UNITED FOOD v. COMMERCIAL WORKERS,, 2022 SKKB 274

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 274 Date: 2022 12 19 Docket: QBG-SA-00119-2021 Judicial Centre: Saskatoon BETWEEN: UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1400 APPLICANT - and - PRAIRIE PRIDE NATURAL FOODS LTD. RESPONDENT ___________________________________________________________________________ Docket: QBG-SA-00407-2021 Judicial Centre: Saskatoon BETWEEN: PRAIRIE PRIDE NATURAL FOODS LTD. APPLICANT - and - UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1400 RESPONDENT Counsel: Heath P. Smith for United Food and Commercial Workers,

Local 1400 Brent M. Matkowski for Prairie Pride Natural Foods Ltd. ___________________________________________________________________________ JUDGMENT ELSON J. December 19, 2022 ___________________________________________________________________________ Introduction [ 1 ] This judgment addresses two applications for judicial review – one by the United Food and Commercial Workers, Local 1400 [Union], and the other by Prairie Pride Natural Foods Ltd. [Employer]. Both applications arise from a pre- pandemic award by a three member arbitration board [Board].

In its award, the Board found that the Employer had wrongfully terminated Nopphon Senyotkham [Grievor] from his employment after an off-site confrontation with other employees. Despite this finding, the Board declined to order the Grievor’s reinstatement. Instead, it ordered the Employer to pay damages. The Union’s nominee to the Board dissented from this aspect of the award. [ 2 ] The Union’s application pertains only to the remedy. It posits that the Board erred in declining to order reinstatement. [ 3 ] The Employer’s application challenges the entire award. It does so on two main premises.

First, it contends that the Board improperly permitted an unqualified and biased interpreter to translate the examination and cross-examination of witnesses who had challenges with the English language. The Employer asserts that the Board’s decision in this respect amounted to a breach of its duty to afford the Employer procedural fairness in the hearing. [ 4 ] Secondly, the Employer contends that, even if the proceeding was not procedurally unfair, the Board’s decision on the merits of the grievance was unreasonable.

This contention is based on the assertion that the Board made three reviewable errors, namely: (1) that it failed to address contradictory evidence at the hearing; (2) that it determined there was no basis for discipline; and (3) that it improperly considered and interpreted the provision of the collective bargaining agreement that called for “co-operation, mutual problem-solving and respect for the individual”. [ 5 ] For the reasons that follow, both applications must be dismissed.

Background [ 6 ] Before describing the details of the background evidence, I accept that the Employer’s procedural unfairness argument demands caution. An implicit feature of that argument is that inadequate translation of certain testimony, and the associated inability to cross-examine properly, denied the Board a true picture of what occurred on the day in question. Clearly, the Board was not of that view. Neither am I.

Even so, out of deference to the Employer’s submission, I think I should be mindful of the implicit message in it. [ 7 ] For this reason, I think it appropriate to describe the background evidence under headings, and to do so in such a way that separates the undisputed testimony from the disputed, all as described in the award. Most of the undisputed evidence relates to some of the extended background and the Employer’s investigation of the subject incident. [ 8 ] Finally, I will also reference the admissible portions of the affidavit evidence about the translation services provided at the hearing.

The award is silent on that question. As this issue pertains to the question of procedural fairness, the Court permitted affidavit evidence to be filed on that point. Undisputed Background Evidence [ 9 ] The Employer operates a poultry processing plant in the north end of Saskatoon. It is primarily engaged in processing live chickens, with a secondary processing operation relating to turkeys. [ 10 ] The Grievor and his wife, Pornthip Senyotkham [Pornthip], were employed with the Employer, as were the Grievor’s brother, Noppadone Senyotkham [Noppadone], and his wife, Anitshara Senyotkham [Anitshara].

The two married couples worked in the Employer’s “live end” and “evisceration” departments. [ 11 ] Gates Duret, the Employer’s plant manager, terminated the Grievor’s employment effective December 7, 2018. The brief termination letter, dated the previous day, contained no meaningful details about the event that led to the dismissal. It reads as follows: Nopphon Senyotkham, Effective December 7, 2018 your employment with Prairie Pride has been terminated based on your actions which occurred on November 15, 2018 towards another employee employed with Prairie Pride.

Prairie Pride has an obligation to ensure the health and safety of their employees under their control which is detailed at

section 3 - 8 of The Saskatchewan Employment Act :

General Duties of employer Every employer shall: (

a) Ensure, insofar as is reasonably practicable, the health, safety and welfare at work of all the employer’s workers Feel free to contact the office with any questions you may have. Regards, Gates Duret Plant Manager Prairie Pride Cc: Marilynne MacFarlane Local UFCW 1400 [Emphasis in the award] [ 12 ] Before describing the details of the subject incident, some narrative is required about the above described members of the Senyotkham family.

The evidence on this narrative is described in the award and is not in dispute. [ 13 ] According to the award, the two Senyotkham couples had a longstanding animosity for each other, largely fueled by an “extreme dislike” between Pornthip and Anitshara. It was known that the two wives had regularly exchanged insults and vulgar slurs toward each other while at work. They also made complaints against each other to various supervisors. The Employer’s efforts to mediate a resolution between the two women met with little success.

Indeed, the Board noted that, during the hearing, Pornthip and Anitshara made irreconcilable allegations against each other, none of which factored in the outcome of the arbitration. [ 14 ] Turning to the subject incident, it occurred on Thursday, November 15, 2018. The Grievor, Pornthip and Anitshara were all working at the plant on that date. Earlier that day, a conflict arose between them, resulting in supervisors issuing warnings that they should try to avoid each other.

Unfortunately, the conflict carried on after work, during the drive home to the westside of Saskatoon, where both couples lived. [ 15 ] Direct evidence about the subject incident came from four witnesses, Anitshara, the Grievor, Pornthip and Alex Ordonez, one of the Employer’s supervisors. There were conflicts in the description of the incident from certain of these witnesses. I will summarize the Board’s description of each witness’s testimony. Anitshara Senyotkham [ 16 ] According to Anitshara, she left the employee parking lot first, but later noticed that Pornthip and the Grievor were in the car behind her.

Anitshara testified that she became concerned about this and started taking pictures of the car following her. She said that Pornthip, who was driving the other car, gave her “the finger” when both vehicles stopped at a red light. [ 17 ] Anitshara told the Board that, when she approached the intersection of Avenue C and 45 th Street West, she noticed several people standing in a nearby parking lot. Concerned that Pornthip and the Grievor were still following her, she decided to pull into the parking lot and stop, in the hope that the other car would drive on by. That did not happen.

Instead, Pornthip and the Grievor pulled into the same lot and parked some car lengths behind Anitshara. None of the three people immediately exited either vehicle at that time. [ 18 ] Anitshara testified that she was frightened by these developments and tried to call Noppadone on her cell phone. When he did not answer, she called Mr. Ordonez, who agreed to come. Despite not being able to call her husband, Anitshara recalled that both Noppadone and Mr.

Ordonez arrived at the scene at roughly the same time. [ 19 ] According to the award’s description of the evidence, Anitshara did not testify to any significant details of the interaction after her husband and Mr. Ordonez arrived. In particular, the award notes that she did not make any reference to the Grievor being out of the vehicle prior to Pornthip being struck with a hatchet. Indeed, the award specifically references Anitshara’s written statement to the police in which she provided no details about any incident with hatchets. Alex Ordonez [ 20 ] As already mentioned, Mr.

Ordonez worked as a supervisor for the Employer. He supervised the work of both couples. In his testimony at the hearing, Mr. Ordonez admitted to being a very close friend of Anitshara and Noppadone. The award noted that he described the relationship as almost like “family”. [ 21 ] Mr. Ordonez acknowledged the call from Anitshara and further acknowledged that he drove to the Avenue C parking lot. When he arrived, he found the two vehicles still parked with none of the occupants outside the vehicles. He initially decided to remain in his vehicle, as well. [ 22 ] Shortly after Mr.

