The Real Canadian Superstores, a Division of Westfair Ltd. Appellant (Applicant) v. United Food and Commercial Workers, 2020 SKCA 102

Court of Appeal for Saskatchewan Docket: CACV3456 Citation: The Real Canadian Superstores v United Food and Commercial Workers Union Local 1400 , 2020 SKCA 102 Date: 2020-08-19 Between: The Real Canadian Superstores, a Division of Westfair Ltd. Appellant (Applicant) And United Food and Commercial Workers Local 1400 Respondent (Respondent) Before: Caldwell, Schwann and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr.

Justice Caldwell The Honourable Madam Justice Schwann On appeal from: QBG 331 of 2019, Saskatoon Appeal heard: June 10, 2020 Counsel: Larry Seiferling, Q.C., and Jared McRorie for the Appellant Crystal Norbeck for the Respondent Leurer J.A. I. Introduction [ 1 ] This appeal finds its origins in a grievance brought by United Food and Commercial Workers Local 1400 [Union] against The Real Canadian Superstores, a Division of Westfair Ltd. [Superstore] under a collective bargaining agreement between the parties [collective agreement].

The Union prevailed in its complaint before a sole arbitrator: United Food and Commercial Workers Local 1400 v The Real Canadian Superstores , Grievance No 156 Fall 17 (21 January 2019), Arbitrator: William Campbell [ Arbitration Award ]. [ 2 ] Superstore’s application for judicial review of the Arbitration Award was dismissed by a Court of Queen’s Bench judge in Chambers: The Real Canadian Superstores v United Food and Commercial Workers Local 1400 (10 July 2019) Saskatoon, QBG 331/2019 (Sask QB) [ Chambers Decision ].

Superstore now appeals the Chambers Decision to this Court. [ 3 ] I would dismiss Superstore’s appeal. My reasons follow. II. Background A. Facts [ 4 ] Superstore operates grocery stores in Saskatchewan and elsewhere in Canada. The Union’s grievance arose after Superstore reorganized the way its employees work in the self-checkout, or “u-scan”, areas of its stores. [ 5 ] In the first years after self-checkout machines were installed, they were monitored by a cashier. The cashier had several responsibilities.

These included: assist customers in using the new technology, monitor against theft, encourage customers to use the new technology and perform general housekeeping tasks. The cashier was “expected to stand at a podium which included a large screen that could monitor all six checkouts and, when needed, would move to the individual machines to assist customers” ( Arbitration Award at para 5).

Importantly, during this time, the cashier stand, or podium as it was also called, was equipped with an anti-fatigue mat “so that the employee who would spend periods of time standing at the podium would have some relief” ( Chambers Decision at para 2). [ 6 ] A controversy between Superstore and the Union arose when this work environment changed. As explained in the Arbitration Award, in late 2016, Superstore “modified the system and provided the cashiers with handheld iPads and removed the podiums.

In other words, there was no longer a large screen monitoring all six checkouts, but rather [a] handheld iPad which was used to individually monitor the various checkouts” (at para 5). When the podiums were removed, Superstore also took out the anti-fatigue mats. [ 7 ] The Union and Superstore disagreed as to whether the removal of the anti-fatigue mats had breached the collective agreement. The Union filed a grievance that alleged as follows: The employer has violated

article 14.8, by removing all anti fatigue mats at U scans [ sic ] stations, at all Superstores in Saskatchewan, in violation of the [collective agreement] and/or any other applicable legislation. [ 8 ] In an interim decision, the arbitrator had ordered the collective agreement to be rectified. Two provisions of the rectified collective agreement weighed most heavily in the disagreement between the parties:

ARTICLE 10 - UNION’S RECOGNITION OF MANAGEMENT RIGHTS The Union agrees that the management of [Superstore], including the right to plan, direct and control store operations, direction of the

working force, discharge employees for just cause, and those matters requiring judgement as to the competency of the employees, is the sole right and function of [Superstore]. … The parties agree that the foregoing enumeration of Management’s rights shall not be deemed to exclude other recognized functions of Management not specifically covered by this Agreement. [Superstore], therefore, retains all rights not otherwise specifically covered by this Agreement. …

