) ) ALGONQUIN COLLEGE Applicant – v. –, 2017 ONSC 2500

CITATION : Algonquin College v. Ontario Public Service Employees Union, 2017 ONSC 2500 DIVISIONAL COURT FILE NO.: 123/17 DATE: 20170531 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, LINHARES de SOUSA and SPIES JJ. BETWEEN: ) ) ALGONQUIN COLLEGE Applicant – and – ONTARIO PUBLIC SERVICE EMPLOYEES UNION and LOUIS M. TENACE, in his capacity as Arbitrator Respondents ) ) ) ) ) ) ) ) )))) Jock Climie , for the Applicant Wassim Garzouzi and Amanda Montague- Reinholdt , for the Respondent Union ) ) ) HEARD at Toronto: April 20, 2017 Swinton J.

Overview [ 1 ] The applicant, Algonquin College (the “College”), seeks judicial review of an arbitration award dated June 4, 2016 in which the arbitrator ruled that an individual’s grievance was arbitrable under the collective agreement governing full time support staff. For the reasons that follow, I would grant the application for judicial review, as the arbitration decision was unreasonable.

The Labour Relations Context [ 2 ] Labour relations between all Ontario Colleges of Applied Arts and Technology and the Ontario Public Service Employees Union (the “Union”) are subject to a special regime governed by the Colleges Collective Bargaining Act, 2008 , S.O. 2008, c. 15 (the “ CCBA ”).

Schedule 1 of the CCBA prescribes statutory bargaining units for academic and support staff of the colleges.

Section 3 prescribes the full time support staff unit as: The full time support staff bargaining unit includes all persons employed by an employer in positions or classifications in the office, clerical, technical, health care, maintenance, building service, shipping, transportation, cafeteria and nursery staff, but does not include, … (

e) persons who are included in the part time support staff bargaining unit; … [ 3 ]

Section 4 then prescribes the part time support staff unit:

(1) Subject to subsection (2), the part time support staff bargaining unit includes, (

a) all persons regularly employed by an employer for not more than 24 hours a week in positions or classifications in the office, clerical, technical, health care, maintenance, building service, shipping, transportation, cafeteria and nursery staff; and (

b) all persons employed by an employer for a project of a non-recurring kind in positions or classifications in the office, clerical, technical, health care, maintenance, building service, shipping, transportation, cafeteria and nursery staff. [ 4 ] The Union is the certified bargaining agent for the full time support staff unit. The part time support staff are not unionized. [ 5 ] The collective agreement for the full time support staff unit is a province-wide agreement between the College Employer Council and the Union.

Article 1, the recognition clause, defines the full time bargaining unit in accordance with the statutory definition. It recognizes the Union as the exclusive bargaining agent for all support staff employees of the Colleges except those set out

in a list. For purposes of the present application, the key exclusion in that list is “persons regularly employed for twenty-four (24) hours per week or less.” [ 6 ] The collective agreement also contains Appendix D, which applies to “persons employed on a casual or temporary basis to replace bargaining unit employees absent due to vacation, sick leave or leaves of absence.” Appendix D sets out various terms, including the rates of pay, the requirement for such employees to pay union dues, and the payment of a percentage sum in lieu of fringe benefits.

It also provides that an employee covered by the Appendix is entitled to the provisions of three specified articles in the agreement (overtime, shift premium and holidays), and allows access to the grievance procedure to protect rights contained in the Appendix. No other provisions of the collective agreement apply to Appendix D employees other than as set out in the Appendix. Factual Background [ 7 ] The arbitration arose out of a grievance filed by Stephen Noah (the “grievor”) on January 22, 2015.

In the grievance, he described his classification as an Appendix D employee, and he grieved a violation of the collective agreement because he was not selected in a job competition for the position of Co-op Consultant for which he had applied in mid-2014. At the time he applied for the position, he was classified as an Appendix D employee. [ 8 ] At the time of filing the grievance, the grievor was classified by the College as a part time employee. He was paid at part time rates, and union dues were not being deducted from his pay.