Ordonez’s arrival, Noppadone showed up and exited his vehicle. From what the supervisor could see, it appeared that Noppadone and the Grievor were yelling at each other while the Grievor remained in his wife’s car. Mr. Ordonez eventually got out of his vehicle, but, as the yelling between the two brothers continued, he returned to his vehicle and retrieved a baseball bat. He told the hearing that he had become fearful about what was happening.

[ 23 ] As to what he did with the baseball bat, Mr. Ordonez did not say anything about swinging it at anyone or anything. That said, he admitted that he may have “accidentally” hit the mirror of Pornthip’s car. Mr. Ordonez also acknowledged that he also became involved in the yelling session between the Grievor and Noppadone. [ 24 ] At some point, Pornthip got out of her vehicle, following which Noppadone assaulted her with a hatchet. The award’s description of Mr. Ordonez’s testimony about the sequence of events leading to the assault is somewhat unclear.

That said, the Board specifically referenced a comment from the supervisor’s November 26 written statement to the Saskatoon Police Service [SPS]. In it, Mr. Ordonez told police that “Noppadone had a hatchet and was striking Pornthip over and over and within a couple of moments, the Grievor was chasing Anitshara with another hatchet.” [ 25 ] Shortly after the hatchet incidents, Mr. Ordonez left the scene. Some blocks away, he was stopped by SPS officers and provided his first statement about what had occurred. He later gave his version of events to the Employer’s Plant Manager, Mr. Duret.

This was later followed by the November 26 statement to the SPS. Nopphon Senyotkham - Grievor [ 26 ] The award’s description of the Grievor’s testimony begins with events in the Avenue C parking lot. There is no reference to testimony from either the Grievor or Pornthip about the drive from work or their reasons for pulling into the parking lot after Anitshara did. [ 27 ] The award’s first reference to the Grievor’s evidence is where he described Mr. Ordonez approaching Pornthip’s vehicle and swinging the baseball bat at both occupants. According to the Grievor, it was during this episode that Mr.

Ordonez struck the car’s exterior mirror. Shortly after that, Pornthip got out of her car and tried to photograph any damage to it. [ 28 ] The Grievor testified that he remained in his vehicle until he saw his wife being struck with a hatchet. He then grabbed his own hatchet from the back of Pornthip’s vehicle and jumped out to run to his wife. By this time, both Noppadone and Anitshara were running back to their vehicles and left the scene.

The award does not say anything about the Grievor testifying to any direct interaction with Anitshara, whether with or without a hatchet. [ 29 ] The Grievor tended to Pornthip, who was then unconscious and bleeding. He remained with his wife until the ambulance and the SPS arrived, after which Pornthip was taken to the hospital. He also provided a written statement to the SPS, followed by a second statement at the station later that evening. Pornthip Senyotkham [ 30 ] Although Pornthip testified in the hearing, the award says little about her evidence.

The only specific reference to her evidence is where it is said that she and the Grievor told the Board that Mr. Ordonez was using the baseball bat in a threatening manner. There is also a reference to Pornthip’s hospital admission for several days followed by a nine-month recovery before she could return to work. Post-Incident Evidence [ 31 ] It is not disputed that Noppadone later faced criminal charges arising from the assault on Pornthip.

Although specific details about those proceedings were not described in the award, there is no dispute that Noppadone was eventually sentenced to three years’ imprisonment. [ 32 ] The Grievor, who also provided statements to the SPS, faced no criminal charges. [ 33 ] The Plant Manager, Mr. Duret, testified that he was first made aware of the incident when the Grievor and his son met with him the following Monday morning. At that time the Grievor asked for time off to attend to Pornthip. After the meeting, Mr. Duret asked Mr. Ordonez for his version of the subject incident.

There is no reference in the award about the supervisor informing Mr. Duret about the incident before the Monday morning meeting with the Grievor. [ 34 ] Following their conversation, Mr. Duret and Mr. Ordonez met with the Employer’s Human Resources Administrator and instructed her to speak with Anitshara about the November 15 incident. No efforts were made to obtain the Grievor’s version of events. Indeed, beyond speaking with Mr. Ordonez, Mr. Duret made no efforts to collect any other relevant information, including the statements provided to the SPS.

That said, he did have the two written statements from Anitshara and Mr. Ordonez, the former of which made no reference to any physical altercations or injuries to anyone in the Avenue C parking lot. [ 35 ] Mr. Duret reported the investigation results to the Employer’s Chief Executive Officer, Ron Patterson. Beyond receiving this report, the award makes no reference to Mr. Patterson having any other involvement in the case. [ 36 ] The award noted that, throughout Mr. Duret’s testimony, he stated that the Employer’s decision to terminate the Grievor’s employment was based on his having “intent to harm”.

Evidence Regarding Translation at the Hearing [ 37 ] As mentioned, the issue about translation of testimony arose from the Employer’s complaint about procedural unfairness. Both the award and the dissent are conspicuously silent about any evidence on that issue. Accordingly, the Court agreed to receive affidavits about this evidence. The Employer served and filed two substantive affidavits deposed by Mr. Duret, the second one in reply. The Union filed affidavits deposed by Marilynne MacFarlane and Sirithorn Janzen. Ms. MacFarlane is a Union service representative. Ms.

Janzen served as the interpreter for the hearing. [ 38 ] I digress from the narrative at this point simply to address the admissibility of the extrinsic affidavit evidence.

There is no question that, where an application for judicial review engages jurisdictional questions, related to matters such as naturaljustice or procedural fairness, extrinsic evidence may not only be admissible – it may be necessary. See Bailey v Registered Nurses’Association (Saskatchewan), (SK KB), [1997] 6 WWR 407 (Sask QB), var’g (1997), (SK KB),153 Sask R 27 (QB). Having said this, it is important for a reviewing court to recognize the general rule that, subject to limitedexceptions, judicial review should be restricted to the record presented before it.

See Association of Universities and Colleges of Canadav Canadian Copyright Licensing Agency, 2012 FCA 22 at paras 19 and 20, 428 NR 297; Tsleil-Waututh Nation v Canada (AttorneyGeneral), 2017 FCA 128 at para 86. In Saskatchewan, the “record” is that which is properly presented pursuant to Rules 3-57 to 3-59 ofThe Queen’s Bench Rules. [39] The above referenced authorities, along with others in this province, have addressed the nature of the limitedexceptions to the general rule.

In Saskatchewan (Workers’ Compensation Board) v Gjerde, 2016 SKCA 30 at para 44, 476 Sask R 121[Gjerde], Ryan-Froslie J.A. identified four types of exceptions.

Slightly paraphrased, these exceptions are: (1) evidence that providesgeneral background (as opposed to evidence on the merits) in circumstances where such information might assist; (2) to bring possibleprocedural defects to the attention of the reviewing court, which defects are not otherwise found in the record; (3) to highlight thecomplete absence of evidence before the decision-maker when making a particular finding; and (4) to “elucidate the record” upon whichthe administrative body’s reasons were based, provided the circumstances are appropriate to receive such evidence.

See also the helpfulreview of authorities conducted by Krogan J. in Chaboyer v Saskatchewan, 2021 SKQB 200 at paras 14 to 45. [40] I am satisfied that only the second exception justifies the admission of extrinsic evidence in this application. Assuch, the Court can consider affidavit evidence pertaining to two circumstances: (1) the discussion that led the Board to permitMs. Janzen to interpret testimony; and (2) whether Ms. Janzen struggled in the translation exercise.

In my view, this evidence directlytouches on the Employer’s complaint. [41] On the other hand, to the extent the extrinsic affidavit evidence purports to revisit the merits of each party’scase, either to question or to enhance the factual findings made by the Board, I am satisfied that such evidence cannot displace thetestimony described in the record. On this point, I see depositions in both of Mr. Duret’s affidavits, as well as the affidavit of Ms.MacFarlane, that purport to describe evidence about the events in the Avenue C parking lot. This evidence also crept in during the cross-examination of Ms.

