Winnipeg Airports Authority Inc v Public Service Date:, 2015 MBCA 94

Citation: Winnipeg Airports Authority Inc v Public Service Date: 20151006 Alliance of Canada et al, 2015 MBCA 94 Docket: AI15-30-08358 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN : WINNIPEG AIRPORTS ) AUTHORITY INC. ) A. Astritis ) for the Appellants (Applicant) Respondent ) ) P. D.

Edwards - and - ) for the Respondent ) PUBLIC SERVICE ALLIANCE OF ) Appeal heard: CANADA and UNION OF CANADIAN ) September 15, 2015 TRANSPORTATION EMPLOYEES, ) LOCAL 50600 ) Judgment delivered: ) October 6, 2015 (Respondents) Appellants ) On appeal from 2015 MBQB 6 , 314 ManR (2d) 200 MAINELLA JA Introduction and Issues [ 1 ] The appellants (the union) appeal the order of the application judge allowing the respondent’s judicial review application of an arbitral award regarding 65 grievances filed under two collective agreements. [ 2 ] The grievances raised a similar question of the

interpretation to be given to common language in the collective agreements regarding the right of an employee to be paid both a shift premium and a weekend premium for the same hours worked on a weekend during the evening and/or night.

In allowing the grievances, the arbitrator ruled that payment of both premiums to employees who met the relevant criteria did not violate the prohibition against pyramiding of premiums contained in the collective agreements. [ 3 ] In granting the application for judicial review, the application judge determined that the arbitrator failed to apply the correct legal principles in interpreting the collective agreements thereby bringing his decision below the reasonableness standard of a possible, acceptable outcome defensible in fact and law. [ 4 ] The issues raised on this appeal are threefold: (

i) What is the standard of review of the application judge’s decision to quash the arbitral award? (ii) Did the application judge correctly apply the standard of review to the arbitrator’s determination that payment of both premiums for the same hours worked did not constitute pyramiding of premiums? (iii) Was the arbitrator’s decision a possible, acceptable outcome in fact and law? [ 5 ] For reasons that follow, I would allow the appeal.

Background [ 6 ] The respondent operates the airport servicing Winnipeg. The union represents the grievors who are employees of the respondents. The grievors work in various jobs related to the operation of the airport including duty managers, power engineers, firefighters, airfield maintenance specialists, airfield mechanics and snow shovellers . The grievors work shift work which requires them, from time to time, to work evening or night shifts on weekends. [ 7 ]

Article 21 of the Collective Agreement between The Public Service Alliance of Canada, U.C.T.E. Local 50600 and Winnipeg Airports Authority Inc. (July 1, 2008-June 30, 2012) (the GCA), and

Article 20 of the Collective Agreement between The Public Service Alliance of Canada, U.T.C.E. Local 50600, Firefighter Unit and Winnipeg Airports Authority Inc. (July 1, 2008-June 20, 2012) (the FA), detail when an employee is entitled to be paid a shift premium and a weekend premium.

Given the similarity of the language in the two collective agreements, it is only necessary to refer to the relevant provisions of the GCA: Shift Premium 21.01 An employee working on shifts will receive a shift premium for all hours worked including overtime hours, between 4:00 p.m. and 8:00 a.m. provided the majority of the employee’s regularly scheduled hours occur after 4:00 p.m. and before 8:00 a.m. The shift premium will not be paid for hours worked between 8:00 a.m. and 4:00 p.m. . . .

Weekend Premium 21.03 Employees shall receive an additional premium of one dollar and fifty cents ($1.50) effective October 3, 2008 per hour for regularly scheduled straight time hours of work on a Saturday or a Sunday. [ 8 ] While the amounts of the shift premium and weekend premium have changed over time, the wording as to the criteria for payment of the two premiums has remained unchanged since at least 1997 when the respondent took over operation of the airport from Transport Canada.

The parties agree that from 1997 to 2012, the respondent inconsistently applied the collective agreements as to the payment of these two premiums without the union’s objection. Duty managers, power engineers and firefighters who worked a weekend shift between 4:00 p.m. and 8:00 a.m. received both premiums. However, airfield maintenance specialists, airfield mechanics and snow shovellers never received both premiums when they worked identical shifts, rather they only received the higher of the two premiums, the shift premium. [ 9 ] In 2012, this unequal treatment of employees was raised with the respondent.

