) ) AMALGAMATED TRANSIT UNION, LOCAL 1587 Applicant – v. –, 2017 ONSC 3509

CITATION : Amalgamated Transit Union (Local 1587) v. Ontario, 2017 ONSC 3509 DIVISIONAL COURT FILE NO.: 271/16 DATE: 20170609 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT CORBETT, SPIES and REID JJ. BETWEEN: ) ) AMALGAMATED TRANSIT UNION, LOCAL 1587 Applicant – and – CROWN IN RIGHT OF ONTARIO (METROLINX – GO TRANSIT) Respondent ) ) ) ) ) ) ) ) ) ) ) Joshua S. Phillips and Karen Ensslen , for the Applicant Richard J.

Charney and Jennifer Hodgins , for the Respondent ) HEARD at Toronto: May 30, 2017 REID J. overview: [ 1 ] Amalgamated Transit Union, Local 1587 (“the Union”) brings this application for judicial review of the decision of Richard M. Brown, sitting as Vice-Chair of the Crown Employees Grievance Settlement Board.

The arbitrator’s decision, dated November 13, 2015, was issued in accordance with s. 7(3) of the Crown Employees Collective Bargaining Act, 1993 [1] and dismissed a policy grievance by the Union. [ 2 ] The respondent, the Crown in Right of Ontario (Metrolinx – GO Transit) (“Metrolinx”), is an employer with which the Union has a collective bargaining relationship. BACKGROUND FACTS: [ 3 ] Metrolinx is a provider of train and bus transportation to the public. [ 4 ] The parties have been involved in a collective bargaining relationship since

Article 34 of the current collective agreement is entitled “Photo Identification Card.” Except as to its provision for retirees, the

Article has been unchanged for many years.

Article 34.1 provides as follows: From the date of hire, all regular employees will be issued with a photo identification card. This card must be worn or produced as required, in order to gain access to designated facilities and transportation services. Where employees use such card for transportation services, any observed vandalism or other incidents must be reported to the Employer, and revenue passengers will be accommodated prior to such employees. [ 5 ] Amongst its human resource policies, Metrolinx has a photo identification policy that outlines the criteria governing how photo ID cards may be used.

For many years, the cards have been used to allow access by employees to the GO Transit system for both

business-related and personal travel at no charge. Until April 28, 2015, that policy also permitted non-management employees to be accompanied occasionally on GO Transit vehicles by one visitor without payment of a fare. The term “visitor” was not defined, but could include family members and others. [ 6 ] The photo identification policy was amended by Metrolinx effective April 28, 2015. While employees could still travel on GO Transit vehicles without fare payment, occasional travel by visitors without charge was discontinued except for business-related purposes.

The policy amendment occurred about one year after the close of bargaining for the current 2014-2018 collective agreement and was not discussed at bargaining. [ 7 ] That change prompted the policy grievance. The Union alleged that the policy amendment violated

Article 34 of the collective agreement or, alternatively, that Metrolinx was estopped from implementing the change until the expiry of the current collective agreement so that the change could be addressed in collective bargaining. The arbitration award: [ 8 ] At the arbitration hearing, the evidence was presented through an agreed Statement of Facts. The Vice-Chair considered the provisions of

Article 34 and found that

Article 34.1 allows a photo ID card holder to access “transportation services” without charge. He concluded that those services referred to trains and buses. Because he found that in the wording of the

Article there was a clear preponderance in favour of one meaning, he did not consider it necessary to review past practice as an aid to

interpretation. As result, he did not find the human resource policy as to the occasional access of non-employees, which had existed for many years, relevant to his

interpretation of

Article 34.1. [ 9 ] The Vice-Chair also considered and rejected the Union’s alternative argument that Metrolinx was estopped from changing the human resource policy during the lifetime of the current collective agreement. He reviewed relevant jurisprudence applicable to the facts of this case, and concluded that the employer’s past practice did not give rise to an estoppel. The standard of review: [ 10 ] The parties agree that the appropriate standard of review is reasonableness. As indicated at para. 47 of the Supreme Court of Canada’s decision in Dunsmuir v.

New Brunswick , [2] considering the reasonableness of an administrative decision requires the court to examine whether the decision-making process of the tribunal was justified, transparent and intelligible and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. The reasonableness standard is deferential, recognizing that certain questions coming before administrative tribunals do not lend themselves to one specific, particular result but rather to a number of possible, reasonable outcomes.