ARTICLE 14 - HEALTH AND SAFETY … 14.8 Anti-Fatigue Mats Suitable anti-fatigue mats will be placed at the checkstands, U scan podiums, customer service and in appropriate areas provided it is safe and reasonable to do so. B. Arbitration Award [ 9 ] The grievance was submitted to arbitration before a single arbitrator, appointed pursuant to the collective agreement. [ 10 ] The arbitrator began his analysis by observing that, in addition to directing that anti-fatigue mats be placed at “U scan podiums”,

article 14.8 of the collective agreement also “requires [Superstore] to provide suitable anti-fatigue mats ‘in appropriate areas provided it is safe and reasonable to do so’” (at para 10). The arbitrator rejected Superstore’s argument that, because u-scan podiums no longer existed, it could not be found to be in breach of

article 14.8: [10] … Although u-scan podiums no longer exist in the stores, there remains an area where the self-checkout machines are situated which requires the assistance or attendance of a cashier. I will refer to this area as the “u-scan area”. [ 11 ] The arbitrator then identified the issue to be whether the u-scan area was an “appropriate area” for an anti-fatigue mat and two “conditions” that would bear on how he would determine that question: [11] The question before me is whether the u-scan area is an “appropriate area” for an anti-fatigue mat.

There are two conditions in determining whether this is an appropriate area. Those two conditions are safety and reasonableness. In other words, is it safe to have an anti-fatigue mat in the area of the self-checkout machines on which the cashiers can stand for relief, and secondly, is it reasonable to have an anti-fatigue mat in that area to offer relief to the cashiers? [ 12 ] The arbitrator noted that

article 14.8 “specifies three areas where anti-fatigue mats must be placed”, being u-scan podiums, checkstands and the customer service area. Evidence before him also disclosed that “anti-fatigue mats have been installed in the deli and bakery departments” (at para 12). The arbitrator discussed the evolution of the responsibilities of the workers in the u-scan area and compared and contrasted the degree to which employees working in this area might stand or move about as compared to other employees.

In this factual context, he further refined the question he set out to answer: [17] There does appear though to be a hybrid situation where certain employees have some ability to move around, but are also required to remain stationary, or at least in a restricted area such as the u-scan area. Other examples of such hybrid positions would be customer service and deli and bakery areas. [Superstore] has seen fit to have anti-fatigue mats in these other areas. The customer service area is specifically referred to in

Article 14.08 [ sic ] of the [collective agreement], but the other areas (deli and bakery) would fall under the “appropriate areas” provisions in

Article 14.08 [ sic ]. The question, therefore, is whether the u-scan area is an “appropriate area” to have anti-fatigue mats similar to the deli and bakery areas. [ 13 ] The arbitrator reviewed the evidence and stated that he did “not accept [Superstore’s] argument that there may be safety issues when placing mats in the u-scan areas for use of [ sic ] the u-scan cashiers” (at para 20).

The arbitrator then turned to “whether it is reasonable to install these mats” and Superstore’s argument “that the general job description allows the employee the flexibility of walking around throughout their shifts” (at para 21). After summarizing additional evidence, the arbitrator explained why, in his view, the installation of mats in the u-scan area was reasonable: [35] There are two findings that lead me to the conclusion that the installation of anti-fatigue mats in the u-scan area is reasonable.

The first is the evidence that employees, whether required to or not, do stand stationary for periods of time while performing their duties and secondly, the evidence from the employees that the anti-fatigue mats do offer relief for leg and back issues. Based on these two findings, I conclude that:

a) The u-scan area is “an appropriate area” for anti-fatigue mats;

b) It is safe to place the anti-fatigue mats in the u-scan area; and

c) It is reasonable to have the anti-fatigue mats available for the benefit of the u-scan cashiers. [ 14 ] In the result, the arbitrator allowed the grievance and found “the refusal to have anti-fatigue mats in the u-scan areas is a breach of the [collective agreement]” (at para 37). C. Chambers Decision

[ 15 ] Superstore applied for an order quashing the Arbitration Award . Its stated grounds included that the arbitrator erred: (a) “in expanding the matter beyond the dispute between the parties”; (b) “in substituting his decision for a discretionary decision of Superstore, which fell within Superstore’s management right under the collective agreement”; (c) “by ignoring expert evidence, despite accepting the witness as an expert witness”; (d) “by ignoring evidence provided by the parties”; (e) “by preferring layperson evidence over expert evidence, when expert evidence was provided by [Superstore]”; (f) “by ignoring

Part III of The Saskatchewan Employment Act … in determining whether anti-fatigue mats were reasonable in u-scan areas of Superstore locations”; and (g) “by ignoring evidence regarding the anti-fatigue mats constituting a tripping hazard in the u-scan area of Superstore locations”. [ 16 ] The Chambers judge noted that both parties had identified Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 [ Dunsmuir ], as providing the “starting point for considerations of the standard of review” (at para 6).

