Canadian Union of Public Employees, Local 108, Halifax Civic Workers Union Appellant v. Halifax Regional Municipality Respondent Judge: The Honourable Justice Joel Fichaud Appeal, 2011 NSCA 41

NOVA SCOTIA COURT OF APPEAL Citation: Canadian Union of Public Employees, Local 108 v. Halifax (Regional Municipality) 2011 NSCA 41 Date: May 12, 2011 Docket: CA 332801 Registry: Halifax Between: Canadian Union of Public Employees, Local 108, Halifax Civic Workers Union Appellant v. Halifax Regional Municipality Respondent Judge: The Honourable Justice Joel Fichaud Appeal Heard: March 30, 2011 Subject: Judicial Review of Labour Arbitration Award

Summary: The Union took an unjust dismissal grievance to arbitration. The arbitrator found there was just cause for dismissal. But the arbitrator’s award stated a “condition subsequent” that would render his award “defeasible” – that the Union could reopen the hearing to lead evidence of the grievor’s mental disability which would trigger the employer’s duty to accommodate. That issue had not been presented during the arbitration despite that the arbitrator had urged the Union to pursue the issue.

The Nova Scotia Supreme Court set aside the condition subsequent and upheld the portion of the award that determined there was just cause for dismissal. The Union appealed. Issue: Did the judge err by setting aside the condition subsequent to the award? Result: The Court of Appeal dismissed the Union’s appeal. The Court applied the reasonableness standard of review. The arbitration award should not have introduced an issue that the parties had decided not to raise in their submission to arbitration.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 20 pages. NOVA SCOTIA COURT OF APPEAL Citation: Canadian Union of Public Employees, Local 108 v. Halifax (Regional Municipality) 2011 NSCA 41 Date: May 12, 2011 Docket: CA332801 Registry: Halifax Between: Canadian Union of Public Employees, Local 108, Halifax Civic Workers Union Appellant v. Halifax Regional Municipality Respondent Judges: Hamilton, Fichaud and Farrar, JJ.A.

Appeal Heard: March 30, 2011, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Fichaud, J.A.; Hamilton and Farrar, JJ. A. concurring. Counsel: Susan D. Coen, for the appellant Randolph Kinghorne, for the respondent

Reasons for judgment : [ 1 ] Halifax Regional Municipality dismissed an employee for repeated unauthorized absenteeism. The Union took the employee’s unjust dismissal grievance to arbitration. At a break during the grievor’s testimony, the arbitrator told counsel that the grievance likely would fail unless there was a basis, such as mental disability, to support the employer’s duty to accommodate. The arbitrator urged the Union’s counsel to elicit evidence of mental disability. The parties had not raised disability and accommodation as issues.

The arbitrator adjourned the hearing so the grievor could be psychologically assessed and the Union could adduce evidence of mental disability to support a potential submission that the employer had a duty to accommodate. Twelve weeks later at the hearing’s resumption, the Union offered no such evidence, the grievor testified that he had not been assessed and said he did not intend to be assessed. The parties made final submissions that did not cite disability and accommodation. The arbitrator issued an award that there was just cause for dismissal.

But the award stated a “condition subsequent which may render the dismissal defeasible” - namely that the Union had a further 30 days to say whether it would adduce evidence of mental disability and, if the Union chose to do so, the arbitrator retained jurisdiction to consider whether there was mental disability and how the employer’s duty to accommodate a disability would affect the ultimate award. [ 2 ] The employer applied for judicial review. The Supreme Court of Nova Scotia held that the arbitrator lacked jurisdiction to issue such a defeasible award.

The judge quashed the award’s condition subsequent, with the result that the grievor is dismissed for cause. The Union appeals. The issue is whether the judge correctly determined that the arbitrator made a reviewable error by issuing a defeasible award with the condition subsequent based on the unargued issue. Background [ 3 ] I will summarize the facts from the arbitrator’s award. [ 4 ] The grievor was an outside maintenance worker for Halifax Regional Municipality (HRM). He worked on ballfields in summer and snow removal in winter. In 2004 and 2005, he had many unexplained absences from work.

On February 18, 2004, HRM issued a memorandum explaining the procedure to obtain prior authorization for absence from the workplace, and a reminder memo followed on November 5, 2004. The arbitrator’s award (para 3) referred to the evidence that “confirmed the attendance records which demonstrated that as of late July 2004 the Grievor took unapproved leave, followed by paid and/or unpaid sick leave for significant periods in August, September, October, November and December 2004". Between January 1, 2005 and February 22, 2005, the grievor took five days sick leave and 22 days of “unapproved leave”.

The arbitrator’s award (para 5) found that this was “a clear breach” of HRM’s policy requiring prior approval of an absence. [ 5 ] As a result, HRM gave the grievor a letter applying a twenty day suspension for the grievor’s “history of excessive absences and ... refusal to follow proper procedure to be away from the workplace”. [ 6 ] On his first day back at work, the grievor requested two weeks vacation to start the next day. HRM’s Superintendent, Mr. Verge, denied the request. This led to a vociferous argument during which the police had to remove the grievor from the building.