The issues and positions of the parties: [ 11 ] The two issues for this Court’s consideration are: (1) whether the Vice-Chair was reasonable in his

interpretation of

Article 34.1 of the collective agreement; and (2) whether the Vice-Chair was reasonable in finding that Metrolinx’ past practice does not give rise to estoppel. [ 12 ] The positions of the parties can be briefly summarized as follows. [ 13 ] The Union submits that the Vice-Chair’s

interpretation of the collective agreement was unreasonable in light of the long- standing practice of the parties. The Union contends that it was unreasonable for him to conclude that the term “transportation services” should be interpreted to mean services such as trains and buses for card holders alone without reference to services as provided throughout the bargaining history of the parties, namely fare-free access for card holders and their occasional visitors. The Union asserts that the Vice-Chair conflated the identity of the beneficiary (card holder) with the scope of the benefit. [ 14 ] Further, the Union submits that, in finding support for his

interpretation of

Article 34, the Vice-Chair unreasonably imposed his own views about the labour relations context including the fact that contractual benefits rarely extend beyond the employees and their immediate family.

According to the Union, a reasonable approach would have been to interpret the words of the collective agreement in accordance with its scheme, purpose and the parties’ intentions as could be gleaned from the collective agreement, as well as the long- standing access policy and practice. [ 15 ] The Union’s alternative position and its principal argument in this application is that the Vice-Chair was unreasonable in his failure to find that Metrolinx was estopped from making the policy change during the currency of the existing collective agreement.

The Union submits that the Vice-Chair created and applied inappropriate preconditions to establishing estoppel including the following: (1) the promise was not in relation to compensation (even though, according to the Union, access to transportation services was a part of the employees’ total compensation package); (2) the benefit was an “out-of-the-ordinary” monetary benefit; (3) the benefit accrued to individuals outside the employees’ households; (4) not all employees accessed the benefit;

(5) the scope of the benefit was unclear. [ 16 ] In the Union’s submission, the Vice-Chair failed to consider or make findings as to the three central questions in an estoppel analysis, namely, whether there was employer conduct that amounted to a representation or a promise to continue to provide the benefit; whether that representation was relied on by the Union; and whether the Union and its members suffered a detriment as a result of that reliance.

The Union argues that the failure to consider those accepted criteria indicates that the Vice-Chair did not apply the core principles of estoppel and, therefore, that his decision was unreasonable. [ 17 ] In responding to those same two issues, Metrolinx submits that the Vice-Chair was correct or, at the very least, reasonable in his conclusions. [ 18 ] Metrolinx takes the position that the Vice-Chair based his

interpretation on the plain and ordinary meaning of the words in

Article 34.1. Metrolinx also submits that the Vice-Chair properly considered the underlying labour relations context of the Article, and, finding no ambiguity in the language, that he did not need to consider past practice. [ 19 ] As to the Union argument that the Vice-Chair failed to properly apply the doctrine of estoppel, Metrolinx submits that his approach was reasonable: he correctly reviewed applicable arbitral jurisprudence, conducted a contextual analysis, and concluded that there was no express or implied representation with respect to the benefit in question.

A representation is a necessary first step to establishing estoppel and no further analysis of the doctrine is required if the first step is not satisfied. Analysis: Was the Vice-Chair reasonable in his

interpretation of

Article 34.1 of the collective agreement? [ 20 ] An appropriate starting place is a reference to Dunsmuir at para. 49 . There, the Supreme Court of Canada endorsed the concept that a policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime.” [ 21 ] In this case, the Vice-Chair is an experienced labour arbitrator and, as noted, was sitting as a member of the Crown Employees Grievance Settlement Board. [ 22 ] The plain wording of

Article 34.1 does not deal expressly with fare-free access to the employer’s transit system. It deals with entitlement to a photo identification card and the use of that card to gain access to transportation services. The terms of access are contained in the employer’s photo identification policy, and it is a change to that policy which prompted the grievance. [ 23 ] For the Union to succeed in its argument that the Vice-Chair was unreasonable in his

interpretation of the collective agreement, this Court must find that it was unreasonable for him not to have considered past practice as demonstrated by the content of the photo identification policy. [ 24 ] We are not able to reach that conclusion. [ 25 ] In our view, the Vice-Chair correctly identified the seminal decision of Professor Paul Weiler in John Bertram & Sons Co. v. International Association of Machinists, Local 1740 , [3] on the use of past practice as an interpretive aid.