According to an Agreed Statement of Facts before the arbitrator, the grievor had begun part time work with the College in December 2011. A chart provided in evidence showed that he replaced a full time worker who was on parental leave in November 2012, and he replaced a second employee who was on leave in December 2013. Thus he became an Appendix D employee in November, 2012. At the end of August 2014, the second employee returned to work. However, the grievor continued to be categorized as an Appendix D employee, although he was not replacing another employee.

He continued working full time hours and he continued to be paid the rates of an Appendix D employee until December 31, 2014. [ 9 ] As of January 2, 2015, the grievor was classified as a part time support staff employee and paid part time rates. He continued to work full time hours in January, but union dues were not deducted. On January 22, 2015, he grieved. As of February 2, 2015, he returned to part time hours – that is, 24 hours per week.

The Arbitration Award [ 10 ] The College took the position throughout the grievance procedure that the grievance was not arbitrable, because the grievor had no right to grieve. First, he was not an Appendix D employee at the time of the grievance, and so he was not in the full time bargaining unit and had no right to access the grievance procedure. Second, even if he had been an Appendix D employee, he would have had only the right to grieve as set out in Appendix D.

This would not permit him to file a grievance relating to a job competition. [ 11 ] The Union took the position that the grievor was regularly employed for more than 24 hours per week, and so he should properly be in the full time bargaining unit and able to grieve. [ 12 ] The arbitrator dealt with the issue of arbitrability in a preliminary award and found that the grievor had the right to grieve. He found that the grievor was “regularly employed”, from November 12, 2012 to January 30, 2015 at least, for 37.5 hours per week for 80% of his employment with the College.

Accordingly, he was not excluded from the full time support staff bargaining unit, which excludes persons regularly employed for 24 hours a week or less. [ 13 ] The arbitrator also rejected an argument that the Union was estopped from arguing that the grievor was in the full time unit, given past practice respecting the treatment of Appendix D employees. He concluded that Appendix D of the collective agreement was contrary to the CCBA , because it denied access to all parts of the collective agreement for affected employees.

He characterized this as an attempt to alter the statutory bargaining units and refused to apply estoppel. [ 14 ] The College now brings this application for judicial review of the award. The Issue of Prematurity [ 15 ] At the outset of oral argument, the Court asked the parties to address the doctrine of prematurity because the award of the arbitrator deals with a preliminary issue, and the merits of the grievance have yet to be adjudicated.

Normally, courts are reluctant to hear an application for judicial review of an interlocutory decision because of concerns such as interruption and fragmentation of the administrative process, delay, and added costs (see, for example, Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) , 2012 SCC 10 at paras. 35-36 ; C.B. Powell Limited v. Canada (Border Services Agency) , 2010 FCA 61 ; Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 67 ).

However, in exceptional circumstances, a court may exercise its discretion to hear an application brought during the course of the administrative proceedings. [ 16 ] In the present case, after hearing submissions, the Court ruled that it would hear the application for a number of reasons. First, neither party had raised the issue of prematurity, and both parties expressed their wish to proceed.

Counsel for the College advised that the parties will be before the court on this issue regardless of the result on the merits because of the importance of the decision to both parties. [ 17 ] Second, and more importantly, this is a case where it makes good labour relations sense to hear and determine the application. The arbitrator’s ruling has broad implications not only for the immediate parties, but also for other colleges and locals throughout the province, because of his treatment of Appendix D of the collective agreement.

[18] Third, there will be no delay caused by the application. Indeed, the parties sought to have this application heard in Toronto,rather than Ottawa, in order to get an earlier hearing date. The Standard of Review [19] The standard of review is reasonableness, as the arbitrator is interpreting a collective agreement and labour relationslegislation with which he has particular familiarity. Here, the parties are subject to a specialized labour relations scheme.

They have adesignated roster of arbitrators in their collective agreement, which indicates that the members have familiarity with the labour relationsof the parties. [20] In applying the reasonableness standard, a court considers both the reasonableness of the outcome and the process ofreasoning, asking whether there is justification, transparency, and intelligibility in the decision-making process (Dunsmuir v. NewBrunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at para. 47).