The arbitrator (para 10) preferred Mr. Verge’s testimony to the grievor’s different version of events. [ 7 ] On April 19, 2005, HRM gave the grievor a letter applying a forty day suspension for “continuing behaviour of direct defiance of management and managerial policies designed to achieve a consistent expectation from all staff”. The letter said that “further inappropriate behaviour will result in further disciplinary action up to and including termination of your employment”. [ 8 ] After that suspension, the grievor returned to work.

The arbitrator (para 11) described his performance and attendance as unproblematic until September 30, 2005. On that day, the grievor was with another employee, R.F., supposedly working on ballfield maintenance. They were observed at a shopping mall between approximately 10:25 and 11:35 AM, during work hours. The arbitrator (para14) said that “it is important to mention, in relation to the credibility of both R.F. and the Grievor, that each appeared to be covering for the other with respect to the Employer’s overlapping investigations of the incidents at issue”.

[ 9 ] The grievor was subject to a collective agreement between HRM and the Canadian Union of Public Employees, Local 108, Halifax Civic Workers Union (Union). The award said (para 15) “the Union representatives were not available to meet until October 17, 2005, for which date a meeting was set” to discuss the incident of September 30. Meanwhile (award para 15) the grievor called in sick on October 12. On the 13th, he said he would not be in on Friday the 14th.

On the morning of Monday, October 17, the date set for his meeting with HRM and the Union, the grievor called to say he would be off work until October 24. [ 10 ] The meeting of October 17 proceeded with representatives of HRM and the Union and R.F., but without the grievor. Afterward HRM terminated the grievor’s employment by a letter of October 18, 2005. The letter said the incident of September 30 “has made it clear that you have disregarded the instructions given to you on the requirement to maintain regular workplace attendance”.

Citing “past incidents as well as the recent incident on September 30", the grievor was dismissed as of October 21, 2005. [ 11 ] The grievor filed a grievance that he “was wrongfully terminated without [ sic - being] given the opportunity to explain in full his view on the reasons that led up to his dismissal”.

The arbitrator (para 19) characterized the grievance as “lack of due process in the termination, although the obvious assumption underlying the Grievance is that there were no grounds for the termination and that this was a matter which the Grievor and the Union should have had greater opportunity to explain”. [ 12 ] The grievance procedure did not resolve the matter. The Union took the grievance to arbitration under the collective agreement.

The arbitrator conducted the hearing on May 14-1 6, September 17 and 26 and December 19, 2007. [ 13 ] The arbitrator’s award recounted the events from the grievor’s testimony on September 26, 2007 and the hearing’s resumption on December 19, 2007: 23. This presentation of the Grievor’s evidence in direct examination was quite brief, and cross-examination was well underway before lunch. In cross-examination, the Grievor was generally responsive to questions.

However, the Grievor was vague about the rules governing his employment – he felt there were no real rules about when you had to work – just a common understanding. He never realised early on that there were notices on bulletin boards to be read. He admitted he was too casual in 2004 about clearing his absences with his supervisor, but claims he did not really notice he was not being paid for most of the days he took off. (He lives at his family home with his mother). He did not recall being spoken to by supervisors about his 2004 and 2005 attendance problems, and did not believe he was on a “last chance” letter.

By way of explanation, he offered the comment that at that time “I had a lot of personal things”. As to why he was upset with Mr. Verge and Mr. Graham concerning their refusal to grant him two weeks vacation after his 20 day suspension the Grievor simply stated: “My birthday was then – I wanted some time off”.

When asked by counsel for the Employer if he had ever contacted the Employee Assistance Programme or Occupational Health Services, the Grievor replied somewhat awkwardly that he had “...called and talked to a lady in Ontario”, but “...when they found out I was no harm to anyone at the workplace they did nothing”. 24. When matters were adjourned for the lunch break, I had a brief conference with counsel in private.

From the Grievor’s evidence and demeanour, it appeared that there might be emotional or psychological issues which were the root cause of his attendance problems and his apparent inability to engage in effective communication with his Employer. It was indicated to me that the Employer had no specific information in this regard. On the other hand, the Union representative presenting the case, Ms. Bramwell, revealed that she had some knowledge of certain sensitive background issues which the Grievor was reluctant to discuss publicly. I urged Ms.

Bramwell to speak to the Grievor in order to see if he were willing to bring such matters into the open. I indicated my preliminary view, subject to completion of the Union’s case and full argument, that the Grievor’s chances of success did not look good unless there was something which could explain his erratic behaviour and which could provide the basis for an accommodation on the part of the Employer. At resumption of the hearing after lunch, the Union indicated that the Grievor was willing to explain certain things, but not in the presence of all the representatives and witnesses for the parties.

The Employer and Union agreed to a re-opening of the direct examination of the Grievor on these matters, in the presence only of the arbitrator, counsel for the Employer, Mr. Kinghorne, and Ms. Bramwell as a representative of the Union. Counsel for the Employer would have the opportunity to cross-examine. 25. Without going into excessive detail, the following is a

summary of the evidence received as a result of the above agreed upon process. The Grievor’s father had committed suicide on April 15, 2003 near the time of the Grievor’s birthday – April 21. The Grievor stated that this troubled him greatly and he had not been able to deal with it or talk to anyone about it. This tragedy, in the Grievor’s mind, was exaggerated by the fact that due to the Grievor’s separation from his wife just before the birth of their daughter, his father had never been allowed by the Grievor’s former wife to see his granddaughter.

