) ) TORONTO PROFESSIONAL FIRE FIGHTERS’ ASSOCIATION Applicant – v. –, 2023 ONSC 6290

CITATION : Toronto Professional Fire Fighters’ Association v. City of Toronto, 2023 ONSC 6290 DIVISIONAL COURT FILE NO.: 493/22 DATE: 20231114 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Stewart, Newton and Nishikawa JJ. BETWEEN: ) ) TORONTO PROFESSIONAL FIRE FIGHTERS’ ASSOCIATION Applicant – and – CITY OF TORONTO Respondent ) ) ) ) ) ) ) ) ) ) ) ) Howard Goldblatt , for the Applicant Robert Fredericks and Swarna Perinparajah , for the Respondent HEARD at Toronto by videoconference: April 12 th , 2023 REASONS FOR DECISION Stewart J.

Nature of the Application [ 1 ] The Applicant Toronto Professional Fire Fighters’ Association (the “Association”) seeks judicial review of an award ordered by Arbitrator Ken Petryshen on July 21, 2022 following an arbitration hearing. The issue before the Arbitrator was the

interpretation and calculation of “full net pay” in a particular provision of the Collective Agreement between the Association and the Respondent City of Toronto (“Toronto”). [ 2 ] The Association takes the position that the Arbitrator’s decision is unreasonable and asks that it be quashed and remitted to the Arbitrator for re-determination in accordance with the Court’s directions. [ 3 ] Toronto submits that the decision of the Arbitrator is reasonable and the application should be dismissed.

Background Facts [ 4 ] The Association is an association within the meaning of the Fire Protection and Prevention Act, 1997 , S.O. 1997, c. 4 . It has exclusive representation rights for full-time professional firefighters employed by Toronto. [ 5 ] Members of the Association are also members of the Ontario Municipal Employees Retirement System (“OMERS”). OMERS is a public defined-benefit, jointly sponsored pension plan. Members and their employer make equal contributions to the pension plan.

A member of OMERS who is disabled and unable to work may execute a waiver of contributions to the pension plan and is then able to receive credit for service without the requirement for either party to make contributions to the pension plan. [ 6 ] Article 24(1)(

c) of the Collective Agreement between the parties provides as follows: Subject to sub-clause (

d) hereof, each employee of the City coming within the 3888 Unit, who is not under the Toronto Fire Department Superannuation and Benefit Fund, and is off duty as a result of occupational illness or an accident incurred in the performance of his/her duties with the Fire Department of the City, shall be provided, at the expense of the City, with medical assistance and hospitalization where necessary and during such period shall receive full net pay, less the benefits with respect thereto to which such employee is entitled under the Workplace Safety and Insurance Act.

[7] Article 24(1)(

c) is the basis for making required payments to firefighters when they are off duty as a result of an occupationalillness or a work-related accident and are in receipt of workers’ compensation benefits (“WSIB”) under the Workplace Safety andInsurance Act, 1997, S.O. 1997, c. 16, Sched. A. [8] Minutes of Settlement executed by the parties on July 21, 2010 included a methodology to calculate “full net pay”. Under theterms of the Minutes of Settlement, full net pay consists of a non-taxable WSIB advance and a taxable top-up equal to the differencebetween the employee’s regular net pay and the non-taxable WSIB.

It had been Toronto’s practice to not deduct an off-duty employee’s“notional” OMERS pension plan contribution from the employee’s full net pay where a waiver of contributions to the pension plan wasin place. [9] In September 2018, the parties entered into further negotiations regarding the appropriate methodology for calculating fullnet pay. They agreed on all necessary terms by December 2020 except for two that proceeded to arbitration, including this one.

