Newfoundland v. Labrador Association of Public and Private Employees, 2019 NLSC 232

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Newfoundland and Labrador Association of Public and Private Employees v. Rigolet Inuit Community Government , 2019 NLSC 232 Date : December 18, 2019 Docket : 201901G3523 Between: Newfoundland and Labrador Association of Public and Private Employees Applicant And: Rigolet Inuit Community Government Respondent Before: Justice Donald H. Burrage On Judicial Review From: A Decision of a consensual arbitral tribunal (Wayne Thistle, Q.C., Sole Arbitrator), File # 1058 dated the 22nd day of March 2019. Place of Hearing: St.

John’s, Newfoundland and Labrador Date of Hearing: December 12, 2019 Appearances: Christina R. Kennedy Appearing on behalf of the Applicant

Brittany L. Keating Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Dunsmuir v. New Brunswick , 2008 SCC 9 ; N.A.P.E. v. Newfoundland (Treasury Board), 2003 NLCA 61 ; Ryan v. Law Society (New Brunswick ), 2003 SCC 20 ; N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2010 NLCA 13 ; Muskrat Falls Employers' Assn. Inc. v. Resource Development Trades Council of Newfoundland and Labrador , 2015 NLTD(G) 150 REASONS FOR JUDGMENT Burrage, J. : INTRODUCTION [ 1 ] This is a judicial review of an Arbitrator’s decision under a Collective Agreement between the Applicant and Respondent.

Background [ 2 ] On 30 July 2018 Ms. Holly Flowers was suspended without pay from her position as Town Clerk with the Respondent, Rigolet Inuit Community Government (the “Employer”). The suspension was triggered upon the Employer learning through a CBC news story that Ms. Flowers had been charged with theft from her former Employer, the Town of North West River, while she served as the Town Clerk. [ 3 ] At the time of the suspension Ms.

Flowers’ employment was governed by a Collective Agreement between the Applicant, Newfoundland and Labrador Association of Public and Private Employees (NAPE) and the Employer. [ 4 ] Ms. Flowers was not given prior notice of the suspension, nor advised of her right under the Collective Agreement to have a Union representative present. [ 5 ] NAPE grieved Ms. Flowers’ suspension and following a hearing before a sole Arbitrator, the grievance was upheld in

part in an Arbitration Award dated 22 March 2019. [ 6 ] The Arbitrator concluded that based on the information available to the Employer on 30 July 2018, the Employer was within its rights under the Collective Agreement to suspend Ms. Flowers without pay, but there were procedural defects in how the suspension was implemented, which negatively affected Ms. Flowers’ substantive rights. This portion of the Arbitrator’s decision is not challenged by NAPE. [ 7 ] Rather, the main object of this judicial review is the remedy crafted by the Arbitrator, which while awarding Ms.

Flowers unspecified damages to be negotiated between the parties, fell short of treating her suspension as void ab initio . In addition, NAPE argues that the Arbitrator’s failure to find a breach of

Article 4:08 of the Collective Agreement, “Union Access”, was unreasonable. the collective agreement [ 8 ] For the purpose of this judicial review, the relevant provisions of the Collective Agreement governing Ms. Flowers’ employment are, as follows: 4:08 Union Access (

a) Employees shall have the right at any time to have the assistance of a full time representative of the Union on all matters relating to Employer/employee relationship. Union representative(

s) shall have access to the Employer’s premises in order to provide the required assistance. Employees involved in such discussions or investigation of grievances shall not absent themselves from work except with permission from their Supervisor, and such permission will not be unreasonably withheld. (

b) Permission to hold meetings on the premises shall, in each case, be obtained from the Employer and such meetings shall not interfere with the operations of the Employer.

5:02 Upon employment, an employee will be provided with information concerning: (

i) duties and responsibilities; (ii) starting salary and classification; (iii) terms and conditions of employment; and (iv) the Shop Steward will ensure that the employee will receive a copy of the Collective Agreement. 9:04 Decision of the Arbitrator The decision of the Arbitrator shall be final, binding and enforceable on all parties and may not be changed. The Arbitrator shall not have the power to change this Agreement or to alter, modify or amend any of its provision.