Janzen on her affidavit, when the Employer’s counsel (improperly in my view) questioned her about specific detailsof witness testimony. Such evidence neither complies with the general rule nor does it fall within any of the limited exceptions.Accordingly, it must be disregarded. [42] Turning to the properly submitted affidavit evidence, I will begin with Mr. Duret’s first affidavit, where hedescribed the initial proceedings before the Board. There, he stated that the Union arrived at the hearing with Ms. Janzen and informedthose present that she could translate the proceedings for the Grievor and Pornthip.

The Union counsel told the Board that Ms. Janzenwas a volunteer with the Saskatoon Open Door Society, and a “close friend” of both the Grievor and Pornthip. The Board was also toldthat the proposed interpreter could translate English and Thai, but that she had no formal credentials or training in this regard. [43] According to Mr. Duret, the Employer’s counsel objected to Ms. Janzen serving as the interpreter. The statedgrounds for the objection were that the proposed interpreter was unqualified, potentially biased and that her involvement could result ina violation of the duty of procedural fairness.

In response to the objection, the Board adjourned the hearing and instructed the Union tosearch for a qualified interpreter who was not associated with the Grievor’s family. Following that instruction, the parties agreed toreconvene the next day. [44] Mr. Duret deposed that, when the parties reconvened, counsel for the Union advised the Board that his clientcould not locate an alternate interpreter. Counsel then proposed that the parties simply proceed with Ms. Janzen. According to Mr. Duret,the Employer renewed its objection, following which the Employer’s counsel was permitted to question Ms. Janzen.

From thatquestioning, Mr. Duret’s affidavit describes Ms.

Janzen’s oral evidence as follows: a. she was not a member of the Association of Translator and Interpreters of Saskatchewan, the Translation Agency of Saskatchewanor any other similar organization; b. she was not bound by any code of conduct or ethics; c. she had not passed translation examinations in Thai, English or any other language; d. she had no certifications or formal training in Thai, English or translation in general; e. she was a close family friend of the Grievor and Pornthip; f. her only translating experience was on one other occasion for one hour; and g. she was employed at McDonald’s. [45] Mr.

Duret’s affidavit states that, following the questioning, the Employer remained unsatisfied and maintainedits objection. He went on to depose that, despite the objection, the Board ordered the parties to proceed with Ms. Janzen providingtranslation services. He further states that the Board instructed Ms. Janzen to translate every word of the hearing to the Grievor. Theaffidavit further says that the Board instructed the parties to speak slowly to allow for the translation. [46] Mr. Duret also deposed to his opinion that, during the hearing, Ms. Janzen appeared to have trouble translatingbetween English and Thai.

In his view, this particularly became apparent when Anitshara testified or when her written statement wasbeing translated. That said, Mr. Duret also said that Anitshara “had to translate a lot of her own testimony” and that she also “translatedmost of her own written statement”. [47] Ms. MacFarlane’s affidavit also addressed the circumstances under which the Union arranged for Ms. Janzen to

interpret evidence at the hearing. This evidence included background discussions with personnel at the Saskatoon Open Door Society as well as the initial proceedings before the Board. As I read her evidence on these points, much of it did not substantially differ from Mr. Duret’s evidence. That said, her affidavit disclosed differences on three points. First, although she agreed that the Board was told that Ms. Janzen was familiar with the Grievor and Pornthip, she said there was no suggestion that they were close friends. [ 48 ] Secondly, Ms. MacFarlane added information not mentioned by Mr. Duret. She deposed that Ms. Janzen testified to having provided

interpretation services for the SPS and the Provincial Court of Saskatchewan. This included being involved in Noppodone’s court appearances on the charges brought against him. [ 49 ] Finally, Ms. MacFarlane denied Mr. Duret’s description of the difficulty Ms. Janzen had in translation, particularly in regard to Anitshara. Ms. MacFarlane said she had worked with interpreters in the past and that Ms. Janzen’s service in this regard was “unremarkable” in comparison to what she had previously observed. [ 50 ] Ms. Janzen’s affidavit was not inconsistent with Ms. MacFarlane’s evidence.

The Award [ 51 ] In its analysis, the Board noted the Employer’s position, which was that the Grievor acted with the intention to harm Anitshara. More specifically, it asserted that, by his actions, the Grievor “intimidated, harassed or attempted to assault” his sister- in-law. Having regard to the Employer’s onus of proof, the Board properly observed that the central issue before it was whether the Employer had proved that the Grievor, without any justification, engaged in such intimidation, harassment or attempt to assault Anitshara.

Related to that central issue, there were also secondary issues, such as: (1) whether the alleged off-duty conduct was the continuation of a workplace incident or whether the Grievor’s conduct impacted his continued employment in some other respect, as per the test in Millhaven Fibres Ltd., v Oil, Chemical & Atomic Workers Int’l Union, Local 9-670 , [1967] OLAA No 4 (QL) (Ont Lab Arb); and (2) whether the Employer had conducted a reasonably thorough investigation before deciding to terminate the Grievor’s employment. [ 52 ] On the first of these secondary issues, the Board concluded that the events in the Avenue C parking lot amounted to a “continuation of a workplace incident”.

As such, to the extent that the Grievor’s actions would attract discipline, the Board accepted that the Employer properly considered them. [ 53 ] On the propriety of the Employer’s investigation, the Board was much less impressed. While acknowledging that failure to interview the Grievor was not fatal to the Employer’s case, the Board found that a full investigation had not been conducted. It further concluded that the absence of a full investigation breached

Article 8.01 of the applicable collective bargaining agreement. This provision stipulated that the “Employer and the Union are committed to establishing and maintaining a workplace for Employees based on co-operation, mutual problem-solving, and respect for the individual.” In this regard, the Board wrote the following, at paras. 35 and 36: 35. It is this Board’s belief that failure to interview the Grievor and provide him with an opportunity to tell his side of the story not only breaches

Article 8.01 of the CBA, but is a clear indication that the Employer had not done a thorough or, in fact, any form of investigation to arrive at a finding or conclusion that would justify disciplining the Grievor. 36. In other words, although the failure to interview the Grievor may not have been fatal, the failure to conduct a proper investigation does put its decision to discipline the Grievor in jeopardy. [ 54 ] The Board followed up this comment by adding factual context to the lack of a proper investigation.

In this regard, it noted that, unlike the case its counsel relied on, Winpak Ltd. v Communications, Energy and Paperworkers Union of Canada, Local 830 , [2010] MGAD No 12 (QL) (Man Griev Arb) [ Winpak ], the Employer did not rely on credible uncontested evidence. Rather, the Board concluded, at para. 45, that “the Employer had only the evidence of Mr.

Ordonez, who was one of the protagonists in the dispute in the parking lot, as by his own admission, he was wielding a bat and in some fashion hit the Grievor’s vehicle with that bat.” The Board then went on, at paras. 46-50, to set out its reasons for finding the Grievor’s termination both unreasonable and unwarranted: 46. Combined with the fact that the Grievor was not charged with any criminal offences, when in fact one of the other protagonists was charged, should have alerted the Employer to question whether the Grievor’s involvement warranted any form of discipline.

The issue of whether the Grievor was being attacked and acting in self-defence or whether he was an aggressor should certainly have been investigated further. The Employer took no steps to meaningfully investigate the incident before making its decision to terminate the Grievor. As Adjudicator Robinson says in the Windpak [sic] case: Employers proceed at their own peril when they discipline employees without reviewing allegations with them in advance or without otherwise conducting reasonably vigilant investigations. 47.

