Canadian Pacific Railway v Teamsters Canada Rail Conference Maintenance of Way Employees Division, 2023 ABKB 454

Court of King’s Bench of Alberta Citation: Canadian Pacific Railway v Teamsters Canada Rail Conference Maintenance of Way Employees Division, 2023 ABKB 454 Date: 20230804 Docket: 2101 11274 Registry: Calgary Between: Canadian Pacific Railway Plaintiff - and - Teamsters Canada Rail Conference Maintenance of Way Employees Division Defendant _______________________________________________________ Reasons for Judgment of the Honourable Justice N.M.

Carruthers _______________________________________________________ Introduction [ 1 ] The Applicant, Canadian Pacific Railway (CPR), seeks judicial review of a labour arbitration decision issued by John M. Moreau, KC, dated June 17, 2021, and cited as CROA&DR 4779 (the Decision) . Mr. Moreau is an arbitrator with CROA&DR, the Canadian Railway Office of Arbitration & Dispute Resolution (sometimes referred to as CROA).

[ 2 ] CPR seeks judicial review on the grounds that the Decision was unreasonable. It submits the Decision should be quashed or, in the alternative, referred back to the arbitrator. [ 3 ] The Respondent Union seeks to uphold the arbitrator’s decision. It also submits that, in the event the Court finds the Decision unreasonable, the matter ought to be referred back to the arbitrator. Background [ 4 ] The original grievance was brought on behalf of Trevor Angus, by the Teamsters Canada Rail Conference Maintenance of Way Employees Division (the Union). [ 5 ] The grievor’s history with CPR is as follows.

He began working with CPR in August 2008 as an extra gang labourer.

Over 11 years, he advanced to the position of Leading Track Maintenance/BTMF operator in Moose Jaw, Saskatchewan. [ 6 ] The grievor’s discipline history included suspensions in 2015 and 2017 for unauthorized absences, a formal reprimand in 2017 for working without a hard hat and, finally, a dismissal from employment on May 29, 2019, for unauthorized absences and reporting late for work, dating back to 2018. [ 7 ] Following his dismissal, the Union, the grievor and CPR agreed to enter a Conditional Offer of Reinstatement, or “last chance agreement”, dated August 2, 2019 (the LCA).

Its terms included the following: 1. Mr. Angus would be subject to mandatory random substance testing, for a period of not less than two years. This two-year period was to commence upon Mr. Angus’ return to active service and would be extended to reflect any period in which he was not in active service with the company; 2. Any violation of the CPR disciplinary process or failure to comply with the LCA during the two-year term of the agreement would result in Mr. Angus’ removal from service and an investigation; 3.

Any positive substance test result during the term of the LCA would be considered a violation of the agreement; and 4. If, after a fair and impartial investigation, CPR determined that Mr. Angus had violated or failed to comply with any of the terms and conditions of the LCA, it could be considered as just cause for termination of his employment. The company had the discretion to elect to dismiss Mr. Angus from service or to impose a lesser disciplinary penalty. The LCA also stipulated that any grievance regarding the discipline would only be for the purpose of determining whether Mr.

Angus violated or failed to comply with the terms and conditions of the agreement. It was further agreed that the arbitrator would not have jurisdiction to substitute a lesser penalty for any discipline imposed if he or she found that Mr. Angus had violated or failed to comply with any of the terms and conditions of the LCA. [ 8 ] After entering into the LCA, the grievor returned to work on October 24, 2019. One month later, he tested positive for methamphetamines in a hair follicle test. Mr. Angus’ employment was terminated November 25, 2019.

Following an investigation, CPR dismissed the grievor on March 10, 2020, and denied the grievance on April 1, 2020. [ 9 ] The matter ultimately went to arbitration. The joint statement of issue outlined the positions of both parties. The Union submitted that the grievor had a disability and had been taking steps to deal with his disability. He relapsed, but that is not uncommon. The dismissal was arguably a violation of CPR’s obligation to accommodate disabled employees.

The Union sought reinstatement of the grievor without loss of seniority and with full compensation for all wages and benefits. [ 10 ] In its statement of issue, CPR submitted it had fulfilled its duty to accommodate by offering the grievor a last chance agreement. The positive drug test result was a breach of the LCA. Granting a further last chance agreement would render the original LCA meaningless, in its view. Although not referenced in the Decision, CPR relied on CROA decisions in which arbitrators had expressed reluctance to interfere with the consequences of a breach of a last chance agreement.

CPR argued that last chance agreements should be treated with deference. If they are not upheld, employers will be discouraged from using them. [ 11 ] In addition, CPR submitted that it had accommodated the grievor on more than one occasion. Not only had it entered the LCA with the grievor in August 2019, but it also accommodated him in 2018 by facilitating his participation in a structured relapse prevention program, following self-disclosures he had made regarding his substance use.

Notably, the arbitrator did not make reference to the structured relapse prevention program in his Decision. [ 12 ] The arbitrator identified the only issue for determination to be whether CPR fulfilled its duty to accommodate the grievor, to the point of undue hardship. The grievor is a person with a disability arising from drug addiction. When considering relapses in the context of drug addictions, arbitrators may look at the grievor’s efforts to battle their addiction.

Arbitrator Moreau referred to a decision cited as CROA 4511, in which he had previously acknowledged that, in other grievances, employees have been reinstated into safety sensitive positions where they have provided substantial evidence of rehabilitative efforts. These efforts may be undertaken post- termination and may include attendance at support meetings like Alcoholics Anonymous (AA) and outpatient counselling. In one decision that the arbitrator considered (CROA 4054), it seemed evident that the employee had experienced a single event of relapse, similar to that which occurred in Mr. Angus’ situation.

