) ) Ontario Educational Communications Authority Applicant - v. -, 2013 ONSC 3307

CITATION : Ontario Educational Communications v. Communications, Energy and Paperworkers Union, 2013 ONSC 3307 DIVISIONAL COURT FILE NO.: 90/12 DATE: 2013/06/12 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Molloy, Hambly, Herman J.J.

BETWEEN: ) ) Ontario Educational Communications Authority Applicant - and - Communications, Energy and Paperworkers Union of Canada, Local 72M - and - The Canadian Media Guild Respondents )) )) )) )) ))))))))) Frank Cesario, Carolyn Greaves , for the Applicant Douglas Wray , for the Respondent, Canadian Energy and Paperworkers Union of Canada, Local 72M Patricia DÕHeureux, Shaun OÕBrien , for the Respondent, The Canadian Media Guild ) ) ) HEARD: April 17, 2013 Herman J. [ 1 ] The applicant, the Ontario Educational Communications Authority (ÒTVOÓ) brings this application for the judicial review of an arbitration award of Marilyn Nairn, Arbitrator, dated September 6, 2011. [ 2 ] The Arbitrator found that TVO had breached its collective agreement with the Communications, Energy and Paperworkers Union of Canada, Local 72M (ÒCEPÓ) by allowing non-bargaining unit members, that is, members of The Canadian Media Guild (ÒCMGÓ) to perform CEP bargaining unit work. [ 3 ] The dispute arises from the recording of two interviews by a CMG member.

She recorded the interviews for the purpose of research for an

article she was writing. TVO subsequently decided to post the interviews on its website. [ 4 ] The Arbitrator supported CEPÕs position that, while the recording of an interview by a CMG bargaining unit member for the purpose of research was permissible, the recording of an interview posted on the TVO website had to be done by a member of the CEP bargaining unit.

The parties and their positions TVO [ 5 ] TVO is a leading creator and disseminator of educational content for children and adults in Ontario. [ 6 ] TVOÕs principle argument in this application is that the work, when it was performed, was done for the purpose of research and was therefore properly done by a CMG member. While the recording was later posted on-line, there is nothing in the collective agreement that speaks to the use of content.

Furthermore, the ArbitratorÕs decision leads to an absurd result, that is, every time a producer wants to record an interview for research purposes, he or she will have to call in a CEP member to push a button or click a computer mouse, in case a decision is subsequently made to post the recorded interview. CEP [ 7 ] CEP is the exclusive bargaining agent for a bargaining unit which includes TVOÕs broadcast employees and technicians. One of their duties is the recording of TVOÕs television projects and other TVO project. [ 8 ] CEP submits that the decision of the Arbitrator was reasonable.

The wording of the collective agreement is clear: when content is broadcast, either on television or on-line, the recording of that content must be done by a CEP member. It was open to TVO to request a waiver or negotiate an exception under the collective agreement, but TVO did not do so.

CMG [ 9 ] CMG is the exclusive bargaining agent for TVO employees who appear on air or whose core functions are the preparation, creative development, production and completion of programs for broadcast on television and the Internet, and education programs, products and services. [ 10 ] CMG was granted standing to participate in the arbitration hearing. It was granted full rights as a party and undertook that it would be bound by the ArbitratorÕs award. [ 11 ] CMG supports TVOÕs position.

CMG further submits that the Arbitrator breached procedural fairness when she refused to consider CMGÕs argument that the principle of de minimis should be applied to the work in question. Background [ 12 ] The work that gave rise to this grievance was the recording of telephone interviews by Ms. Michaelis, a member of CMG. [ 13 ] Ms. Michaelis is a producer at TVO. She conducted the interviews in question with experts on autism as part of her research for an

article on that subject. The

article was intended to be posted on the TVO website, TVOParents.com. [ 14 ] TVOParents.com was launched in 2007. Its purpose is to help parents become more engaged in their childrenÕs education. TVO wants to build an online community and create opportunities for conversation and communication, including links to research studies and TVO research, content-sharing with other education-based organizations, and video and audio offerings. [ 15 ] When Ms. Michaelis recorded the interviews in question, she used CallParrot technology. Prior to using CallParrot, Ms.