The Grievor indicated that there had been recurring disagreements between his former wife and himself over custody and access issues in relation to their daughter. Moreover, his access to

his daughter had been limited by the fact that his wife had remarried and moved to Alberta with their daughter and new husband. The Grievor indicated that his year long leave of absence from the Employer (which ended in 2004) was in part for educational reasons, but also to allow him to seek work in Alberta so that he could make contact with his former wife and see his daughter. On this score, he was unsuccessful, as his wife refused all contact with him.

He said he was able to get some employment in Alberta, though he kept to himself and often went for long runs in the woods (despite warnings about bears) to get exercise and avoid contact with other people. The Grievor indicated that after his return to employment in 2004 he felt depressed: “It all came in on me”. He agreed that his absence from work and resulting reduction in income was self-destructive. Consistent with this self-defeating approach was his failure to make any attempt to obtain employment insurance following his termination, thinking he “could straighten it out himself”.

The Grievor denied using alcohol or drugs, but said he often felt tired because he did not sleep well. The Grievor indicated that he had kept all these matters to himself, telling neither his Employer nor the Union. His only attempt to get professional help to address these underlying issues was his unsatisfactory contact with the EAP system mentioned above. 26. After these revelations from the Grievor, the parties agreed to adjourn the matter. The purpose of the adjournment as conveyed to the Grievor was to give him the opportunity to obtain a psychological or psychiatric assessment.

This was done on the theory that such an assessment could have an impact on the outcome of the hearing favourable to the Grievor. The matter could not be rescheduled for resumption until December 19, 2007. On that date, cross-examination of the Grievor resumed. The Grievor was reminded that the matter had been adjourned on the last day of hearings to enable him to obtain an assessment with respect to personal issue affecting his conduct at his place of employment. When asked if he had obtained such an assessment, the Grievor replied “No”. When asked if he intended to do so, the Grievor replied “No”.

There followed a brief cross-examination on the events of September 30, 2005 and their aftermath. The most significant aspect of these exchanges was the Grievor’s assertion that when he spoke to Mr. Graham on October 17, 2005 saying that he would not be in to work, he had “no idea” why they wanted to talk to him.

The Grievor also said that the Employer had “not raised attendance issues with him” prior to the receipt of the letter of termination of October 18, 2005. [ 14 ] In short, on September 26 during the grievor’s testimony, the arbitrator took counsel aside and told them that, as matters then stood, “the Grievor’s chances of success did not look good unless there was something which could explain his erratic behaviour and which could provide the basis for an accommodation on the part of the Employer”.

The arbitrator “urged [the Union’s counsel] to speak to the Grievor in order to see if he were willing to bring such matters into the open”. The issues of disability and accommodation had not been raised by the parties up to that moment. Later in the day, with the consent of HRM and the Union, the arbitrator adjourned the hearing so the grievor could be psychologically assessed, and the Union would have the opportunity to present evidence of mental disability and assert HRM’s duty to accommodate. The hearing resumed on December 19. The Union offered no evidence of disability.

The grievor testified that he had not been assessed and had no intention of being assessed. The hearing of evidence concluded. [ 15 ] The parties made final argument on December 19, 2007. There was no mention of a witness or category of evidence, issue or submission to be severed and reserved for any future reopened hearing. There was no submission based on mental disability or accommodation for disability. The award described the Union’s four submissions: 32. The Union began its argument by reference to

Article 2.06 (

c) of the Collective Agreement which states: “The functions of management shall not be exercised in an unreasonable, arbitrary or discriminatory manner.” The Union asserts that overall, the termination of the Grievor was “unreasonable’. The Union’s catalogue of how this management unreasonableness was revealed might be said to fall under four headings. Firstly, the Union says the evidence about the September 30 incident reveals no grounds for any discipline whatsoever. Secondly, the Union argues that the Employer has not complied with the procedural requirements of

Article 24.04 by withholding the written version of Mr. Zinck’s complaint from the Union until the commencement of the hearing, and that its imposition of discipline is procedurally invalid. Thirdly, in response to the Employer’s culminating incident argument, the Union argues that the events of September 30 either do not constitute such an incident, or if they do are insufficiently related to the previous discipline to constitute the relevant culmination in a pattern.

Finally, the Union argues that the Employer has presented no evidence that the Grievor is incapable of rehabilitation and compliance with its needs (relying on his good performance from June 2005 to September 2005) such that the termination is disproportionate and unjust. [ 16 ] The arbitrator’s award of April 30, 2008 rejected each of the Union’s four submissions:

(1) Grounds for Discipline: The arbitrator (para 38) found:

I find that the Employer had grounds to discipline the Grievor as a result of the incident of September 30, 2005.