As the Supreme Court of Canada stated in Newfoundland Nurses,“the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possibleoutcomes” (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 13). Areviewing court is to pay “respectful attention” to the arbitrator’s reasons (at para. 17). Analysis [21] The task for the arbitrator was to determine whether the grievor was a member of the full time support staff bargaining unit atthe time he grieved.

The bargaining unit defines membership in terms of job functions and exclusions - that is, a person is not in the fulltime unit if he or she is in the part time unit because he or she is “regularly employed” for 24 hours a week or less. [22] The term “regularly employed” is not defined in the collective agreement nor the CCBA. Given that the work of part timeemployees sometimes fluctuates and may exceed 24 hours per week at certain times because of job demands, the College applies alongstanding policy to decide when a part time employee becomes full time.

For many years, a part time employee would be classifiedas full time if the individual worked for more than 24 hours a week in 26 weeks in a period of 52 weeks. According to that policy,Appendix D assignments do not figure into the counting of full time weeks. [23] More recently, the parties entered into Minutes of Settlement dated January 11, 2016 that changed the formula for calculatingthe hours of part time workers, effective September 1, 2016.

The threshold for full time work now arises when an employee works morethan 24 hours per week in 17 weeks over a period of 52 weeks. [24] In the present case, the Union argues that the result reached by the arbitrator fell within a range of reasonable outcomes whenhe found that the grievor was entitled to grieve under the full time support staff collective agreement.

According to the Union, thearbitrator, having looked at the grievor’s pattern of employment, reasonably concluded that the grievor should have been treated as amember of the full time unit because he had worked full time hours over more than a two year period. [25] In my view, the decision is not reasonable, when one considers the outcome in light of the analysis undertaken by thearbitrator and the findings as a whole. There is no line of analysis in the reasons that logically and justifiably leads to the result.

I saythis because of a number of serious flaws in the arbitrator’s analysis. [26] First, the arbitrator fundamentally misunderstood the College’s position. On the first page of the award, he stated, “Accordingto the College, [the grievor] was an Appendix D employee and that he was a ‘non-unionized, part-time support staff.’” In fact, theCollege took the position that the grievor was not an Appendix D employee at the time he filed the grievance. Were he an Appendix Demployee, he would have been in the full time bargaining unit.

Rather, the College took the position that the grievor was a member ofthe part time support staff and therefore not unionized. [27] A little later in the award, the arbitrator misstated the College’s argument again when he stated at p. 8 that the College tookthe position that “the grievor is an Appendix D employee who was not a member of the Support Staff bargaining unit and not subject tothe collective agreement.” This error was repeated again on p. 10 of the award. However, the College took the position that AppendixD employees are in the full time bargaining unit, albeit with limited rights.

Again, the College’s position before the arbitrator was thatthe grievor was not an Appendix D employee at the critical time. [28] Second, the arbitrator found the grievor was entitled to grieve under the collective agreement as he concluded that the grievorshould have been treated as a full time employee.

He looked at the grievor’s employment from November 2012 to January 2015 andconcluded that the grievor was regularly employed for more than 24 hours a week and therefore, he did not fall within the parameters ofthe part time unit. [29] In reaching that conclusion, the arbitrator included in his calculations the two periods in which the grievor was an Appendix Demployee – that is, when he was temporarily replacing other full time workers absent on leave.

In other words, in calculating whetherthe grievor was regularly employed for more than 24 hours a week, he included a lengthy period in which the grievor was working fulltime and was regarded by both the parties as a member of the full time bargaining unit. [30] That reasoning does not seem logical. The task for the arbitrator was to determine whether the grievor was inappropriatelytreated as a part time employee at the time of the grievance – that is, was he a person regularly employed for more than 24 hours aweek?