It is clear to this Board that the Employer did not conduct “reasonably vigilant investigations.” 48. In reviewing the evidence provided at this hearing, it is quite conceivable that the Grievor was acting in self-defence of his wife who was being struck on the head with a hatchet. If those are the facts, then surely his actions would not warrant discipline. 49. Also, unlike Arbitrator Robinson, who concluded that there was no requirement in the CBA to interview the grievor, this Board has concluded the CBA before us, in fact, provided that the Employer does have some onus as set out in

Article 8.01 to involve the Union and the Grievor in “mutual problem-solving” and “respect for the individual.” 50. A review of the evidence brings this Board to the conclusion that had the Employer done a thorough investigation of the incident, it may very well have concluded, as this Board has, that it was more likely than not that the Grievor was acting in self-defence to protect his wife and himself after he observed her being struck a number of times in the head with a hatchet. There is no evidence before this Board that the Grievor got out of the vehicle he was in with the hatchet until after he observed his wife being struck.

[ 55 ] Turning to the remedy for the wrongful termination, the Board’s reasons for not ordering reinstatement appear at paras. 54-57. In arriving at its decision, the Board referenced six relevant factors, which are reflected in the arbitral jurisprudence.

They are: a. the refusal of co-workers to work with the grievor; b. lack of trust between the grievor and the employer; c. the inability or refusal of the grievor to accept responsibility for any wrongdoing; d. the demeanour and attitude of the grievor at the hearing; e. animosity on the part of the grievor towards management or co-workers; and f. the risk of a “poisoned” atmosphere in the workplace. [ 56 ] Of these six factors, the Board concluded that only one applied, namely, a lack of trust between the Grievor and the Employer.

The Board found a general lack of trust, primarily based on the unreasonable conclusion Mr. Duret drew from the information he received. It also focused on the fact that, through reinstatement, the Grievor would return to the workplace under the supervision of Mr. Ordonez. In the majority opinion of the Board, this made reinstatement an inappropriate remedy. This view was specifically addressed in para. 57: 57. A more significant consideration is that the Grievor would be placed back into a workplace under the supervision of Mr.

Ordonez, who the evidence showed was very involved in the incident and obviously made no effort to ensure that Mr. Duret had an accurate account of what had occurred. It is clear that the (sic) Mr. Odonez (sic) was a close family friend of Noppadone and Anitshara. This Board believes that placing the Grievor back in that workplace under the supervision of Mr. Ordonez has a high probability of difficulty for the Grievor.

Despite the fact that the Grievor was not found to have committed any disciplinable act, the Board is of the opinion that reinstatement would not be appropriate and that damages in lieu of reinstatement should be awarded. After rejecting the Employer’s argument that the Grievor failed to mitigate his loss, the Board awarded the Grievor damages equal to 1.75 months’ pay for each of the Grievor’s nine years of service plus a 25% factor year for loss of benefits. The total amount of damages is not described in the award. Issues [ 57 ] The meaningful issues to be answered in this application can be simply stated.

They are as follows: a. Did the Board breach its duty of procedural fairness in conducting the hearing with an interpreter who lacked formal qualifications as an interpreter or who lacked impartiality? b. Did the Board fail to act reasonably in making the actions or decisions described below? i. disregarding contradictory testimony; ii. deciding the Grievor had not committed any disciplinable acts; iii. interpreting

Article 8.01 to require the Employer to conduct a more complete investigation of the incident leading to the Grievor’s dismissal; and iv. declining to order the Grievor’s reinstatement. Procedural Fairness – Applicable Law and Analysis Standard of Review [ 58 ] Unlike judicial review on the merits, challenges based on questions of procedural fairness do not call for a standard of review assessment. As articulated in Dunsmuir v New Brunswick , 2008 SCC 9 at para 79 , [2008] 1 SCR 190 [ Dunsmuir ] , such a question is rooted in common law principles “that transcend the standard of review analysis”.

See Saskatoon Co-operative Association Ltd. v Saskatchewan Joint Board, Retail, Wholesale and Department Store Union , 2016 SKCA 94 , 484 Sask R 157 . [ 59 ] In Oberg v Saskatchewan Board of Education of the South East Cornerstone School Division No. 209 , 2020 SKQB 96 at para 20 [ Oberg ] , McCreary J. (as she then was) added to this observation. There, she noted that the right to procedural fairness is absolute and cannot be made fair by a correct outcome.

Failure to apply a correct process “renders the decision void ab initio , or invalid from the outset.” The Nature of Procedural Fairness [ 60 ] The common law principles of procedural fairness in administrative law have had an evolving history, largely inspired by the growth of the regulatory state. See G. Huscroft, “From Natural Justice to Fairness: Thresholds, Content and the Role of Judicial Review” in Colleen M. Flood & Lorne Sossin, Administrative Law in Context , 2d ed (Toronto: Emond Montgomery Publications 2013) at 147.

In place of the former approach, based on whether a tribunal’s tasks were judicial, quasi-judicial or administrative, the

current approach calls for “a general duty of fairness”, reflecting greater regard for the consequences to those who may be adverselyaffected.

The initiating case in this evolution is the judgment of the Supreme Court of Canada in Nicholson v Haldimand-NorfolkRegional Police Commissioners, (SCC), [1979] 1 SCR 311 [Nicholson], which embraced the perspective in the muchearlier House of Lords decision in Ridge v Baldwin, [1963] 2 All ER 66 (HL). [61] As Professor Huscroft notes, Nicholson did not altogether disregard the distinction between administrative andjudicial or quasi-judicial functions, nor did it displace the narrow rules of natural justice, such as audi alteram partem (“listen to the otherside” or “let the other side be heard as well”) and nemo judex in sua causa (“no one should be a judge in their own cause”).

That said, hecorrectly observes that, after Nicholson, the narrow limits of the natural justice rules gave way to the duty of fairness as the applicableorganizing principle. [62] In the present case, I need not address the question whether the duty of procedural fairness applied to theproceeding before the Board. It clearly did. As for the nature and content of that duty, the law on this aspect has also undergone anevolution, beginning with Nicholson. In that case, at pp. 326-27, Laskin C.J.C. recognized that the requirements of natural justicedepended on the circumstances and subject matter under consideration.

Ten years later, in Syndicat des employés de production duQuébec et de l’Acadie v Canada (Human Rights Commission), (SCC), [1989] 2 SCR 879 at pp 895-96, Sopinka J.,writing for the majority, elaborated on this theme, and expanded it to a general duty of fairness: … Both the rules of natural justice and the duty of fairness are variable standards. Their content will depend on the circumstances of thecase, the statutory provisions and the nature of the matter to be decided.

The distinction between them therefore becomes blurred as oneapproaches the lower end of the scale of judicial or quasi-judicial tribunals and the high end of the scale with respect to administrative orexecutive tribunals. Accordingly, the content of the rules to be followed by a tribunal is now not determined by attempting to classifythem as judicial, quasi-judicial, administrative or executive.

Instead, the court decides the content of these rules by reference to all thecircumstances under which the tribunal operates. … [63] The evolution continued with other authorities, including two judgments authored by L’Heureux-Dubé J.,Knight v Indian Head School Division No. 19, (SCC), [1990] 1 SCR 653, and Baker v Canada (Minister of Citizenship& Immigration), (SCC), [1999] 2 SCR 817 [Baker]. Of these two authorities, the judgment in Baker stands out and ismuch more frequently cited.

