Shaw Cablesystems Petitioner v. Telecommunications Workers Union and David McPhillips, 2018 BCSC 1003

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Shaw Cablesystems v. Telecommunications Workers Union, 2018 BCSC 1003 Date: 20180625 Docket: S165986 Registry: Vancouver Between: Shaw Cablesystems Petitioner And Telecommunications Workers Union and David McPhillips Respondents Before: The Honourable Madam Justice Iyer On judicial review from: A decision of an Arbitrator dated April 4, 2016 Reasons for Judgment Counsel for Petitioner: H. Levitt A. Lee Counsel for Respondents: R. Edgar M. VanderHouwen Place and Date of Hearing: Vancouver, B.C. May 29 and 30, 2018 Place and Date of Judgment: Vancouver, B.C.

June 25, 2018 Table of Contents INTRODUCTION .. 3 ADMISSIBILITY OF THE UNION’S AFFIDAVIT EVIDENCE .. 4 APPLICABLE STANDARD OF REVIEW ... 5 MERITS OF THE PETITION .. 6 Background Facts . 6 The Arbitrator’s Decision . 8 Positions of the Parties . 11 Analysis . 11 CONCLUSION .. 13 INTRODUCTION [ 1 ] Shaw Cablesystems (“Shaw”) seeks judicial review of a grievance arbitration decision delineating what work on Shaw’s “Fibre to the Premises” (“FTTP”) fibre optics system must be performed by journeymen and not by installers.

The arbitrator did not accept the positions of either the Telecommunications Workers Union (“Union”) or Shaw, both of which he considered to be inconsistent with the parties’ long history of collective bargaining. Instead, he determined what the parties would likely have agreed to had they bargained this issue. As Shaw had directed installers to perform more work than was authorized under this

interpretation of the collective agreement,

the arbitrator allowed the grievance. [ 2 ] Shaw argues that the arbitrator did not have the authority to determine what the parties would likely have agreed to if they had addressed the issue in bargaining, which the arbitrator described as their “hypothetical intent”. It says that is the function of interest arbitrators, not of grievance arbitrators.

It also says that the arbitrator was wrong or unreasonable in finding that there was a “gap” in the collective agreement that had to be filled by determining the hypothetical intent of the parties because the management rights clause accords Shaw the residual right to assign work where the collective agreement does not provide otherwise. [ 3 ] The Union argues that the arbitrator had the authority to interpret the collective agreement in the way that he did and that the conclusion he reached was reasonable. [ 4 ] In addition to the merits of the petition, there are two other issues I must decide.

The first is whether the Union can submit affidavit evidence that includes notes taken by a lawyer at the arbitration hearing and the recollections of a witness about what she and another witness said in their testimony. The second is the applicable standard of review. I will address those issues before turning to the merits of the petition. ADMISSIBILITY OF THE UNION’S AFFIDAVIT EVIDENCE [ 5 ] No record was made of the hearing. The Union filed an affidavit sworn by Tamara Marshall, a local servicing agent for the Union who attended the hearing and was a witness (“Marshall Affidavit”).

Various documents that were tendered at the hearing are attached as exhibits to the Marshall Affidavit, and Shaw does not object to those, other than to the Union’s commentary that some identification issues not addressed by the arbitrator in his decision are “unresolved”. The Marshall Affidavit also includes the following items, which Shaw says are not admissible: • Ms. Marshall’s recollection of the evidence of Carol Gibson, a witness for Shaw as “including” certain matters; • Ms.

Marshall’s recollection of what her evidence “included”; • The typed notes of Melissa VanderHouwen, co-counsel for the Union made at the hearing and attached as an exhibit to the Marshall Affidavit. [ 6 ] Ms. Marshall deposes that her recollections of the evidence are based on her own notes, those of Ms. VanderHouwen and those of Richard Edgar, counsel for the Union; however neither her notes nor those of Mr. Edgar are included in the Marshall Affidavit. [ 7 ] Ms. Marshall’s descriptions of Ms. Gibson’s evidence and her own evidence do not purport to be comprehensive. Ms.