He went on to conclude that “the correct standard for [ sic ] review in this case is reasonableness” (at para 9). [ 17 ] The Chambers judge observed that Superstore had argued that “because the anti-fatigue mats were placed in tandem with the podiums, once the podiums were removed then the anti-fatigue mats no longer fit within the parameters of

article 14.8” (at para 13). The Chambers judge addressed this by noting that the arbitrator had determined that, although u-scan podiums no longer existed in the stores, there remained a u-scan area, and therefore the issue was whether that area was an “appropriate” one for an anti-fatigue mat (at para 14). [ 18 ] The Chambers judge identified the “main issue” before him to be “whether or not management’s rights to operate the store, including the management’s right clause under the collective bargaining agreement, is paramount to or subservient to

Article 14.8 and whether or not the removal of the podiums would naturally lead to the removal of the anti-fatigue mats” (at para 15). He referred to the argument made by Superstore on this issue and then stated: [17] From this argument it is clear that the applicant predicates its argument regarding management rights to the determination of the grievance upon the assumption that

article 14.8 creates, or preserves, a discretion exercisable by management. A plain reading of the

article 14.8 shows that it does not. The

article provides that anti-fatigue mats will be placed in appropriate locations. The language itself is mandatory. There is no discretion invested in management. The applicant seems to suggest that the language which follows, “provided it is safe and reasonable to do so”, creates a discretion. It does not. Rather, the language of

article 14.8 creates something more akin to a contingent or conditional entitlement on the part of employees and a contingent or conditional obligation on the part of the employer. [ 19 ] The Chambers judge took a “closer look” at

article 14.8, which he concluded created a mandatory obligation, when applicable (at para 18). He then observed: [19] The evidence before the arbitrator was that there are anti-fatigue mats in the deli and the bakery. Little evidence was called on these points, but as those areas are not specifically set out in

article 14.8, they must have been areas that were deemed to be appropriate and that it was deemed to be safe and reasonable to place mats in those areas. This is the conclusion reached by the arbitrator where he states in paragraph 10: 10. … That

Article still requires [Superstore] to provide suitable anti-fatigue mats “in appropriate areas provided it is safe and reasonable to do so.” Although u-scan podiums no longer exist in the stores, there remains an area where the self-checkout machines are situated which requires the assistance or attendance of a cashier. [ 20 ] The arbitrator goes on at paragraph 11: 11. The question before me is whether the u-scan area is an “appropriate area” for an anti-fatigue mat. There are two conditions in determining whether this is an appropriate area. Those two conditions are safety and reasonableness.

In other words, is it safe to have an anti-fatigue mat in the area of the self-checkout machines on which the cashiers can stand for relief, and secondly, is it reasonable to have an anti-fatigue mat in that area to offer relief to the cashiers? [20] The Chambers judge then considered Superstore’s argument that the arbitrator had ignored evidence, and in particular that of its expert, in reaching his conclusion. The Chambers judge quoted extensive passages from the Arbitration Award that discussed the expert’s testimony.

He observed that there was “no evidence that the arbitrator did not understand or consider the expert opinion”, instead, the arbitrator “simply found it to be lacking in part because of the facts that the expert had been asked to assume” (at para 25).

The Chambers judge concluded that the arbitrator “did not reject or fail to consider the expert evidence; he simply gave it the weight it deserved” (at para 26). [ 21 ] Next, the Chambers judge rejected Superstore’s argument that the arbitrator had failed to consider The Saskatchewan Employment Act, SS 2013, c S-15.1 [ Act ] because as “neither party argued this area of the law in the arbitration, it is not applicable [ sic ] to raise those arguments in the appeal” (at para 28). [ 22 ] In relation to arguments by Superstore relating to safety issues, the Chambers judge stated: [31] I find that the conclusions of the arbitrator on the evidence before him during the arbitration are reasonable having regard to the test on appeal.

I find that the arbitrator considered all of the evidence before him and concluded that notwithstanding that the employees are asked to move frequently to ensure the u-scan stations are working, supplied with bags, that no one is attempting to steal product and these same cashiers are required to attempt to entice other shoppers into the u-scan area, that there will be periods of time that they will be stationary is a reasonable conclusion based on the evidence. I therefore find that the decision of the arbitrator was reasonable and dismiss this application.