The arbitrator in that case stated it was appropriate to provide an opportunity for the employee to return to work with conditions that would protect the employer’s legitimate interests. [ 13 ] The arbitrator acknowledged other jurisprudence that did not support automatic termination in the face of a breach of a last chance agreement, particularly in cases involving an employee with a disability where the duty of accommodation is invoked. The arbitrator cited CROA 3269, in which arbitrator Picher stated that the violation of a last chance agreement does not automatically result in termination.

Arbitrator Picher stated that each case must be reviewed on the merits of its particular facts and the application of an agreement cannot violate the duty of accommodation owed to an employee with a disability.

[ 14 ] In the present matter, arbitrator Moreau found that the grievor had worked diligently to arrest his addiction. There was no evidence of further relapses since he was removed from service on November 25, 2019, following receipt of the results from the hair follicle test. [ 15 ] The arbitrator noted the evidence from the grievor’s Narcotics Anonymous (NA) sponsor, and that the grievor had received his one-year medallion attesting to his sobriety in December 2020.

The grievor also sought assistance from Saskatchewan’s Mental Health and Addiction services and had been placed in the Calder Treatment Centre from July 29 to August 27, 2020. The grievor’s doctor had no records indicating the grievor had suffered a further relapse. [ 16 ] In his Decision the arbitrator granted the grievor a further opportunity to return to work. The arbitrator relied on and referred to “the requirement of accommodation to the point of undue hardship for employees with a demonstrated disability such as the grievor’s drug addiction”.

The arbitrator held that the grievor should be reinstated without loss of seniority and without compensation. The grievor would also be subject to the following terms imposed by the arbitrator. 1. He shall abstain from the consumption of alcohol or drugs; 2. He shall be subject to random drug and alcohol testing in the same manner as occurred prior to his termination for a further period of two years; 3. He shall continue to maintain membership in support groups such as NA for the same two year period in which he is subject to testing.

The grievor was to provide confirmation to the Union and CPR of his attendance at support group meetings, no less than every six months during the two years; and 4.

If the grievor failed an alcohol or drug test, failed to appear for a drug and alcohol test without a proper reason for absence, or otherwise violated any of the conditions for his reinstatement, he would be subject to termination without access to arbitration except for the sole purpose of the arbitrator determining whether the grievor violated the conditions of his reinstatement, as directed in the award. [ 17 ] CPR applied for judicial review of the Decision on September 13, 2021.

This application was heard on December 1, 2022. [ 18 ] The circumstances of the grievor’s breach of the LCA and post-termination rehabilitation merit further comment, as the grievor’s rehabilitation was a determining factor in the arbitrator’s Decision. Additional details were available in the Certified Record and were referenced by the parties in their submissions. [ 19 ] The grievor had taken two urine tests prior to the hair follicle test and had passed them both, on September 19 and October 26, 2019. He returned to service on October 24, 2019.

He took a hair follicle test on November 25th, 2019, that produced the positive result for methamphetamines. He was removed from service as a consequence. There was no evidence that the grievor had ever been impaired when he attended work. [ 20 ] The positive test result was discussed during the investigation and was attributed to a “slip” on September 28, 2019. In his interview with the investigator, the grievor advised that he had been seeing an addictions counsellor weekly and was also attending NA on a regular basis since his relapse.

The record showed evidence of the grievor’s serious efforts to rehabilitate. [ 21 ] In February 2021, the grievor’s doctor provided a status report, indicating that the grievor reported being sober for over a year and also confirming that he had regularly followed up with an addiction counsellor at the hospital. Urine drug screening was voluntarily provided but results were not available due to the pandemic. There was no documentation on file indicating a relapse. Issues [ 22 ] The issues in this application for judicial review are: A. What is the appropriate standard of review? B.

Was the arbitrator’s decision reasonable, as determined by the principles enunciated in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 ? Issue A: What is the Appropriate Standard of Review? [ 23 ] The parties agreed that the standard of review is reasonableness, as pronounced by the Supreme Court of Canada in Vavilov . [ 24 ] CPR’s submissions identified a number of relevant principles from Vavilov and other jurisprudence, as follows: 1. Administrative decision makers are entitled to deference, but this does not mean that the courts are to rubber stamp decisions.

Administrative decision makers are accountable and must demonstrate that their exercise of the power delegated to them is justified, in terms of rationality and fairness; 2. Reasonableness does not mean blind deference. For example, decision makers are not entitled to ignore existing jurisprudence without explanation (see United Nurses of Alberta v Alberta Health Services , 2019 ABQB 255 , para 59 ); 3. Before a decision can be set aside, a reviewer must be satisfied that there are sufficiently serious shortcomings in the decision.

Reasonableness is concerned with the existence of justification, intelligibility and transparency in the decision-making process. Reasonableness also examines whether the impugned decision falls within a range of possible, acceptable outcomes which are defensible

in law and on the facts. A court must be satisfied that shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable; 4. The court is to consider both the outcome of the decision and the reasoning process the decision maker used to arrive at the outcome. Rather than conducting a review of whether the decision is correct, the court must conduct a reasonableness review and must focus on the decision the administrative decision maker has made, including the justification offered for it.

The court should not look at whether it would have reached the same decision if it had been in the administrative decision maker’s place; 5. Reasons explain how and why a decision was made, show the parties that their arguments have been considered, and demonstrate the decision was made in a fair and lawful manner. Reasons shield against arbitrariness; 6. A reasonable decision is one based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that constrain the decision maker; and 7.

While not required to respond to every argument put forward by the parties, an administrative decision maker’s failure to address key issues or central arguments may call into question whether the decision maker heard and considered the parties’ submissions. This underlies the duty of procedural fairness and the right to be heard. [ 25 ] The Applicant also referred the Court to the case of International Brotherhood of Boilermakers v Alberta Labour Relations Board , 2022 ABCA 139 ( IBB ).