Michaelis recorded her interviews using a cassette tape recorder. Her tape recorder broke and TVO installed CallParrot on her phone. Once CallParrot was installed, all Ms. Michaelis had to do to record an interview was press a record button or click a computer mouse. [ 16 ] TVO producers have historically recorded interviews for research and note-taking purposes. It was Ms.

MichaelisÕs practice to record all her interviews in order to be able to quote accurately. [ 17 ] CEP members were not involved in the recording of the interviews. [ 18 ] After the interviews were done, TVO decided that direct access to two of the interviews by users of TVOParents.com would enhance the materials available to them. The interviews were then posted on the website as podcasts, available through links in Ms. MichaelisÕs article. [ 19 ] In order for the interviews to be posted as podcasts, the digital recordings were converted to an MP3file. This work was done by a CEP member.

An introduction to at least one of the podcasts was later recorded and added. This recording was also done by a CEP member. [ 20 ] CEP does not object to Ms. Michaelis and other CMG members recording interviews for research purposes. They also do not object to the articles being posted on the TVOParents.com website. They do, however, object to the posting of the audio recordings of the interviews.

The collective agreement between TVO and CEP [ 21 ] The applicable provisions of the collective agreement are Articles 9.1, 9.1.2 and 10.1: 9.1 The Authority agrees to continue the present practice of assigning duties, as described in

Article 10, relating to the preparation, administration, audition, rehearsal, recording and/or broadcast of the AuthorityÕs television programs or other Authority projects , to employees as defined in

Article 2. É

9.1.2 The Union agrees that the Authority shall not be required to alter existing practices with regard to the following: [a series of exceptions are listed whereby non-CEP members can operate non-broadcast quality equipment for various specified purposes] É (

c) The AuthorityÕs staff may handle and operate outside of VTR editing rooms and outside broadcast vehicles, non-broadcast quality videotape equipment and other such technology for instruction, content evaluation , pre-editing screening and post-production conditioning, which does not include physical or electronic editing or preparation for broadcast É É 10.1 Local 72M bargaining unit employees shall perform all the duties set out in

Article 9.1 pertaining to the AuthorityÕs operations and shall set up, operate and maintain professional television equipment and accessories.

Such duties apply principally to: Presentation of programs and other educational materials, rehearsal of programs, recording and/or auditions, the preparation of material and/or designs for programs and maintenance, some design of equipment, systems or materials and certain ancillary administrative functions. [emphasis added] The ArbitratorÕs reasons [ 22 ] The Arbitrator reviewed the positions of the parties. [ 23 ] CEP did not object to producers recording telephone interviews for research purposes.

However, it took the position that the recorded interviews could only be posted on the TVO website if the recording had been done by a CEP bargaining unit member. None of the exceptions in the collective agreement applied and TVO did not obtain a waiver or consent from CEP to have the work performed by a member of CMG. The work encompassed by the collective agreement was not restricted to television, but included on-line postings on TVOÕs websites. [ 24 ] It was TVOÕs position at the hearing that the work in question properly fell within the work of a producer, a member of CMG.

CEPÕs claim that a CEP technician must be available to click a mouse or press a button leads to an impractical result, not supported by the collective agreement. TVO also took the position that

Article 9.1 of the collective agreement was limited to television. [ 25 ] It was CMGÕs position that the work in question properly fell within CMGÕs jurisdiction. The recording of the interviews was incidental to the producerÕs responsibility for the creation of content. CMP also argued that the principle of de minimis should be applied. [ 26 ] The Arbitrator refused to consider the de minimis issue on the basis that both TVO and CEP had asked that she not resolve the issue on that basis. [ 27 ] The Arbitrator indicated that the heart of the dispute was the proper

interpretation of Articles 9.1 and 10.1 of the collective agreement. She noted that there was a circularity to these provisions, in that each provision referred to the other in seeking to define the assignment and performance of duties. [ 28 ] With respect to the scope of duties referred to in

Article 10.1, the Arbitrator concluded that those duties were not limited to television and would include the production of Òweb-destined contentÓ. Thus, she concluded that material recorded and posted as a podcast falls within a category of work that is properly described in

Article 10.1 as the recording and broadcast of a TVO project. [ 29 ] The Arbitrator was satisfied that when Ms. Michaelis recorded the interviews, she did so for the purpose of research. She was also satisfied that recording for research purposes by a non-CEP bargaining unit member was permitted under

Article 9.1.2(

c) of the collective agreement as Òcontent evaluationÓ, or by practice. Furthermore, the Arbitrator indicated that the evidence did not support a conclusion that CEP members had lost any hours of work as a result of the work done by Ms. Michaelis. [ 30 ] However, in the ArbitratorÕs opinion, the intended purpose of the recordings changed when a decision was made to make the interview available on the website.