One would expect that the arbitrator would focus on the period in which the employee was treated as a part time worker todetermine this question. However, the arbitrator took into account both the time that the grievor was classified as part time and theperiod when he was an Appendix D employee, even though the grievor was acknowledged to be a full time employee and treated as amember of the full time bargaining unit while he was working as an Appendix D employee. [31] The arbitrator relied on three cases which he believed were similar to support his analysis: Niagara College and Ontario

Public Service Employees Union, 1993 CarswellOnt 6607 (Devlin) ; La Cité collégiale et S.E.F.P.O. , 1997 CarswellOnt 7293 (M. Picher) ; Waito v. La Cité collégiale Ottawa, [1988] O.L.R.B. Rep. 636. Each of these cases dealt with a part time employee who claimed that he or she should be treated as a full time employee because he or she regularly worked more than 24 hours a week. [ 32 ] None of these adjudicators included Appendix D time in their calculations of the employee’s regular hours of employment.

For example, in Niagara College, the arbitrator did not take into account the period in which the grievor had been a temporary, Appendix D employee. Rather, she focused on the nine month period in which the grievor had worked full time hours but been treated as part time, and she found that he was “regularly employed” for more than 24 hours per week. [ 33 ] Similarly, in Cité collégiale , the arbitrator did not take into account the period in which the grievor had worked as an Appendix D employee when determining whether the grievor should have been treated as a member of the full time bargaining unit.

He found that she should have been in the full time unit because she continued to work full time hours for a year and nine months after she ceased to be an Appendix D employee, yet she was treated by the College as a part time employee (see paras. 22, 24). [ 34 ] Finally, Waito was not a grievance award, but was rather a case alleging the union had breached its duty of fair representation and the college had engaged in an unfair labour practice by not including the complainant in the full time bargaining unit.

The complainant had worked full time hours for a period of three years, yet the college had classified her as part time. The Board held that in the circumstances, she should have been included in the full time bargaining unit. There is no mention of any period of Appendix D employment in this case. [ 35 ] In the present case, the arbitrator purported to follow this line of jurisprudence. However, consistent with it, he would not have considered the period in which the grievor was an Appendix D employee.

Rather, he should, at most, have looked at the period in which the grievor continued to work full time hours, even though he was no longer replacing another full time worker temporarily. At its most generous, the period would run from September 1, 2014 (when the grievor was no longer replacing someone in the bargaining unit) to the date of the grievance in January 2015 - a period of about 21 weeks.

This period is significantly shorter than the periods that triggered a finding of full time employment in the cases relied upon by the arbitrator. [ 36 ] This brings me to a third concern, which arises from the arbitrator’s treatment of Appendix D. The College had argued that in determining when an employee is regularly employed more than 24 hours per week, the arbitrator should have regard to the past practice of the parties in determining this issue.

That past practice showed that Appendix D employment did not enter into the determination of the hours of a part time worker who claimed to be regularly employed for more than 24 hours per week.

In the alternative, the College argued that the Union was estopped from arguing that Appendix D employment should be considered in determining when an employee is regularly employed for more than 24 hours a week, given that the parties had negotiated the terms of employment for temporary replacement workers, and they were included in the full time bargaining unit. [ 37 ] The arbitrator’s reasons respecting Appendix D are far from clear.

He does not appear to understand that Appendix D employees are members of the full time bargaining unit, given that he stated at p. 11: The evidence showed (Ex-4) that the grievor had been employed for a lengthy period, as noted above, and should have been part of the full-time support staff bargaining unit and not treated simply as an Appendix D employee thereby being denied protection under all aspects of the collective agreement. [Emphasis added] He went on to say that the parties’ agreement as to the treatment of Appendix D employees was contrary to the CCBA , seemingly because they were attempting to amend the scope of the statutory bargaining units.

In his view, this was unlawful, and so he rejected the estoppel argument. [ 38 ] The problem here is that the arbitrator fails to understand that Appendix D employees are part of the full time bargaining unit and paying union dues while they replace absent full time workers.

Although their terms and conditions of employment are different from those of permanent employees in the bargaining unit, this treatment has been recognized as acceptable in other arbitration awards, to which the arbitrator makes no reference. [ 39 ] His reasoning fails to distinguish the scope of the bargaining unit (which is governed by the CCBA ) and the terms and conditions of employment of particular groups of employees within the bargaining unit, which can be negotiated and which can vary (see, in contrast, St.