(2) Procedural Requirement of

Article 24.04: The award (paras 41-42) dismissed the union’s procedural argument based on

Article 24.04 of the collective agreement: The Union’s procedural argument is an important one, but ultimately one which can be shown to be inapplicable on the facts of this case. ... The Employer, in these circumstances, was certainly justified in concluding that the Grievor was unlikely to return to work in the near future. They were thus justified in sending him the letter of termination of October 18, 2005 by courier in compliance with their obligation under

Article 23.02.

Article 24.04 is simply not in issue.

(3) Culminating Incident: The arbitrator reviewed the circumstances and the grievor’s disciplinary history and found (para 40): The Employer’s termination letter of October 18, 2005 makes specific reference to ‘consideration of past incidents including the recent incident on September 30, 2005'. This was an entirely justifiable invocation of the culminating incident doctrine.

(4) Termination Disproportionate and Unjust: The award concluded that the termination of employment was “reasonable and proportionate”: 43. I have concluded that, setting aside any possible basis for a claim from the Grievor regarding a disability, the Employer has clearly and cogently demonstrated on a balance of probability that the Grievor engaged in conduct on September 30 which warranted discipline. Moreover, given the prior discipline which the Grievor had received on similar issues, the September 30 event appropriately constitutes a culminating incident.

On its face, the termination thus appears reasonable and proportionate, and not discriminatory. Indeed, the Employer has been extremely tolerant and understanding with the Grievor’s absences and only reluctantly invoked progressive discipline when forced to the wall by the Grievor’s erratic and unreasonable behaviour. [ 17 ] The award then discussed the issue of the grievor’s possible mental disability, which had not been cited in the parties’ submissions: 44.

The Grievor’s evidence, in my view, gives rise to a clear possibility that he has been suffering from depression, or perhaps other psychological conditions which could be connected to his absence problems and to his apparent incapacity or unwillingness to enter into open communication with his employer about work related issues. It is true that he was “thrown a life-line” which he may have refused to grasp. However, this could be part of the psychological problem, if there is one.

More importantly, the Union’s case, or at least its first line of defence, was that the Grievor could not be disciplined at all for technical reasons related to the “in the mall” argument or for procedural reasons related to

Article 24.04. This may have given the Grievor an unrealistic expectation that he could win his case without having to confront underlying personal issues which may be the root of the real problems in preventing him from reaching his potential as an otherwise valuable employee. 45. The arbitral jurisprudence concerning the duty upon employers AND unions to accommodate persons with disabilities has evolved rapidly in the last decade or so. The old approach to “innocent absenteeism”, for example, which was exemplified in the Molson Brewery case advanced by the Employer for other reasons, is no longer predominant.

Simpler forms of argument in previous arbitral jurisprudence about “frustration of contract” and “dismissal for incapacity” must now be read in the light of human rights doctrines which may, under appropriate circumstances, require employers and unions to accommodate an employee’s disability “to the point of hardship” before being able to justify a termination. A useful

summary of this now predominant approach can be found in Michael Lynk, “Disability and Work: The Transformation of the Legal Status of Employees with Disabilities in Canada” Law Society of Upper Canada Special Lectures 2007: Employment Law , (Irwin Law, Toronto, 2007) at pp. 189-257.

46. Some relevant aspects of disability accommodation in this context are as follows. Disability accommodation is a right of anemployee and imposes duties on both the employer and the union. Most importantly it can be asserted after a termination: see Quebec(Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City), [2000] 1S.C.R. 655. It may go further.

At leastone arbitration board has suggested it may apply to circumstances where an employee’s underlying grounds for disabilityaccommodation may not have been revealed or diagnosed until after dismissal: see Ottawa Civic Hospital and O.N.A. (re Hodgins) (1995), (ON LA), 48 L.A.C. (4th) 388 (R.M. Brown).

The jurisprudence appears to establish that the employeeseeking accommodation must establish: “(1) that he has a disability or is perceived to have one; (2) the causal link between his disabilityand the necessity for a workplace accommodation (which may include a physiological or medical explanation for alleged workplacemisbehaviour); and (3) the adverse disadvantage that the [sic - he] suffered as a consequence” (see Lynk, supra at p. 227).

If these stepsare satisfied then the onus shifts to the employer to meet the accommodation test in the Meiorin case: British Columbia (Public ServiceEmployee Relations Commission) v. British Columbia Government and Service Employees Union, (SCC), [1999] 3S.C.R. 3 (Meiorin). Clearly, the Grievor’s evidence raises a concern about these issues, but he has not met the three-fold initial onus.

However, there may be reasons related to the Union’s arguments in the case and the Grievor’s personal situation, as outlined above,which explain why the Grievor did not “grasp the life-line” which we see ultimately involves proof of three initial steps. [18] The award concluded by dismissing the grievance, confirming that there was just cause for dismissal and upholding thetermination of the grievor’s employment, subject to the condition subsequent that, within 30 days, the Union could seek to reopen thehearing by presenting evidence of mental disability and assert that HRM had a duty to accommodate: 47.

The bottom line is as follows.