In IBB , the Alberta Court of Appeal confirmed the application of Vavilov to its review of the sufficiency of reasons: see paras 23-27. This case demonstrates when a reviewing court may find insufficient reasons on a judicial review. IBB dealt with a complaint by a union concerning alleged unfair labour practices on the part of the employer. In reviewing the Alberta Labour Relations Board’s decision to grant partial

summary dismissal in favour of the employer, the Court confirmed that reasons have the purpose of informing the parties of the decision, providing public accountability and permitting review by a court. It further confirmed that impugned reasons must also be read with regard to the history and context of the proceedings. [ 26 ] In IBB , the Court found that the Board's reasons did not exhibit the requisite degree of justification, intelligibility and transparency.

The failure to identify issues or central arguments raised by the parties called into question whether the Board had been alert and sensitive to the matters before it. It was not sufficient to suggest that the Board had drawn inferences from pleadings or particulars before it. The Court was not able to discern the basis on which the Board’s decision had been made when it read the reasons in conjunction with the record. There was no express attention paid to the arguments that had been brought forward. More specifically, the Board did not state the test for

summary dismissal, which was the key issue before it, nor did the reasons provide any indication of how the Board applied the

summary dismissal test. Issue B: Does the Arbitrator’s Decision Meet the Reasonableness Standard of Review? [ 27 ] Paragraphs 82 to 135 of Vavilov set forth the principles governing a reasonableness review. While I have reviewed a number of the general principles above, the following principles provide additional practical guidance to a reviewing court: a. The reasonableness inquiry begins with an analysis of the written reasons; b. The burden is on the party challenging the decision to show that it is unreasonable (para 100); c. Written reasons are not assessed against a standard of perfection.

Instead, they are to be reviewed with the decision maker’s expertise in mind. The context of the hearing, history of decisions, and the administrative body’s policies or guidelines are also relevant (paras 91-94); d. Where reasons contain a fundamental gap or follow an unreasonable chain of analysis, the reviewing court may not substitute its own justification for the outcome (para 96). Even if an outcome is reasonable, the reviewing court cannot disregard the flawed basis on which the decision was reached.

Similarly, the reviewing court must not ask what decision it would have made in the place of that of the decision maker, by conducting a fresh review or seeking the correct solution (para 83); e. There are two types of fundamental flaws that support a finding a decision is unreasonable. The first is “a failure of rationality internal to the reasoning process”. The second occurs when “a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it” (para 101); f. Reasonableness review is not a “line-by-line treasure hunt for error”.

That said, “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’” ... (para 102); and g. Some of the contextual elements that are relevant in evaluating a decision include (para 106-107): i. the governing statutory scheme – The power of an administrative decision maker is governed by statute.

The exercise of discretion available under a statute must comply with the statute (para 108). 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 (para 109); ii. other relevant statutory or common law (paras 111-113); iii. the principles of statutory

interpretation – The administrative decision maker’s task is to

interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue (para 121).

If it is clear that the administrative decision maker may well have arrived at a different result, had it considered a key element of a statutory provision’s text, context or purpose, its failure to consider that element would be indefensible, and unreasonable in the circumstances (para 122); iv. the evidence before the decision maker and facts of which the decision maker may take notice (paras 125-126); v. the submissions of the parties – While not every argument must be considered in written reasons, the decision maker may be expected to grapple with the key issues and central arguments to demonstrate that the parties’ submissions were heard and considered (paras 127-128); vi. the past practices and decisions of the administrative body – Administrative decision makers are not bound by their previous decisions.

Those affected are, however, entitled to expect that like cases will generally be treated alike (para 129). If a decision maker departs from past longstanding practice or established internal authority, it must justify and explain the departure in its reasons (para 131); and vii. the potential impact of the decision on the individual to whom it applies (paras 133-135). [ 28 ] This Court is required to look at the Decision and rationale to determine if the outcome was unreasonable.

A Court may not substitute its own decision for that of the original tribunal. [ 29 ] The first step is to examine the reasons and the reasoning process. The decision must be justified by the reasons and the outcome must fall within a range of possible and acceptable outcomes that are defensible, with regard to the facts and the law. A reasonable outcome will not stand on its own, if reached on an improper basis.

The reasonableness standard requires a reviewing Court to treat the tribunal with deference. [ 30 ] The standard of review also requires that the reviewing Court have regard to the context of the decision. That means giving due regard to the expertise of the tribunal, the history and context of the proceedings themselves, and the evidence and submissions on which the decision is based.

Other considerations include the past practices and decisions of the same tribunal or administrative body and the relevant statutory framework. [ 31 ] The Union submitted that, on a judicial review, the Court must consider the special nature of CROA. CROA has a high level of expertise and, as a matter of practice, it has adopted an expedited arbitration process. At paragraph 22 of its brief, the Union outlined the features of this highly specialized and unique tribunal, citing Teamsters Canada Rail Conference v Canadian National Railway Company , 2021 SKCA 62 ( Teamsters Saskatchewan ) at paragraph 15 : A.

There is a permanent roster of CROA-appointed arbitrators to hear arbitration cases, under the coordination of a Chief Arbitrator; B. Six cases are typically scheduled in a given arbitration day; C. Adjournments will only be granted with the agreement of both parties in “all but the most extraordinary of circumstances”; D. Any preliminary objections filed after the case has been scheduled is [sic] dealt with during the hearing, with the merits of the grievance; E.

The jurisdiction of the appointed arbitrator is limited to the issues outlined in a document called a Joint Statement of Issues (“JSI”), or in an Ex-Parte Statement of Issues should the parties fail to agree on a JSI; F. Hearings are based primarily on the parties’ written statements and supporting evidence, which are not exchanged before the hearing; G. The decision to accept testimonial evidence is completely in the hands of the arbitrator, and oral witness testimony is rare; H.

