ROBERT HAMMOND , Applicant, v. NAV CANADA, 2023 NBKB 101

Hammond v. NAV CANADA and CATCA, Unifor Local 5454 , 2023 NBKB 101 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON MM-1-2022 BETWEEN: ROBERT HAMMOND , Applicant, -and- NAV CANADA and CANADIAN AIR TRAFFIC CONTROL ASSOCIATION, UNIFOR LOCAL 5454 , Respondents. DECISION Before: Justice Jean-Paul Ouellette Date of Hearing: March 9 and 10, 2023 Date of decision: June 9, 2023 At: Moncton, New Brunswick Appearances: Michel Poirier , Esq., for the Applicant, Robert Hammond, Kecia Podetz and Joël Rocque , Esq., for the Respondent, NAV CANADA, Daria Strachan , Esq., for the Respondent, CATCA

OUELLETTE, J. INTRODUCTION [ 1 ] Robert Hammond applied for the judicial review of a decision, made by the Canadian Industrial Relations Board (the “Board”), rendered on December 10, 2021, dismissing the grievance of Mr. Hammond under the NAV CANADA and CATCA Collective Agreement. [ 2 ] Upon having considered the standard of review and the reasonableness of the Arbitrator’s decision, the Court dismisses the application for the following reasons. FACTUAL BACKGROUND [ 3 ] Mr.

Hammond was an air traffic controller working for Nav Canada and was a member of the Canadian Air Traffic Control Association (CATCA), Unifor Local 5454 (the “Union”), with 35 years of experience. [ 4 ] On February 26, 2015, a Nav Canada employee filed a harassment complaint against Mr. Hammond. Nav Canada initiated an investigation into the alleged harassment. [ 5 ] The investigation found that the harassment complaint was founded, in part. A copy of the investigative report was provided to Mr. Hammond by the Investigator on April 16, 2015. [ 6 ] Mr.

Hammond consulted with Doug Best, Executive Vice President of CATCA, the union representative assigned to assist him in relation to the investigation. [ 7 ] Mr. Best contacted Mr. Hammond to communicate the outcome of the investigation. Mr. Best informed Mr. Hammond that Nav Canada had reviewed the report and disciplinary action would be taken as a result. Nav Canada had given the Union a heads up that it intended to terminate Mr. Hammond’s employment the next day. A meeting was called by Nav Canada for April 17, 2015, at 10 o’clock to meet with the manager, the Investigator, and Mr.

Hammond, who could have his union representative present, to discuss the report. This meeting was being held pursuant to

article 12 of the Collective Agreement. [ 8 ] On the evening before the meeting, Mr. Best and Mr. Hammond were in communication to discuss what position they should take in anticipation of the meeting. [ 9 ] Mr. Hammond sent an email to Mr. Best suggesting that the Union could take the matter to arbitration on several grounds, expressing that the conclusions of the report did not justify termination and detailing nine grounds on which he felt that he could be successful during a grievance arbitration. In the concluding paragraphs of this email, Mr. Hammond suggested that Mr.

Best should consider a couple of things which could smooth his exit. [ 10 ] In that regard, Mr. Hammond suggested that, as he had planned to retire in March 2016 and had relayed this to a Nav Canada manager, and, given his belief that he had a strong case for arbitration, from that position Mr.

Best could argue the next morning, on his behalf, that he be allowed to retire in a few months, suggesting March 2016, and in the interim, having been suspended during the investigation, he would be happy to accept non-op duties, temporarily relocate, or otherwise continue employment with Nav Canada in a manner acceptable to them. He was looking forward to discussing this option with Mr. Best in the morning after he had discussed same with Nav Canada. [ 11 ] Mr. Best had a conversation with a Nav Canada manager and it was confirmed that they had the intention of dismissing Mr.

Hammond in a meeting of Nav Canada’s decision makers at three o’clock that day and would dismiss Mr. Hammond then. Mr. Best presented Mr. Hammond’s offer to retire in March 2016 however the request was declined. In response, Mr. Best asked if Mr. Hammond could resign immediately and get all the usual benefits of retirement. It was understood that this proposal was made after considering the employer’s past practices in similar cases. No definitive answer had been given on this last proposal. [ 12 ] At 10 o’clock on April 17, 2015, a meeting was held at Nav Canada attended by Mr. Hammond and Mr.

Best, who attended by teleconference. The Investigator, also present by teleconference, presented her findings. [ 13 ] During this meeting, dismissal was discussed as a possibility, but Nav Canada would consider less drastic measures if Mr. Hammond took ownership of his alleged actions and showed contrition for the subject matter of the investigation. Nav Canada also invited Mr. Hammond and Mr. Best to attend the 3 pm meeting later that day where Nav Canada would inform them of their decision regarding discipline. [ 14 ] Before leaving the morning meeting, Mr.