Article 16.04 authorises me to dispose of a grievance by any arrangement which I deem just andequitable. I therefore dismiss the grievance and confirm the termination of the Grievor, subject to a condition subsequent which mayrender the dismissal defeasible. I hereby hold that the Employer’s evidence demonstrates just cause for dismissal, unless the Grievorand/or the Union can provide evidence which may be sufficient to meet the initial onus on an employee seeking disabilityaccommodation as outlined above. This requirement will presumably include expert medical evidence.

However, the accommodationjurisprudence does not impose a totally open-ended duty upon employer and/or union. The parties, including both Union and Employer,are entitled to closure at some point. Therefore, the Grievor shall have 30 days from the date of this award to inform the Union as towhether he wishes to have disability evidence presented on his behalf, indicating the nature of what this evidence shall be. Thisinformation, of course, must be shared with the Employer if the matter is to go forward.

I hereby retain jurisdiction to deal with anyprocedural and/or substantive consequences which may flow from this award. In the absence of the Union coming forward on theGrievor’s behalf with evidence relevant to the disability issue, the Grievor’s termination is hereby confirmed as of 30 days from theissuance of this award. [19] HRM applied for judicial review to a judge of the Supreme Court of Nova Scotia. Justice McDougall heard the application onJune 18, 2009 and issued a decision on June 17, 2010 (2010 NSSC 234).

The judge (para 43) said the issue of whether the arbitratorcould dismiss the grievance “subject to a condition subsequent which may render the dismissal defeasible” was jurisdictional, andgoverned by the correctness standard of review. The judge said that, under ss. 42(1) and (3) of the Trade Union Act, R.S.N.S. 1989, c.475, the arbitrator is to provide a “final” decision, and his defeasible award based on a condition subsequent was not final.

The judgeconcluded that the award exceeded the arbitrator’s jurisdiction, and quashed the portion of the award that provided the Union withanother opportunity to present medical evidence of the grievor’s disability. As a result, the arbitrator’s finding of just cause stands. [20] The Union appeals to the Court of Appeal. Issues [21] The Union’s factum says the judge erred by characterizing the matter as jurisdictional, attracting a correctness standard ofreview, and by concluding the arbitrator could not issue a defeasible award with the condition subsequent based on the new issue.

TheUnion submits that an arbitrator may consider human rights principles, such as accommodation for disability, and has proceduraldiscretion to bifurcate the hearing. HRM’s factum, in support of its notice of contention, challenged the arbitrator’s condition subsequenton several substantive and procedural bases. Standard of Review [22] In Canadian Union of Public Employees, Local 2434 v. Port Hawkesbury (Town), 2011 NSCA 28, paras 25-45, this Court

recently reviewed the authorities governing whether an issue is “truly jurisdictional” under Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. Justices LeBel and Bastarache in Dunsmuir, para 59, said that a “true question of jurisdiction” means“whether or not the tribunal had the authority to make the inquiry” and “whether its statutory grant of power gives it the authority todecide a particular matter”. In CUPE v Port Hawkesbury, para 27 this court said: (

b) The concept of decisional jurisdiction that preceded C.U.P.E. v. New Brunswick Liquor Corporation, (SCC), [1979]2 S.C.R. 227 is rejected. That former notion could stretch any error along the tribunal’s reasoning path into a jurisdictional impedimentto the next analytical step. Then jurisdictional review would elasticize into full appellate scrutiny. Dunsmuir forbids that approach. (

c) So a truly jurisdictional question means - - Is the door of legal authority open or shut to the tribunal’s inquiry on the matter? Thedecisional reasoning by a tribunal with that authority is not jurisdictional. [23] If existing jurisprudence establishes the standard of review, then a formal standard of review analysis is unnecessary:Dunsmuir, paras 62, 54, 57. The arbitrator’s

interpretation and application of the collective agreement according to principles of arbitraljurisprudence is reviewed for reasonableness: Communications, Energy and Paperworkers’ Union, Local 1520 v. Maritime PaperProducts Limited, 2009 NSCA 60, para 20; Cape Breton (Regional Municipality) v. Canadian Union of Public Employees, Local 933,2006 NSCA 80, paras 28-70; Nova Scotia Government and General Employees Union v. Capital District Health Authority, 2006 NSCA44, at paras 36-48; Nova Scotia Teachers Union v. Nova Scotia Community College, 2006 NSCA 22, para 15; Cape Breton-VictoriaRegional School Board v.

Canadian Union of Public Employees, Local 5050, 2011 NSCA 9, paras 23-26, 49, and authorities there cited.An arbitrator’s

interpretation and application of a statute, such as the Trade Union Act, that is closely connected to the arbitrator’sfunction is reviewed for reasonableness: Dunsmuir, para 54; Cape Breton -Victoria Regional School Board v. CUPE, Local 5050, paras21-26 and authorities there cited. [24] Later (para 37), I will refer to the principle of arbitral jurisprudence that “the submission to arbitration defines [the arbitrator’s]jurisdiction in a particular case”. That principle does not mean that a court should review such issues of arbitrability for correctness.