The arbitrator has extremely broad investigative powers and is not bound by the rules of evidence and practice applicable to proceedings before courts, and the arbitrator may receive, hear, request and consider any evidence which he/she may consider relevant; I. The decision must be provided to the parties no later than thirty days after the hearing; J. Decisions are typically short; K.

Decisions typically refer to previous CROA decisions to substantiate the reasons. [ 32 ] The Respondent also referred to Canadian National v Teamsters Canada, 2020 ONSC 7286 ( Teamsters Ontario ), in which the Court, on a judicial review, recognized CROA as a highly specialized tribunal, designed to issue decisions quickly and efficiently. Apparent lapses in decisions, such as the failure to refer to certain arguments or authorities, may be justified. The reviewing court must consider the larger context of the decision-maker, the nature of the submissions and past decisions.

Apparent gaps in reasoning will not always lead to a conclusion that there has been a failure to demonstrate justification, intelligibility or transparency: see paragraphs 21-25. [ 33 ] There is no controversy over the applicable principles which govern the judicial review of CROA decisions, but the parties disagree on their application. The real issue before me is the issue of reasonableness. The burden is on the Applicant, CPR, to show that the decision is unreasonable.

The Parties’ Positions i. The Applicant’s Position [ 34 ] CPR recognizes that CROA is a specialized body and entitled to deference. However, it submits that even a specialized tribunal must meet the standard of reasonableness in rendering its decisions. [ 35 ] CPR argues that the Decision was unreasonable, on the grounds articulated in Vavilov and related jurisprudence, for four primary reasons, as follows: 1. The arbitrator misapprehended the evidence on a central issue, being the employer’s duty to accommodate to the point of undue hardship.

CPR submits that it fulfilled its duty to accommodate, as evidenced by the history of the grievor’s employment, and was entitled to terminate the grievor for cause; 2. The arbitrator failed to give effect or defer to the parties’ LCA and to respect its terms; 3. Both the Decision and the award granted are unreasonable. The award did not enforce the LCA but rather imposed the same or more onerous terms on the grievor than were contained in the original LCA. Further, the Decision did not account for requirements related to workplace safety, human rights legislation and principles of accommodation; and 4.

The Decision does not provide sufficient reasons. CPR submits there is no consideration of its prior accommodation measures, nor do the reasons justify why the second last chance agreement imposed by the arbitrator was reasonable or why it was appropriate to override the original LCA negotiated between the parties. [ 36 ] With regard to the first argument, CPR asserted that the arbitrator failed to look at evidence of accommodation and should have looked at the entire employment relationship to determine the sufficiency of the employer's ongoing efforts to accommodate the employee's disability.

The record of proceedings included the grievor’s complete employment record, which had been in front of the arbitrator. These records included evidence of CPR's ongoing efforts to assist the grievor, commencing with his engagement in a structured relapse prevention program in August of 2018, after the grievor self-disclosed his substance use condition. This structured program included counselling, support groups and biological monitoring.

While the Union contended that the entire record was available and was known to the arbitrator, CPR submits that there is no clear indication in the reasons that the grievor’s history was considered. [ 37 ] In addition, the Applicant submits that the arbitrator did not consider the safety sensitive nature of the grievor’s position. It is submitted that these omissions created a gap in reasoning that cannot be rectified. [ 38 ] In support of its submission, CPR relied on the case of CROA 3415, an authority submitted by the Union, and found in the Certified Record.

In that decision, an employee was reinstated following consumption of alcohol and cannabis while on duty. He then suffered a relapse and was discharged again, having reported for duty under the influence of alcohol. The second reinstatement was subject to the employee’s ongoing attendance at AA and conditions that he abstain from alcohol and drugs and submit to random testing. These conditions had been urged on the arbitrator by the grievor’s own counsel.

Four days later, he drank while off duty and was charged with impaired driving. [ 39 ] In CROA 3415, arbitrator Picher found that the employee had been accorded extensive accommodation on two separate occasions. The arbitrator stated that the consideration of undue hardship was based on the entire history of the grievor’s employment and the ongoing efforts on the part of the company to assist the grievor, notwithstanding his disability.

Further, while relapse is recognized as common, “the duty of accommodation does not require indefinite or endless tolerance on the part of an employer”. [ 40 ] There were other authorities that arbitrator Moreau had in front of him and upon which he relied, including CROA 3269. CPR suggests that the arbitrator relied on an incomplete citation from this decision. CROA 3269 was cited in support of a finding that a breach of a last chance agreement does not automatically result in termination.

The Applicant submits that the full passage was not cited, and states that in many cases the history of the employer’s treatment of the employee, culminating in a last chance agreement, may support a conclusion that there has been sufficient accommodation and that continuing the employment relationship would amount to undue hardship on the employer. However, I note that the passage goes on to state that a last chance agreement does not confirm whether there has been sufficient compliance with the duty of accommodation established under human rights legislation, as parties cannot contract out of that legislation.

Accordingly, the passage supports the Union’s argument. [ 41 ] CPR further submits that the arbitrator’s focus on post-termination rehabilitation is flawed. The actual relapse was September 28, 2019, two months before the hair follicle test results were known. The grievor had not disclosed the relapse to the employer before the testing results were received.

He sought treatment after the test result, not after the relapse or “slip”. [ 42 ] The Applicant submits that both the grievor and Union had agreed to the LCA, which provided that a breach of its terms, such as a positive drug test, could amount to just cause for termination. In fact, the LCA contemplated the precise scenario and consequences that arose. [ 43 ] In this case, CPR submits that the arbitrator failed to explain why he interfered with the LCA. It submits there is no analysis and no identification of any compelling facts on which he relied.

CPR states that the arbitrator did not appear to consider the terms of the LCA and did not demonstrate his reasons for choosing to disregard it. If last chance agreements can be disregarded in the event an employee relapses, there will be little incentive for an employer to enter such an agreement. In failing to enforce the LCA, the arbitrator failed to acknowledge the very purpose for which it had been created. [ 44 ] CPR further submits that the revised reinstatement terms imposed by the arbitrator are even more restrictive than the original LCA.