The Arbitrator held that, in accordance with the terms of the collective agreement, recordings for broadcast on a website must be done by members of the CEP bargaining unit. [ 31 ] The Arbitrator noted that the grievance, while seemingly trivial, reflected a broader concern. If the grievance were dismissed, it would arguably allow TVO to make recordings ostensibly for research, using people other than CEP bargaining unit members and then repurpose the recordings for broadcast.

This would result in a significant incursion into CEPÕs jurisdiction over recording. [ 32 ] The Arbitrator concluded: I find that the work of recording for broadcast purposes, which includes posting as a podcast, is the exclusive work of members of the CEP bargaining unit. I further find and hereby declare that the employer violated Articles 9.1 and 10.1 of the collective agreement when it posted as podcasts on its website, recordings of telephone interviews made by Ms. Michaelis for research purposes, using CallParrot software.

Finally, I hereby direct the employer to cease and desist from posting on its websites, recordings made by persons who are not members of the CEP bargaining unit using CallParrot software. Standard of Review [ 33 ] The parties agree that the applicable standard of review is reasonableness, with the exception of CMGÕs argument that there

has been a breach of procedural fairness, in which case no standard of review applies. [34] In Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] S.C.J. No. 9 (S.C.C.) at para. 47, the standard ofreasonableness was explained as follows: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: 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 ofacceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [35] In considering the application of the Dunsmuir principle to a labour arbitration, Abella J. explained in Newfoundland andLabrador NursesÕ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 , [2011] S.C.J. No. 62 (S.C.C.) atpara. 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 arbitratorÕs decision should be set aside if the decision itself is in the realm of reasonable outcomes. Reviewingjudges should pay Òrespectful attentionÓ to the decision-makerÕs reasons, and be cautious about substituting their own view of theproper outcome by designating certain omissions in the reasons to be fateful.

Analysis Was it reasonable of the Arbitrator to conclude that TVO had violated the collective agreement when it posted recordings of interviewson its website that were not recorded by a member of the CEP bargaining unit? [36] The Arbitrator concluded that: Òwork of recording for broadcast purposes, which includes posting as a podcast, is theexclusive work of members of the CEP bargaining unitÓ and TVO therefore violated the collective agreement. [37] TVO and CMG argue that this conclusion is unreasonable in view of the fact that the work was not done for the purpose ofbroadcasting.

Rather, the recording was done for the purpose of research. In their submission, the Arbitrator improperly andunreasonably focused on the ultimate ÒuseÓ of the recording rather than the purpose for which the work was assigned and performed. [38] CEP raised a preliminary objection to this argument on the basis that TVO raised this argument for the first time at thehearing of the application for judicial review.

However, both TVO and CMG contend that the issue was argued before the Arbitrator. [39] Based on a review of the ArbitratorÕs reasons, it appears that the Arbitrator did consider the issues of ÒuseÓ andÒpurposeÓ.

The Arbitrator indicates, for example, that the Òcollective agreement explicitly recognizes the use (ÒpresentationÓ andÒbroadcastÓ) of the product as fundamentally relevant to the work jurisdictions claimÓ (at para. 101) and refers, in her conclusion, toÒwork of recording for broadcast purposesÓ (at para. 103) [emphasis added]. [40] Furthermore, it cannot be said that CEP was unfairly disadvantaged at the hearing of the application for judicial reviewbecause CMGÕs Factum squarely raises this argument. [41] CEPÕs submission on the merits is that the provisions of the collective agreement clearly provide that the recording of workposted on-line must be done by a CEP member.

The work did not fall under any of the exceptions set out in

Article 9.1.2. In any case,the ArbitratorÕs conclusion is reasonable, falling well within the range of Òpossible, acceptable outcomesÓ (Dunsmuir, at para. 47). [42] CEP points out that TVO could have requested a waiver from CEP permitting a CMG member to do the work or TVO couldhave negotiated the issue at the bargaining table. However, TVO did neither. [43] CEP echoes the ArbitratorÕs broader concern, that is, if the grievance were allowed, there would be nothing to prevent TVOfrom ostensibly recording something for research purposes and then repurposing it for broadcast purposes. [44] The starting point of the analysis must be the provisions of the collective agreement.

