) ) FANSHAWE COLLEGE OF APPLIED ARTS v. TECHNOLOGY, 2013 ONSC 595

CITATION: Fanshawe College v. Ontario Public Service Employees Union, 2013 ONSC 595 DIVISIONAL COURT FILE NO.: 404/12 DATE: 20130124 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT ASTON, HERMAN AND RAY JJ. BETWEEN: ) ) FANSHAWE COLLEGE OF APPLIEDARTS AND TECHNOLOGY Applicant – and – ONTARIO PUBLIC SERVICE EMPLOYEESUNION Respondent ))))))))))) Frank Cesario and Elisha C. Jamieson, for the Applicant David R. Wright and Timothy R. Hannigan, for the Respondent ) ) ) HEARD at Toronto: January 24, 2013 ASTON J. (orally) [1] Fanshawe College applies for judicial review of an arbitration award, dated July 9, 2012.

The award dismissed the Union’spolicy grievances but allowed two individual grievances. The College seeks to quash the award on the individual grievances. Thedismissal of the Union’s policy grievances is not under review. [2] Ms. MacIntosh and Ms. Vermeulen each filed grievances in which they claimed to have worked a sufficient number of “fullmonths” under Appendix V of the Collective Agreement to qualify for a rollover from sessional employees to probationary regularemployees.

As sessional employees they are excluded from the bargaining unit for academic employees. [3] The issue turns on the calculation of a “full month” under para. 3 of Appendix V which in turn requires an

interpretation ofthe words “days worked”. In each grievance the Board found that the sessional employee had attained a full time probationary status,bringing her within the bargaining unit. The reasons for that conclusion are found at pages 10-12 of the award. [4] The standard of review in this court is reasonableness. [5] We accept the submission of counsel for the applicant that the reasons are unintelligible on their face. However, we aremindful that there are circumstances in which a reviewing court can look beyond the reasons to the record itself in order to determine ifthe decision is reasonable.

Insufficiency of reasons is not a stand-alone basis for quashing or reversing the decision below. (SeeNewfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board), 2011 SCC 62 , [2011] 3 S.C.R.708 at paras. 8 and 11-15) [6] The principle is that a reviewing Court “must first seek to supplement reasons before it seeks to subvert them.” On the otherhand there is a difference between looking at the record to supplement reasons for the purpose of assessing on balance whether thedecision is reasonable and looking at the record to assess the possibility that the decision might be reasonable. [7] Judicial review, when it demands deference, is only a meaningful process if there is some way of ascertaining how and why

the decision-maker reached the conclusion that it did. In this case the reasons are not merely inadequate, they are incomprehensible and fail the minimum requirements that would require us to afford deference.

Moreover, it is not appropriate for this Court to engage in a process of deciding the issue de novo or speculating about what the arbitration board considered or failed to consider. [ 8 ] To highlight just one example, the sessional employment contracts seem to provide a higher hourly rate of pay for actual classroom hours because the hourly rate explicitly includes “preparation time, marking time, evaluations, parking and travel”. Is this irrelevant to how many hours or days a sessional instructor gets credit for in the calculation of “days worked?” Why should it be irrelevant?

Why would non-classroom time, recognized by a higher rate of pay for actual classroom hours, also effectively give the sessional instructor credit for five days worked in a week when the actual classroom days are only two? [ 9 ] It may be that there is a line of reasoning which would support the arbitration award but we simply cannot determine from the reasons or the record whether the decision is reasonable or not.

If we were to give deference to this decision, it would be blind deference. [ 10 ] The award is therefore quashed respecting the individual grievances and those grievances are remitted to a newly constituted Board of Arbitration for determination. [ 11 ] I have endorsed the Record on behalf of the panel: The application is allowed. The Award is quashed and the individual grievances are remitted to a newly constituted Board of Arbitration for determination. The applicant is entitled to costs fixed at $5,000 all inclusive. ASTON J. HERMAN J. RAY J.

Date of Reasons for Judgment: January 24, 2013 Date of Release: January 28, 2013 CITATION : Fanshawe College v. Ontario Public Service Employees Union, 2013 ONSC 595 DIVISIONAL COURT FILE NO.: 404/12 DATE: 20130124 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT ASTON, HERMAN AND RAY JJ. BETWEEN:

FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY Applicant – and – ONTARIO PUBLIC SERVICE EMPLOYEES UNION Respondent ORAL REASONS FOR JUDGMENT ASTON J. Date of Reasons for Judgment: January 24, 2013 Date of Release: January 28, 2013