Hammond then stated that he was offering his resignation. Nav Canada’s response, after discussing the conditions set by Mr. Hammond to resign, was that his resignation had to be confirmed in writing before the 3 pm meeting. By noon, Mr. Hammond sent a letter confirming the agreement to resign and his understanding that in addition to his pension he would be paid, as per the Collective Agreement, his accumulated sick leave, severance, unused leave and annual leave credits, and any other entitlements owed. Nav Canada acknowledged and provided to Mr.

Hammond everything that had been requested and agreed to in his resignation offer. [ 15 ] In February 2018, Mr. Hammond received a synopsis of text messages exchanged between Mr. Roach, another representative from the Union who had declared a conflict of interest in the complaint against Mr. Hammond, and a third party. These text messages revealed that Mr. Roach had been sharing information with this third party during the investigation and about the disciplinary action

which was subsequently to be taken against Mr. Hammond and others despite the fact that the third party had no connection to the actual events that were the subject of the complaint from February 26, 2015. [ 16 ] Mr. Hammond was shocked to hear and read what had been said about him by Mr. Roach almost three years after the investigation into his conduct. Mr. Hammond had believed all along that Mr. Roach, a close friend of the complainant, had recused himself from the investigation because of his close personal ties to those named in the investigation. Mr.

Hammond reported that this information significantly changed his understanding of what had taken place in March and April of 2015 and the Union while representing him in the weeks leading up to his resignation. [ 17 ] On April 23, 2018, Mr. Hammond filed a complaint against his Union, who were considered his bargaining agent, to the Canada Industrial Relations Board alleging a breach of duty of fair representation under

section 37 of the Canada Labour Code (the “ Code ”).

Section 37 reads as follows: 37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory, or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them. [ 18 ] The Board held a hearing and in its first decision, rendered on March 27, 2020 ( 2020 CIRB 920 ), the Board found that the Union owed a duty to represent Mr. Hammond in accordance with

section 37 of the Code when it became aware that his job was at risk and that they had failed to do so. [ 19 ] The Board ordered that the Union do anything deemed equitable in order to remedy or counteract any consequences resulting from their contraventions of the Code . They appointed an Industrial Relations Officer to assist the parties in finding common ground on the issue of remedy. They also ordered that Nav Canada be given notice as it was found to be an interested party in cases under

section 37 of the Code involving remedy and that they be part of the discussions on this issue. [ 20 ] The parties had 45 days to come to and conclude a settlement. Failing to arrive at a settlement, the parties had to provide the Board with their written submissions on the issues and the Board would decide what to do next. As no agreement was possible, the parties informed the Board. [ 21 ] The panel of the Canada Industrial Relations Board held hearings for eleven (11) days in 2019 before issuing their order.

On October 21, 2020, they rendered another decision ( 2020 CIRB 946 ). [ 22 ] In its latest decision, the Board, after it concluded that the Union officials involved in the representation of Mr. Hammond had acted arbitrarily and in bad faith, sent the case to an arbitrator for a ruling on whether the employer had dismissed Mr. Hammond or if he had resigned. Thereafter, the arbitrator was to decide if Mr.

Hammond ought to be reinstated or compensated, and whether he intended to resign in 2015. [ 23 ] The Arbitrator held a hearing that lasted fifteen (15) days before rendering his final decision on December 10, 2021.

He first rendered a decision on December 9, 2020, on the participation status of the Union in the arbitration process after the Union made a request to be a full participant. [ 24 ] In his decision of December 10, 2021, the Arbitrator summarized the evidence of all the witnesses who testified at the hearing, analysed the facts, and considered the relevant applicable principles of law before concluding that Mr. Hammond, on April 17, 2015, had subjectively and objectively resigned and denied Mr. Hammond’s claim which will be discussed further in this decision.

Arbitrator’s decision as to the Union’s status [ 25 ] Counsel for the Union submitted that the Union has status in any arbitration of a grievance submitted under the Collective Agreement unless it was manifestly ordered otherwise. Furthermore, the Board’s decision made the Union liable for any monetary award and should therefore be permitted to call evidence, examine, and cross-examine witnesses and make arguments as to the reinstatement of Mr. Hammond, his compensation, any mitigating issues and whether Mr. Hammond intended to retire in 2015. [ 26 ] Counsel for Mr.

Hammond objected to the Union’s participation, arguing that it had proven that the Union acted in bad faith before the Board and that its presence would interfere with Mr. Hammond’s objectives of fair exercise of his collective bargaining rights.

