2023 ONSC 1619, 2023 ONSC 1619

CITATION : Toronto District School Board v. Canadian Union of Public Employees, 2023 ONSC 1619 DIVISIONAL COURT FILE NO.: 386/22 DATE: 20230321 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Backhouse, Newton and O’Brien JJ. B E T W E E N: ) ) TORONTO DISTRICT SCHOOL BOARD ) ) ) J-P. Alexandrowicz and G. Nuttall, for the Applicant ) Applicant ) ) - and - ) ) ) CANADIAN UNION OF PUBLIC EMPLOYEES AND ITS LOCAL 4400 ) ) ) I. McKellar and A. Rauff, for the Respondent ) Respondent ) ) ) ) HEARD: At Toronto via video conference on February 1, 2023 Newton J.

Reasons for Decision Overview [ 1 ] The Toronto District School Board (the “Board”) brings this application for judicial review seeking an order setting aside, in part, the arbitration Award of Arbitrator C. White (the “Arbitrator”) dated June 8, 2022 (the “Award’). The Award dealt with the

interpretation of a collective agreement between the Board and the Canadian Union of Public Employees and its Local 4400 (the “Union”). The Board employs the grievor as an essential skills upgrading assessor and a literacy and basic skills instructor. [ 2 ] The Award decided 13 grievances. The Board challenges the Arbitrator’s disposition of two grievances decided in the Union’s favour: i. that the Board contravened the Collective Agreement by failing to provide the grievor with the new allocation of 131 sick leave credits (“sick leave refresh”); and

ii. that the Board contravened the Collective Agreement by limiting the grievor’s return to work

schedule to two days per week (“return to work plan”). [ 3 ] The Board argues that the Award is unreasonable because it lacks internal coherency, contains irrational

interpretations of the Collective Agreement, and fails to properly apply the law, including an earlier arbitration award between the parties concerning the sick leave refresh. [ 4 ] The Union argues that there is no basis to interfere with the Arbitrator’s Award as the Award is justified, intelligible and transparent. [ 5 ] For the reasons that follow, the application is dismissed. Background [ 6 ] The grievor is a member of the Union and has been an employee of the Board since 1992. He has mental health related disabilities which led to 13 grievances filed by the Union on the grievor’s behalf. Two grievances remain in dispute. “Sick Leave Refresh” [ 7 ]

Article C6.1(

d) of the collective agreement provides that each permanent employee receive a new allocation of sick leave and short-term disability days on the first day of each school year subject to an exception when an employee “is accessing sick leave and/or the short-term disability plan in a fiscal year and the absence continues into the following fiscal year for the same medical condition”. [ 8 ]

Article C6.1(

d) continues: If a permanent Employee is absent on his/her last regularly scheduled work day and the first regularly scheduled work day of the following year for unrelated reasons , the allocation outlined above will be provided on the first day of the fiscal year, provided the employee submits medical documentation to support the absence, in accordance with paragraph (h) . [Underline added.] [ 9 ]

Article C6.1(

h) provides, in part: A Board may request medical confirmation of illness or injury and any restrictions or limitations any Employee may have, confirming the dates of absence and the reason thereof (omitting a diagnosis). Medical confirmation is required to be provided by the Employee for absences of five (5) consecutive working days or longer .

The medical confirmation may be required to be provided on a form prescribed by the Board. [Underline added.] [ 10 ] The grievor was absent from work on the last regularly scheduled workday and the first regularly scheduled workday of the following school year but was present on his next two scheduled work days. The Board failed to provide the grievor with a “refresh” of sick leave credits at the commencement of the September 2018 school year.

The grievor asserted that he was entitled to the “refresh” as he was absent on his first scheduled return day for “unrelated reasons”. [ 11 ] The Arbitrator concluded that the evidence adduced by the grievor at the arbitration met the test for a “refresh” of sick leave entitlement as required by

article C6.1(d). The Arbitrator noted that the Board did not request confirmation of illness under

article C6.1(h). “Return to Work Plan” [ 12 ] In November 2019, the grievor’s physician proposed a return to work plan that had the grievor gradually return to work full time over 12 weeks: two days per week for three weeks; three days per week for three weeks and so on. The grievor only attended two days per week for the first two weeks that he was to work three days. The Board requested that the grievor have his physician complete a Functional Abilities Form. When the Board received the form it determined that the grievor should not work more than two days per week.