At paras. 23-27, L’Heureux-Dubé J. reviewed the relevant jurisprudence and listed five non-exhaustivefactors that will inform the procedural fairness requirements in each case. As summarized by McCreary J in Oberg at para 21, the Bakerfactors are as follows: 21 … (

a) The nature of the decision and the process used to make it. The more the process provides for a decision resembling judicialdecision-making, the more likely it is that procedural protections closer to the trial model will be required; (

b) The nature of the statutory scheme and the terms of the statute under which the body operates. Greater procedural protections arerequired when no appeal procedure is provided in the statute or when the decision will finally determine the issue; (

c) The importance of the decision to the individual affected. The greater the impact on the lives of those it affects, the more stringentthe procedural protections; (

d) The legitimate expectations for procedural fairness of the person challenging the decision, which is often informed by any policy thepublic body has in place respecting processes for decision-making; and (

e) The choices of procedure made by the body itself, particularly when the statute gives the decision-maker the ability to choose itsown procedures, or when the body has expertise in determining what procedures are appropriate. Procedural Protection in Grievance Arbitration [64] There is no doubt that the duty of procedural fairness applies to grievance arbitration proceedings. Although theEmployer and the Union advanced different arguments about the content of the Board’s duty, neither party questioned its generalapplication.

Unfortunately, in advancing their arguments on the duty’s content, neither party referenced helpful authorities about how theBaker factors specifically inform that content. It is left to the Court to address that question. [65] Before addressing the specific application of the Baker factors, it is necessary to reference the statutoryframework for grievance arbitration, which provides the contextual backdrop for the procedural requirements set out in each collectiveagreement. This framework is set out in

Part VI, Division 9, Subdivision 3 of The Saskatchewan Employment Act, SS 2013, c S-15.1[SEA], ss 6-45 to 6-53. As stipulated in s. 6-45 of the SEA, the framework contemplates settlement by arbitration of “all disputes betweenthe parties to a collective agreement or persons bound by the collective agreement or on whose behalf the collective agreement wasentered into respecting its meaning, application or alleged contravention …”. [66] Two things are notable about the framework. The first is that there is no provision for a statutory appeal from agrievance arbitration award.

The second is that there is no distinction in the framework between grievance arbitrations initiated by anemployee, a union or an employer. [67] As for the specific statutory rules for grievance arbitration, they are set out in s. 6-49 of the SEA. For thepurpose of this application, the relevant parts of s. 6-49 read as follows: 6-49(1) Subsections (2) to (4) apply to all arbitrations required to be conducted in accordance with sections 6-45 to 6-48.

(2) The finding of an arbitrator or arbitration board:

(

a) is final and conclusive; (

b) is binding on the parties with respect to all matters within the legislative jurisdiction of Saskatchewan; and (

c) is enforceable in the same manner as a board order made pursuant to this Part.

(3) An arbitrator or an arbitration board may: (

a) exercise the powers that are vested in the Court of Queen’s Bench for the trial of civil actions: (

i) to summon and enforce the attendance of witnesses; (ii) to compel witnesses to give evidence on oath or otherwise; and (iii) to compel witnesses to produce documents or things; (

b) administer oaths and affirmations; (

c) receive and accept any evidence and information on oath, affirmation, affidavit or otherwise that the arbitrator or arbitration boardconsiders appropriate, whether admissible in a court of law or not; … [68] Reviewing the Baker factors in the context of this statutory framework, I find that three of the five non-exhaustive factors support a consistent and evenly applied form of procedural protection, approximating what would be expected in acivil trial.

These factors are: the nature of the decision and the process used to make it; the nature of the statutory scheme and the termsof the statute under which the body operates; and the legitimate expectations for procedural fairness of the person challenging thedecision. In coming to this conclusion, I have had regard to the commentary of L’Heureux-Dubé J. in Baker, on each of these factors, atparas. 23, 24 and 26.

For the sake of brevity, I find it unnecessary to repeat that commentary here. [69] As for the other two non-exhaustive factors, namely, the importance of the decision to the individual orindividuals affected and the choice of procedure made by the agency itself, I find these factors to be somewhat more dependent on thecircumstances of a particular grievance arbitration. I will explain. [70] My explanation begins with the importance of a given proceeding to the individuals affected, the third factorenumerated in Baker.

In my view, this factor calls for a form of procedural protection that carries a certain elevated sensitivity to thejeopardy an individual may face in the outcome of a tribunal’s decision. An understanding of this is reflected in the Court’s commentaryin Baker, where L’Heureux-Dubé J. wrote the following at para. 25: 25 A third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individualor individuals affected.

The more important the decision is to the lives of those affected and the greater its impact on that person or thosepersons, the more stringent the procedural protections that will be mandated. This was expressed, for example, by Dickson J. (as he thenwas) in Kane v. University of British Columbia, (SCC), [1980] 1 S.C.R. 1105 (S.C.C.) at p. 1113: A high standard of justice is required when the right to continue in one’s profession or employment is at stake.... A disciplinarysuspension can have grave and permanent consequences upon a professional career. As Sedley J. (now Sedley L.J.) stated in R. v.

Higher Education Funding Council (1993), [1994] 1 All E.R. 651 (Eng. Q.B.), at p. 667: In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people’s lives than thedecisions of courts, and public law has since Ridge v. Baldwin, [1963] 2 All E.R. 66, [1964] A.C. 40 been alive to that fact.

While thejudicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example byrequiring contentious evidence to be given and tested orally, what makes it “judicial” in this sense is principally the nature of the issue ithas to determine, not the formal status of the deciding body. The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty ofprocedural fairness. [Emphasis added] [71] In my view, there is an implicit message in this commentary.

While there can be little doubt that all partiesbefore a tribunal will have an interest in the outcome of its decision, there may be qualitative differences in those interests. This isparticularly evident in immigration, professional discipline and employment related proceedings. Often, these qualitative differences areinformed by which party carries the burden of proof and/or faces greater jeopardy.

Where a party has the burden of proving a caseagainst another, with the potential for grave and permanent consequences, the party bearing the burden should reasonably expect aqualitatively different level of procedural protection than the responding party. [72] Depending on the circumstances, this perspective can apply to grievance arbitration proceedings. That said, I donot agree with the Union’s submission that, beyond the basic features of natural justice, an employer should not expect any proceduralprotection in grievance arbitration proceedings.

There will undoubtedly be many grievance arbitrations where procedural protection willbe evenly applied as between an employer and a union/employee. For example, where an arbitrator is addressing an issue with less direconsequences than discipline or termination, or where an issue turns principally on the

interpretation of the collective agreement or aquestion of law (for which there is no onus of proof), each party to the dispute can reasonably expect evenly applied forms of proceduralprotection. [73] As for the choice of procedure made by the agency itself, this factor requires a reviewing court to consider andto respect a tribunal’s authority to make procedural choices. In doing so, the reviewing court must have regard to the statutory framework

as well as the tribunal’s expertise in making its choices. L’Heureux-Dubé J. addressed the nature of this factor, the fifth factor in herenumerated list, at para. 27 of Baker (text references and one case citation omitted): 27 Fifth, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices ofprocedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures,or when the agency has an expertise in determining what procedures are appropriate in the circumstances: ….

While this, of course, isnot determinative, important weight must be given to the choice of procedures made by the agency itself and its institutional constraints:… [Emphasis added] [74] In my view, consideration of this factor is closely tied to the importance of the proceeding to the individualaffected. Under the authority of s. 6-49(3) of the SEA, I think it is open for an arbitrator to observe a procedure that is mindful of thepotential impact on an individual, and which includes the necessary procedural protection for that individual.

In doing so, the arbitratormust also be mindful of the onus of proof, and whether, in all the circumstances, the party bearing that onus will be unduly prejudiced bythe procedure observed. Procedural Fairness and the Right to a Qualified Interpreter [75] The Employer posits that its right to a qualified interpreter at the hearing was an essential feature of the Board’sduty of procedural fairness. In the hearing of this application, neither counsel raised any jurisprudence that addressed the question in thespecific context of grievance arbitration.