As such, they argued, the Arbitrator should not permit the Union to appear as an opposing party in the arbitration. [ 27 ] Counsel for Nav Canada took no position with regard to the Union’s participation in the arbitration proceedings. [ 28 ] The Arbitrator, in his decision of December 9, 2020, summarized his mandate at the arbitration hearing in relation with the grievance raised by Mr. Hammond. Consideration would be given to the alleged threatened dismissal, the resignation and whether Mr. Hammond intended to retire in 2015. On his own findings, the Arbitrator was to decide if Mr.

Hammond ought to be reinstated or compensated as the Board had stated they did not have jurisdiction on these issues. [ 29 ] The Arbitrator then referred to paragraph 55 of the second Board decision, dated October 21, 2020, wherein the Board directed: Should the arbitrator allow the grievance and order compensation be reimbursed to the Complainant, the Union will be responsible for payment of all compensation ordered for the period between April 17, 2015 the date the Complainant resigned and March 27, 2020 the date the Board issued award number 2020 CIRB 920 . [ 30 ] The Arbitrator, as the Board’s decision was silent regarding the status of the Union, then referred to

section 61 of the Code that allowed the Arbitrator to determine his or her own procedure.

[31] In his decision as to what status the Union should have, the Arbitrator gives the context of the upcoming arbitration hearing inrelation with the grievance raised by Mr.

Hammond relating to the end of his employment, the alleged threatened dismissal, theresignation, and the circumstances that led the Board to order that it proceed directly to arbitration. [32] The Arbitrator expresses the opinion that he has the authority to decide what parties have standing before him and to whatextent. [33] The Arbitrator, in determining if the Union should be part of the process, first considered whether a party seeking standingwould have its rights adversely affected by the outcome of the arbitration. [34] He states that it could be argued that the Union already had standing, as it was ordered to pay reasonable legal fees andexpenses to Mr.

Hammond’s counsel for their preparations and attendance at the arbitration hearing. Further, the Union was directed tocooperate with Mr. Hammond’s counsel and fulfil any reasonable request for information and assistance, and therefore leaving the Unionwith nothing more than observer status at the actual proceedings. It would have been as such had the Board, in this arbitration, notordered compensation to reimburse Mr. Hammond. [35] As the Union would be responsible for all compensation, in the Arbitrator’s opinion, this would elevate the Union’s status tomore than an observer.

Under these circumstances, the Arbitrator found that the Board’s decision entitled the Union to full participationon any matters related to compensation. [36] The Arbitrator also expressed the opinion that denying the Union the opportunity to speak to the issue of compensation,which had the potential to amount to a significant sum of money, would not only be unfair but contrary to any concept of natural justice. [37] The Arbitrator decided to let the Union participate as the Board decision had shifted some liability for compensation fromNav Canada to the Union if any was to be awarded to Mr. Hammond.

The Arbitrator also relied on a decision where the arbitrator wasconfronted with a similar situation (see Canada Post Corporation v. Canadian Union of Postal Workers, (CA LA))and granted a participation status. [38] The Arbitrator concluded that the Union had a substantial interest in the outcome of the arbitration proceedings and cautionedthe Union to tread carefully as the duty of fair representation would hang over its actions in these proceedings, like the proverbial Swordof Damocles, and allowed the Union to participate fully in matters related to compensation. POSITION OF THE PARTIES [39] Mr.

Hammond suggested that the standard of review was reasonableness and correctness. Mr. Hammond argued that thehearing before the Arbitrator was not fair to him as the Arbitrator allowed the Union to participate, which was against his interest, andtherefore he was being denied procedural fairness. [40] Furthermore, he argued that an abuse of process resulted from Nav Canada and the Union being allowed to collaterally attackthe Board decisions, suggesting that they were estopped from doing so. [41] Finally, Mr.

Hammond alleges that the Arbitrator made errors in law, jurisdictional errors, and made incorrect and/orunreasonable findings, and that his conclusions were flawed in many, many ways for numerous reasons. [42] Nav Canada and the Union submitted that the standard of review for a judicial review of an arbitrator’s decision isreasonableness. They opined that the Arbitrator considered each party’s submissions, that the evidence tendered was reviewed, and thatthe Arbitrator applied the relevant case law in dismissing the grievance. ISSUES [43] The issues raised in this application are as follows:

(1) What is the applicable standard of review?

(2) Is the decision reasonable? ANALYSIS The standard of review [44] Mr. Hammond submits that for the issue of jurisdiction, questions of central importance to the legal system outside theArbitrator’s area of expertise and allegations tied to a breach of fairness duty of the Arbitrator in this application, the standard of reviewis correctness.