The arbitrator found that the original LCA was insufficient to establish that the employer had accommodated the grievor, yet

provided no justification for imposing another last chance agreement. The terms imposed by the arbitrator are virtually the same as original LCA, and are arguably more harsh. Notably, the arbitration award provides for automatic termination in the event of a relapse.

If automatic termination is not appropriate in cases where there is a duty to accommodate, there should be an explanation as to why it is being imposed by the arbitrator and why this outcome is logically consistent with the arbitrator’s reasons for reinstating the employee. [ 45 ] Finally, CPR submits that the reasons fail to explain how the arbitrator obtained jurisdiction to not only override the LCA but to impose a modified agreement in its place. The first agreement was reached with the consensus and involvement of the employer, employee and Union. This was not addressed by the arbitrator.

The imposition of a modified agreement overlooks the grievor’s historical lack of compliance with such agreements and fails to consider the safety risk associated with reinstating the grievor in a safety sensitive position. This outcome has arguably put the Applicant in a position in which it cannot fulfill its occupational health and safety responsibilities.

The Applicant accordingly submits that it is now in a situation where it is beyond the point of accommodating the grievor to the point of undue hardship. [ 46 ] CPR addressed the arbitrator’s alleged lack of sufficient reasons by directing the court’s attention to other CROA decisions. It submits that arbitrator Moreau focused only on post-breach rehabilitation, while other arbitration awards more fully contemplated multiple factors and contextual issues that were considered in making the decision.

The Applicant urged the Court to refer to other CROA decisions and compare the extent of reasons provided in those cases. On this basis, the Applicant submits it will be apparent that the arbitrator’s reasons are not sufficiently clear, transparent or intelligible on issues which were clearly before him. [ 47 ] One such decision was CROA 4511, which was included in the Certified Record and is another decision of arbitrator Moreau. CROA 4511 is another matter in which an employee breached a last chance agreement, but was reinstated subject to conditions.

While I would agree the reasons in CROA 4511 are more robust, there appears to have been more relevant accommodation efforts in the employment history provided in that case than what was brought forward in the case involving Mr. Angus. The core reasons and outcomes in the two matters are otherwise not very different. ii. The Respondent’s Position [ 48 ] The Respondent Union understandably supports the arbitration outcome. It confirmed that the hearing was based entirely on the written record, contained in the Certified Record of Proceedings.

There is no suggestion that the arbitrator failed to consider the evidence in the record or the parties’ submissions, and the Union submits the result was not unreasonable. [ 49 ] The grievor’s employment history was squarely before the arbitrator. In its written submissions to the arbitrator, the Union had requested the grievor’s reinstatement on the basis that the employer had not accommodated the grievor to the point of undue hardship. Notably, the follicle testing detects past drug use and the evidence regarding past drug use is that the grievor “slipped” in late September 2019, before he returned to work.

His relapse was consistent with the experience of others in addiction treatment and recovery. He did not attend work while he was impaired. [ 50 ] The Union submits that CPR’s approach to require more fulsome reasons would force a line-by-line review of the decision, contrary to the guidance in Vavilov , and would not show deference to a highly skilled decision maker. The intent of the CROA process is to make sure that adjudications are done quickly and efficiently.

The decision-makers are highly specialized and operate in an environment where all participants are knowledgeable about the fundamental practices and principles, as well as the obvious safety concerns. [ 51 ] Furthermore, the Union submits that the arbitrator’s decision in this matter was consistent with other CROA decisions regarding consideration of post-termination rehabilitation and accommodation by an employer. It pointed to other CROA decisions in which arbitrators have considered post-termination rehabilitation efforts, for a period of up to two years later.

In addition, there are cases in which employees have been reinstated following the breach of a last chance agreement. Those reinstatements have included conditions, such as abstinence, testing and continued involvement with organizations such as AA. It is also not unusual to direct that a further breach will mean an automatic termination of employment rather than further efforts at accommodation. The Union refutes the characterization of these terms as the imposition of a second last chance agreement. [ 52 ] The arbitration hearing in this matter proceeded entirely in writing.

The Union states that the agreed focus of the joint statement and the submissions was on the issue of whether CPR had accommodated the grievor to the point of undue hardship. A review of the parties’ written submissions reveals that the brief filed on behalf of CPR emphasized the enforceability of the LCA in the face of a relapse and a positive drug test.

It spent significantly less time on the employer’s history of accommodation. [ 53 ] The Union takes the position that when one considers the defined issue submitted to arbitration, it was reasonable for the arbitrator to focus on the grievor’s demonstrated commitment to addressing his addiction following his failed drug test. Some of the treatment had been commenced prior to his official dismissal in March 2020. He attended a treatment program in the summer of 2020, but the delay in commencing this treatment was caused by the pandemic.

The focus on post-termination employment was entirely consistent with existing CROA authorities on the duty to accommodate, as demonstrated by the arbitrator’s Decision. [ 54 ] The Union submits that the decision was not unreasonable, based on outcomes in similar matters. The Union made reference in argument to principles of deference and the test for review set forth in Vavilov .

The Union asserts the Decision was consistent with other CROA decisions and remedies, and the outcome was based on the facts before the arbitrator, as set forth in the Certified Record. [ 55 ] If the employment history prior to the LCA is considered, the Union argues this factor favours the grievor as well. The grievor self-disclosed addiction issues in 2018, leading to his involvement in the relapse prevention program. There are no subsequent documented instances of breaches arising from his involvement in that program. The next disciplinary matters were related to his attendance at work, not substance abuse.