At para. 13 of that award, the arbitrator placed limitations on the use of past practice, including that one may only make reference to past practice in situations where there is “no clear preponderance in favour of one meaning, stemming from the words and structure of the agreement as seen in their labour relations context.” [ 26 ] In this case, the Vice-Chair acknowledged the position of the Union that the language of

Article 34.1 was ambiguous. At the arbitration, just as it was argued before us, the Union proposed that the phrase “transportation services” encompassed the service to card holders of being able to bring an occasional visitor onto the system without fare payment. Based on the Statement of Facts that the parties submitted at the arbitration hearing, there was no dispute that the photo identification card granted access by card holders to the GO Transit system without fare payment. That led to the Vice-Chair’s comment that the collective agreement granted card holders free access to “transportation services” [4] . He noted in his analysis [5] that there is no reference in

Article 34.1 to anyone other than card holders having such entitlement. In addition, he considered the labour relations context as he was entitled to do [6] and noted that it is rare for collective agreements to provide benefits to individuals other than union members and their immediate families. A combination of the actual wording of

Article 34.1, the Statement of Facts and the application of labour relations context led him to the conclusion that there was a “preponderance” in favour of the employer’s position such that reference to past practice was unnecessary. [ 27 ] Applying the reasonableness standard, we find that the decision of the Vice-Chair on this point falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. The Vice-Chair’s reasons satisfy the requirements of justification, transparency and intelligibility. Therefore, on the first issue, we find that the Vice-Chair was reasonable in his

interpretation of

Article 34.1 of the collective agreement. Was the Vice-Chair was reasonable in finding that Metrolinx’ past practice does not

give rise to estoppel? [ 28 ] Estoppel is an equitable doctrine grounded in the need to ensure fairness. In its simplest form, it prevents one party from leading another party to believe that a certain set of circumstances will continue and then making a change in those circumstances after the other party relied on them to its detriment.

To permit this behaviour would not be fair. [ 29 ] In the labour relations context, estoppel is often invoked to prevent either an employer or a union from imposing a change in existing practice or from asserting its strict rights under the collective agreement until the matter can be considered during bargaining for the next collective agreement. [ 30 ] The elements of estoppel in matters of labour relations are well-established: • One party must make a representation (either actually or constructively) to the other party; • The representation must relate to one or more of the terms of the relationship between the parties; • The representation must cause the other party to act in reliance on it to its detriment; and • That other party must have been prejudiced by doing so. [7] [ 31 ] The Vice-Chair demonstrated that he was well aware of the doctrine of estoppel and cited several cases in which estoppel was either established or rejected based on the facts of those cases. [ 32 ] The Vice-Chair also identified his authority to apply and adapt the doctrine of estoppel in a labour relations context.

He took as his starting point for considering the estoppel issue the decision of the Supreme Court of Canada in Nor-Man. At paras. 45 and 49 of that decision, Fish J., writing for the Court, stated: [L]abour arbitrators are authorized by their broad statutory and contractual mandates -- and well equipped by their expertise -- to adapt the legal and equitable doctrines they find relevant within the contained sphere of arbitral creativity.

To this end, they may properly develop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievances of which they are seized…. Labour arbitrators are uniquely placed to respond to the exigencies of the employer-employee relationship.

But they require the flexibility to craft appropriate remedial doctrines when the need arises: Rigidity in the dispute resolution process risks not only the disintegration of the relationship, but also industrial discord. [ 33 ] The Union acknowledges that if the Vice-Chair had properly considered the elements of estoppel and then determined that estoppel did not apply to the particular facts and circumstances of this case, his decision likely would have been in the range of reasonableness.

The question for this Court therefore becomes whether the Vice-Chair was reasonable in his approach to the estoppel argument, which led to his decision that estoppel did not apply. [ 34 ] At the arbitration hearing, the Union relied on a previous decision of the Vice-Chair in which he held that estoppel applied to prevent a change in practice that was not referenced in the collective agreement. [8] In response to the Union’s submission, the Vice- Chair reviewed and discussed several arbitration cases where estoppel was not applied despite a change to a practice that was not addressed in the collective agreement.

In doing so, at paras. 15 to 17 of his decision, the Vice-Chair noted cases where arbitrators did not apply estoppel because no representation to maintain the status quo had been made by the employer. [9] [ 35 ] The Vice-Chair continued his analysis of arbitral jurisprudence that he found supported his ultimate decision that the employer’s past practice in this case did not give rise to an estoppel. At paras. 20 and 21 of his decision, the Vice-Chair considered the labour relations context where a mid-contract unilateral change to employment terms occurs.

He noted that the labour relations purpose underlying the decision to apply estoppel may depend on the type of benefits that were changed. In reviewing the jurisprudence where estoppel was not applied, the Vice-Chair focused primarily on the type of benefit at issue. In this case, he characterized the benefits in question as occasional in nature and not properly part of the compensation package for work performed with respect to visitors. Any benefit to the employees to that extent was of a secondary, non-financial nature and, thus, according to the Vice-Chair, not compensation for work performed.