On the issues before the Court, outside of those requiring the above correctness standard, the normal standard of reviewshould be that of reasonableness. [45] Nav Canada and the Union submit that the analysis begins with a presumption that reasonableness is the applicable standardof review. [46] It is now settled law that, absent specific exceptions, the presumptive standard of review is that of reasonableness. In Canada(Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65 , [2019] 4 SCR 653, the Supreme Court wrote: [29] Of course, the fact that the specialized role of administrative decision makers lends itself to the development of expertise andinstitutional experience is not the only reason that a legislature may choose to delegate decision-making authority. Over the years, theCourt has pointed to a number of other compelling rationales for the legislature to delegate the administration of a statutory scheme to aparticular administrative decision maker. These rationales have included the decision maker’s proximity and responsiveness to

stakeholders, ability to render decisions promptly, flexibly and efficiently, and ability to provide simplified and streamlined proceedingsintended to promote access to justice. [30] While specialized expertise and these other rationales may all be reasons for a legislature to delegate decision-making authority,a reviewing court need not evaluate which of these rationales apply in the case of a particular decision maker in order to determine thestandard of review.

Instead, in our view, it is the very fact that the legislature has chosen to delegate authority which justifies a defaultposition of reasonableness review. The Court has in fact recognized this basis for applying the reasonableness standard to administrativedecisions in the past. In Khosa, for example, the majority understood Dunsmuir to stand for the proposition that “with or without aprivative clause, a measure of deference has come to be accepted as appropriate where a particular decision had been allocated to anadministrative decision-maker rather than to the courts”: para. 25.

More recently, in Edmonton East, Karakatsanis J. explained that apresumption of reasonableness review “respects the principle of legislative supremacy and the choice made to delegate decision makingto a tribunal, rather than the courts”: para. 22. And in CHRC, Gascon J. explained that “the fact that the legislature has allocatedauthority to a decision maker other than the courts is itself an indication that the legislature intended deferential review”: para. 50.

Inother words, respect for this institutional design choice and the democratic principle, as well as the need for courts to avoid “undueinterference” with the administrative decision maker’s discharge of its functions, is what justifies the presumptive application of thereasonableness standard: Dunsmuir, at para. 27. [31] We wish to emphasize that because these reasons adopt a presumption of reasonableness as the starting point, expertise is nolonger relevant to a determination of the standard of review as it was in the contextual analysis.

However, we are not doing away withthe role of expertise in administrative decision making. This consideration is simply folded into the new starting point and, as explainedbelow, expertise remains a relevant consideration in conducting reasonableness review. [47] The presumption of reasonableness can only be rebutted in two situations. In Vavilov it is written: [17] The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature hasindicated that it intends a different standard or set of standards to apply.

This will be the case where the legislature explicitly prescribesthe applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from anadministrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews thedecision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires thatthe standard of correctness be applied.

This will be the case for certain categories of questions, namely constitutional questions, generalquestions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two ormore administrative bodies. The general rule of reasonableness review, when coupled with these limited exceptions, offers acomprehensive approach to determining the applicable standard of review.

As a result, it is no longer necessary for courts to engage in a“contextual inquiry” (CHRC, at paras. 45-47; see also Dunsmuir, at paras. 62-64; McLean, at para. 22) in order to identify theappropriate standard. [48] Mr. Hammond has not rebutted the presumption of reasonableness and has failed to meet the onus of establishing that either ofthe above situations apply to the case at bar. The Canada Labour Code does not include any express direction from Parliamentdirecting the applicable standard of review to an arbitrator’s decision, nor a statutory appeal mechanism to a court. Regarding the secondsituation, Mr.

Hammond raised no issues that fall within the parameters established in Vavilov. [49] The Arbitrator’s task was to determine whether Mr. Hammond had resigned on April 17, 2015, and he confirmed in hisdecision that Mr. Hammond had in fact resigned. The focus of a reasonableness review must be on the decision actually made by thearbitrator, including the reasoning process used and the outcome. [50] A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation tothe facts and law that constrain the decision maker.

The reasonableness standard requires that a reviewing court defer to such a decision. [51] A court must be satisfied that there are sufficiently serious shortcomings in the decision so that it cannot be said to hold therequisite degree of justification, intelligibility, and transparency. Alleged flaws or shortcomings must be more than merely superficial orperipheral to the merits of the decision. [52] The reasonableness standard requires deference.

Reviewing courts cannot substitute their own appreciation of an appropriatesolution but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respectof the facts and law”. [53] As the Supreme Court wrote in Vavilov: [100] The burden is on the party challenging the decision to show that it is unreasonable.

