grievors on the basis of the “valid business reasons” given by CCRL.

If so, then the test from the Denysiuk Award was properly applied. I find that it was. Conclusion [ 61 ] CCRL gave reasons for its assignment of the 2015 turnaround work. The Arbitrator, at paras. 193-195 and 219, found those reasons to be “valid business reasons”. The Arbitrator was entitled to do so, having regard to its

interpretation of the Collective Agreement and the supporting evidence and arbitral case law. Further, as I read the Hood Award , the Arbitrator found those “valid business reasons” related to what was “possible and practical as determined by the Company” and, under the terms of LOU #61, were sufficient to justify the assignment of 2015 turnaround work to contractors, rather than Union employees. On that basis, the grievances were dismissed. The Arbitrator was entitled to make these findings and reach that conclusion.

The decision meets the standard of reasonableness. [ 62 ] The Union has not met the burden of establishing that the Hood Award is unreasonable. On the contrary, it bears the hallmarks of reasonableness: justification; transparency; and intelligibility. The application to quash is therefore dismissed. Costs [ 63 ] CCRL asked for costs if successful on the application. Having regard to The Queen’s Bench Rules , in particular Rule 11-1, I find that CCRL is entitled to costs of the application. If any further direction is required, the parties have leave to apply for that

direction. J. D.N. ROBERTSON