Docket: CACV2574 Mosaic Potash Colonsay ULC Appellant - v. -, 2014 SKCA 134

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 134 Date: 2014-11-26 Between: Docket: CACV2574 Mosaic Potash Colonsay ULC Appellant - and - United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers), Local 7656 Respondent Coram: Jackson, Klebuc and Ryan-Froslie JJ.A. Counsel: Kevin Wilson, Q.C. for the Appellant Gary Bainbridge for the Respondent Appeal: From: 2014 SKQB 213 Heard: November 26, 2014 Disposition: Appeal dismissed (orally) Written Reasons: December 18, 2014

By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Klebuc The Honourable Madam Justice Ryan-Froslie Jackson J.A. [ 1 ] This is an appeal from Acton J., the Chambers judge, who dismissed an application for judicial review of a decision of a single arbitrator acting pursuant to a collective agreement between the United Steelworkers, Local 7656 [Union] and Mosaic Potash Colonsay ULC [Employer] ( 2014 SKQB 213 ).

The arbitrator determined that the Employer had dismissed one of its employees, Sheldon Yanoshewski, without just cause ( 236 LAC (4th) 181 and 222 (Hood), both issued in 2013). [ 2 ] The Employer appealed the decision of the Chambers judge to this Court. When this appeal was heard, we dismissed it with reasons to follow. These are those reasons. [ 3 ] The essential facts may be briefly stated. The Employer terminated Mr. Yanoshewski for two reasons: he refused to work overtime, which the Employer deemed to be participation in an illegal strike contrary to

Article 7.01 of the collective agreement; [1] and he spoke to a supervisor in a manner that the Employer characterized as insubordinate. [ 4 ] Mr. Yanoshewski, who was also a shop steward, was the only employee to be disciplined for his participation in what was said to be an illegal strike by refusing to work overtime. The arbitrator’s decision that Mr. Yanoshewski did not act in an insubordinate manner is of no consequence on this appeal. [ 5 ] In order to determine whether Mr. Yanoshewski’s refusal to work overtime contravened

Article 7.01, the arbitrator determined that he had to resolve four issues: (

i) whether the Employer had proven that a strike had taken place at the Colonsay mine in contravention of

Article 7.01 during the period in question; (ii) if there was a strike, whether Mr. Yanoshewski acted in concert or in combination with others as part of it; (iii) if Mr. Yanoshewski did participate in the strike, whether it was unfair to discipline him for refusing to work overtime when no other employee was disciplined; and (iv) if it were not unfair to discipline Mr. Yanoshewski only, was his termination excessive, and if so, what would be the appropriate remedy in the context of this case. [ 6 ] The arbitrator resolved all of these issues in favour of the Union. In doing so, the arbitrator made these critical findings ( 236 LAC (4th) 181 ): (

i) the Employer failed to prove that a strike had taken place at the Colonsay mine (para. 209); (ii) in any event, if a strike had taken place, and employees were acting in concert or in combination with one another in contravention of

Article 7.01, Mr. Yanoshewski was not part of such a group (para. 218); (iii) further, if the Employer had proven that Mr. Yanoshewski acted in concert with others when he decided not to work overtime, Mr. Yanoshewski’s termination was still unlawful because the discipline imposed on him was discriminatory as he was the only employee disciplined in any manner (para. 235); and (iv) finally, the arbitrator would have substituted a far lesser penalty than termination, in light of the many mitigating factors, including Mr. Yanoshewski’s unblemished record and lengthy service of 17 years at the Colonsay mine (para. 250). [ 7 ] In

summary, the arbitrator gave four reasons why the Employer dismissed Mr. Yanoshewski without just cause. First, there was no illegal strike. Second, if there was an illegal strike, Mr. Yanoshewski did not participate in it. Third, if he did participate in it, the Employer wrongly singled him out for discipline. Fourth, if the Employer did not wrongly single him out, termination was too harsh a penalty to impose. [ 8 ] Following its assessment of the arbitrator’s decision, the Employer applied to the Court of Queen’s Bench by way of an Originating Application for a declaration that Mr.