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

Instead, the court must be satisfied that any shortcomings or flaws relied on by theparty challenging the decision are sufficiently central or significant to render the decision unreasonable. [54] The Supreme Court of Canada commented on the depth of reasons that must be given by a labour arbitrator to satisfy thereasonableness standard in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC62 , [2011] 3 SCR 708.

The Court wrote: [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would havepreferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker isnot required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (ServiceEmployees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., (SCC), [1975] 1 S.C.R. 382,at p. 391).

In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to

determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [55] The Court in Newfoundland went on to explain that the arbitrator’s decision should not be approached as an organic wholeand should not be a line-by-line treasure hunt for errors. Unless the court finds that the arbitrator’s decision, based on the record, isoutside the range of reasonable outcomes, the decision should not be disturbed. [56] In Canada (Citizenship and Immigration) v.

Khosa, 2009 SCC 12 , [2009] 1 SCR 339, the Supreme Court stated thefollowing about the application of the reasonableness standard: E. Applying the “Reasonableness” Standard [59] Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberatejudicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, itrequires deference.

Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine ifthe outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, atpara. 47). There might be more than one reasonable outcome.

However, as long as the process and the outcome fit comfortably with theprinciples of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferableoutcome. [57] The Court therefore concludes that the appropriate standard of review on the question of whether Mr. Hammond resignedfrom his employment with Nav Canada is reasonableness. Is the decision reasonable [58] Mr. Hammond bears the onus of establishing that the Arbitrator’s decision is unreasonable.

In his brief, no less than 34arguments were advanced but most of them could be regrouped in numerous categories. For this decision, I have regrouped and dealtwith all of them. This is a judicial review, not an appeal. [59] As for the Union’s participation, the power of the arbitrator to determine its own procedure flows from

section 61 of theCanada Labour Code as follows: 61 An arbitrator or arbitration board shall determine their own procedure, but shall give full opportunity to the parties to theproceeding to present evidence and make submissions to the arbitrator or arbitration board. [60]

Article 11.16 of the Collective Agreement between Nav Canada and the Union confers broad discretional authority on thearbitrator selected by the parties to adjudicate a dispute in the context of grievance arbitration: 11.16 Arbitration Procedure The arbitrator/Board of Arbitration may determine its own procedure, but shall give full opportunity to all parties to present evidence andmake representations in order to determine the issue in dispute. [61] Mr.

Hammond alleges that the Arbitrator’s decision is unreasonable as the Union fully “participated” despite the Arbitratorhaving previously ruled that the Union could only participate on the issue of liability and compensation. [62] This participation of the Union was considered, and a decision was rendered by the Arbitrator on December 9, 2020, as earliermentioned. The Arbitrator concluded that to deny the Union party status and permission to participate fully in matters related tocompensation and the Union’s responsibility for reasonable legal fees and expenses for Mr.

Hammond’s counsel of his choosing wouldbe contrary to the principles of natural justice. [63] As the issue of participation was left to the Arbitrator, and as such had not been discussed by the Board, the Arbitrator coulddecide and determine his own procedure and determined that the Union could “participate fully in matters related to compensation”. [64] Considering the standard of review, the decision of the Arbitrator in relation to the issues of the Union’s status is bothjustifiable and justified by way of reasons and it goes to the root of fairness and the concept of natural justice. [65] As for the concern raised by Mr.

Hammond’s counsel, the Union’s participation did not interfere with Mr. Hammond’sobjectives, or the fair exercise of his collective bargaining rights and its full participation was allowed. [66] The Arbitrator ruled that the Union’s representative was necessary and his decision on this point is consistent with establishedpractices in the area of labour arbitration including the benefit of the disclosure of communications outweighing any potential “injuries”. [67] In his decision, he referred on numerous occasions to what the Union’s counsel did in cross-examining the parties’ witnesses.Mr.

Best was called as a witness and gave evidence on behalf of the Union that could have been detrimental to Mr. Hammond’sgrievance. However, in his decision, the Arbitrator, when it came to discussing Mr. Hammond’s resignation, stated: “The evidence of the interaction between the Grievor and Mr.

Best is taken wholly from the Grievor’s testimony.” [68] In any event, the Arbitrator dealt with objections raised by the parties as they arose during the proceedings including inmatters of the appropriateness of questions, the admissibility of evidence, and whether the parties were afforded the opportunity to makesubmissions. [69] Furthermore, the evidence of the investigative report was not relied upon by the Arbitrator and, as I will set out in greaterdetail later, there was no need for the Arbitrator to venture into that issue for obvious reasons.