However, the Arbitrator shall have the power to dispose of a grievance by any arrangement which he/she deems just and equitable, including the power to set aside a decision of Employer and to modify a disciplinary measure imposed by the Employer. 12:01(

c) If, upon investigation, the Employer determines that disciplinary action is necessary, such action shall be taken based upon the Collective Agreement. In situations where the Employer is unable to investigate the matter to its satisfaction, but feels the employee should be removed from his/her place of employment, it shall be with pay. 12:02(

b) The Employer shall advise employees, who may be subject to discipline, of the purpose of any meeting and of their right to have a Shop Steward or Union representative attend. 12:06 An employee considered by the Union to be wrongfully or unjustly discharged or suspended or subject to disciplinary action, shall be entitled to a hearing under

Article 8, Grievance Procedure. Step 1 of the Grievance Procedure shall be omitted in cases of suspension or discharge. The Arbitrator’s Decision [ 9 ] On the question of the Employer’s right to suspend without pay, the Arbitrator observed that Ms. Flowers occupied a position of trust in handling the town’s finances and the alleged theft from the Town of North West River “put the legitimate business concerns of the Employer at risk including its reputation and the safety and security of its property” (at page 24).

The Arbitrator held that there was no evidence that the duties of the Town Clerk could be reasonably carried out under closer supervision. [ 10 ] The Arbitrator further ruled that there were no facts available during Ms. Flowers’ suspension to show that her employment was no longer problematic. To the contrary, on 26 February 2019 CBC reported that Ms. Flowers had pled guilty to theft of $70,000 from the Town of North West River and was then awaiting sentencing. [ 11 ] The Employer confronted Ms.

Flowers with a CBC news report that she had been charged with theft from the Town of North West River while employed there as the Town Clerk, which Ms. Flowers did not deny. The Employer then sought legal advice. The Arbitrator observed that the Employer did not have the ability to investigate the allegations beyond confirming what it knew from the news report. [ 12 ] The Arbitrator then concluded that the Employer had investigated the matter to its satisfaction within the meaning of

Article 12:01(

c) of the Collective Agreement and was within its rights under that

Article to suspend Ms. Flowers without pay. [ 13 ] The only meeting between the Employer and Ms. Flowers was on 30 July 2018, when she was handed her letter of suspension. The Employer conceded, and the Arbitrator agreed, that Ms. Flowers was not told the purpose of the meeting, and not informed of her right to have a shop steward or Union representation present, in violation of

Article 12:02(

b) of the Collective Agreement. [ 14 ] Further, no hearing was held under

Article 8, Grievance Procedure, as required by

Article 12:06 of the Collective Agreement, after NAPE filed its grievance. [ 15 ] Finally, the Arbitrator concluded that the Employer violated

Article 5:02 of the Collective Agreement by failing to provide Ms. Flowers with a copy of the Collective Agreement and by not providing her with the terms and conditions of her employment.

[ 16 ] None of the foregoing conclusions of the Arbitrator are challenged on this judicial review. Rather, NAPE takes issue with the Arbitrator’s ruling with regard to

Article 4:08 and the remedy he imposed for the breach of

Article 12:02(b). analysis Standard of Review [ 17 ] Both the Employer and NAPE submit that the standard of review of the Arbitrator’s decision in this instance is that of reasonableness. I agree. This standard is set forth in the oft cited passage from Dunsmuir v. New Brunswick , 2008 SCC 9 , as follows, (at paragraph 47): 47. Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

Article 4:08 [ 18 ]

Article 4:08 reads, as follows: 4:08 Union Access (

a) Employees shall have the right at any time to have the assistance of a full time representative of the Union on all matters relating to Employer/employee relationship. Union representative(

s) shall have access to the Employer’s premises in order to provide the required assistance. Employees involved in such discussions or investigation of grievances shall not absent themselves from work except with permission from their Supervisor, and such permission will not be unreasonably withheld. (

b) Permission to hold meetings on the premises shall, in each case, be obtained from the Employer and such meetings shall not interfere with the operations of the Employer. [ 19 ] With regard to

Article 4:08, the Arbitrator concluded that it entitled an employee to access and assistance of Union representation if requested by the employee, but did not impose a positive duty on the Employer to offer such assistance. As Ms. Flowers did not request such assistance, there was no evidence that this right under

Article 4.08 was denied. The Arbitrator writes: The collective agreement at Clause 4.08 – Union Access – provides for the right of an employee to have the assistance of a full-time representative of the Union on all matters relating to Employer/employee relationship. There is no evidence to support a finding that this right was denied. The agreement does not state there is a duty on the Employer to ensure the offer of assistance is made.

The employee has a responsibility to contact the Union to request the assistance and once this occurs, the Employer must grant access to the premises in order that the representative can provide the necessary assistance. [ 20 ] NAPE challenges this finding as unreasonable, arguing that the Arbitrator provided inadequate reasons and that his decision cannot be reconciled with a simultaneous finding that

Article 12:02(

b) was violated. [ 21 ] With respect, this argument is without merit.