Thisissue arose out of Toronto’s proposal to deduct the employee’s notional OMERS pension plan contribution from the calculation of fullnet pay, notwithstanding any disability waiver the employee had in place. Toronto took the position that this approach is in accordancewith Article 24(1)(c). [10] The arbitration proceeded before the Arbitrator who had a longstanding familiarity with the parties, the issue and its context. Inhis decision of July 21, 2022 the Arbitrator agreed with Toronto’s position as to the

interpretation of “full net pay” as contained in Article24(1)(c). He considered the proposed deduction of the amount of an employees’ notional OMERS pension plan contribution in suchcircumstances to be in accordance with the meaning and purpose of “full net pay” in the relevant provision. [11] On this application for judicial review, the Association submits that this determination is unreasonable and asks that it bequashed. Jurisdiction [12] The court has jurisdiction to hear and determine this application pursuant to ss. 2 and 6 of the Judicial Review Procedure Act,R.S.O. 1990, c. J.1.

Standard of Review [13] Both parties agree that the applicable standard of review is reasonableness (see: Canada (Minister of Citizenship andImmigration) v. Vavilov, 2019 SCC 65.) Was the Decision of the Arbitrator Reasonable? [14] The Arbitrator concluded that the purpose and objective of “full net pay” in Article 24(1)(

c) was to make the firefighters wholewhile off-duty for a work-related illness or injury by ensuring continuity in the way the employee is paid. The Arbitrator reasoned thatby not deducting the OMERS contribution, an employee with a disability waiver was put in a better position than if they were still onactive duty, or if they were off-duty but without a waiver. This was not in keeping with the objective of continuity of take home paywhile unable to work. [15] The Association submits that the decision of the Arbitrator is not justifiable in terms of the plain language of the CollectiveAgreement , the principles of collective agreement

interpretation and the evidence before the Arbitrator. In the Association’s submission,the plain words of the Collective Agreement are to be paramount. [16] The City argues that the decision of the Arbitrator was justified and his

interpretation of the intentions of the parties and thepurpose of the relevant provision is reasonably borne out by the words of the provision. [17] In arriving at his decision, the Arbitrator acknowledged that full net pay is not a static amount as it would increase or decreasein appropriate circumstances, such as where the employee had made their full deductions and contributions for EI or CPP in that year.

Hedistinguished the OMERS contribution on the grounds that it was only available for the off-duty firefighter with a waiver. [18] The Arbitrator found two Alberta arbitration decisions dealing with the calculation of benefits for disabled employees in similarcircumstances, although not binding upon him, were of some assistance in defining and supporting the basis for his analysis.

In bothdecisions, the arbitrators had ruled that the purpose of the relevant provision in the collective agreement under scrutiny was to ensurecontinuity between the employee’s take home pay while off duty and up to the time of any return to work (see: Re Royal Alexandra Hospital v. U.N.A., Local 33 (1995), (AB GAA), 45 L.A.C. (4th) 401; Alberta Health Services v. U.N.A. (2012), 110C.L.A.S. 229)). [19] The Arbitrator found that Toronto’s suggested

interpretation was more consistent with the purpose of Article 24(1)(

c) and themeaning of “full net pay” and with ensuring continuity of a disabled employee’s take home pay while off duty.

The Arbitrator consideredthat the essence of the dispute came down to timing: the Association argued that full net pay should be re-determined following anychange in statutory deductions, whether for EI, CPP or OMERS, whereas Toronto had argued that full net pay is established the outset ofa disability period, unaffected by any changes in OMERS pension plan deductions. [20] In his careful and detailed reasons for decision, the Arbitrator stated (at para. 15): [15] In my view, the City’s position best captures the meaning and purpose of the words “full net pay” in article 24(1)(

c) of the

Collective Agreement. In addition to ensuring that a fire fighter off duty due to an occupational illness or an accident at work willcontinue to receive an uninterrupted income, the purpose of the words “full net pay” is to ensure as well that a disabled fire fighter willreceive the same take home pay during the period of absence as if he or she had continued to be an active employee. This does not meanthat a fire fighter whose absence falls under article 24(1)(

c) will necessarily receive an income amount that is fixed for the entireabsence. If active fire fighters receive a pay increase, for example, such an increase will result in an increase to a disabled fire fighter’sincome. When active fire fighters have made their full deductions and contributions for EI or CPP during a year, their take home payincreases by those contribution amounts in the next pay period. This same situation will result in the same increase to a disabled firefighter’s take home pay. This result is specifically addressed in paragraph 5 of the 2020 MOS.