The Board also requested that the grievor attend an independent medical evaluation (“IME’) to obtain an assessment of the grievor’s restrictions and limitations. The grievor failed to attend the IME. [ 13 ] Noting that the return to work plan had failed in its earliest stages, the Arbitrator concluded that a reasonable accommodation would have been to have the grievor’s return to work plan reinstituted during the course of the pandemic through remote work since some workplace stressors would be lessened.

The Arbitrator also concluded that the Board’s request that the grievor attend the IME was “eminently practical and reasonable” in light of the medical information it had from the grievor’s physician and, as a practical step, to break the “stalemate” between the parties. Positions of the Parties “Sick Leave Refresh”

The Board [ 14 ] The Board argues that the Award is unreasonable because it does not follow a prior decision [1] of Arbitrator Davie who concluded that the onus was on the employee to establish that the absences were not for the same medical condition. [ 15 ] The Board also argues that the Award is unreasonable because it is based on an irrational

interpretation of articles C6.1(

d) and C6.1(h). The Union [ 16 ] The Union argues that there is no conflict between the decisions of Arbitrator White in this case and the decision of Arbitrator Davie. It argues that Arbitrator White did not challenge Arbitrator Davie’s conclusion that the onus was on the employee to establish that the absences were not for the same medical condition.

Arbitrator White, like Arbitrator Davie, decided that the employee had to adduce evidence that the absences were not for the same medical condition and was satisfied that the grievor had done so. [ 17 ] In any event, the Union argues that the decision of Arbitrator Davie is not binding on Arbitrator White. Arbitrator Davie’s decision arose from an expedited arbitration. The parties executed a memorandum of agreement which provided that some of the grievances could be assigned to “expedited arbitration”.

That agreement provided that expedited arbitration decisions will be binding on the parties but will not have precedential effect on other grievances. “Return to Work Plan” The Board [ 18 ] The Board argues that the decision is unreasonable because the reasoning is internally inconsistent – concluding that the Board had insufficient medical information justifying the need for an IME but determining that the return to work plan could continue through remote work. [ 19 ] The Board also argues that the Arbitrator improperly substituted his own assumptions regarding the grievor’s restrictions contrary to the medical evidence when determining that working remote “changed the landscape”.

The Union [ 20 ] The Union argues that there in no inconsistency in the Arbitrator’s analysis. In its submission, the arbitrator could reasonably hold, as he did, that the IME was necessary given the medical information from the grievor’s physician and that the grievor should not be limited to two days per week of work given that work was now remote.

Both conclusions were open to the Arbitrator on the evidence before him. [ 21 ] Similarly, the Union argues that it was open to the Arbitrator to conclude as he did that “some of the grievor’s issues arose in the course of his physical presence in the workplace” based on the evidence before him. Standard of Review [ 22 ] The Parties agree that Vavilov [2] applies. Principles from Vavilov applicable to this case include: a. “The burden is on the party challenging the decision to show that it is unreasonable.” (para. 110); b.

Although reasonableness review remains a “robust form of review”, “courts intervene in administrative matters only when it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.” (para. 13); c. “[A] reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.

The reasonableness standard requires that a reviewing court defer to such a decision.” (para. 85); d. “[T]he reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision.” (para. 99); e. The reviewing court must be satisfied there is a “line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.” (para. 102, citing Law Society of New Brunswick v.

Ryan, 2003 SCC 20 at para. 55 ); f. “[T]he reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency…. [T]he court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.” (para. 100); and g. “In conducting reasonableness review, judges should be attentive to the application by decision-makers of specialized knowledge, as demonstrated by their reasons.” (para. 93). [ 23 ] In reviewing labour relations decisions, the Divisional Court [3] has observed: [14] Labour relations is a complex and sensitive field of law.