The LCA was entered after the grievor was sanctioned for absences and lateness. The Union submits there is no evidence the first accommodation failed. [ 56 ] The Union submits that the narrow question before the arbitrator was whether the employer had accommodated the

employee’s disability to the point of undue hardship. It asserts that in his Decision, arbitrator Moreau states why further accommodation is appropriate. His reasoning focussed on the grievor’s efforts to address his addiction. The Union takes the position that there is nothing in the reasoning that appears to be illogical, unreasonable, or unjustified, nor is anything apparently overlooked. Rather, the terms imposed by the arbitrator are a reasonable option as they ensure that the employer is not required to bear further safety risks or engage in further accommodations if the grievor is in breach.

Analysis [ 57 ] A Joint Statement of Issue was provided to the arbitrator by the Union and CPR.

The specific issue identified in the parties’ materials, and as set forth in the Decision was: “whether the Company has fulfilled its duty to accommodate the grievor to the point of undue hardship given that the grievor is a person with a disability stemming from his addiction to drugs and, as such, is entitled to the protection of the Canadian Human Rights Act .” [ 58 ] The Union took the position at arbitration that early relapses are commonplace occurrences during recovery, and that this has been acknowledged by arbitrators and rail companies.

It stressed that employees may learn valuable information from such occurrences, which may ultimately assist in strengthening their recovery process. The Union asserts that termination after a single relapse denies the employee the opportunity to learn from this experience and emerge stronger having come through it. The Union points to the grievor’s ongoing and successful steps in maintaining sobriety following his single relapse.

In such circumstances it submits that the termination following a single relapse, even in the face of a last chance agreement, was unfair and in violation of CPR’s obligation to accommodate disabled employees. [ 59 ] CPR’s position at the arbitration focused almost exclusively on the violation of the LCA. It stated that it met its duty to accommodate by offering conditional reinstatement on the terms of the LCA and that, in the circumstances, the dismissal was justified. [ 60 ] I will next turn to a review of CPR’s submissions to support the argument that the Decision was unreasonable.

I will then consider the overall reasonableness of the decision and whether it falls within a range of possible and acceptable outcomes. i. Did the Arbitrator Misapprehend the Evidence on the Employer’s Duty to Accommodate to the Point of Undue Hardship? Does the Grievor’s Employment History Demonstrate that CPR Fulfilled its Duty to Accommodate, Such That it was Entitled to Terminate the Grievor for Cause? [ 61 ] This ground for review addresses the issue of whether the decision was unreasonable because an argument put forward by CPR on prior accommodation was not considered.

There was no mention of prior accommodation in the Decision. To the extent that judicial review must contemplate the arguments and evidence before the administrative body in examining the context of the decision, I have found that the omission of the arbitrator in not mentioning the prior accommodation was not unreasonable. [ 62 ] CPR repeatedly emphasized the wording of the LCA throughout its arbitration submissions, stating that the failed drug test placed the grievor in violation of the agreement, and that a violation could be considered just cause for termination.

This focus is perhaps understandable as there was otherwise no evidence of a breach of the terms of the structured relapse prevention program, nor had there been any history of discipline directly related to drug use or impairment. [ 63 ] In my view, CPR is raising an issue on judicial review that it did not stress as being important in its original submissions to the arbitrator.

Furthermore, the submissions and material put to the arbitrator by CPR did not emphasize the history of accommodation, which is now being put forward as a central issue on judicial review. [ 64 ] There was limited reference in the CPR arbitration brief to the employer’s history of accommodation in 2018. In paragraph 32 of its arbitration submissions, CPR states that it accommodated the grievor on a prior occasion.

CPR submitted that, on this occasion, it provided the grievor with an opportunity to participate in a structured relapse prevention program, following the grievor’s self-disclosure of substance use in 2018. The submission does not tie the structured relapse prevention program to disciplinary action. There is little evidence about what it involved, other than the attached exhibits which included the referral form, along with a letter agreement and a biological testing protocol.

The agreement contemplated a two-year term. [ 65 ] The grievor was then dismissed in May 2019 for unauthorized absences dating back to the fall of 2018, not for disciplinary issues directly related to substance abuse. He was reinstated in August 2019, pursuant to the terms of the LCA. In paragraph 33 of its arbitration brief, CPR stated that the grievor was accommodated a second time when he was given a “chance to redeem himself as an employee” and was conditionally reinstated in August of 2019, pursuant to the terms of the LCA. In paragraph 5 of CPR’s brief, this reinstatement was described as

an act of “managerial leniency”, rather than an accommodation. [ 66 ] Prior accommodation efforts were mentioned but were not the focus of CPR’s written arbitration argument. References to prior accommodation occupied two paragraphs out of 38 in CPR’s written submissions. The majority of CPR’s submissions emphasized the importance of strictly enforcing the LCA and that the grievor was in breach as a result of the positive drug test. [ 67 ] In its submissions to the arbitrator, CPR took the position that, in offering the LCA, it fulfilled its duty to accommodate.

Of note, CPR did not make any detailed submissions, or identify factors which might be considered, to determine whether it had accommodated the grievor to the point of undue hardship . [ 68 ] It is not the role of the Court on judicial review to make a finding on whether there was adequate accommodation. However, CPR did not put forward evidence to support an argument that continued employment would constitute undue hardship. It instead chose to focus on an argument that the LCA was sufficient accommodation and ought to be upheld, such that it would permit the grievor’s

termination. Given that CPR did not forcefully argue the issue of prior accommodation, it is not surprising that the arbitrator did not focus on this issue either. The arbitrator’s reasons addressed the central arguments put forward. ii. Did the Arbitrator Fail to Give Effect or Defer to the Parties’ LCA and to Respect its Terms? [ 69 ] In the arbitration, CPR relied heavily on the argument that reinstating an employee following the violation of a last chance agreement would have a negative impact in labour and employment settings.