In any event, the Arbitrator ruled that theinvestigative report was not admitted for the truth of its contents, but rather to establish that it existed and that Nav Canada had

considered it in determining the appropriate discipline it would give to Mr. Hammond. Also, this was the same report that was provided to Mr. Hammond in his discussion with Mr. Best when Mr. Hammond mandated Mr. Best to negotiate his exit. [ 70 ] While Mr. Hammond raised, at this hearing, the relevancy of this report and how the investigation proceeded in its conduct and preparation, he could have called any of the witnesses at arbitration who were interviewed but decided not to do so. [ 71 ] The Arbitrator reviewed the determination made by the Board as it pertained to the allegation that the Union breached

section 37 of the Canada Labour Code in its duty of fair representation. He expressly mentioned that he reviewed these orders and noted that the Board retained no further jurisdiction over the issues raised before it. [ 72 ] He further ruled in clear terms that, in essence, the substance of the advice provided by the Union representative was irrelevant and mentioned that it mattered not whether Mr. Best’s advice was good, bad, or indifferent. [ 73 ] In his decision of December 10, 2021, the Arbitrator was aware and did consider Mr. Hammond’s arguments on collateral attack, abuse of process and estoppel.

The Arbitrator, in his decision, noted that Nav Canada and the Union were not taking issue with the Board’s decision on its merits, nor did they ask the Arbitrator to re-decide that issue and he did not take issue with the Board’s findings. [ 74 ] Overlapping evidence was permissible and necessary in the circumstances of this case but the Arbitrator was clear that the parties would not be allowed to relitigate the same issues.

If any party tried to, it did not influence the Arbitrator in any way, shape, or form and this is clearly reflected in his decision. [ 75 ] As to the refusal on the part of the Arbitrator to rule on the issue of just cause, the Court finds this is not the case at bar. The Arbitrator ruled that there was no authority to support the contention that Nav Canada was required to show it did have just cause to terminate Mr.

Hammond’s employment simply because the Board concluded that the Union breached its duty of fair representation. [ 76 ] After having reviewed the arbitral jurisprudence, the Arbitrator reiterated that where an employee has resigned in the face of impending termination and later sets aside that resignation, arbitrators have consistently considered first the validity of the resignation before proceeding, if necessary, to the merits of the termination. [ 77 ] The Arbitrator considered and adopted the approach consistently used by other labour arbitrators in the decisions referred to in his decision.

While not bound by the stare decisis , the Arbitrator sought to adhere to longstanding practices and established principles of labour law in reaching his conclusions. [ 78 ] As discussed later in this decision, the Arbitrator, as he held that Mr. Hammond had resigned with the requisite intention, was not required to go on to determine whether Nav Canada had just cause to terminate his employment, or any other related argument, put forth by Mr. Hammond. [ 79 ] Mr. Hammond failed to show that the Arbitrator’s conclusion, that he had the intent to resign, was unreasonable.

In his decision, the Arbitrator set out the legal principles that apply to a resignation in labour and employment law as follows: After a careful review of the currently applicable case law, I also hold to the view that the authorities demonstrate an arbitrator must ascertain the true intention of the employee in determining whether he resigned from his employment. In other words, did the employee actually intend to sever the employment relationship?

In making such a determination, it is clear that arbitrators view that the act of resigning from one’s employment involves both a subjective intention to resign and objective conduct after that, demonstrating the continued intention to resign. In particular, when assessing whether an employee formed the subjective intention to resign, arbitrators ask themselves whether the employee was in such a state of mind that his decision was free and voluntary. Or was the employee subject to coercion, pressure, or duress, which would call into question the voluntariness of the resignation?

In this regard, arbitrators distinguish between the stress when one is called on to make a difficult choice in trying circumstances and the pressure or duress that impacts an employee due to threats or inducements, either expressed or implied by his or her employer. The jurisprudence also establishes that an employee’s access to and advice from a union representative before he decides to resign is a significant factor, even if the advice is considered poor or incorrect. [ 80 ] After a review of the evidence before him, the Arbitrator examined what Mr.

Hammond did on April 15 and April 16, 2015, and Nav Canada’s suggestion that, at the meeting of April 17, 2015, at 10 o’clock, they were prepared to impose a lesser discipline if Mr. Hammond took ownership of his alleged actions and showed contrition. [ 81 ] Mr. Hammond decided otherwise and offered his resignation with entitlement to all his benefits under the Collective Agreement thereby allowing him control of the agenda for his departure at Nav Canada and avoiding the stigma of a termination with full knowledge that he could file a grievance if he was terminated. It was Mr.

Hammond, not Nav Canada, who raised the possibility of resignation as an alternative to termination. [ 82 ] The Arbitrator distinguished the authorities relied upon by Mr. Hammond on the basis that, in this case, Nav Canada exercised no pressure on Mr. Hammond to resign or face a termination. [ 83 ] Thereafter, the Arbitrator considered all of Mr.