To treat arbitrability per se as “trulyjurisdictional” for judicial review would stray into the forbidden land of decisional jurisdiction. The arbitrator’s determination whether toconsider a particular issue usually involves the

interpretation of the collective agreement, or a factual finding such as whether the partiesagreed to supplement the submission to arbitration, or the

interpretation of the grievance “so the ‘real complaint’ is dealt with”. Theseconsiderations attract a deferential standard of review from the court: Parry Sound (District) Social Services Administration Board v.O.P.S.E.U., Local 324 , 2003 SCC 42 , [2003] 2 S.C.R. 157, paras 16, 68-69; Nova Scotia Government and General EmployeesUnion v. Capital District Health Authority, 2006 NSCA 85, paras 23, 34, 42, 47-53; Symington v. Halifax (Regional Municipality), 2007NSCA 90, para 46; Newfoundland and Labrador (Treasury Board) v. Newfoundland and Labrador Assn. of Public and PrivateEmployees, 2009 NLCA 15, paras 8-9. [25] In this case, the arbitrator relied on

Article 16.04 of the collective agreement: 47. The bottom line is as follows.

Article 16.04 authorizes me to dispose of a grievance by any arrangement which I deem just andequitable. I therefore dismiss the grievance and confirm the termination of the Grievor, subject to a condition subsequent which mayrender the dismissal defeasible. I will apply the reasonableness standard to the arbitrator’s use of

Article 16.04. I respectfully disagree with the judge’s choice of thecorrectness standard. [26] Reasonableness requires the reviewing court to determine whether (1) the tribunal expressed a sufficiently understandable ortransparent reasoning path so the reviewing court can assess the conclusion’s reasonableness, and (2) the tribunal’s conclusion occupiesthe set of reasonable outcomes: Dunsmuir, para 47; Lake v. Canada (Minister of Justice), 2008 SCC 23 , [2008] 1 S.C.R. 761, atpara 41; Cape Breton-Victoria Regional School Board v.

Canadian Union of Public Employees, Local 5050, paras 27-28, and authoritiesthere cited. The reasonableness standard is not a plenary dispensation for an arbitration award. Dunsmuir offers an example ofunreasonableness, where Justices LeBel and Bastarache said:

[74] The

interpretation of the law is always contextual. The law does not operate in a vacuum. The adjudicator was required to takeinto account the legal context in which he was to apply the law. The employment relationship between the parties in this case wasgoverned by private law. The contractual terms of employment could not reasonably be ignored. That is made clear by s. 20 of the CivilService Act. Under the ordinary rules of contract, the employer is entitled to discharge an employee for cause, with notice or with pay inlieu of notice.

Where the employer chooses to exercise its right to discharge with reasonable notice or pay in lieu thereof, the employer isnot required to assert cause for discharge. The grievance process cannot have the effect of changing the terms of the contract ofemployment. The respondent chose to exercise its right to terminate without alleging cause in this case.

By giving the PSLRA aninterpretation that allowed him to inquire into the reasons for discharge where the employer had the right not to provide or even havesuch reasons, the adjudicator adopted a reasoning process that was fundamentally inconsistent with the employment contract and, thus,fatally flawed. For this reason, the decision does not fall within the range of acceptable outcomes that are defensible in respect of thefacts and the law. To similar effect - Lévis (City) v.

Fraternité des policiers de Lévis Inc., 2007 SCC 14 , [2007] 1 S.C.R. 591, para 75; CapeBreton-Victoria Regional School Board, para 29. [27] HRM’s factum in support of its notice of contention makes submissions based on procedural fairness. The court’s review of thetribunal’s process, as opposed to the tribunal’s ultimate decision, generally lies outside the standard of review analysis.

In C.U.P.E. v.Ontario (Minister of Labour), 2003 SCC 29 , [2003] 1 S.C.R. 539, at para 102, Justice Binnie said: The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard ofreview is applied to the end product of his deliberations. To similar effect: Kelly v. Nova Scotia Police Commission, 2006 NSCA 27, paras 19-20, per Cromwell J.A. as he then was, andCommunications, Energy and Paperworkers Union of Canada, Local 141 v. Bowater Mersey Paper Co. Ltd., 2010 NSCA 19, paras 30-32 and authorities there cited.

The reviewing court must still define the procedural fairness duty’s content, with factors that include thetribunal’s delegated room to manoeuvre contemplated by its governing statute, the nature of the tribunal’s decision and the decision’simportance to the parties: Communications Workers, Local 141 v. Bowater Mersey, para 32 and cases there cited.

Analysis [28] I will analyse together the merits of the Union’s appeal and HRM’s notice of contention. [29] The Union submits that a labour arbitrator is entitled to consider human rights legislation, including the prohibition ofdiscrimination based on disability, and apply principles of accommodation to a dispute under the collective agreement. In support of theproposition the Union cites Parry Sound, paras 40, 52, 55 and Tranchemontagne v. Ontario (Director, Disability Support Program),2006 SCC 14 , [2006] 1 S.C.R. 513. The Union’s factum quotes U.S.W.A., Local 5885 v.