III. Issues [ 23 ] Superstore’s position is that the Chambers judge erred by not quashing the Arbitration Award . It reiterates many of the arguments it made before the Chambers judge, albeit at times with different emphasis. [ 24 ] This Court’s role is to ask itself whether the Chambers judge identified the appropriate standard of review and applied it correctly, applying the correct standard afresh where the Chambers judge has failed to do so: Dr. Q. v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at para 43 , [2003] 1 SCR 226 [ Dr.

Q. ], Agraira v Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 at paras 45–47 , [2013] 2 SCR 559 [ Agraira ] and Canadian Union of Public Employees, Local 59 v City of Saskatoon , 2014 SKCA 14 at para 22 . In this case, Superstore argues that several different standards of review are at play. I propose, therefore, to analyze Superstore’s appeal with reference to the issues identified in its factum, and within the context of each issue discuss the applicable standard of review. I also restate Superstore’s issues slightly to reflect the analytical framework provided by Dr.

Q. and Agraira , as follows: (

a) Did the Chambers judge err by failing to find that the arbitrator expanded the matter beyond the dispute between the parties? (

b) Did the Chambers judge err by failing to find that the Arbitration Award was unreasonable in how it addressed Superstore’s management rights ? (

c) Did the Chambers judge err by failing to find that the arbitrator improperly dealt with Superstore’s expert evidence ? (

d) Did the Chambers judge err by failing to find that the arbitrator ignored evidence regarding safety concerns with anti-fatigue mats ? (

e) Did the Chambers judge err by failing to find that the arbitrator ignored Superstore’s regulatory obligations? A. Did the Chambers judge err by failing to find that the arbitrator expanded the matter beyond the dispute between the parties ? [ 25 ] Superstore contends that the Chambers judge erred by failing to find that the arbitrator had exceeded his jurisdiction by deciding a dispute that was not the subject of the Union’s grievance. Its argument builds from the observation that the complaint stated in the grievance is that Superstore had “violated

article 14.8, by removing all anti-fatigue mats at U scans stations , at all Superstores in Saskatchewan, in violation of the [collective agreement] and/or any other applicable legislation” (emphasis added). As I have explained, the evidence was that all u-scan stations, or podiums, had been removed and, instead, employees worked at-large in the general u-scan area.

Superstore’s proposition is that, because of the language used in the grievance notice, the arbitrator was limited to determining whether the mats were required at u-scan podium areas and, since these no longer existed, there was nothing left to grieve.

Superstore says, therefore, that the arbitrator exceeded his jurisdiction by determining the question of whether anti-fatigue mats were required in the general u-scan area. [ 26 ] For its part, the Union argues that it “did not – and would not rationally – grieve the removal of anti-fatigue mats from U-Scan ‘podiums’ because they were no longer any U-Scan podiums at Superstore locations”.

The Union says “instead [it] grieved the removal of anti-fatigue mats from the U-Scan area or U-Scan stations more generally”. [ 27 ] I begin by observing that it is far from clear that Superstore even advanced a jurisdictional argument of this nature before the arbitrator. In paragraph 2 of the Arbitration Award , the arbitrator stated that the parties had “agreed that [he has] been properly appointed, that the grievance is properly before [him] and that [he has] jurisdiction to rule on the issues before [him]”.

There is no evidence that contradicts the arbitrator’s statement that the parties had agreed he had jurisdiction to decide the issue in the arbitration. To the contrary, the record suggests that the parties had agreed on the issue and the arbitrator’s jurisdiction to decide it. [ 28 ] By agreement of the parties, the record in this case included the written arguments filed by the parties with the arbitrator. Having reviewed Superstore’s brief of law, I can see no reference to this jurisdictional argument, at least as cast by it in this Court.

This understanding of Superstore’s position before the arbitrator is consistent with the affidavit evidence Superstore filed in support of its application for judicial review. Affidavits of two employees both state that the “hearing of this matter” – which in context is the arbitration – “relates to the use of anti-fatigue mats in the u-scan areas of Superstore locations in Saskatchewan”.

I note that, although not put in these terms by Superstore, this evidence also disposes of any issues of procedural fairness, since the affidavits disclose that Superstore was aware that the grievance was intended to encompass the complaint that the collective agreement was breached by the removal of anti- fatigue mats from the self-checkout or u-scan area, generally. [ 29 ] While it is, at best, unclear if Superstore advanced the jurisdictional argument made in this Court before the arbitrator, there seems little doubt that it was made to the Chambers judge.