The director of the human resources of the respondent subsequently issued a memorandum to all staff advising them that payment of both premiums for working regularly scheduled weekend evening and/or night shifts was “pyramiding of premiums” contrary to

Article 22.13 of the GCA and

Article 21.13 of the FA. Given the similarity of the language it is only necessary to refer to the relevant provision of the GCA: 22.13 It is understood by the parties that there shall be no pyramiding of premiums under this agreement. [ 10 ] According to the memorandum, if any employee met the criteria of both premiums on a shift they would be paid only the higher of the two premiums, the shift premium.

All 65 grievances filed challenged the employer’s refusal to pay the weekend premium in addition to the shift premium for the same hours worked on a weekend. [ 11 ] All of the grievances went to arbitration under the Canada Labour Code , RSC 1985, c L-2, before a sole arbitrator. The arbitrator decided that “ affected employees are entitled to be paid the Weekend Premium when they work a regular evening or night shift on weekends in addition to the Shift Premium ” [italics in original]. In his reasons he cited five reasons for his decision which can be summarized as: (

i) The two premiums serve different purposes; (ii) The use of the word “additional” in the Weekend Premium provision was significant and supports the

interpretation of that premium being given in addition to the Shift Premium; (iii) The employer’s proposed

interpretation of the word “additional” (as relating to the implementation date of the Weekend Premiums) was not persuasive; (iv) The existence of the no pyramiding of premiums provision did not affect his

interpretation because payment of both premiums was not pyramiding due to the different purposes of the two premiums. The arbitrator said that prohibition against pyramiding may apply in other contexts that were not before him; and (

v) The common law presumption against pyramiding was not applicable given the collective agreements’ specific wording

regarding pyramiding. [12] The application judge quashed the arbitrator’s award because, in her view, if the legal principles as to construction ofcollective agreements “had been applied correctly by the arbitrator, he could not have come to the decision that he did” (at para 19). Theapplication judge decided that the prohibition against pyramiding in the collective agreements “can only reasonably bear one meaning,that the shift premium and weekend premium are not to be pyramided, or both paid, during times where an employee works an eveningor night shift on a weekend” (at para 26). The three legal errors of the arbitrator identified by the application judge were: (

i) Interpreting the collective agreement in a manner that created a conflict between provisions, when there was an alternativeinterpretation that would have avoided the conflict; (ii) Failing to interpret the prohibition against pyramiding clause in the context of the entire collective agreement; (iii) Applying the rebuttable common law presumption against pyramiding when there was express language in the collectiveagreement prohibiting pyramiding. Discussion Standard of Review [13] As this a statutory appeal pursuant to

section 89 of The Court of Queen’s Bench Act, CCSM, c C280, of an order of ajudge of the Court of Queen’s Bench, the standard of review for this Court to apply is whether the application judge identified andapplied the correct standard of review in her judicial review of the arbitrator’s award. This is a question of law to be reviewed on astandard of correctness.

If the application judge erred in either identifying the standard of review, or applying it, this Court is then taskedto identify and apply the appropriate standard of review to the arbitrator’s decision (see Dr Q v College of Physicians and Surgeons ofBritish Columbia, 2003 SCC 19 at para 43, [2003] 1 SCR 226; Loewen v Manitoba Teachers’ Society, 2015 MBCA 13 at paras 24-25,315 ManR (2d) 123; and National Automobile, Aerospace, Transportation and General Workers Union of Canada v Bristol AerospaceLtd, 2008 MBCA 62 at para 10, 228 ManR (2d) 125). [14] The nature of the question before the arbitrator was one of

interpretation of a collective agreement.

The parties agreethat given the expertise of labour arbitrators in such matters, the standard of review the application judge was to apply wasreasonableness (see Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals, 2011 SCC 59 at para31, [2011] 3 SCR 616; and Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013SCC 34 at para 65, [2013] 2 SCR 458). [15] The reasonableness standard was explained this way by Binnie J in Canada (Citizenship and Immigration) v Khosa,2009 SCC 12, [2009] 1 SCR 339 (at para 59): Reasonableness is a single standard that takes its colour from the context.

One of the objectives of Dunsmuir [2008 SCC 9, [2008] 1SCR 190] was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where thereasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the 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” (Dunsmuir, at para. 47). There might be more than one reasonable outcome.

However, as long as the process andthe outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court tosubstitute its own view of a preferable outcome. [16] While the parties agree that the application judge correctly identified reasonableness as the standard of review to apply,they disagree as to whether she in fact applied that standard of review in quashing the arbitrator’s award.