Sealy Canada Ltd. (2006), (AB GAA), 147 L.A.C. (4th) 68 (Smith), pp. 83-85, where the arbitrator said: Where an employee is suffering from a physical or mental disability that is implicated in the misconduct that has resulted in discharge,the conduct is not culpable... In determining this issue, the arbitrator is required to consider two questions: is there a pre-existing medical condition and is there anexus between that conduct and the medical condition?

If that is found to be the case, the Employer’s lack of knowledge as to the pre-existing condition is not permission to discriminate and the Employer must accommodate by considering that factor with respect to thedischarge. [30] Articles 3.01 and 3.02 of the collective agreement between HRM and the Union say:

3.01 The Employer agrees that there shall be no discrimination exercised or practiced with respect to any employee in the matter of ... discipline, ... discharge or any other action by reason of ... disability... 3.02 Any claim by an employee or the Union pertaining to a violation of the Constitution of Canada, The Human Rights Act ... may be the subject of a grievance which shall be processed in accordance with the Grievance Procedure.... [ 31 ] Clearly a labour arbitrator, particularly with wording as explicit as in

Article 3 of this collective agreement, may apply human rights principles governing discrimination and accommodation for disability. If that were the pivotal issue on this appeal, then I would uphold the award without hesitation. [ 32 ] As to the arbitrator’s process, the Union’s factum submits that “the arbitrator essentially bifurcated the hearing” in that “[h]e rejected the union’s first line of defence”, while permitting a “continued process” on the issue of accommodation for disability.

The Union acknowledges that the arbitrator “used terminology of ‘condition subsequent’, which is not normal”, but the arbitrator “had latitude for such creativity”. The Union submits that bifurcation is not unusual, and is within the arbitrator’s procedural discretion, citing as an example the late Professor Christie’s award in Cherubini Metal Works Ltd. v. U.S.W.A., Local 4122 (2008), 172 L.A.C, (4th) 1 . [ 33 ] If the critical issue involved just procedural bifurcation, this would be a straightforward appeal.

As Professor Christie said in Cherubini , when a preliminary issue can resolve the grievance and save the substantial effort and expense of litigating the secondary issue, then bifurcation achieves a sensible economy of resources. For example, arbitrators routinely determine issues of arbitrability with a severed preliminary ruling. I will add that normally, as in Cherubini , the parties are aware in advance or have an opportunity to comment on the proposed process, an opportunity not given here. Section 43(1) (

a) of the Trade Union Act says the arbitrator or arbitration board “shall determine his or its own procedure”.

An arbitrator’s exercise of discretion to bifurcate or sever in the interest of economy would attract a reviewing court’s substantial deference under the reasonableness standard of review. [ 34 ] With due respect to the Union’s able presentation in this court, neither the arbitrator’s substantive authority to consider human rights principles nor his procedural power to bifurcate the hearing is the crux of this appeal. [ 35 ] The Union, on the grievor’s behalf, made specific submissions to challenge the termination of the grievor’s employment. Accommodation for disability was not one of them.

The arbitrator, in mid-hearing, took the unusual step of “urging” the Union to expand its submission to include accommodation for disability because, otherwise, “the Grievor’s chances of success did not look good”. At the resumption of the hearing twelve weeks later, the Union and grievor declined the invitation (award para 26): The Grievor was reminded that the matter had been adjourned on the last day of hearings to enable him to obtain an assessment with respect to [a] personal issue affecting his conduct at his place of employment. When asked if he had obtained such an assessment, the Grievor replied “No”.

When asked if he intended to do so, the Grievor replied “No”. The arbitrator’s award recited the Union’s four closing arguments. There was no argument based on accommodation for disability. The parties closed their presentations and awaited what they expected to be a final award. There was no suggestion that accommodation for disability was a live issue, or that any issue would be severed to await further evidence or argument.

The arbitrator’s later award dismissed each of the Union’s four arguments. [ 36 ] After the hearing is over, may the arbitrator on his own initiative expand the parties’ submission to arbitration by injecting an issue that the parties expressly declined to raise? This is not a question whether an arbitrator may consider a human rights argument that has been submitted to arbitration. Nor is it a question whether an arbitrator may bifurcate the hearing of matters that have been submitted to arbitration. The Union’s four arguments at the hearing were not just a “first” line of defence.

That adjective incorrectly implies that, at the arbitration hearing, accommodation for disability was the Union’s second submission, just awaiting a bifurcated hearing for presentation of further evidence. The Union’s four arguments, that the award later rejected, were the Union’s only line of defence, and the only thing the parties were awaiting was the final award. [ 37 ] Donald J. M. Brown, Q.C., David M. Beatty and Christine E. Deacon, Canadian Labour Arbitration , 4th ed., looseleaf, (Aurora: Canada Law Book, 2010) summarizes the principle:

2:1300 The Submission to Arbitration Just as the collective agreement defines the general scope of the arbitrator’s jurisdiction, so the submission to arbitration defines hisjurisdiction in the particular case. As was stated by one arbitrator: This board is mindful of the fact that, unlike the Courts, it possesses no inherent jurisdiction and its jurisdiction and authority in theabsence of the mutual agreement of the parties, is that conferred upon it by the collective agreement and the grievance or submission toit. The submission may consist of the written grievance or it may be an independent document.