The Chambers judge’s analysis of the issue consists simply of reciting the existence of the issue (at para 5) and then reproducing the arbitrator’s reasons for assuming jurisdiction over the dispute (at para 14). It is left to implication that the Chambers judge concluded that the arbitrator had not erred in doing this. [ 30 ] In my respectful view, it would have been helpful had the Chambers judge provided an explanation for why he reached the conclusion that the arbitrator’s assumption of jurisdiction was reasonable.

However, the approach to appellate review of the Chambers Decision allows us to step “into the shoes of the subordinate court in reviewing a tribunal’s decision”, with the result that our focus is, in effect, on the arbitrator’s decision: Prairie Acid Rain Coalition v Canada (Minister of Fisheries and Oceans) , 2006 FCA 31 at para 14 , [2006] 3 FCR 610 , quoted with approval in Merck Frosst Canada Ltd. v Canada (Health) , 2012 SCC 3 at para 247 , [2012] 1 SCR 23 , and Agraira at para 46 .

I will consider this question in two parts, first by considering what standard of review should be applied to this issue and, second, by examining the Arbitration Award in the context of the applicable standard. [ 31 ] In its factum, Superstore asserted that the jurisdictional question it raised was properly reviewed on the correctness standard.

The Union disagreed and asserted, instead, that the assumption of jurisdiction by the arbitrator is to be assessed against the reasonablenessstandard.

The Union points to Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov], asestablishing the proposition that, in situations where reasonableness is otherwise the applicable standard, that standard applies tojurisdictional determinations unless the jurisdictional issue relates to the adjudicative boundaries between administrative bodies. [32] In oral argument, counsel for Superstore frankly acknowledged that he was unaware of Vavilov – which was decided after theChambers Decision – at the time he prepared his factum.

Perhaps for this reason, he did not press the proposition that a correctnessstandard of review applied in connection with this issue. In any event, I agree with the Union on this point. In Vavilov, the Supreme Courtof Canada recognized that “the rule of law requires that the correctness standard be applied in order to resolve questions regarding thejurisdictional boundaries between two or more administrative bodies” (at para 63, emphasis added). It further explained: [64] Administrative decisions are rarely contested on this basis.

Where they are, however, the rule of law requires courts to intervenewhere one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another.The rationale for this category of questions is simple: the rule of law cannot tolerate conflicting orders and proceedings where they resultin a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions: see BritishColumbia Telephone Co. [v Shawn Cable Systems (BC) Ltd., (SCC), [1995] 2 SCR 739], at para. 80, per McLachlin J.(as she then was), concurring.

Members of the public must know where to turn in order to resolve a dispute. As with general questions oflaw of central importance to the legal system as a whole, the application of the correctness standard in these cases safeguardspredictability, finality and certainty in the law of administrative decision making. [33] The Supreme Court also cautioned against giving broad scope to this principle as a basis to apply a correctness standard.

Itobserved that the “majority in Dunsmuir held that it was ‘without question’ … that the correctness standard must be applied in reviewingjurisdictional questions (also referred to as true questions of jurisdiction or vires)” (at para 65).

However, the Court also noted that“majorities of [the Supreme] Court have questioned the necessity of this category, struggled to articulate its scope and ‘expressed seriousreservations about whether such questions can be distinguished as a separate category of questions of law’” (at para 65, quoting McLean vBritish Columbia (Securities Commission), 2013 SCC 67, [2013] 3 SCR 895 at para 25). In the end, the Court held that it “would cease torecognize jurisdictional questions as a distinct category attracting correctness review” (at para 65).

After a further discussion of the caselaw, the Court explained the application of the reasonableness standard to questions of jurisdiction: [67] In [Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31, [2018] 2 SCR 230 [CHRC]], themajority, while noting this inherent difficulty — and the negative impact on litigants of the resulting uncertainty in the law — nonethelessleft the question of whether the category of true questions of jurisdiction remains necessary to be determined in a later case.

After hearingsubmissions on this issue and having an adequate opportunity for reflection on this point, we are now in a position to conclude that it isnot necessary to maintain this category of correctness review. The arguments that support maintaining this category — in particular theconcern that a delegated decision maker should not be free to determine the scope of its own authority — can be addressed adequately byapplying the framework for conducting reasonableness review that we describe below. Reasonableness review is both robust andresponsive to context.