Instead, the Employer relies on the Federal Court’s decision in Thambiah v Canada (Minister ofCitizenship and Immigration), 2004 FC 15, 11 Admin LR (4th) 203 [Thambiah], which, in turn, relied on the judgment of the SupremeCourt of Canada in R v Tran, (SCC), [1994] 2 SCR 951 (WL) [Tran]. It argues that these authorities stand for theproposition that, as a matter of law, a grievance arbitration board is required to provide

interpretation services that are “continuous,precise, competent, impartial and contemporaneous”. [76] The Employer’s reference to these authorities ignores the fact that both cases were discussed in the context ofconstitutional rights under s. 14 of the Canadian Charter of Rights and Freedoms. This provision stipulates as follows: 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or whois deaf has the right to the assistance of an interpreter. In my view, this context is relevant.

Before the decision in Thambiah, the Federal Court, in Mohammadian v Canada (Minister ofCitizenship and Immigration), (FC), [2000] 3 FC 371, aff’d 2001 FCA 191, [2001] 4 FC 85, confirmed the view,expressed in earlier decisions, that s. 14 of the Charter, as considered in Tran, applied to proceedings before the Convention RefugeeDetermination Division, the predecessor to the subject tribunal in Thambiah. [77] I could find no court authority for the proposition that s. 14 of the Charter necessarily applies to grievancearbitration proceedings. That said, some arbitrators have expressed their views on the subject.

In Insurance Corp. of British Columbia vCanadian Office and Professional Employees’ Union, Local 387 (2005), (BC LA), 140 LAC (4th) 302 (B.C. Arb.),Arbitrator Dorsey addressed the right to an interpreter for a deaf grievor in a dismissal grievance.

Although most of the decision wasdevoted to the responsibility for paying the costs of the interpreter, Arbitrator Dorsey opined, at para. 42, that s. 14 of the Charterapplied. [78] Aside from Arbitrator Dorsey’s decision, other arbitration cases have addressed the need for an interpreter,primarily as part of a grievor’s right to procedural fairness, as opposed to that of the employer. Most of these authorities are footnoted inDonald J.M. Brown & David M. Beatty, Canadian Labour Arbitration, looseleaf, 4th ed, vol 1 (Toronto: Thomson Reuters, 2014) at3:3221.

Although these authorities clearly recognized the importance of an interpreter in such cases, most of the discussion also focusedon responsibility for the cost of an interpreter. They did not directly address qualifications of a proposed interpreter. Procedural Fairness - Analysis [79] At the outset of my analysis, I am compelled to raise two questions about the Employer’s procedural fairnesscomplaint, neither of which were answered in the record or the admissible extrinsic evidence. The first is to question why the parties didnot address the need for a competent interpreter well in advance of the Board hearing.

At the very least, they should have informed theBoard at the time of scheduling that translation arrangements would be necessary and that a preliminary ruling may also be required.Given the evidence presented at the hearing, it is inconceivable that the Employer and the Union did not know about the Grievor’slanguage challenges. Despite this, there is no evidence of steps taken to address the need, or the costs associated with it, prior to the firstscheduled day of the hearing.

Had they done so, the difficulties reflected in the Employer’s complaint would almost certainly have beenavoided. [80] The second question relates to the award’s silence about the circumstances under which Ms. Janzen came toserve as the interpreter. The evidence of both Mr. Duret and Ms. MacFarlane is that the Employer had not waived its objection. Underthe circumstances, I have to assume this evidence is correct. If so, the award’s silence is surprising. Had the issue been addressed in theaward, the Court would have had the benefit of the Board’s reasons for rejecting the Employer’s objection.

Moreover, affidavits on thepoint would not likely have been necessary. [81] With those initial comments aside, I now turn to the merits of the Employer’s complaint. [82] To reiterate the essence of the Employer’s challenge, it is that the Board’s failure to insist on a formallyqualified interpreter denied it two important features of procedural fairness. First, the Employer posits that the Board’s failure denied it aproper understanding of the testimony given by the witnesses who testified in Thai.

Secondly, the Employer also asserts that the Board’sfailure amounted to a denial of its right to cross-examine the Grievor and Pornthip about the incident that led to the dismissal. In sum,

the Employer asserts that it was not afforded a meaningful opportunity to meet the Grievor’s case against it. [ 83 ] The Union’s response to this argument is that grievance arbitration proceedings are such that an employer’s right to procedural fairness is palpably different from that of an employee who grieves an employer’s decision. In short, the Union contends that, in this context, an employer’s right to procedural fairness is confined simply to the basic features of natural justice, namely adequate notice and absence of bias.

In particular, the Union challenges the suggestion that the Employer had the right to an interpreter in the Board hearing. [ 84 ] In addressing these positions, I begin with the observation that, given his undisputed difficulties with English, the Grievor clearly had the right to an interpreter in this grievance arbitration – one about which both parties should have been mindful in advance. This right is clearly rooted in the common law principles of procedural fairness.

Indeed, if Arbitrator Dorsey’s opinion is correct, the right may also have a constitutional foundation. [ 85 ] I also accept that the Employer would derive some benefit from the Grievor’s exercise of his right to an interpreter, and that such a benefit should not be so easily disregarded as the Union suggests. In this regard, the Employer is entitled to understand the testimony given by the witnesses and is also entitled to a meaningful cross-examination.

Whether these entitlements are part of the duty of procedural fairness or within the rules of natural justice, it matters not. [ 86 ] Having said all this, I find the Employer’s argument is somewhat mischievous, if not outright disingenuous. I say this because it must be remembered that the Employer carried the onus of proving justification for the Grievor’s dismissal. In this context, and while I accept that both parties had a right to procedural fairness, the procedural protection for the Grievor was qualitatively different from that for the Employer.

The onus of proof obliged the Employer to marshal its case and to prepare, as best it could, for the Grievor’s response to it. In a practical sense, that obligation began during its investigation before the Grievor’s dismissal. Failure to interview the Grievor before the dismissal placed the Employer at a disadvantage. If carried out in a fair and balanced way, not only would the Employer have learned the Grievor’s version of events, it would also have understood the probable need for an interpreter. For reasons not explained in any of the evidence, the Employer did not take that step.

In this context, I find the Employer’s professed ignorance about the case it had to meet is a mystery of its own making. [ 87 ] In saying the above, I acknowledge that the evidence of a less-than-complete investigation, and evidence of

Article 8.01 of the collective agreement came out after the Board had reportedly ruled on the Employer’s objection. Even so, and despite the award’s silence on the point, the fact that the Employer agreed to the scheduled date for the hearing could reasonably leave the Board with the inference that the Employer knew the case it had to make and was reasonably prepared for any anticipated response to that case. [ 88 ] Finally, while there is no dispute that she lacked formal translation credentials, the extrinsic evidence does not persuade me that Ms. Janzen lacked competence to serve as an interpreter.

It is apparent from the award that the Board felt comfortable making its findings of fact from the evidence it received through her translation. Moreover, the affidavit evidence received is conflicting and does not establish obvious inadequacy in Ms. Janzen’s efforts. As a final observation on the point, I think one should be mindful of the reality, noted by Lamer C.J.C. at para. 62 in Tran , that “…

Interpretation is an inherently human endeavour which often takes place in less than ideal circumstances.” There is little doubt that the circumstances here, particularly given the lack of advance preparation by the parties, were less than ideal – but not necessarily inadequate. [ 89 ] Having regard to all these circumstances, I cannot find that the Board denied the Employer’s right to procedural fairness by failing to insist on a formally qualified Thai interpreter. Accordingly, this aspect of the Employer’s application must be dismissed.

Reasonableness Review – Applicable Law and Analysis The Nature of the Reasonableness Review [ 90 ] The parties agree that the standard of review for the remaining aspects of this application is reasonableness. As articulated in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ], reasonableness is now regarded as the presumptive standard of review, subject to very limited exceptions. [ 91 ] It is important to understand that the reasonableness standard of review is not a vague and abstract concept that focuses solely on a tribunal’s conclusion.

It has its roots in the analysis earlier articulated in Dunsmuir , where the Supreme Court of Canada, at para. 47, underscored the importance of the underlying rationale of an administrative decision. In light of that rationale, the Court concluded that a reasonable decision is one that is justified, transparent and intelligible within the decision-making process.