Article 9.1 provides that TVO willÒcontinue the present practice of assigning dutiesÉrelating toÉthe recording and/or broadcastÓ.

Article 10.1 provides that the CEPbargaining unit members Òshall perform all the duties set out in

Article 9.1Ó, which include ÒrecordingÓ. [emphasis added] [45] There is no dispute that recording for research purposes by a non-CEP bargaining unit member is permitted, either pursuant toArticle 9.1.2 or by practice. [46]

Article 9.1 refers to the Òassigning of dutiesÓ.

When the duty in question was assigned, that is, the recording of interviews, itwas legitimately assigned to a CMG member as part of her job to conduct research for articles. [47] Furthermore, at the time the work was performed, it was done for the purpose of research and was therefore legitimatelyperformed by a person who was not a member of the CEP bargaining unit. [48] Once there was work to be performed for the purpose of broadcasting, that is, the conversion to an MP3file and the recordingof an introduction, it was done by a CEP bargaining unit member. [49] In my opinion, the collective agreement speaks to the assignment and performance of work.

It speaks to the purpose forwhich the work is performed, not to the ultimate use to which the product of that work may be put. The purpose of recording theinterview was part of Ms. MichaelisÕs core function, that is, to research and write an article. It took seconds to accomplish.

[50] In Global Can-West v. Communications Energy and Paperworkers Union of Canada, Local 814-M (Browser Grievance),[2005] C.L.A.D. No. 225, the Arbitrator dismissed the unionÕs grievance concerning the use of a piece of equipment called the ÒI-BrowserÓ. A traffic reporter, a non-bargaining unit member, had used the I-Browser as part of an on-air broadcast.

According to thepartiesÕ collective agreement, the bargaining unit members were responsible for the operation of television equipment. [51] Arbitrator Burke considered whether the use of the I-Browser by the traffic reporter changed the traffic reporterÕs corefunction, that is, the delivery of the traffic report, and concluded that it did not.

The traffic reporterÕs duties remained the same and theuse of the I-Browser took less than a minute (at para. 49). [52] Arbitrator Burke went on to consider the effect of the provision of the collective agreement that gave bargaining unit membersthe jurisdiction to use equipment. The Arbitrator stated at para. 52: The provision [of the collective agreement] must be interpreted in the context of the entire collective agreement and the practice of theparties.

When a particular piece of equipment is at issue, the purpose for which that equipment is being used must be considered, alongwith the past experience that has been expressly or implicitly acknowledged by the parties. [53] In Teamsters, Local 879 v. Greenline Resins Inc. (Parker Grievance), [2006] O.L.A.A. No. 456, a case involving thesignificance of seniority in short-term lay-off situations, one of the issues the Arbitrator had to consider was the task of the transferringand weighing of some boxes of materials. The evidence was that the task took about 12 minutes to accomplish.

Arbitrator Lynk statedat para. 65: ÉI would have no trouble in such circumstances in applying the parallel reasoning from cases involving the performance of bargainingunit work by non-bargaining unit personnel: industrial relations realism demands that the de minimus performance of such work byanother bargaining unit member is tolerable where the work performed was insignificant and strict compliance with the agreement wouldhave resulted in an impractical result.

If the Employer can establish that there was no practical alternative to the performance of thework in question given the manner that it was directed and performed, and this work involved a relatively minute task in terms of timeand energy, then a substantive breach of the collective agreement will not ordinarily be found. [54] In my opinion, the Arbitrator in this case unreasonably focused on a subsequent use of the recording rather than the purposefor which the recording was made.

It was, in my opinion, unreasonable to conclude that TVO cannot post content on its website that waslegitimately recorded by a member of CMG at the time the recording was made, in furtherance of one of her core functions. [55] The result of the ArbitratorÕs decision is that TVO has three alternatives: it could ask CEP for a waiver, which may or maynot be granted; it could have a CEP member come in to press a button or click a mouse every time a CMG member wanted to record aninterview, in the event a decision was subsequently made to post a recording of the interview; or it could refrain from posting otherwiseuseful information on its website.