Central to deciding whether theapplication judge correctly applied the reasonableness standard is what is meant by the concept of “pyramiding” in the labour relationscontext.

Pyramiding in the Labour Relations Context [17] “Pyramiding” is the payment of two or more monetary benefits for the same period of work pursuant to different articlesof a collective agreement, compensating the employee for the same purpose (see Manitoba Nurses’ Union, Selkirk Nurses Local 16 vSelkirk and District General Hospital, 2003 MBCA 150 at para 2, 180 ManR (2d) 201; Alberta Union of Provincial Employees, Local2424 v Continuing Care Employees’ Bargaining Assn (Premiums Grievance), [2002] AGAA No 66 at paras 75-76 (QL); andSunnybrook and Women’s College Health Sciences Centre and BGPWU (Baliunas) (Re) (2001), (ON LA), 95 LAC(4th) 34 at 37 (Ont)). [18] Parties to a collective agreement are presumed to not intend to agree to pyramiding of benefits “unless the contraryintention is clear on a fair reading of the agreement” (Re Labatt’s Ltd and Canadian Union of United Brewery, Flour, Cereal, Soft Drink& Distillery Workers (1980), (ON LA), 24 LAC (2d) 312 at 318 (Ont)). [19] The language used in the particular collective agreement is important as to how the parties have addressed the rebuttablepresumption against pyramiding that exists in common law.

An agreement may be silent on pyramiding, in which case the common lawpresumption applies. An agreement may simply restate the common law presumption. Finally, the parties may have collectivelybargained their own language which may broaden or narrow, from the common law presumption against pyramiding, the ability of an

employee to collect two or more monetary benefits for the same period of work regardless of the purpose of such compensation.

Arbitrator Dissanayake explained the importance of the choice parties make as to the language in a collective agreement regardingpyramiding in the following way in St Gobain Abrasives and CEP, Loc 12 (Wolff) (Re) (2005), (ON LA), 140 LAC(4th) 343 (at pp 348-49): It is to be noted that in the cases relied upon by the employer, the arbitrators concluded that the particular collective agreement languagehad the result of extending or expanding the scope of the common law presumption against pyramiding. Thus in Re St.

Thomas-ElginGeneral Hospital (supra) arbitrator Burkett stated: “We accept the submissions of the hospital that where the express language of thecollective agreement extends the implied presumption against pyramiding of premiums effect must be given to the language”. Thatcollective agreement not only prohibited “pyramiding”, but also stated that there shall be no duplication of premiums (See p. 5 supra).

Itwas on the basis of that specific language that it was held: “The relevant language is, in our view, intended to prevent the payment oftwo or more premiums for the same hours worked regardless of the purpose for which the premiums are designed”. Similarly in ReMolson Breweries (supra) the agreement provided that “In no case will overtime or premium compensation be duplicated or pyramided”. In Re West Nippissing General Hospital (supra) also the agreement in

article 14.01 prohibited duplication of premiums, as well aspyramiding of premiums. Whether a particular collective agreement merely reinforces the common law presumption against pyramiding or whether it extends theprohibition depends on the specific language used. In the instant case,

article 10.05 merely states; “Nothing in this agreement shall beconstrued to require the pyramiding of premium pay”. In my view, this language is merely an explicit re-statement of the presumptionagainst pyramiding, and does not expand or extend it. This language is unlike the language used in the collective agreements in the casesreviewed above. In the result, I find that

article 10.05 does not have the effect of ousting the arbitral principle that payment of two ormore premiums for the same hours worked does not constitute pyramiding, where those premiums are designed for different purposes.

Given the agreed fact that the purposes of a shift change premium and an overtime premium are different, it leads to the conclusion thatthere is no pyramiding in the circumstances of this case. [emphasis added] (See also National Automobile, Aerospace, Transportation and General Workers Union (CAW-Canada), Local 222 v Durham RegionTransit Commission (Steeves Grievance), [2008] OLAA No 754 at paras 9-10 (QL).) [20] Finally, there is a lack of consensus in the arbitral jurisprudence as to whether a shift premium and a weekend premiumserve the same or a different purpose when considering the question of pyramiding (for example see – conclusion same purpose for twopremiums - Ottawa (City) v Canadian Union of Public Employees, Local 503 (Shift Premium Grievance), [2010] OLAA No 65 at paras11-22 (QL) (Ont); Headwaters Health Care Centre v Ontario Nurses’ Assn (Premium Payment Grievance), [2004] OLAA No 332 atpara 13 (QL) (Ont); and conclusion different purpose for two premiums – Aramark Canada Ltd v Canadian Union of Public Employees,Local 4000 (Shift Premium Grievance), [2007] OLAA No 672 at paras 17-18 (QL) (Ont); and Thompson (City) v United Steel Workersof America, Local 8223, [2004] MGAD 52 at para 38 (QL) (Man)).