Along with these considerations, a reviewing court must concern itself with whether the administrative decision falls within a range of acceptable outcomes that are defensible in respect of the facts and the law. [ 92 ] In Vavilov , the Supreme Court of Canada essentially reaffirmed the reasonableness analysis in Dunsmuir , albeit with a somewhat sharpened focus. I addressed that analysis in Pierson v Estevan Board of Police Commissioners , 2020 SKQB 144 at paras 56-60 .

A more concise analysis, which has relevance to the case at hand, appears in Premier Horticulture v USW, Local 1-184 , 2020 SKQB 77 , 54 CLRBR (3d) 1 [ Premier Horticulture ], which involved an employer’s challenge of a decision of the Saskatchewan Labour Relations Board. There, Scherman J. summarized the Vavilov analysis as it pertained to both standard of review selection as well as the nature of the reasonableness review. The

summary of the reasonableness review appears in sub-paras. 7(e)-(o), where my learned colleague wrote the following: 7 I extract from and summarize from Vavilov the principles and directions that I find are applicable to the judicial review at hand. All references are to the majority decision. The pertinent principles and directions are as follows: …

(

e) Reasonableness reviews start with judicial restraint and respect for the distinct role the legislatures have assigned to administrative decision-makers. The aim is to give effect to the legislature’s intent and assign certain decisions to administrative bodies while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law. See paragraphs 75 and 82. (

f) The reviewing court is to begin its inquiry into the reasonableness of the decision by examining the reasons provided with respectful attention and seeking to understand the reasoning process followed by the decision-maker to arrive at its conclusion. See paragraph 84. (

g) A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker. (

h) Reasonableness is, according to Dunsmuir v. New Brunswick , 2008 SCC 9 (S.C.C.) at para 47 , [2008] 1 S.C.R. 190 (S.C.C.) , “concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” as well as “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law .” The reasons must justify the decision reached. See paragraph 86. (

i) The written reasons given by an administrative body must not be assessed against a standard of perfection . What is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. The review of an administrative decision cannot be divorced from the institutional context in which the decision was made nor from the history of the proceedings. See paragraphs 90 and 91. (

j) The reviewing court is to ask 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. See paragraph 99. (

k) The burden is on the party challenging the decision to show that it is unreasonable. See paragraph 100. (

l) 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 . The court must be satisfied that any shortcomings or flaws relied upon by the party challenging the decision are sufficiently central or significant to render the decision unreasonable. See paragraph 100. (

m) Significantly, at paragraph 102, the court affirms previous statements that reasonableness review is not a “line-by-line treasure hunt for error” . The reviewing court must be able to trace the decision-maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived ”. See paragraph 102. (

n) At paragraphs 105 to 135, the majority decision of the Supreme Court of Canada elaborated upon and gave directions on the application of the principles. It stated that a reasonable decision: (

i) is based on in internally coherent reasons; (ii) is justified in light of the legal and factual constraints that bear on the decision including: (

A) the governing statutory scheme; (

B) other statutory or common law; (

C) principles of statutory

interpretation; (

D) evidence before the decision-maker; (

E) submissions of the parties; (

F) past practices and past decisions of the administrative decision-maker; and (

G) the impact of the decision on the affected individual or party. (

o) Absent exceptional circumstances, a reviewing court will not interfere with an administrative decision-maker’s factual findings . In this respect, the Court cited its decision in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 (S.C.C.) , which established the principle that on appellate or judicial review, findings of fact should only be overturned in circumstances of palpable and overriding error. [Emphasis added] [ 93 ] The last point in the

summary from Premier Horticulture does not reference the applicable passage in Vavilov . Given the significance of this point to the application before me, I think it helpful to recite that passage, which appears at para. 125 of Vavilov , where the majority wrote the following: 125 It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings.

The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker ” : CHRC [2018 SCC 31 , [2018] 2 SCR 230 ], at para. 55; see also Khosa [2009] SCC 12], at para. 64; Dr. Q [2003 SCC 19], at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review : see Housen [2002

SCC 33], at paras. 15-18 ; Dr. Q , at para. 38; Dunsmuir , at para. 53 . [Emphasis added] [ 94 ] Before leaving the decision in Premier Horticulture , I think it helpful to reference the Court’s overall observation about the reasonableness review. In the context of the application before him, and with some appropriate metaphors, Scherman J. discussed the macroscopic nature of the review at paras. 49-50: 49 The Employer advanced numerous distinct “errors” in support of its position and that the Board’s decision was unreasonable.

Unreasonableness is not a conclusion arrived at by my minute focus on details and parsing individual words or phrases of the language used. The reasonableness assessment is, to modify an old cliché, about the health of the forest, not the individual trees within the forest. 50 In the words of the Supreme Court of Canada in the Vavilov , reasonableness review is not a “line-by-line treasure hunt for error”. While the reviewing court must be able to trace the decision-maker’s reasoning without encountering any fatal flaws in its overarching logic, it is the overarching logic that the reviewer must focus on.

Reasonableness reviews start with judicial restraint and respect for the distinct role the legislature has assigned to the labour relations boards. While in various respects there is a measure of logic and reason to the Employer’s individual criticisms of the Board’s decision, it is the overall reasonableness of the Board’s decision that is the test, not whether there is some reason to the criticisms made. [ 95 ] The reasonableness review also applies to the

interpretation of a tribunal’s home statute, a contract, or a collective agreement. Such

interpretations need not be correct. If an

interpretation meets the hallmarks of reasonableness and is consistent with the language used, including the context in which that language appears, a reviewing court must extend deference. The precision, or not, of the language will also signal whether a tribunal is constrained in its

interpretation. In Vavilov , the majority judgment addressed the nature of a reasonable

interpretation of a tribunal’s home statute. In my view, the comments there also apply to an arbitrator’s

interpretation of a collective agreement. These comments appear in paras. 109-110, where the majority wrote the following: 109 …. Although a decision maker’s

interpretation of its statutory grant of authority is generally entitled to deference, the decision maker must nonetheless properly justify that

interpretation. Reasonableness review does not allow administrative decision makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it. Contrary to our colleagues’ concern (at para. 285), this does not reintroduce the concept of “jurisdictional error” into judicial review, but merely identifies one of the obvious and necessary constraints imposed on administrative decision makers. 110 Whether an

interpretation is justified will depend on the context , including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority. If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision .

Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. Other language will fall in the middle of this spectrum. All of this is to say that certain questions relating to the scope of a decision maker’s authority may support more than one

interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its

interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting. [Emphasis added] [ 96 ] Common law principles of contract

interpretation may also provide guidance, albeit not to the same correctness standard expected in a civil trial. In United Food and Commercial Workers, Local 1400 v P&H Milling Group , 2021 SKQB 310 (presently under appeal), Smith J. addressed an arbitrator’s

interpretation of a collective agreement’s sick leave/sick pay provisions. In doing so, he drew guidance from the Supreme Court of Canada’s judgment in Sattva Capital Corp. v Creston Moly Corp. , 2014 SCC 53 , [2014] 2 SCR 633. There, Rothstein J. wrote the following at paras. 47-48: 47 Regarding the first development, the

interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” ( Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada , 2006 SCC 21 , [2006] 1 S.C.R. 744 (S.C.C.) , at para. 27 per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Minister of Transportation & Highways) , 2010 SCC 4 , [2010] 1 S.C.R. 69 (S.C.C.) , at paras. 64-65 per Cromwell J.).

To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning: No contracts are made in a vacuum: there is always a setting in which they have to be placed....

In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating. ( Reardon Smith Line [ [1976] 3 All ER 570 ], at p. 574, per Lord Wilberforce) 48 The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement (see Geoffrey L. Moore Realty Inc. v. Manitoba Motor League , 2003 MBCA 71 , 173 Man.