Hammond’s actions following his offer to resign and determined that he had objectively intended to resign his employment, concluding in the following terms: I find there was no coercion or inducement established that would vitiate the [Applicant’s] subjective intention to resign. No evidence was adduced that the [Applicant] did not have the mental capacity to resign nor that it was a spur-of-the-moment utterance later quickly regretted by him.

The [Applicant’s] resignation was a carefully thought out decision to avoid the stigma of termination and to obtain the monetary benefits attached to a retirement that would not be available were he to be discharged. Further, there is ample objective evidence to support his continued intention to resign. Having reached this conclusion, it is not necessary for me to address the arguments concerning the investigative process and the threatened dismissal. [ 84 ] The Arbitrator considered all the evidence before him to decide whether Mr. Hammond formed the requisite subjective intent to resign.

He considered the overlapping evidence between the hearing of the Board, when it found a breach of Mr. Hammond’s duty to fair representation, and his deliberation over the question of Mr. Hammond’s resignation without relitigating the same issues. [ 85 ] The Arbitrator considered all the proceedings and the orders previously granted. He did not decide if Nav Canada had just cause to terminate Mr.

Hammond with reasons , notwithstanding having the authority to do so. [ 86 ] The Arbitrator considered resignation as an option for an employee to avoid the stigma of termination and for them to walk away with their reputation unblemished, thus enabling them to find other employment. The Arbitrator further referred to several of the case law presented by Mr.

Hammond to support his argument to the contrary and distinguished all of them with reasons as to why the termination issue was not considered. [ 87 ] As is the case at bar, it was not Nav Canada who raised the possibility of retirement, nor did they persuade Mr. Hammond to resign. Furthermore, the Arbitrator concluded, again with reasons, that there was no evidence to support the argument that Mr.

Hammond faced any threats, economic duress, or coercion from Nav Canada up to the point of his resignation. [ 88 ] The Arbitrator then turned his attention to the issue of the resignation by reviewing the evidence and arguments and first determining whether Mr. Hammond formed the subjective intent to resign by considering if he was under severe stress or lacked other mental capacity to form the requisite intent to resign.

If so, the resignation would be rescinded. [ 89 ] On the other hand, if the grievor had the subjective intent, as in this case, the Arbitrator would then consider the objective intent, being the true intention to resign, by considering the post-resignation behaviour to determine if the subsequent conduct of Mr. Hammond illustrated a true intention to resign. [ 90 ] For that purpose, he considered the relevant jurisprudence and came to the conclusion that Mr. Hammond had the subjective and objective intent to retire by submitting his resignation. [ 91 ] Among other things, he considered whether Mr.

Hammond truly intended to sever the employment relationship and if his decision was free and voluntary or whether there was coercion, pressure or duress which would call into question the voluntariness of the resignation. [ 92 ] The Arbitrator even considered if Mr. Hammond had access to and advice from his union representative before he decided to resign and determined this was a significant factor even if the advice was considered poor or incorrect. The evidence from Mr. Hammond is that he had discussed the issue with Mr.

Best, his wife, and had even consulted his own lawyer. [ 93 ] The Arbitrator, with reasons, concluded that Mr. Hamond had subjectively and objectively resigned and that Nav Canada had played no detrimental role in Mr. Hammond’s decision to resign. Furthermore, Nav Canada had advanced its intent of dismissing Mr. Hammond, in the context of Mr. Hammond’s rights under the Collective Agreement, the night before their meeting of April 17, 2015, at 10 o’clock. [ 94 ] The Arbitrator further accepted the evidence from Nav Canada that if Mr.

Hammond had taken ownership of his actions towards the complainant and shown contrition at the morning meeting of April 17, 2015, Nav Canada was prepared to revisit the discipline to be imposed in the afternoon. [ 95 ] Finally, Mr. Hammond’s email to Mr. Best on April 16, 2015, reveals that he instructed Mr. Best to attempt to negotiate a deal to “smooth his exit”, accepting that, for all intents and purposes, he had made up his mind to retire or as he put it “exit” from his employment at Nav Canada.

He would have preferred to retire a year later but this was not acceptable to Nav Canada in the circumstances. [ 96 ] The issue of resignation was raised by Mr. Hammond, not Nav Canada, as an alternative to termination. Nav Canada accepted the resignation from Mr. Hammond who had clearly decided to retire and which he now seeks to withdraw because he says it was not the right decision. The Arbitrator set out the distinct difference between a bad decision and an involuntary one.