But regardless of the form, once thesubmission is made the arbitrator cannot of his own volition extend, amplify or add to the issues, or substitute other issues for or in lieuof the issues defined by the submission to arbitration. However, if there is agreement to do so or if there is conduct amounting toacquiescence in the modification of the submission then the arbitration board may thereby acquire jurisdiction.

Brown and Beatty cites many authorities, judicial and arbitral, for this proposition. [38] This is not a case where the arbitrator interpreted the grievance, the employer’s response, or the parties’ agreement at thehearing to determine that the parties intended to include the issue in the submission to arbitration. When asked on December 19 ifevidence was forthcoming on the issue, the grievor said “no” and confirmed he had “no” intention to generate such evidence in thefuture. The award (para 44) acknowledged: “It is true that he was ‘thrown a life-line’ which he may have refused to grasp”.

Thearbitrator specifically itemized the Union’s closing submissions, which did not cite disability or accommodation. There was no illusionthat accommodation for disability was the “real complaint” which was intended to be included in the submission to arbitration underParry Sound, paras 68-69. [39] The arbitrator (para 44) felt that “the Union’s case ... may have given the Grievor an unrealistic expectation that he could winhis case without having to confront underlying personal issues”. This was the arbitrator’s basis for the defeasible award with thecondition subsequent.

That is the reasoning to be tested under the reasonableness standard of review. [40] The grievor’s exclusive representative in the arbitration is the Union, which controls the presentation of the grievor’s case,subject to the Union’s duty of fair representation: Canadian Merchant Service Guild v. Gagnon, (SCC), [1984] 1 S.C.R.509, pp. 526-27; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, (SCC), [1990] 1 S.C.R. 1298, pp. 1327-29; Noël v. Société d’énergie de la Baie James, 2001 SCC 39 , [2001] 2 S.C.R. 207, para45; Bisaillon v.

Concordia University, 2006 SCC 19 , [2006] 1 S.C.R. 666, para 24; Trade Union Act, s. 54A(3), added byS.N.S. 2005, c. 61, s. 7. [41] On September 26, the arbitrator “urged [the Union’s counsel] to speak to the Grievor in order to see if he were willing to bringsuch matters into the open” and informed counsel that “the Grievor’s chances of success did not look good” without an explanation that“could provide the basis of an accommodation on the part of the Employer” (award para 24).

Once the arbitrator delivered that messageto the Union in mid-hearing, the arbitrator should have let the Union do its job of fashioning the arbitration strategy on the grievor’sbehalf, which includes how to handle the arbitrator’s “life line”. Once the Union and HRM closed their presentations, the job of thearbitrator’s award was to determine the issues that had been presented in the submission to arbitration.

The award should not havebecome an instrument to reiterate the arbitrator’s September 26 advice to the Union, or a medium to second guess the effectiveness of theUnion’s communication to the grievor of that earlier advice or circumvent the Union by conveying strategic counsel directly to thegrievor. [42] This unique defeasible disposition with the condition subsequent was a well intended effort to influence the Union’s trialstrategy. There is no difficulty with the arbitrator’s advice on September 26. A frank conversation with both counsel in mid-trial maychannel the ongoing hearing to an expedient resolution.

But once the parties have closed their evidence and argument, the arbitratorshould not be moulding one side’s trial strategy, and his award should reflect the arbitrator’s role as the objective decision maker. [43] The arbitrator said:

“47. The bottom line is as follows.

Article 16.04 authorizes me to dispose of a grievance by any arrangement which I deem just and equitable. I therefore dismiss the grievance and confirm the termination of the Grievor, subject to a condition subsequent which may render the dismissal defeasible. [ 44 ]

Article 16.04 says: 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 provisions or make any decision contrary to the provisions of this agreement. However, the Arbitrator shall have the power to modify penalties or dispose of a grievance by any arrangement which it deems just and equitable. [ 45 ] I disagree that

Article 16.04 allows an arbitrator, on his own initiative, to inject an issue that the parties have decided to exclude from the submission to arbitration. In this respect I reiterate the principles from Brown and Beatty quoted earlier (para 37). Neither do I accept that the

article allows an arbitrator to transform what the parties expected to be the final award into a message with ongoing trial advice to one of the parties. Nor should the arbitrator supplant or compete with the Union as the grievor’s strategic counsellor. In my view, no reasonable

interpretation of “arrangement which [the arbitrator] deems just and equitable” in

Article 16.04 authorizes such a substantial departure, in these respects, from fundamental principles. [ 46 ] The arbitrator’s condition subsequent that would render his award defeasible fails to satisfy the reasonableness standard of review. I would dismiss the appeal and affirm the judge’s order, though for different reasons. [ 47 ] It is unnecessary to consider HRM’s submission that there was a breach of procedural fairness. Conclusion [ 48 ] I would dismiss the appeal and order the Union to pay HRM costs of $2,500 plus reasonable disbursements for the appeal. Fichaud, J.A. Concurred: Hamilton, J.A. Farrar, J.A.