R. (2d) 300 (Man. C.A.) , at para. 15 , per Hamilton J.A.; see also Hall [ Canadian Contractual

Interpretation Law , 2nd ed. Markham, Ont.: LexisNexis, 2012] , at p. 22; and McCamus [ T he Law of Contracts , 2nd ed. Toronto: Irwin Law, 2012 ] , at pp. 749-50). As stated by Lord Hoffmann in Investors Compensation Scheme Ltd. v. West Bromwich Building Society (1997), [1998] 1 All E.R. 98 (U.K. H .L.) : The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its

words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using thosewords against the relevant background would reasonably have been understood to mean. [p. 115] [97] For the review of an arbitrator’s

interpretation of a collective agreement, the lesson I take from the authorities isthis. Such an

interpretation will meet the reasonableness review if it is transparently described and intelligibly justified from the contextand purpose of the language used. Within these parameters, precise language may constrain or narrow the limits of a reasonableinterpretation, while broad and open-ended language will afford the arbitrator more flexibility and may give rise to more than onereasonable construction.

Reasonableness Review - Analysis of the Employer’s Application [98] As mentioned in the introduction to this judgment, the Employer challenges the reasonableness of the entireaward, asserting that the Board acted unreasonably in three respects: (1) it failed to address contradictory testimony; (2) concluded therewas no basis for discipline (3) erred in its

interpretation of

Article 8.01 of the collective agreement. Failure to address contradictory testimony [99] Before I address the merits of this submission, I think it notable that the Employer largely relies on evidence thatis not part of the record. The assertion that Anitshara gave evidence that contradicted the Grievor’s testimony is premised on theextrinsic affidavit evidence given by Mr. Duret and, to a lesser extent, on the cross-examination of Ms. Janzen on her affidavit.

For thereasons already referenced in my discussion about the extrinsic affidavit evidence, I am satisfied that such evidence does not fall withinany of the exceptions recognized in Gjerde. As such, it cannot be considered. Moreover, given that the extrinsic evidence aboutconflicting testimony is itself conflicting, I question whether it truly establishes contradictory testimony, at all. [100] Even if I am wrong about the evidence of unaddressed contradictory testimony, the remainder of the Employer’sargument is also unpersuasive.

That argument principally relies on the decision of the Saskatchewan Court of Appeal in Shamsuzzaman vCollege of Physicians & Surgeons (Saskatchewan), 2011 SKCA 41, [2011] 8 WWR 1 [Shamsuzzaman]. Shamsuzzaman came before theCourt on a statutory appeal from a discipline finding against the appellant. The respondent’s discipline committee found the appellantguilty of unprofessional conduct for inappropriately touching a patient during an examination.

The formally transcribed record ofevidence revealed testimony that the appellant did not recall the examination, but he also said he would never conduct an examination inthe manner described by the patient. In finding the appellant guilty, the discipline committee accepted the patient’s testimony but gaveno reasons for preferring her evidence over the appellant’s. [101] While this Court denied the appellant’s appeal, that decision was reversed by the Court of Appeal.

Speaking forthe Court at para. 46, Jackson J.A. sharply criticized the committee’s failure to give reasons for rejecting the appellant’s explanation.That said – and what the Employer’s submission fails to address – this was not the only basis on which the Court allowed the appeal.The Court also criticized the committee’s “inscrutable comments” that led it to reversing the applicable burden of proof. These factors,taken together, did not meet the reasonableness test in Dunsmuir.

In this regard, Jackson J.A. wrote the following at para. 48: 48 Having regard for the implicit admonition in such cases as Nipawin Nurses [ (SCC), [1975] 1 SCR 382] regardingappellate scrutiny of a tribunal’s reasons, I am not certain that each of the above errors taken alone would meet the high threshold forintervention based on the standard of review of reasonableness. However, we are faced with these errors: (

i) the Committee’s failure toexplain why it rejected Dr. Shamsuzzaman’s evidence; and (ii) the inscrutable comments regarding his lack of memory and the use of s.69.1 of the Act. These errors have occurred in the context of a two-witness case and the record does not otherwise explain the choicesmade by the Committee. The reasons fail the test in Dunsmuir of “justification, transparency and intelligibility within the decision-making process” (at para. 47).

In this context, I must conclude that the Committee’s reasons are so wholly inadequate that the decisioncannot stand. [102] The circumstances here are notably different from those in Shamsuzzaman. First, in the present case, the Boardexpressly noted only one conflict in the testimony about any violence or threatened violence against Anitshara. That conflict wasbetween the testimonies of the Grievor and Mr. Ordonez. Unlike the situation in Shamsuzzaman, the Board clearly stated its reasons forrejecting Mr. Ordonez’s evidence on this point.

Because it did not find any conflict between Anitshara’s testimony and that of theGriever, it did not have to address its reasons for rejecting one testimony over the other. [103] Secondly, even if the extrinsic evidence could logically reveal a conflict, Shamsuzzaman does not stand for theproposition that, standing alone, the unexplained rejection of a witness’s conflicting testimony meets the high threshold ofunreasonableness. Jackson J.A. said as much in the passage cited above.

Had it not been for the combination of errors made by thediscipline committee, it is questionable whether the appeal would have succeeded. [104] In short, having regard to all the evidence the Board received, I am satisfied that its factual findings, and thereasoning that led to them, meet the three hallmarks of reasonableness, and do not otherwise fall short of the Court’s expectations forinternal coherence and a rational analysis. Finding no basis for discipline [105] The Employer’s second submission is that the Board unreasonably concluded there was no basis for the Grievorto be subjected to discipline.

In making this submission, the Employer contends that the Board ignored the sequence of events precedingthose in the Avenue C parking lot. Reliance for this contention rests on three facts supported by the evidence: (1) that the Grievor andPornthip followed Anitshara from the workplace, with a hatchet in the back of their vehicle; (2) that the Grievor and Pornthip stopped inthe parking lot immediately after Anitshara had stopped there; and (3) that the Grievor engaged in a verbal confrontation withNoppadone.

The Employer posits that this conduct instigated the culminating events and, as such, is culpable enough to justify dismissal.In support of this argument, the Employer relies on the award in Aeroguard Eastern Ltd. v USWA (2008), 176 LAC (4th) 246 (QL) (OntLab Arb) [Aeroguard], a decision of Arbitrator Chapman, sitting as sole arbitrator.

[106] Again, I find no merit to the Employer’s submission. Firstly, I note that its argument does not explain, in acoherent way, why the purported disregard for the so-called instigating conduct did not meet the indicia of reasonableness. Instead, andwithout recognizing that reasonable conclusions can be drawn on both sides of most disputes, the Employer’s submission is little morethan a bald and inarticulate assertion of unreasonableness. [107] Secondly, the submission ignores the fact, expressly noted in the award, that the Employer’s claim focused solelyon the events in the Avenue C parking lot.

Although evidence of the earlier events provided narrative, there is nothing in the record tosuggest that they formed part of the Employer’s claim. In this context, the Board had no responsibility to make disciplinary findings onconduct that did not form the essential basis of the Employer claim of just cause. [108] I should also observe that the Employer’s reliance on Aeroguard is woefully misplaced. My reading of that awardis that evidence of the grievor’s pre-confrontation served as the employer’s central reason for his dismissal, a position the employersteadfastly asserted throughout the proceeding.

Interpretation of

Article 8.01 of the collective agreement [109] As I understand the Employer’s argument, it is that

Article 8.01, being part of

Article 8, solely relates to matterspertaining to the Labour Management Committee. The Employer maintains that issues related to this committee require the parties tokeep an open dialogue. That said, the Employer posits that this open dialogue does not apply to disciplinary matters and does not imposeany obligation on it. From this perspective, the Employer argues that the Board’s

interpretation was simp

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