Yanoshewski had participated in an illegal strike in violation of the collective agreement and The Trade Union Act , RSS 1978, c T-17 (since repealed) and for an order quashing the decision of the arbitrator and confirming the termination of Mr. Yanoshewski’s employment for just cause. [ 9 ] In his reasons, the Chambers judge considered a number of recent decisions from the Supreme Court of Canada and from this Court, all of which address the appropriate standard of review in a case such as this.

Based on this jurisprudence, he concluded that the applicable standard of review is reasonableness ( 2014 SKQB 213 at para. 29 ). Applying this standard in light of the Supreme Court of Canada jurisprudence, he concluded that “the decision of the arbitrator was well within the realm of reasonableness with very clear and acceptable reasons” (para. 54).

[10] On appeal to this court, the Employer sought to challenge the Chambers judge’s decision as to his selection of the appropriatestandard of review and his application of the correct standard. Thus, two issues arise on this appeal: (

a) did the Chambers judge correctlyidentify the standard of review to apply, and (

b) did the Chambers judge correctly apply that standard to his review of the arbitrator’sdecision. A. Did the Chambers judge correctly identify the standard of review to apply? [11] The Employer asserted that correctness, not reasonableness, was the appropriate standard of review because the arbitrator failed toconsider essential evidence when determining first, whether an illegal strike had occurred, and second, whether Mr. Yanoshewski wassingled out for discipline.

Further, the Employer also asserted that the arbitrator had no authority under the collective agreement tosubstitute a penalty lesser than termination. [12] The Employer submitted that the Chambers judge did no more than ask whether the decision was from a single arbitrator and,without more, selected the standard of review to be reasonableness. In the Employer’s submissions, the failure to consider all of theevidence essential to the determination of a legal test permits appellate intervention based on the Supreme Court of Canada’s analysis inHousen v Nikolaisen, 2002 SCC 33 at para 27, [2002] 2 SCR 235.

Further, the Employer also argued that the arbitrator consideredevidence that he should not have considered. Having regard for Housen, the Employer submitted that the Chambers judge should haveconcluded that the standard of review is correctness in this case. [13] It would clearly be an error for a reviewing court to apply a standard of reasonableness without proper analysis and reflection, butsuch an error would not transform the standard of review from reasonableness to correctness, if it were not otherwise so.

Furthermore,there is no basis to conclude that the Chambers judge did not perform the requisite analysis or that the standard of review could beanything but reasonableness in this case. [14] There will be circumstances where an arbitral decision will be reviewed on the basis of correctness, but as recent Supreme Court ofCanada jurisprudence indicates such cases will not be the norm (see Communications, Energy and Paperworkers Union of Canada,Local 30 v Irving Pulp & Paper, Ltd., 2013 SCC 34 at para 7, [2013] 2 SCR 458).

None of the Employer’s arguments overcome the viewthat the applicable standard of review in this case is reasonableness. [15] It must be noted that the Employer did not cite one decision where an applicant had successfully persuaded a court to apply astandard of correctness to the decision of a single arbitrator deciding matters comparable to those considered by the arbitrator in this case.The only decisions cited to the Court on this point were arbitral decisions where an arbitrator had come to a different conclusion than thatof this arbitrator as to whether members of a union had engaged in a strike, but those decisions are clearly not persuasive as to what thestandard of review should be. [16] Further, the Employer does not challenge the law upon which the arbitrator relied to determine when an employer is entitled todiscriminate against employees engaged in a group activity.

The Employer’s concerns are with the application of the law to the facts asfound by the arbitrator and with the arbitrator’s ultimate conclusions rather than with the law to be applied. [17] Even with respect to the identification and definition of the correct legal tests, some leeway is accorded to the arbitrator.