VanderHouwen’s notes appear to record, in question and answer form, what the oral evidence was. However, there is no affidavit from Ms. VanderHouwen deposing that her notes are her effort to transcribe the proceeding. [ 8 ] In a judicial review, subject to narrow exceptions, only the “record” as defined in s. 1 of the Judicial Review Procedure Act is admissible as evidence before the reviewing court. The disputed portions of the Marshall Affidavit do not fall within the definition of “record”. In particular, they are not a “transcript, of any of the oral evidence given at the hearing” as neither Ms.

Marshall nor Ms. VanderHouwen have identified them as such. [ 9 ] That fact alone distinguishes this case from SELI Canada Inc. v. Construction and Specialized Workers’ Union, Local 1611, 2011 BCCA 353 .

There, the parties and the court agreed that the affidavit evidence was effectively a record of the proceedings, as it was “an attempt to reconstruct precisely the evidence that was before the tribunal” and was therefore not really “extraneous evidence” (at para. 80). [ 10 ] Extraneous evidence may be admissible in a narrow range of circumstances where a party is arguing that there was no evidence to support a tribunal’s findings of fact, that it lacked jurisdiction, or that the proceedings constituted a denial of natural justice.

The Union did not tender the Marshall Affidavit for any of these purposes; it said that that the Marshall Affidavit goes to the issue of what happens when there is a “gap” in the collective agreement. Accordingly, the disputed portions of the Marshall Affidavit are inadmissible and I have not considered them. APPLICABLE STANDARD OF REVIEW [ 11 ] Counsel for Shaw submitted that the arbitrator’s decision was unsupportable regardless of the standard of review.

However, he also asserted that the correctness standard applies because the arbitrator, “added a new provision to the collective agreement and therefore exceeded his jurisdiction.” [ 12 ] There is no question that the general standard of review of a decision of a labour arbitrator, including an arbitrator appointed under the Canada Labour Code , R.S.C. 1985, c. L-2 (“Code”), is reasonableness: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 ; Dunsmuir v. New Brunswick, 2008 SCC 9 ; Canada Post Corp. v. Canadian Union of Postal Workers, 2013 BCCA 108 .

While a correctness standard applies to a “true” question of jurisdiction, that category is very narrow and may not even exist at all: ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission) , 2015 SCC 45 at para. 27 . A true question of jurisdiction is only about whether or not the tribunal had the authority to make the inquiry at all, not about the outcome it reached: Dunsmuir at para. 59 . I note that the Supreme Court of Canada reaffirmed the exceptional nature of true questions of jurisdiction very recently in Canada (Canadian Human Rights Commission) v.

Canada (Attorney General), 2018 SCC 31 , paras. 31-41 .

[ 13 ] Shaw’s characterization of the arbitrator as exceeding his jurisdiction in this case is premised on the broad

interpretation of “jurisdiction” that the Supreme Court of Canada has rejected. Shaw is not saying that the arbitrator had no authority to make the inquiry, it says that the decision he reached is legally unsupportable because he applied a particular legal doctrine (the “gap” analysis) and did not apply the management rights clause. All of the issues raised by Shaw in this judicial review are questions of law or of mixed fact and law. They are reviewable on the reasonableness standard.

MERITS OF THE PETITION Background Facts [ 14 ] Shaw and the Union are parties to two 2012 collective agreements, one for Vancouver and the other for Surrey, whose relevant provisions are identical (“Agreements”). [ 15 ] Shaw provides digital telephone, cable TV and internet services to residential and commercial customers. Construction and maintenance work on the technological systems though which these services are provided are performed by a category of technical employees. The two positions in issue in this case are journeymen and installers.

Installers are paid less than journeymen. [ 16 ] The technological systems have changed over time, from coaxial cable through the introduction of fibre optics and a hybrid coaxial and fibre system, to the recently introduced FTTP system (collectively, “Cable Systems”). The Cable Systems all send signals from a source, called the “head end,” downstream to equipment located in customer’s homes. [ 17 ] In coaxial cable and hybrid systems, a “tap” on the line diverts part of the signal to subsidiary lines.