The Ontario Court of Appeal has observed that "the decisions of the Supreme Court of Canada, over the course of many decades, show an unbroken commitment to affording labour relations boards the highest levels of judicial deference on matters within their exclusive jurisdiction" ( Maystar General Contractors Inc. v. International

Union of Painters and Allied Trades, Local 1819 , 2008 ONCA 265 , [2008] O.J. No. 1353, at para. 42 ). [15] The

interpretation of collective agreements is at the very heart of the Board's jurisdiction. In line with Vavilov , labour arbitrators and boards should be afforded the highest degree of deference in their

interpretation of these agreements: see Ottawa Hospital v. OPSEU , 2017 ONSC 5501 , at para. 2 . [ 24 ] As noted recently by the Court of Appeal, a reviewing court must show “restraint and respect” for the specialized expertise of the decision maker. [4] Analysis and Disposition “Sick Leave Refresh” [ 25 ] I agree with the Union that Arbitrator White did not fail to follow Arbitrator Davie’s conclusion that the employee bears the onus of proving that the reason for the absences were unrelated.

A fair reading of paragraphs 276 to 279 reveals that Arbitrator White did not ignore Arbitrator Davie’s conclusion as to onus. In fact, Arbitrator White concluded that the grievor did satisfy the onus. The question before the arbitrator was: when must the evidence be adduced – at the time of the absence or later, at arbitration? To adopt the Board’s position that the Arbitrator did not follow the prior decision on onus is to succumb to the “line-by-line treasure hunt for error [5] ” approach rather than the required “robust form of review [6] .” [ 26 ] Arbitrator White’s

interpretation of

article C6.1(

d) and (h), that the Board has discretion to request medical confirmation of illness in an employee’s first four days of the employee’s absence, after which the employee is required to provide medical documentation is a reasonable conclusion, consistent with the language of the clauses and common sense. [ 27 ] Both Arbitrator White and Arbitrator Davie determined that employees may establish that they fit within the exception based on evidence not necessarily provided to the Board at the time of the absence.

This is also a reasonable conclusion, consistent with common sense given that evidence that the two absences are unrelated may not be available immediately. [ 28 ] The Board has not met its onus of establishing that the decision on “sick leave refresh” is unreasonable. “Return to Work Plan” [ 29 ] Both conclusions by the Arbitrator – that it was appropriate to request the IME and that the return to work plan could continue given that the grievor could now work remotely – are supported by the evidence and the analysis within the reasons. [ 30 ] The evidence disclosed that some of the grievor’s issues arose from his physical presence in the workplace.

For example, there was specific evidence regarding conflict in the workplace, including the grievor’s psychotherapist raising a concern about requests that the grievor be friendly to a colleague who persistently ignored him.

It is reasonable to conclude, as the Arbitrator did, that the remote work should be considered in the return to work accommodation. [ 31 ] It was not contradictory or inconsistent to conclude that the IME was also required since this new information could assist the parties in further structuring the return to work plan. [ 32 ] The Board has not met its onus of establishing that the decision on the return to work plan is unreasonable. Conclusion [ 33 ] The application is dismissed.

Costs [ 34 ] The Union is entitled to its costs of the appeal fixed in the amount of $7500 as agreed. _______________________________ Newton J. I agree _______________________________ Backhouse J.

I agree _______________________________ O’Brien J. CITATION : Toronto District School Board v. Canadian Union of Public Employees, 2023 ONSC 1619 DIVISIONAL COURT FILE NO.: 386/22 DATE: 20230321

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT B E T W E E N: TORONTO DISTRICT SCHOOL BOARD Applicant - and – CANADIAN UNION OF PUBLIC EMPLOYEES AND ITS LOCAL 4400 Respondent REASONS FOR DECISION Newton J. Released: March 21, 2023 /cjj [2] Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 . (“ Vavilov ”).