) ) INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 105 Applicant – v. –, 2010 ONSC 6152

CITATION : Int’l Brotherhood of Electrical Workers v. Aecon Industrial, 2010 ONSC 6152 DIVISIONAL COURT FILE NO.: 87/10 DATE: 20101108 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT FERRIER, MOLLOY AND HERMAN JJ. BETWEEN: ) ) INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 105 Applicant – and – AECON INDUSTRIAL, A DIVISION OF AECON CONSTRUCTION GROUP INC. and ONTARIO LABOUR RELATIONS BOARD Respondents )) )) )) )) )))))) Stephen B. D. Wahl , for the Applicant Carl W.

Peterson and Melanie McNaught, for the Respondent, Aecon Industrial, A Division of Aecon Construction Leonard Marvy , for the Respondent, Ontario Labour Relations Board ) ) ) HEARD at Toronto: November 8, 2010 MOLLOY J. (orally) [ 1 ] This case involves the

interpretation of a term of a Collective Agreement by a Labour Arbitrator. The parties agree that the standard of review is reasonableness. [ 2 ] The Arbitrator interpreted a provision dealing with when the “employer” as opposed to the “employee” was required to provide protective clothing.

The applicable provision of the Agreement states: 18.200 The Company accepts the responsibility to provide coveralls and all necessary protective clothing required for working conditions which are exceptional or would lead to speedier deterioration of personal clothing, than under normal or usually accepted working conditions. [ 3 ] The employer in this case required all persons on the worksite to wear “metatarsal safety boots” which provide somewhat greater protection than the more widely used “green tag safety boots”. Most employers in the industry do not require the metatarsal safety boots.

The Union argued that this is therefore an “exceptional” working condition and that the employer was obliged to supply the metatarsal boots. [ 4 ] The Arbitrator accepted the employer’s argument that there was nothing about the working conditions per se that was exceptional. This metatarsal boot requirement was simply an enhanced safety policy. [ 5 ] In so finding, the Arbitrator was merely interpreting the words “working condition” as used within the context of this narrow provision.

He was not thereby as suggested by the Union, rejecting longstanding jurisprudence that the term “working conditions” must be given a broad

interpretation. [ 6 ] There is some ambiguity in the language used in the agreement. The Arbitrator took a contextual approach to its

interpretation. In Dunsmuir v. New Brunswick 2008 SCC 9 , [2008], 1 S.C.R. 190 at para.47, the Supreme Court of Canada heldthat a decision is reasonable if it “falls within a range of possible acceptable outcomes which are defensible in respect of the facts andlaw”. The Arbitrator’s decision in this case clearly falls within that spectrum. It is rational and supported by clearly articulated reasons. We see no basis to interfere. FERRIER J. [7] For oral reasons delivered this day, the application is dismissed. Costs payable by the Union to Aecon on consent, fixed at$5,000.00. No costs to the OLRB. MOLLOY J.

FERRIER J. HERMAN J. Date of Reasons for Judgment: November 8, 2010 Date of Release: November 19, 2010 CITATION: Int’l Brotherhood of Electrical Workers v. Aecon Industrial, 2010 ONSC 6152 DIVISIONAL COURT FILE NO.: 87/10 DATE: 20101108 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURTFERRIER, MOLLOY AND HERMAN JJ. BETWEEN:

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 105 Applicant – and – AECON INDUSTRIAL, A DIVISION OF AECON CONSTRUCTION GROUP INC. and ONTARIO LABOUR RELATIONS BOARD Respondents ORAL REASONS FOR JUDGMENT MOLLOY J. Date of Reasons for Judgment: November 8, 2010 Date of Release: November 19, 2010