As Fish J.stated in Nor-Man Regional Health Authority Inc. v Manitoba Association of Health Care Professionals, 2011 SCC 59 at para 5, [2011]3 SCR 616, “labour arbitrators are not legally bound to apply equitable and common law principles -- including estoppel -- in the samemanner as courts of law … theirs is a different mission, informed by the particular context of labour relations.” [18] Each of the identified issues in this case required the arbitrator to consider matters unique to the domain of labour relations: wasthere a strike; if so, who participated in it; and was Mr. Yanoshewski part of it.

These issues were considered in the context ofnegotiations to determine a new collective agreement and included an application by the Employer to the Labour Relations Boardalleging an unfair labour practice on the part of the Union.

By the time the arbitrator was asked to resolve the grievances, the arbitratorhad the benefit of the decision of the Board, which found that “at a minimum that there is an arguable case under s. 11(2)(d) [of TheTrade Union Act]” (Mosaic Potash Colonsay ULC v USW, Local 7656 (2012), (SK LRB), 218 CLRBR (2d) 44 (WL)(Sask LRB) at para 27 (Love, Grainger, and McCormick)) and a new collective bargaining agreement was in place. [19] Given the context, the resolution of the essential issues in these grievances was quintessentially the work of a labour arbitrator, andtherefore entitled to deference. [20] In conclusion on this point, the Chambers judge correctly determined that the applicable standard of review with respect to theissues identified in this case is reasonableness.

B. Did the Chambers judge correctly apply the standard of review to his review of the arbitrator’s decision? [21] The Employer submits that, even if the standard of review is reasonableness, the Chambers judge erred by failing to find thearbitrator’s decision unreasonable.

The Employer challenges each of the reasons that the arbitrator gave for finding that Mr.Yanoshewski was dismissed without just cause. [22] With respect to whether the employees at the Colonsay Mine were participating in an illegal strike, the Employer asserts that thearbitrator and the Chambers judge should have found in its favour—based on the evidence.

The Employer cites other arbitral and labourboard decisions where other decision-makers have found an illegal strike based on what the Employer alleges were similar facts:Associated Clothing Manufacturers v A.C.W.A. (1951), 2 LAC 701 (WL) (Ont Arb) at para 5 (Finkelman); I.B.T., Local 141 v M. Loeb(London) Ltd. (1972), (ON LA), 24 LAC 300 (WL) (Ont Arb) at para 7 (Hinnegan); Regina Board of PoliceCommissioners (Re) (1994), 23 CLRBR (2d) 161 (Sask LRB) at 194 (Bilson, Hutchinson, Jones); and Ontario (Management Board of

Cabinet) v O.P.S.E.U. (2002), 79 CLRBR (2d) 6 (WL) (Ont LRB) at para 16 (Albertyn) . [ 23 ] On the question of whether Mr. Yanoshewski participated in an unlawful strike, the Employer challenges the arbitrator’s finding that Mr. Yanoshewski was not acting in concert or in combination with other employees. According to the submissions of the Employer, Mr. Yanoshewski may not have been induced to participate by other employees in the work stoppage, but the arbitrator should have concluded that Mr. Yanoshewski was “tacitly” acting in concert.

On this latter point, the Employer relies upon a decision of the Ontario Labour Relations Board where it reached that conclusion on similar evidence: Westroc Inc ., [2002] OLRD 164 (QL) at para 6 (Rowan). [ 24 ] Further, the Employer submits that the arbitrator erred by relying upon affidavit evidence, which was not properly before him, in reaching his conclusions regarding the existence of, and Mr. Yanoshewski’s participation in, an illegal strike. The affidavit had been filed before the Saskatchewan Labour Relations Board by the Employer as part of the proceedings in that forum (referred to above in para 18).