Lawrence College and OPSEU (MacDowell), unreported, July 22, 2005, p. 64). [ 40 ] The arbitrator cites no authority for his conclusion that the treatment of Appendix D employees is an attempt to alter the statutory bargaining unit and so contrary to the CCBA . In contrast, in Cambrian College and OPSEU , 1989 CarswellOnt 5369 , Arbitrator Brent concluded that employees covered by Appendix D were not excluded from the bargaining unit. At para. 20, she stated: Given the terms of

Article 1.1., it is our view that the grievor was a member of the bargaining unit represented by the Union and covered by the collective agreement since there is no exclusion in

Article 1.1 which specifically applies to her position. What then does Appendix D do? It does not operate to exclude the grievor’s position from the bargaining unit, either because as a matter of law it cannot conflict with the Act, or because there are no clear words to suggest that it is intended to operate as an additional exclusion to those set out in

Article 1.1. It simply sets out the terms of the collective agreement which the parties have agreed will apply to the employees who fall within the definition of temporary employees. In other words, the parties have bargained concerning the terms and conditions of employment of temporary employees; they have agreed that they shall differ from the terms and conditions of employment of permanent employees; and their agreement is set out in Appendix D.

There is nothing unusual or illegal per se for employers and unions to agree that the terms and conditions of employment of full-time permanent employees are not appropriate to those who are not members of that group, and to set out separate more appropriate terms for those employees.

It is therefore our view that the parties have not excluded temporary employees from the bargaining unit, but have set out their bargain regarding the terms and conditions of employment of those employees separately in Appendix D. [ 41 ] Similarly, in Sault College and OPSEU , 2003 CarswellOnt 6074 (Saltman) , the distinction is made between an exclusion from the statutory bargaining unit, which is not legal, and an agreement by the parties to limit the application of certain terms of the

collective agreement to particular groups of employees, which is permissible (at para. 9). In that case, the parties were held to have improperly excluded students working during the vacation period from the bargaining unit. [ 42 ] While the arbitrator is not bound by the results in other cases, the reasoning is normally treated as persuasive. Here, the arbitrator’s reasoning is completely at odds with the earlier analysis dealing with the same collective agreement, and his conclusion is not adequately explained.

For example, he fails to explain why Appendix D is an exclusion from the bargaining unit, rather than an agreement on the terms and conditions of employment for temporary workers. He ignores the language of Appendix D, which specifically includes the temporary employees in the bargaining unit, albeit with different terms and conditions of employment from permanent workers. He also ignores the language of the recognition clause,

Article 1.1, which does not exclude temporary employees working full time hours from the bargaining unit, as the Cambrian College case found.

Accordingly, his analysis of the legal effect of Appendix D is lacking in justification and intelligibility. [ 43 ] Having unreasonably come to the conclusion that Appendix D was an unlawful attempt to exclude temporary workers from the full time bargaining unit, the arbitrator then failed to adequately address the College’s arguments with respect to past practice and estoppel. [ 44 ] For these reasons, the arbitrator’s reasoning does not stand up to a somewhat probing analysis.

His reasoning, taken as a whole, does not meet the requirements of transparency, intelligibility and justification, even when read in light of the record, and accordingly, the result reached based on his reasoning does not fall within the range of reasonable outcomes. Conclusion [ 45 ] For these reasons, the application for judicial review is granted, and the award of the arbitrator is quashed. The matter is remitted to another arbitrator for determination in accordance with these reasons.

Costs to the College are fixed at $5,000 all inclusive, an amount agreed upon by the parties. _______________________________ Swinton J. I agree _______________________________ Linhares de Sousa J. I agree _______________________________ Spies J. Released: CITATION : Algonquin College v. Ontario Public Service Employees Union, 2017 ONSC 2500 DIVISIONAL COURT FILE NO.: 123/17 DATE: 20170531

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SWINTON, LINHARES de SOUSA and SPIES JJ. BETWEEN: ALGONQUIN COLLEGE Applicant – and – ONTARIO PUBLIC SERVICE EMPLOYEES UNION and LOUIS M. TENACE, in his capacity as Arbitrator Respondents REASONS FOR JUDGMENT Swinton J. Released: May 31, 2017