Article 4.08 does not contain imperative language which would have the effect of imposing on the Employer a positive obligation to advise Ms. Flowers of her right to union representation. The Arbitrator contrasted this with

Article 12:02(

b) which does impose such an obligation, but only in circumstances where the employee is subject to discipline. To accede to NAPE’s position, the Arbitrator would have to “read into”

Article 4.08 language which is not present. [ 22 ] The Arbitrator’s decision with respect to

Article 4.08 fell within the range of possible outcomes reasonably available, and indeed, one might argue was the only reasonable outcome based on the language of this Article.

Article 12:02(

b) and the Arbitrator’s Remedy [ 23 ] In crafting a remedy for a breach of

Article 12:02(

b) the Arbitrator writes: In this case, based on the information available to the Employer on July 30, 2018, it did have right to suspend the Grievor without pay. However, there were procedural defects in how the suspension was implemented and the Grievor’s substantive rights were negatively affected. Pursuant to Clause 9:04, an arbitrator shall have the power to dispose of a grievance by any arrangement which he deems just and equitable. The grievance has been upheld in some respects and the Grievor should receive some compensation because of the violations to her rights. The Grievor will not receive compensation for lost wages. However, the Employer has an obligation to provide some

compensation for the various violations to her rights under the collective agreement. The parties shall meet to attempt to negotiate an amount which recognizes the various violations of her rights. It is not expected that she would receive the full amount of lost wages but some reasonable amount in recognition of these violations. If the parties do not reach agreement, I reserve the right to set that amount after receiving representations from the parties. To the extent the Grievor is to receive some compensation for the various violations to her substantive rights, the grievance is upheld.

In all other respects, the grievance is denied. [ 24 ] In recognition of the fact that the grievance was upheld in certain respects, the Arbitrator directed the parties to negotiate “reasonable” compensation for Ms.

Flowers in “an amount which recognizes various violations of her rights.” At the same time the Arbitrator placed a time limit on the meaning of “reasonable” by concluding that “It is not expected that she would receive the full amount of lost wages.” Failing an agreement, the Arbitrator reserved the right to set the amount after receiving representations from the parties. [ 25 ] NAPE submits that the Arbitrator’s penalty is unreasonable and that Ms. Flowers’ suspension should be treated as void ab initio . As such, she should receive her lost wages and benefits.

NAPE notes, in particular, the Arbitrator’s finding that the Employer’s procedural errors violated Ms. Flowers “substantive rights”. [ 26 ] NAPE argues that, having rightly concluding that Ms. Flowers’ substantive rights under the Collective Agreement were violated, the Arbitrator offered no explanation for his decision not to treat her suspension as void ab initio . [ 27 ] NAPE relies, in part, on N.A.P.E. v.

Newfoundland (Treasury Board), 2003 NLCA 61 , wherein the Court of Appeal held that “The right to have Union representation is considered to be a substantive right, not a question of procedure (at paragraph 25). In that case, as here, the Collective Agreement was violated when the employer failed to provide the grievers with any notice of the purpose of the meeting, thus depriving them of the opportunity for Union representation.

The Court of Appeal agreed with the arbitrator and reinstated the two employees affected with full pay and benefits. [ 28 ] It is clear that the Arbitrator was alive to the status of union representation as a substantive right. He expressly said so.

Rather, NAPE’s principal complaint is that having made such a determination the Arbitrator offered no express reasons for deviating from the “norm” and treating the suspension as void ab initio . [ 29 ] This argument brings to the fore the requirement for reasons in an assessment of whether the award was reasonable as defined in Dunsmuir . [ 30 ] Every element of the Arbitrator’s thought process need not independently pass the test for reasonableness. Rather, the question is whether the reasons taken as a whole are tenable as support for the decision ( Ryan v.

Law Society (New Brunswick ), 2003 SCC 20 , at para.56). [ 31 ] In N.L.N.U. v. Newfoundland & Labrador (Treasury Board) , 2010 NLCA 13 , Welsh, J. summarized the requirement for reasons (at paragraph 24): 24. The arbitrator's "pattern of thought" in reaching his decision may not be clear from the skeletal discussion in his decision. However, as noted by McLachlin C.J., in M. (R.E.) , the purposes for providing reasons are met if the reader may ascertain "why" the decision was made (see paragraph 10, above). It is not necessary to show how the decision was reached in a "watch me think" fashion.