Taps are located on utility poles or utility boxes and “drops” connected to the tap take the signal to the meter room of a multi-unit building where it is split and sent to the residential units. By the time a fibre optic signal reaches the tap, it is no longer “hot” or active, as it has been converted to a radio frequency signal before it reaches the tap. [ 18 ] The FTTP system does not have a tap. It sends a laser signal downstream from the head end.

Part of the signal is diverted by a “splice case” to a fibre termination cabinet in the utility room of a multi-unit building, where it is split into “traps” that take the signal to the “communications closet” in each customer’s suite. The communications closet contains an optical network unit (“ONU”) that converts the signal to provide television and telephone service. Internet service is provided through an optical network terminal (“ONT”) that functions as a modem.

In the FTTP system, the signal remains “hot” or active until it reaches the ONU or ONT. [ 19 ] The Agreements establish that technical employees have exclusive jurisdiction over technical work on the Cable Systems.

Article 7 of the Agreements sets out the duties and

definitions of employees. Journeymen may perform any technical work on the Cable Systems.

Article 7.07 limits the technical work installers may perform to the area between the customer’s residence and the tap, or the last active or “live” device: A worker who is able to perform connection, construction, installation and service work from the subscriber terminal up to and including the tap plate. The ability to change out tap plates is restricted to installers from within that TWU certification.

In commercial establishments a worker may also perform service work back to the last active device, but not including that device, that feeds that building without interrupting power. [ 20 ] The Agreements also contain a management rights clause which, among other things, reserves to Shaw the right to assign work except as circumscribed by the Agreements. [ 21 ] The Union filed the underlying grievance in 2013, after it learned that Shaw was assigning installers to perform work on active or live fibre optic cables in the FTTP system.

The Arbitrator’s Decision [ 22 ] The arbitrator set out the background facts, including the various technologies, and the relevant provisions of the Agreements, including the management rights clause. He reviewed in detail the history of the evolution of

Article 2.08 (work jurisdiction of technical employees) and

Article 7.07 (duties and definition of installer) going back to the collective agreements in place before 1993, including the proposals for change advanced during various rounds of bargaining. [ 23 ] The arbitrator commenced his analysis by expressly identifying his task as the

interpretation of the Agreements.

He then described the challenging nature of that interpretive function in the case before him, making the following points: • The parties have never addressed in collective bargaining what work installers can do on the FTTP system, despite having had the chance to do so in a round of bargaining that occurred subsequent to the Agreements; and • Although there is a lot of specific language in the Agreements, they simply do not address the circumstance of a system in which there is no tap. [ 24 ] In this context, the arbitrator stated: It is readily apparent that in the present circumstances it is impossible to derive, in the classic sense, the mutual intent of the parties with respect to the FTTP system and that is generally the principal objective in a collective agreement

interpretation exercise [citations omitted] … As indicated, much of the language in this Agreement is very specific but the contract simply does not address the circumstances which have arisen here.

[ 25 ] Shaw points to this passage as demonstrating that the arbitrator was not interpreting the Agreements but taking on the role of an interest arbitrator and creating a new term. I disagree. Reading it in context, it is clear that the arbitrator was explaining why interpreting the Agreements was going to be very difficult in this case. [ 26 ] The fact that the arbitrator goes on to consider applicable arbitral principles of collective agreement

interpretation supports this conclusion, as does his express statement in the following paragraph: That having been said, an arbitration board does not have the option of “directing” the issue but must decide the grievance which has been properly placed before it. [ 27 ] In other words, the arbitrator was stating that he was not engaged in interest arbitration, but in grievance arbitration. [ 28 ] The arbitrator then identified two arbitral doctrines that might assist him in interpreting the Agreements.

First, he referred to the doctrine that permits terms to be implied into a collective agreement to give it business or collective agreement efficacy, citing McKellar General Hospital v. Ontario Nurses; Assn., [1986] O.L.A.A. No. 5. He found the McKellar doctrine inapplicable because it only permits implying those contract terms “that it can be concluded the parties would easily have agreed to if they had put their minds to it.” [ 29 ] Second, he considered “gap” doctrine, citing Andres Wines (B.C.) Ltd. v.

Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local 300, [1977] BCLRBD No. 73. He described the doctrine as available when there is an “apparent gap” in the language of the collective agreement and said that it permits the arbitrator to “reconstruct some kind of hypothetical intent” of the parties. The arbitrator proceeded to apply “gap” doctrine, and the balance of his analysis focused on determining the “hypothetical intent” of Shaw and the Union with respect to the limits on the work installers may perform on the FTTP system.

In that analysis he considered the evidence of bargaining history and past practice that was before him, citing arbitral doctrine that permits the use of such evidence “to aid in the interpretive exercise”. [ 30 ] The arbitrator found that the parties did not discuss the impact of the FTTP system in the 2012 round of bargaining and commented in that context that the Union had claimed it was not even aware of FTTP at that time.

Elsewhere in the decision he observed that the parties expressly avoided addressing the issue during the round of bargaining that occurred after the grievance was filed. [ 31 ] The arbitrator also expressly considered the parties’ respective submissions on the proper

interpretation of the collective agreement. Although he did not expressly reference the management rights clause at this point in his decision, I note that one of the two potential outcomes of what he described as Shaw’s position before him is the position that Shaw takes in this court: that management can assign all FTTP work to installers because the limitation in Art. 7.07 does not apply in an FTTP system: In my opinion, the

interpretations proposed by each of the parties at the hearing with regard to servicing the FTTP equipment would create significant difficulties. Shaw’s position is that because the FTTP system does not contain a “tap”, then the phrase in

Article 7.07 “service work from the subscriber terminal up to and including the tap plate” can have no application at all to the FTTP system. However, if that

interpretation is accepted, it would lead to two potential outcomes. It could lead to the conclusion that the Installers are no longer able to do any service work at all on the FTTP system on the basis that, if there is no tap in the system, there can be no work between the tap and the end terminal. In that event, the classification of Installer at Shaw would be seriously threatened. The other potential result of Shaw’s

interpretation would be that because as there is no “tap” in the FTTP system, an Installer can now work all the way back upstream from the consumer’s equipment right to the head end. If that approach was applied and no limitations existed on the work an Installer could perform, it would be the category of Journeymen which would be significantly negatively affected. [ 32 ] The arbitrator also rejected the Union’s position as inconsistent with past practice and unworkable in practice. He also considered both sides’

interpretations to be inconsistent with bargaining history. In light of all of this, he reached the following conclusion: In my view, given all the above considerations, it is likely that the parties would have arrived at a compromise such that an Installer can do all the work in the customer’s premises which would include replacing the ONU or ONT in the communications closet if they are malfunctioning. There is no service work to be done on these FTTP devices and this equipment is simply “popped out” and replaced with a new one.

However, the Installer would not be able to go back beyond that point and perform work on the FTC. In my opinion, that would constitute a reasonable and efficacious result which would mirror the agreement at which these parties would likely have arrived during contract negotiations.

Positions of the Parties [ 33 ] Shaw’s position is that, having found that the work assignment provisions of the collective agreement were “silent” on the specific question of the limits on work that may be performed by installers in FTTP systems, it was not open to the arbitrator to interpret what that limit was based on the language of the agreement and the parties’ bargaining history and practice, or to use “gap” doctrine.

Rather, Shaw says the arbitrator was required to apply the residual management rights clause in the agreement and conclude that Shaw had the right to assign work on FTTP systems to installers as it chose because the collective agreement did not limit its right to do so. [ 34 ] The Union does not dispute that where a collective agreement is truly silent, a residual management rights clause governs. It says that the Agreements were not “silent” on the limits of work that can be assigned to installers because Art. 7.07 contains a limit.