In the proceedings before the arbitrator, the Employer did not call the affiant of that affidavit, but another witness was cross- examined in relation to it. [ 25 ] As to whether the arbitrator erred by finding that the Employer had singled out Mr. Yanoshewski for discipline, the Employer asserts that the proper comparator group for Mr. Yanoshewski was not all other employees whom it suspected were participating in the unlawful overtime refusal, but all other employees with respect to whom the employer possessed sufficient evidence to establish wrongdoing.

The fact that there were no such employees, the Employer asserts, should not be held against it. [ 26 ] Finally the Employer asserts that the arbitrator erred by purporting to modify the discipline imposed by it. According to these submissions, management’s discipline measures should only be overturned when clearly unreasonable and excessive. [ 27 ] The task of a reviewing court is to consider whether “the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” ( Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 , [2008] 1 SCR 190 ).

Where a successful outcome for one of the parties can be found in any one of several reasons arrived at by an arbitrator, and none of the reasons is linked to another, each reason stands on its own as a pathway to the outcome achieved by the arbitrator. In the case before us, the arbitrator gave four reasons for his conclusion, each reason is independent of the other and the outcomes are the same: the Employer did not have just cause to discipline Mr.

Yanoshewski. [ 28 ] In order for the Employer to succeed it must demonstrate that the Chambers judge should have found that all of the arbitrator’s alternative reasons to sustain his conclusion were unreasonable. The corollary of the foregoing conclusion is that it is only necessary for this Court to determine if one of the reasons, given by the arbitrator for finding that Mr. Yanoshewski was wrongfully dismissed, meets the test for reasonableness. [ 29 ] According to the case law presented to the Court, the determination of whether Mr.

Yanoshewski was participating in an illegal strike depended on a finding that he was acting in concert with others. Mr. Yanoshewski testified that he was not acting in concert with any other person when he refused to work overtime. He testified that he made the decision not to work overtime because of his own personal concerns about union negotiations and his personal concerns with respect to his family life. [ 30 ] The arbitrator stated he believed Mr.

Yanoshewski when he testified that he acted on his own initiative when he refused to work overtime (see paras. 211 to 220 and 245 to 247 of the arbitrator’s decision). Indeed, the arbitrator noted that Mr. Yanoshewski had been forthright from the outset. Members of the management team testified about a meeting where Mr. Yanoshewski spoke frankly about why he was not working overtime and he was told by them in that meeting that it was his choice to make. It was only later that the Employer decided to discipline Mr.

Yanoshewski. [ 31 ] A direct finding of credibility in any arbitral decision under review would be difficult to challenge, but in this appeal we are not presented with the written transcript so as to weigh the arbitrator’s finding of credibility. We are left with assessing the reasonableness of this outcome in light of a consideration of the written reasons alone, and as the Chambers judge stated, those reasons are comprehensive. [ 32 ] In such circumstances, no basis exists upon which to challenge the outcome achieved by this arbitrator because he found that, even if there were an illegal strike, Mr.

Yanoshewski did not participate in it. The arbitrator’s decision turned on how he weighed the evidence and how he assessed the credibility of the witnesses and, in particular, that of Mr. Yanoshewski. Outside of the labour relations context, a determination of whom to believe is accorded deference. The same holds true in the labour context. Finding that the arbitrator unreasonably concluded that Mr.

Yanoshewski was believable would not accord any deference to the decision of the arbitrator. [ 33 ] Given our conclusion on this one issue, it is not necessary for this Court to delve into the other reasons why the arbitrator would have found that Mr. Yanoshewski had been dismissed without just cause. Based on a review of the Arbitral Award, the arbitrator’s decision meets the test for reasonableness. [ 34 ] In sum, we need go no further than this to conclude that the Chambers judge correctly determined that the arbitrator’s decision, sustaining the grievances and setting aside the Employer’s dismissal of Mr.

Yanoshewski, is reasonable. [ 35 ] With that, the appeal is dismissed with costs to the Union.