Analysis of Application Judge’s Decision [21] Given the expertise of labour arbitrators in the

interpretation of collective agreements, a reviewing court must afford “amargin of appreciation within the range of acceptable and rational solutions” to their decisions (Dunsmuir v New Brunswick, 2008 SCC 9at para 47, [2008] 1 SCR 190). As Abella J explained in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador(Treasury Board), 2011 SCC 62, [2011] 3 SCR 708, a judge reviewing a labour arbitrator’s

interpretation of a collective agreementshould afford great deference to the

interpretation given (at para 17): The fact that there may be an alternative

interpretation of the agreement to that provided by the arbitrator does not inevitably lead to theconclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonable outcomes.

Reviewingjudges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting their own view of the properoutcome by designating certain omissions in the reasons to be fateful. (See also the comments of Martin J in G4S Cash Solutions (Canada) Ltd v Western Canada Council of Teamsters, 2014 MBQB 150 atpara 12, 307 ManR (2d) 311.) [22] The union argues that the standard of review the application judge applied was not reasonableness; rather, it was adisguised correctness review.

It says the three legal errors of the arbitrator identified by the application judge on closer scrutiny wereoutcomes open to the arbitrator that he justified with adequate reasons and that were transparent and intelligible such that deferenceshould have been afforded to his decision by the application judge.

[ 23 ] In my view, it is not necessary to go through each of the arguments of the union as to whether the application judge correctly applied the standard of reasonableness. I have come to the conclusion that it is necessary for this Court to reassess the arbitrator’s decision because the application judge erred when she equated as being synonymous the paying of both premiums with pyramiding (at para 26):

Article 22.13 of the collective agreement can only reasonably bear one meaning, that the shift premium and weekend premium are not to be pyramided, or both paid , during times where an employee works an evening or night shift on a weekend. [emphasis added] [ 24 ] As previously explained, the mere fact that an employee receives monetary compensation for the same period of work pursuant to different articles of a collective agreement does not necessarily mean pyramiding is occurring.

Absent modifying language in the particular collective agreement, pyramiding only occurs where a payment compensates the employee more than once for the same purpose for the same period worked. [ 25 ] The arbitrator determined that the payment of the “Shift Premium and the Weekend Premium serve different purposes.” The application judge concluded that finding of the arbitrator was “a reasonable conclusion that was open to him on the facts and the law” (at para 42). [ 26 ] Given that the arbitrator found that payment of the two premiums was for different purposes and the application judge determined that conclusion was reasonable, that should have ended the application judge’s analysis.

However, she went on to conclude that the ultimate outcome of the arbitrator was unreasonable because, in her view, it would render meaningless

Article 22.13 of the GCA and

Article 21.13 of the FA which are prohibitions against pyramiding to which, she stated, “effect must be given” (at para 44). [ 27 ] The language of the collective agreements answers the application judge’s concern. The wording of

Article 22.13 of the GCA and

Article 21.13 of the FA does not prohibit absolutely employees receiving the two premiums for the same work period to compensate them for different purposes (being away from their family for social or religious purposes on a weekend and having to work at an abnormal time when they normally are asleep) as did the collective agreements discussed in the passage quoted previously from St Gobain Abrasives .

If the payment of both premiums for work on weekend evenings or nights does not amount to pyramiding, because the purposes for the employee to be paid the two premiums are different, then there is no conflict between the provisions of the collective agreement. [ 28 ] Given the application judge erred in her application of the standard of reasonableness it is necessary for this Court to apply the reasonableness standard to the abritrator’s decision.

Analysis of Arbitrator’s Decision [ 29 ] Given the interests of transparency, accountability and to permit effective appellate review, a judge conducting a judicial review of a decision of an administrative tribunal, or an arbitrator, must first identify whether the standard of review is correctness or reasonableness in accordance with the contextual approach discussed in Dunsmuir (at paras 51-64 ) and then, if the standard is reasonableness, go on to determine how broad or narrow the margin of appreciation for the decision maker was in the given context ( Catalyst Paper Corp v North Cowichan (District) , 2012 SCC 2 at para 18 , [2012] 1 SCR 5 ; and Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) , 2012 SCC 10 at para 44 , [2012] 1 SCR 364 ). [ 30 ] The margin of appreciation available to a labour arbitrator interpreting a collective agreement is very broad ( Newfoundland and Labrador Nurses’ Union at para 17; Communications, Energy and Paperworkers Union of Canada, Local 30 at para 54 ; and Bisaillon v Concordia University , 2006 SCC 19 at para 32 , [2006] 1 SCR 666).