The fact that the limit is expressed in relation to “tap plates”, a device that does not exist in FTTP systems renders the language of the collective agreement unclear, entitling the arbitrator to interpret it based on the language of the agreement, the parties’ bargaining history and practice, and arbitral doctrines. Analysis [ 35 ] As the Supreme Court of Canada established in Dunsmuir , judicial review on the reasonableness standard focuses on the

“existence of justification, transparency and intelligibility within the decision-making process” of the tribunal under review and with whether its decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (at para. 47). Courts must pay “respectful attention to the reasons offered or which could be offered in support of a decision ( Dunsmuir , at para. 48 ).

Put another way, judicial review on a reasonableness standard requires a sympathetic reading of the arbitrator’s reasons, not parsing it for flaws. [ 36 ] Applying that standard, Shaw’s petition must fail. While it is possible to identify particular passages in the reasons that suggest the arbitrator was adding to or amending the Agreements, as I have explained, the decision as a whole demonstrates that the arbitrator was interpreting the Agreements, fulfilling his function as a grievance arbitrator.

Although he did not expressly refer to the management rights clause when considering the positions of the parties, he quoted the clause at the outset of his reasons, and it is necessarily the foundation of what he described as one of the consequences of Shaw’s position. [ 37 ] Shaw does not dispute that “gap” analysis is an arbitral doctrine that is available where the collective agreement is vague or unclear. The origin of this arbitral doctrine is Andres Wines , a decision of the BC Labour Relations Board in 1977 that was written by Paul Weiler.

Acknowledging that collective agreements frequently contain “gaps” because parties to a collective agreement are not going to be able to anticipate or agree upon all future contingencies, he wrote that grievance arbitration is the mechanism by which those disputes must be resolved: 5 But the fact of the matter is that such events do occur during the term of the agreement. The parties may not then reach an accommodation during the grievance procedure. When they take the issue to arbitration, their arbitrator does not have the luxury of deciding not to decide.

He must make up his mind about the implications of their general contract language for this peripheral problem. In the absence of any clear indication of the mutual intent of the parties — gathered from either their language or their behaviour — the arbitrator must, in effect, reconstruct some kind of hypothetical intent. What is it reasonable to assume that typical labour negotiators, having analyzed the nature and purpose of the contract benefit in question, would agree to as a sensible judgment about who should enjoy the benefit in this unusual situation? [citations omitted] Andres Wines (B.C.) Ltd. v.

BFCSD, Local 300 , [1977] BCLRBD No. 73, at paras. 4-5 [Tab 28] [ 38 ] The “gap” analysis in Andres Wines has been applied in a number of Canadian jurisdictions and Shaw conceded at the hearing that it is available to arbitrators under the Code . The passage I have quoted demonstrates that the doctrine is available for exactly the kind of situation that confronted the arbitrator in this case. [ 39 ] In my view, the arbitrator’s conclusions that the Agreements were capable of

interpretation with respect to limits on installers’ work on the FTTP system and what that limit is, fall within the range of reasonable outcomes, and his reasons for reaching them are justifiable, intelligible and justifiable. [ 40 ] The arbitrator’s explanation of the challenging nature of the

interpretation exercise in the particular context, his references to extrinsic evidence and arbitral doctrines to assist in interpreting the meaning of Art. 7.07 in the context of the “no-tap” FTTP system, are transparent, intelligible and justifiable within the meaning of Dunsmuir . The outcome he reached, which provided a limit on work that may be performed by installers on FTTP systems, clearly fell within the range of reasonable outcomes.

That range necessarily spanned prohibiting installers from doing any such work to permitting them to do all of it. [ 41 ] In my view, Shaw’s position is internally inconsistent. It argues that the arbitrator’s decision must be set aside because the Agreements were completely silent on the issue of the limit on installers’ work in a “no-tap” system. However, it asks this court to apply the management rights clause in the Agreements and dismiss the grievance because that is the only possible reasonable resolution of the dispute. That was precisely the question before the arbitrator.

The fact that he did not accede to Shaw’s position does not make his decision unreasonable so as to authorize the court to parse in detail his assessment of the evidence or application of arbitral doctrine. CONCLUSION [ 42 ] The petition is dismissed with costs to the Union. “IYER J.”