Bad, wrong, or negligent advice from third parties does not affect the voluntariness of a decision. [ 97 ] Faced with the stigma of termination and the loss of benefits, Mr. Hammond made the decision that it was best for him, under the circumstances, to opt for the lesser choice of immediate retirement on April 17, 2015, which he offered to Nav Canada. [ 98 ] The Human Resources department of Nav Canada accepted that Mr. Hammond was permitted to resign and was walking away whole and would not be held accountable for what he had done to the complainant. [ 99 ] In relation to

article 12 of the Collective Agreement, dealing with fair representation, and

article 14, that a grievance shall first be dealt with through an alternative dispute resolution (ADR) process, the Arbitrator added an addendum to his decision. [ 100 ] The Arbitrator confirmed that Mr. Hammond had the benefit of advice from a union representative before he submitted his resignation. To subsequently say that had he known about the lack of proper and fair representation he would not have retired does not vitiate his resignation and there was no evidence presented to support this conclusion by Mr. Hammond at the hearing.

[ 101 ] The Arbitrator agreed with the Union that Mr. Hammond did not have an absolute right to have his grievance heard through arbitration as no union member does. At bar, the Union did not refuse to advance the grievance to arbitration; it was properly explained to Mr. Hammond that before a grievance can be brought to arbitration, an investigation would first have to be done to evaluate the Union’s chance of success in arbitration. [ 102 ] The Arbitrator concluded that Mr. Hammond had formed the requisite intention to resign from his employment on April 17, 2015.

There was no coercion or inducement established that would vitiate Mr. Hammond’s subjective intent to resign, nor was there a lack of mental capacity to resign, nor was it shown that it was a spur of the moment utterance later generally regretted by him. [ 103 ] Furthermore, the Arbitrator concluded that any argument that Nav Canada’s failure to invoke mediation or that the Union’s violation of Mr.

Hammond’s duty to fair representation somehow vitiated his resignation was, in his view, completely without merit. [ 104 ] This determination did not “change, amend or alter the Collective Agreement” when the Arbitrator set out that

article 14 was not mandatory in the circumstances.

CONCLUSION [ 105 ] The reasonableness review must be on the decision actually made by the Arbitrator including the reasoning process and the outcome. [ 106 ] The decision rendered on December 10, 2021, is intentionally coherent and has a rational chain of analysis justified in relation to the facts and law that constrained the Arbitrator. [ 107 ] The Court is satisfied that there is a degree of justification, intelligibility and transparency to the merits of the decision. [ 108 ] The Court must apply the reasonableness standard and cannot substitute its own appreciation of an appropriate solution.

At bar, the decision falls within a range of possible, acceptable, outcomes which are defensible in view of the facts and the law. [ 109 ] Contrary to what was proposed by Mr. Hammond, a reasonableness review is not a “line-by-line treasure hunt for errors”.

The decision is justifiable considering the constellation of laws and facts considered and which are relevant to the decision. [ 110 ] This decision conforms to the relevant and factual constraints that bear on the decision maker and the issue at hand governing statutory schemes, common law, the evidence before the decision maker, and the past practices and decisions of the administrative body. [ 111 ] It is not for this Court to rewrite and reassess the evidence considered by the Arbitrator and there is no exceptional circumstance in this case that would allow this Court to interfere with the Arbitrator’s decision.

The Arbitrator did not misapprehend, nor did he fail to account for the evidence before him. [ 112 ] The Arbitrator meaningfully grappled with the key issues and central arguments raised by the parties and was alert and sensitive to the matter before it. [ 113 ] Again, contrary to what Mr. Hammond suggested, the Arbitrator was not expected to respond to every argument or proceed with a line-by-line analysis of the evidence, nor is this Court obliged to do so. At bar, the Arbitrator allowed the parties to resolve the dispute raised by Mr.

Hammond. [ 114 ] The Arbitrator’s decision is justifiable and defensible in relation to the constraining facts and law. There are no fatal flaws in rationality or logic nor is the decision untenable, unintelligible or unreasonable and the application must be dismissed. [ 115 ] The Court recognizes the legitimacy and authority of administrative decision makers – the Arbitrator that decided this matter was within his proper spheres and adopted a posture of respect.

The Arbitrator was empowered to determine his own procedure and weigh the evidence before him in accordance with the Canada Labour Code and the Collective Agreement. [ 116 ] The arbitrator’s decision is reasonable, and the application is dismissed with costs. COSTS [ 117 ] As Nav Canada and CATCA were successful in this application, Mr. Hammond shall pay $3,000 all inclusive to each of the Respondents. DATED this 9 th day of June 2023. ______________________________________ Jean-Paul Ouellette Justice of the Court of King’s Bench of New Brunswick, Trial Division