In my view, while a more expansive explanation would have been preferred, the minimal explanation in the arbitrator's decision is sufficient in the circumstances to indicate why the arbitrator reached the conclusion he did, and, therefore, to satisfy the requirement for justification, transparency and intelligibility in the decision-making process as referenced in the Dunsmuir decision. [ 32 ] In Muskrat Falls Employers' Assn. Inc. v.

Resource Development Trades Council of Newfoundland and Labrador , 2015 NLTD(G) 150 Orsborn, J. observed that the Arbitrator’s decision was reasonable notwithstanding the complete absence of reasons. Orsborn, J. writes (at paragraphs 23, 55 – 59): 32. As already noted, the arbitrator provided no reasons for his acceptance of the Union's

interpretation. Accordingly, and following the direction in Newfoundland and Labrador Nurses' Union , it is left to the Court to try, based on the record, to fathom what could have been in the arbitrator's mind — what could have been the chain of reasoning underlying the decision. 55. What of the actual reasons of the arbitrator as expressed in the award? They are non-existent. After reciting the grievance, the relevant collective agreement provisions and the respective arguments, the arbitrator gives his conclusion.

On the face of the award, there is nothing to assist in understanding why the arbitrator accepted the Union's argument. 56. One might think that even in the informal and expedited grievance arbitration context, judicial deference does not extend so far as to overlook a complete absence of reasons. One might think that the parties — and a reviewing court — are entitled to at least a glimpse into the reasoning process that led to a particular decision.

57. But to my understanding, that is not the current state of the law, at least insofar as it relates to the review of the decision of a labour arbitrator. The approach of the arbitrator in this case bears a close resemblance to that of the arbitrator in the Newfoundland and Labrador Nurses' Union decision; a statement of the grievance, recitation of the collective agreement provisions, the evidence and positions of the parties, followed immediately by a conclusion. 58.

As I appreciate the effect of the Newfoundland and Labrador Nurses' Union decision, it is that if a labour arbitrator answers the issue raised by the grievance and the outcome can be considered reasonable following the court's consideration of any available train of analysis, then the Court must, in order to respect the need for expeditious resolution of grievances, defer to the decision of the arbitrator. 59. That is the case here. The arbitrator was clearly alive to the issue .

My assessment of the reasons that could have been given, in the context of the Special Project, satisfies me that the outcome falls within a range of acceptable outcomes. [emphasis added] [ 33 ] A reviewing court is entitled to draw reasonable inferences, supplement the reasons given and/or substitute its own reasoning process to determine if the Arbitrator’s decision was reasonable. [ 34 ] The Arbitrator was clearly alive to the issues in play, and in particular, NAPE’s position that Ms.

Flowers’ suspension should be void ab initio , stating: In conclusion, the Union stated that because the Grievor’s substantive rights had been violated, the suspension should be void ab initio and the Grievor should receive her lost wages and benefits. [ 35 ] I agree with the Employer that it was not necessary for the Arbitrator to expressly articulate why this request for redress was rejected. The Collective Agreement does not contain a penalty provision for breach of its Articles.

Rather, in negotiating the Collective Agreement the parties expressly authorized the Arbitrator to craft a remedy that the Arbitrator deemed “just as equitable”. In doing so, the Arbitrator observed that the grievance produced mixed results. [ 36 ] Reading the decision as a whole, on the facts before him the Arbitrator was not prepared to have the procedural violations, though substantive, totally supersede the Employer’s right to suspend without pay.

The circumstances leading to the suspension were serious, and without expressly saying so, it is clear from the Arbitrator’s ruling that he was not prepared to order Ms. Flowers reinstated in her position, notwithstanding the violation of her substantive rights. Nor was the Arbitrator prepared to let the Employer off the hook entirely. Hence, the crafting of what the Arbitrator deemed a just and equitable outcome, one which would see Ms. Flowers receive some compensation for the Employer’s conduct. [ 37 ] While NAPE may not agree with the result, the Arbitrator’s rationale for not treating Ms.

Flowers’ suspension as void ab initio is evident from a reading of the decision as a whole. The remedy reached was within the Arbitrator’s “just and equitable” discretion and therefore fell within the range of possible outcomes available to him. In short, the remedy crafted was reasonable. disposition [ 38 ] For the foregoing reasons the application is dismissed. As the successful party the Respondent is entitled to its taxed costs against the Applicant on a party-party basis under Column 3 of Rule 55. _____________________________ Donald H. Burrage Justice