Specifically, it argued that arbitrators should show deference to such agreements, as parties will be discouraged from using them as a resolution tool if they are not upheld. Employees should not be able to argue that unintended relapses allow them to avoid compliance with last chance agreements. [ 70 ] The Union recognized that last chance agreements are a legitimate form of accommodation, but also submitted that dismissal is not automatic in the case of a breach. Parties cannot contract out of their obligations under human rights legislation, and each case must be considered on its facts.

Furthermore, the employer has the onus of proof to establish undue hardship and CPR had not provided any evidence. [ 71 ] The Decision demonstrates that CPR’s primary argument in favour of deference to a last chance agreement was effectively countered by the Union’s submissions that termination is not an automatic result in the case of a breach of such an agreement. The arbitrator’s decision to reinstate the employee was clearly based on existing authority that supported reinstatement if the employee could demonstrate substantial efforts at rehabilitation, even if those steps were undertaken after termination.

The evidence in the Certified Record supported the employee’s efforts. [ 72 ] The arbitrator was very alive to CPR’s primary argument and his Decision squarely addresses the treatment of last chance agreements. His Decision makes express reference to decision SHP 648, in which arbitrator Picher held that substantial deference is owed to last chance agreements and that arbitrators should be reluctant to interfere with the stated consequences of a provable breach of the agreement’s terms.

I note that in SHP 648 the arbitrator concluded that the grievor was highly addicted to drugs and alcohol, had “little or no control of his condition” and that his recovery remained relatively tentative, even at the date of the hearing. This is factually distinguishable from the case at bar. [ 73 ] Arbitrator Moreau also referred to other cases which were more similar to the case under consideration. There was authority in other CROA decisions to support a finding that violation of a last chance agreement does not automatically result in termination.

Those decisions stated that each situation should be examined on the merits and, in particular, the efforts the grievor has undertaken to battle his or her addiction should be examined. He then looked at the efforts of Mr. Angus. In noting Mr. Angus’ significant efforts, and in acknowledging the requirement to accommodate a disabled employee to the point of undue hardship, he concluded that a further opportunity to return to work should be granted.

This opportunity is subject to the terms set forth in the arbitration award and may come to an end in the event of another breach. [ 74 ] The decision is not in error simply because the arbitrator did not enforce the LCA. He clearly considered whether it was appropriate to do so in the circumstances before him. iii. Are the Decision and Award Unreasonable? Is it Unreasonable that the Award did not Enforce the LCA but Instead Imposed the Same or More Onerous Terms on the Grievor than were Contained in the Original LCA?

Did the Decision Fail to Account for Requirements Related to Workplace Safety, Human Rights Legislation and Principles of Accommodation? [ 75 ] The arbitrator acknowledged the need to protect employer interests. Protection of such interests recognizes that sometimes accommodation is not possible. In addressing the balance between accommodation of employees who are seriously pursuing rehabilitation and the legitimate interests of employers, the arbitrator quoted from CROA 4054, which he found to be factually like the grievance before him.

Specifically, he referred to arbitrator Picher’s findings in CROA 4054: On the basis of the material before me I accept the submission of the Union that save for the single event of relapse which caused his discharge, the grievor has worked extremely hard and has been successful in attaining and maintaining control of his addiction.

Bearing in mind that his drug addiction is a disability recognized under the Canadian Human Rights Act, I consider it significant that he has achieved the documented success which he has, and that it is not inappropriate to fashion an opportunity for his return to work, conditioned on terms fashioned to protect the employer’s legitimate interests. [emphasis added] [ 76 ] Finally, while CPR did point out that the grievor was employed in a safety sensitive position, again this was not raised as a substantial issue in its submissions before the arbitrator.

There was no discussion as to whether accommodation might be achieved in a position that was not safety sensitive. The Decision also addressed the fact that the grievor was employed in a safety sensitive position, evidenced by the arbitrator’s reference to the following quote from CROA 4511: As noted in CROA&DR 4054 and more recently CROA&DR 4375, employees who have breached last chance agreements but who are able to provide substantial evidence of rehabilitative efforts have been reinstated to their employment, including safety sensitive positions such as the grievor occupied here .

Those employees demonstrated that they have taken significant steps post-termination to maintain their sobriety including attendance at support meetings like AA and out-patient counselling. [emphasis added] [ 77 ] In my view, the Decision demonstrates that the arbitrator was aware of the interplay between the consequences of physical and mental impairment on the job and the potential impact of impairment while performing safety sensitive duties.

[ 78 ] The terms imposed by the arbitrator are also similar to conditions imposed in other arbitrations. It is not unusual to direct that a further breach, following a reinstatement, will lead to an automatic termination of employment. iv. Did the Decision Provide Sufficient Reasons? Did the Arbitrator Properly Consider the Evidence of Prior Accommodation Measures?

Did the Reasons Justify why the Second Last Chance Agreement Imposed by the Arbitrator was Reasonable or why it was Appropriate to Override the Original LCA Negotiated Between the Parties? [ 79 ] CPR challenged the sufficiency of the reasons, although the grounds for doing so overlap with the prior arguments in many respects. [ 80 ] CPR asserts that the Decision fails to provide sufficient reasons, by failing to consider prior accommodation efforts and in failing to explain why he did not honour the LCA, focussing instead on the grievor’s post-termination rehabilitation efforts. [ 81 ] CPR urged the Court to consider IBB .

As discussed above, the Court of Appeal in IBB stated that reasons serve three purposes:

a) to inform the parties of the decision ;

b) to provide public accountability ; and

c) to permit review by the court. [ 82 ] As noted in Teamsters Ontario , cited by the Respondents, deference to a specialized tribunal may require a court to permit the omission of reference to certain arguments or authorities, or to permit other “shortcuts” in reasons and explanations, when the parties are intimately familiar with the principles or agreements in issue. There must be a balancing where the parties “do not need everything to be spelled out” (para 24). [ 83 ] While the arbitrator’s reasons could have been more detailed, they must be read in the context of the tribunal’s process.