The first alternative leaves it up to CEP to decide, the second alternative is impractical and the thirdalternative is, in my opinion, unreasonable. [56] It was also, in my opinion, unreasonable to suggest that the dismissal of the grievance would allow TVO to make recordingsostensibly for research and then repurpose them for broadcast in the absence of any evidence. There was no evidence that TVO had inthe past or might in the future have CMG members record interviews for the purpose of posting them on-line, thereby avoiding therequirements of the collective agreement. Indeed, the evidence was that Ms.

Michaelis and other CMG members commonly recordedinterviews for the purpose of research. Once TVO decided to post the interviews, the work was done by a CEP member. [57] CEP has a broader concern with respect to the loss of work traditionally done by CEP bargaining unit members as a result oftechnology. However, in the circumstances of this case, there was no work that was lost because CMG members historically recordedtheir interviews.

Indeed, there was arguably work gained, in that once the decision was made to post the interviews on the website, thework was done by a CEP bargaining unit member. [58] In my opinion, the ArbitratorÕs

interpretation and application of the collective agreement to the facts of this case was notreasonable. It does not fall within the range of possible, acceptable outcomes. Was it a breach of procedural fairness for the Arbitrator to refuse to consider CMGÕs de minimis argument? [59] CMG raised the principle of de minimis at the Arbitration hearing. Both TVO and CEP took the position that they wereseeking an

interpretation of the collective agreement. They did not want a decision based on whether the amount of work involved wasde minimis. [60] The Arbitrator declined to consider the application of de minimis because Òthe dispute is fundamentally between those mainparties [TVO and CEP]Ó and those two parties had asked her not to deal with the issue on that basis. [61] However, the Arbitrator had granted CMG full rights as a party to the proceeding.

CMG was bound by the award in the samemanner and to the same extent that TVO and the CEP were bound by it. [62] Once a party is granted the full rights of a party, the Arbitrator cannot then vary the way in which those rights are exercised(see Henderson and Ontario Securities Commission, (ON SC), [1976] O.J. NO. 2342 (H.C.J.) at para. 10). [63] The Arbitrator granted CMG the full rights of a party. Having done so, it was, in my opinion, a breach of procedural fairnessfor the Arbitrator to refuse to consider CMGÕs argument on the basis that the other two parties did not want it considered.

Conclusion [64] The Arbitrator determined that TVO had violated the collective agreement when it posted recordings of telephone interviewson its website that had been made for the purpose of research by a non-CEP bargaining unit member.

[ 65 ] In my opinion, this decision is unreasonable. It does not fall within the range of possible, acceptable outcomes. When the work was performed, it was legitimately done by a non-CEP bargaining unit member. The work in question was in support of the core functions of the CMG member and took a few seconds to carry out.

The ArbitratorÕs decision leads to an impractical and unreasonable result. [ 66 ] I also conclude that there was a breach of procedural fairness when the Arbitrator refused to consider CMGÕs argument with respect to the application of the de minimis principle. [ 67 ] Ordinarily, where a party is successful in an application for judicial review, the matter is sent back to the Arbitrator or another Arbitrator for another hearing. However, in the circumstances of this case, there is no purpose to be gained in doing so.

There either was a violation of the collective agreement or there was not. [ 68 ] Had my decision rested solely on the basis of the denial of procedural fairness, I would have sent the matter back so that the argument of de minimis could be considered. [ 69 ] The application for judicial review is therefore granted and the decision of the Arbitrator is quashed. [ 70 ] The parties agreed that the successful party or parties would receive $6,000 in costs. CEP will therefore pay a total costs award of $6,000, inclusive of HST and disbursements, to TVO and CMG, to be allocated between them. Herman J. Molloy J.

Hambly J. Released: June 12, 2013 CITATION : Ontario Educational Communications v. Communications, Energy and Paperworkers Union, 2013 ONSC 3307 DIVISIONAL COURT FILE NO.: 90/12 DATE: 2013/06/12 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Molloy, Hambly, Herman J.J. BETWEEN:

Ontario Educational Communications Authority Applicant - and - Communications, Energy and Paperworkers Union of Canada, Local 72M - and - The Canadian Media Guild Respondents REASONS FOR JUDGMENT Released: June 12, 2013