Labour arbitrators fulfill an important role in fostering peace in industrial relations ( Nor-Man at para 47). They are given broad mandates by collective agreements and statute to interpret collective agreements and have significant expertise in such matters. As Rothstein and Moldaver JJ put it in their dissent in Communications, Energy and Paperworkers Union of Canada, Local 30 , determining rights in the workplace flowing from a collective agreement is the “bread and butter” work of a labour arbitrator (at para 66). If the unsuccessful party disagrees with a labour arbitrator’s

interpretation of a collective agreement, they are often better off addressing their displeasure, not in a courtroom on a judicial review, but at the bargaining table at the next round of collective bargaining. [ 31 ] To meet the reasonableness standard, the arbitrator’s decision must fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”, and the decision-making process must demonstrate “the existence of justification, transparency and intelligibility” ( Dunsmuir at para 47 ).

The question for a reviewing court to answer is whether the arbitrator’s reasons as a whole pass the reasonableness test, not whether every aspect of the reasons do (see Voice Construction Ltd v Construction & General Workers’ Union, Local 92 , 2004 SCC 23 , [2004] 1 SCR 609). Accordingly, a reviewing court should approach the arbitrator’s reasons as an “organic whole” and resist the temptation to pursue “a line-by-line treasure hunt for error” ( Communications, Energy and Paperworkers Union of Canada, Local 30 at para 54 ). [ 32 ] The parties agree that the arbitrator’s reasons are adequate.

His five reasons for his award are transparent and intelligible and he properly characterized the issue he had to resolve as, in his words, “a matter of “interpretation” of the two collective agreements. [ 33 ] The arbitrator’s reasons confirm he took a contextual analysis of the collective agreements as a whole to decide whether or not working a regular evening or night shift on weekends entitled an employee to be paid both premiums or whether that was in fact

pyramiding of premiums contrary to the collective agreements. The arbitrator also understood that, absent modifying wording in the collective agreement, pyramiding in the labour relations context focusses on the reason behind a payment of a benefit to an employee, rather than the mere payment itself. [ 34 ] My role is not to dissect each of the arbitrator’s five justifications for his award but to assess the reasonableness of the outcome as a whole. Nor is my role to resolve the conflict in the arbitral jurisprudence over whether weekend premiums and shift premiums as a matter of law serve the same purpose.

Given the margin of appreciation afforded to the arbitrator, whether or not I agree with his

interpretation of the collective agreements, or his finding as to there being different purposes for the payment of the two premiums in question is irrelevant. It is also not germane, in any way, if there are other or better

interpretations of the collective agreement that are possible. Fundamentally, the arbitrator was the one tasked by the parties and the Canada Labour Code to be the decision maker on the interpretative question lying at the root of the 65 grievances and he had a wide margin of appreciation in the choices he could make. His privileged position must be respected. [ 35 ] In my view, because there is no basis to disturb the arbitrator’s finding that the “Shift Premium and the Weekend Premium serve different purposes”.

His overall conclusion that payment of those two premiums for the same hours work would not run afoul of the prohibition against pyramiding clause of the collective agreements is within the range of possible acceptable outcomes in fact and law and thus is reasonable. [ 36 ] One final comment. The arbitrator was properly circumspect as to whether “pyramiding of premiums” under the two collective agreements may refer to “other circumstances and I have not been asked to apply it”.

Technically, once the arbitrator found that there were different purposes for the payment of the two premiums in question, his task was complete given the nature of the grievances he was asked to arbitrate. His role was not to definitively interpret the meaning of the collective agreement as a whole, but only to address the grievances before him.

For the purpose of disposing of this appeal, I express no views on how the payment of the two premiums would affect either the calculation of call back pay or overtime pay under the two collective agreements in light of the prohibition against pyramiding in the agreements. Conclusion [ 37 ] In the result, I would allow the appeal, set aside the order appealed from and reinstate the arbitrator’s award in its entirety with costs in favour of the union. JA I agree: JA I agree: JA