Once again, he noted that in other arbitral awards, no estoppel was established where benefits were in the nature of those in this case and outside the scope of the collective agreement in the absence of an explicit representation by management that the practice would continue. [ 36 ] The issue comes down to this: notwithstanding his obvious experience and understanding of arbitral jurisprudence, including the doctrine of estoppel, did the arbitrator expressly or implicitly apply the wrong principles in determining whether the doctrine of estoppel should be applied in this case, thereby rendering his decision unreasonable? [ 37 ] In answering that question, this Court must be aware of the Supreme Court’s cautions at paras. 51 and 52 in Nor-Man : Reviewing courts must remain alive to [the] distinctive features of the collective bargaining relationship, and reserve to arbitrators the right to craft labour specific remedial doctrines.

Within this domain, arbitral awards command judicial deference. But the domain reserved to arbitral discretion is by no means boundless.

An arbitral award that flexes a common law or equitable principle in a manner that does not reasonably respond to the distinctive nature of labour relations necessarily remains subject to judicial review for its reasonableness. [ 38 ] In our view, it was unnecessary for the Vice-Chair to have articulated and analyzed each of the elements of estoppel to demonstrate that his decision was justified, transparent and intelligible to satisfy us that it falls within a range of defensible outcomes.

The first element essential to a finding that the doctrine of estoppel applies is whether a representation was made by one party to the other. If an arbitrator finds that such a representation was not made, an analysis of the remaining elements of the test is unnecessary. [ 39 ] The Union argued before this Court that because the photo identification policy was made known to the employees, was long- standing, and was described in written policies and other employer documents for many years, there was an implied representation that it would not be changed.

No express representation was alleged. [ 40 ] We agree that at no point in his decision did the Vice-Chair make a specific determination of whether an implied representation was made. However, as I have already noted, the Vice-Chair did make reference to several cases where estoppel was not applied because no representation to maintain the status quo was made by the employer.

He was not only alive to the issue but focused on it. [ 41 ] The sufficiency of reasons of an administrative decision-maker was, in part, the subject of the judgment of the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board) . [10] At para. 14, Abella J., writing for the Court, explained: Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses -- one for the reasons and a separate one for the result. It is a more organic exercise -- the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.

This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.” [Citations omitted.] [ 42 ] Abella J. noted further at para. 16 of Newfoundland Nurses : A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion.

In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [Citations omitted.] [ 43 ] It is apparent to us that the Vice-Chair was well aware of the first element of the test for estoppel, namely, a representation by the employer to the employees. The Vice-Chair closely analyzed factors that distinguish this case from those where a representation was found to have been made.

While it might have been more helpful, as a matter of clarity, for the Vice-Chair to have been explicit about his meta-analysis, we are satisfied that he was putting his mind to the question of whether there was a representation by the employer in this case. His conclusion that the employer’s past practice does not give rise to an estoppel attracts deference. We consider that the Vice-Chair’s reasons justify his decision and are transparent and intelligible. The decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

It is reasonable. [ 44 ] We note the Union’s point that the impugned change of policy followed closely after a new collective agreement was signed. Negotiations concluded much earlier, and so the time gap was a bit more than nine months. There was no allegation of bad faith and the record would not support an allegation of bad faith.

This point about the sequence of events could have been relevant to the second and third branches of the test for estoppel, but it is irrelevant to the first branch in this case, which was the basis of the Vice-Chair’s decision. [ 45 ] For the foregoing reasons, this application is dismissed. [ 46 ] As agreed by the parties with respect to quantum, Metrolinx will have its costs from the Union fixed in the all-inclusive sum of $4,000. As we said at the conclusion of argument, we are indebted to all counsel for their excellent written and oral submissions. ___________________________ REID J.

I agree ___________________________ D.L. CORBETT J. I agree ___________________________ SPIES J. Date of Release: CITATION : Amalgamated Transit Union (Local 1587) v. Ontario, 2017 ONSC 3509 DIVISIONAL COURT FILE NO.: 271/16

DATE: 20170609 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT CORBETT, SPIES and REID JJ. BETWEEN: AMALGAMATED TRANSIT UNION, LOCAL 1587 Applicant – and – CROWN IN RIGHT OF ONTARIO (METROLINX – GO TRANSIT) Respondent REASONS FOR JUDGMENT REID J. Date of Release: June 9, 2017