What occurs when a disabled fire fighterobtains an OMERS disability waiver and is no longer required to make contributions to OMERS is obviously different from whencontributions for EI and CPP stop during the year because only the disabled fire fighter’s take home pay can potentially be affected. TheTPFFA’s

interpretation of full net pay and its position that the disabled fire fighter’s take home pay should be increased by the amount ofthe OMERS contributions that the fire fighter would otherwise have made would result in the disabled fire fighter receiving more takehome pay than if he or she had been working. In my view, the parties would not have intended that a disabled fire fighter would receivemore take home pay than an active fire fighter when they agreed to the words “full net pay”. Keeping a disabled fire fighter whole is theobjective of article 24(1)(c).

Making the disabled fire fighter more than whole is not a result that was contemplated by the parties whenthey agreed to the words in dispute. I therefore find that the securing of an OMERS disability waiver does not affect the calculation offull net pay. [21] Labour arbitrators are bound by common law principles of contractual

interpretation when interpreting collective agreements.The goal of the

interpretation exercise "is to determine the objective intention of the parties based on the words they have chosen to usein their agreement" and a "practical, common-sense approach is to be applied to contractual

interpretation." The parties are assumed tohave intended what they said and the meaning of the collective agreement is to be sought in its express provisions. However, in the fieldof labour arbitration a reviewing court is not to set aside the findings of a properly constituted board of arbitration which has been calledupon to interpret a collective agreement unless the court is of the opinion that the

interpretation given to the contract by the board is onethat the language of the contract cannot reasonably bear. The attraction of alternative

interpretations and even the court's preference forsuch are both irrelevant considerations if the board's

interpretation can reasonably be taken from the agreement. (see: Canadian Union ofPublic Employees, Local 5825 v. Scarborough Health Network, 2022 ONSC 604; Re I.C.L. International Carriers Ltd. and TeamstersUnion, Locals 141, 879, 880 and 938, . [22] Further, the

interpretation of a provision of a collective agreement such as this by an arbitrator intimately familiar with theCollective Agreement as a whole and the factual and labour relations context of its operation to govern the dealings between the partiesis entitled to considerable deference (see: Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons IndependentUnion of Canada, Local 1, 2022 ONCA 780)). [23] It is not for a reviewing court to interfere with a decision because it would have decided the issue differently or because analternative

interpretation would have been open to the tribunal. In conducting a reasonableness review, the court starts with the reasonsof the tribunal and examines them with a view to considering whether the rationale for the decision and the outcome of the decision werereasonable. In this case, the reasons of the Arbitrator for arriving at his conclusion and the outcome itself easily withstand all scrutinyunder the considerations for reasonableness as set out in Vavilov, supra (at para. 83).

In my view, they are unassailable. [24] Accordingly, I see no basis upon which interference with the decision of the Arbitrator under review would be justified. Conclusion [25] For these reasons, the application is dismissed. Costs [26] By agreement of the parties, costs fixed in the all-inclusive amount of $7500.00 shall be paid by the Association to Toronto. _______________________________ Stewart J. I agree _______________________________ Newton J. I agree _______________________________ Nishikawa J.

Released: November 14, 2023 CITATION : Toronto Professional Fire Fighters’ Association v. City of Toronto, 2023 ONSC 6290 DIVISIONAL COURT FILE NO.: 493/22 DATE: 20231114 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Stewart, Newton and Nishikawa JJ. BETWEEN: TORONTO PROFESSIONAL FIRE FIGHTERS’ ASSOCIATION Applicant – and – CITY OF TORONTO Respondent REASONS FOR DECISION Stewart J. Released: November 14, 2023