CROA is recognized as a highly specialized tribunal. As the Saskatchewan Court of Appeal recently recognized, CROA decisions are typically short in length and decisions typically refer to previous CROA cases to support the arbitrator’s reasons: Teamsters Saskatchewan , para 15 . [ 84 ] The reasoning of the arbitrator has been outlined in detail in these reasons and I will not repeat that

summary here. I have already dealt with CPR’s suggestion that the arbitrator did not consider the evidence of prior accommodation and that he did not explain why he decided not to enforce the LCA. [ 85 ] In the matter under review, the arbitrator turned his mind to the issue of whether the LCA supported an automatic termination and whether CPR had fulfilled its duty to accommodate the grievor. He referred to and incorporated the analysis from past cases that requires the arbitrator to look at the merits of each case, including the employee’s post-termination efforts to address his addiction issues.

Arbitrator Moreau examined the grievor’s rehabilitation efforts and successes in determining that reinstatement was the appropriate remedy. [ 86 ] Despite CPR’s submissions to the contrary, in my view, the arbitrator did explain how he arrived at his decision and the ultimate award.

Read as a whole, his reasons demonstrate CPR had not established that it had accommodated the grievor to the point of undue hardship, and that the grievor was entitled to be reinstated, subject to strict terms and conditions, in light of his substantial and successful rehabilitation efforts. [ 87 ] Finally, as Teamsters Saskatchewan makes clear, jurisdiction is governed by the joint statement of issues provided by the parties: para 15. Both CPR’s and the Union’s statement of issues were clearly defined and were squarely before the arbitrator.

Given what the arbitrator determined was the sole issue before him, I fail to see how the reasons and award granted required a more detailed explanation, as suggested by CPR. Given the nature of this tribunal and the parties that appear before it, as well as the existing CROA cases on this very issue, the Decision is not deficient.

Does the Decision Demonstrate Justification, Transparency and Intelligibility? [ 88 ] The Supreme Court of Canada in Vavilov stated that, on judicial review, a court must engage in an analysis of the written reasons to determine whether they are justified and rational, and whether there are any gaps or flaws in the tribunal’s analysis. I am satisfied in reviewing the arbitrator’s reasons that there is justification, transparency and intelligibility within the decision-making process. The arbitrator addressed the submissions made by the parties.

There is no difficulty understanding why the arbitrator made his decision. The justifications for the conclusions are clear. [ 89 ] As discussed in Vavilov , decision makers are expected to grapple with key issues and central arguments: paragraphs 127-128. In the case under review, the arbitrator specifically addressed the submissions of the parties and duly considered CPR’s focus on enforcement of the LCA.

[ 90 ] The Union’s submissions understandably focussed on the grievor’s disability and highlighted the grievor’s evidence of rehabilitation and treatment. Relevant authorities supported reinstatement based on significant post-termination treatment efforts. [ 91 ] On the other hand, there was nothing substantive put forward by the employer to support its assertion that it had accommodated the grievor to the point of undue hardship when it entered into the LCA. As noted, in its written submissions it described the LCA as

an act of managerial leniency and a chance for the employee to redeem himself. The evidence and submissions with regard to the prior structured relapse prevention program were not supportive of or central to CPR’s argument before the arbitrator, as set out earlier in these reasons. [ 92 ] In reviewing the reasons of arbitrator Moreau, I found that he answered the question that was submitted to him for determination: whether CPR fulfilled its duty to accommodate the grievor, to the point of undue hardship. He was responsive to the submissions that were made.

He considered the factual background and explained why he did not find in favour of an automatic termination, despite the existence of the LCA. He demonstrated an appropriate balancing of the duty to accommodate with the relevant concerns for the employer’s interests in maintaining a safe work environment. I have found that CPR has failed to identify a fundamental gap, fatal flaw, or unreasonable chain of analysis.

Does the Decision Fall Within a Range of Possible, Acceptable Outcomes which are Defensible in Respect of the Facts and Law? [ 93 ] Human rights legislation clearly recognizes substance dependency as a disability that must be accommodated.

Parties cannot contract out of their obligations under the legislation. [ 94 ] Based on the authorities submitted to the arbitrator and to this Court on judicial review, it is well-established that an employee may be able to seek reinstatement by demonstrating that he or she has a disability arising from substance use and that he or she has made substantial strides in gaining control of an addictive condition.

This will be the case even after the employee has been discharged from their employment, and even in the face of a last chance agreement. [ 95 ] At the same time, arbitrators must also safeguard against unsubstantiated claims of rehabilitation. Employees are expected to bring forward evidence to confirm a meaningful course of rehabilitation and follow-up.

In such a case, the interests of the employer can also be balanced and protected by imposing conditions on the employee to protect against a reoccurrence or relapse: see CROA 2716. [ 96 ] In this case, the Decision clearly falls within the range of reasonable and possible outcomes, based on the facts and law. The arbitrator cited and relied upon applicable and relevant authorities: Vavilov , paras 129-131 . Cases with similar fact patterns supported the Decision. The conditions imposed were not unusual and have been applied in other similar decisions.

They provide a means of balancing the interests of employees and employers in matters involving substance dependency and the related safety concerns that arise. Conclusion [ 97 ] The arbitrator’s reasons in this matter are justifiable, intelligible and transparent. There are no gaps in the reasons, nor do they fail to deal with key issues or central arguments advanced by the parties. The reasons reflect a possible and acceptable outcome, based on the applicable facts and law, and are consistent with other matters decided on similar facts. [ 98 ] The Applicant’s judicial review application is dismissed.

Heard on the 1 st day of December, 2022. Dated at Calgary, Alberta this 4 th day of August, 2023. N.M. Carruthers J.C.K.B.A.

Appearances: Jackie Laviolette for the Plaintiff Leanne Chahley for the Defendant