A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensurethat administrative bodies have acted within the scope of their lawful authority without having to conduct a preliminary assessmentregarding whether a particular

interpretation raises a “truly” or “narrowly” jurisdictional issue and without having to apply the correctnessstandard. [68] Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and thereforedoes not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutoryscheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where thereasonableness standard is applied in reviewing a decision maker’s

interpretation of its authority, precise or narrow statutory language willnecessarily limit the number of reasonable

interpretations open to the decision maker — perhaps limiting it one. Conversely, where thelegislature has afforded a decision maker broad powers in general terms — and has provided no right of appeal to a court — thelegislature’s intention that the decision maker have greater leeway in interpreting its enabling statute should be given effect.

Withoutseeking to import the U.S. jurisprudence on this issue wholesale, we find that the following comments of the Supreme Court of the UnitedStates in [City of Arlington, Texas v Federal Communications Commission, 569 US 290 (2013)], at p. 307, are apt: The fox-in-the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decision-makingthat is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority.

Where[the legislature] has established a clear line, the agency cannot go beyond it; and where [the legislature] has established an ambiguous line,the agency can go no further than the ambiguity will fairly allow. But in rigorously applying the latter rule, a court need not pause topuzzle over whether the interpretive question presented is “jurisdictional” … (Italicized emphasis in original; underlined emphasis added) [34] The issue under this first ground is whether the arbitrator erred when he assumed jurisdiction over the dispute between theparties.

This question does not engage with the jurisdictional boundary between competing administrative bodies. The arbitrator’sdetermination that he had jurisdiction is, therefore, appropriately reviewed to see if it is reasonable. [35] I turn then to a review of the Arbitration Award. When conducting a reasonableness review, “a court must consider theoutcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent,intelligible and justified” (Vavilov at para 15).

A premium is accordingly placed on ensuring that an administrative decision-makerresponds to the central arguments made by the parties. As stated in Vavilov: [127] The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account forthe central issues and concerns raised by the parties.

The principle that the individual or individuals affected by a decision should have theopportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker [vCanada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817], at para. 28. The concept of responsivereasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate thatthey have actually listened to the parties.

(Emphasis in original) [ 36 ] I am satisfied that if an argument of the nature or kind now made by Superstore had been made before the arbitrator, it was adequately addressed in the Arbitration Award. The jurisdictional issue (as Superstore now casts it) turns on a proper

interpretation of the grievance notice itself. I am satisfied that the arbitrator’s decision was coherent and followed a logical path in explaining how he determined to embark upon answering the question he did. [ 37 ] In paragraph 10, the arbitrator identified the fact that the u-scan podiums no longer exist but that there “remains an area where the self-checkout machines are situated which requires the assistance or attendance of a cashier”. The arbitrator then identified the issue before him to be “whether the u-scan area is an ‘appropriate area’ for an anti-fatigue mat” (at para 11).

Although these reasons are brief, they reveal that the arbitrator turned his mind to whether he should adjudicate the dispute even though the u-scan podiums had been removed. The reasons also disclose the arbitrator’s reasoning for coming to the conclusion that he should determine this dispute. In this regard, his statement of the issue reveals that he accepted the Union’s argument that the grievance notice should be interpreted as encompassing the area where the self-checkout machines are situated.

The arbitrator’s decision to assume jurisdiction was therefore justified, intelligible and transparent in the sense that it meaningful accounts for the jurisdictional issue; that is, the Arbitration Award is reasonable and the Chambers judge did not err in declining to quash it on the basis that the arbitrator inappropriately assumed jurisdiction over the dispute. B. Did the Chambers judge err by failing to find that the Arbitration Award was unreasonable in how it addressed Superstore’s management rights ? [ 38 ] Superstore’s second argument relates to the management rights clause in the collective agreement.

The suggestion here is that the “arbitrator err[ed] in substituting his decision for a discretionary decision of Superstore, which fell within Superstore’s management right under the collective agreement”. Superstore further says that the Chambers judge compounded the arbitrator’s error by substituting his own reasons for why the management rights clause did not prevail over

article 14.8. The parties agreed that the standard of review applicable to this issue is reasonableness. [ 39 ] Superstore’s position before the arbitrator was that it had the right to set the rules surrounding the use of anti-fatigue mats under the management rights

article of the collective agreement, which provides in material part as follows:

ARTICLE 10 - UNION’S RECOGNITION OF MANAGEMENT RIGHTS The Union agrees that the management of the Company, including the right to plan, direct and control store operations, direction of the working force, discharge employees for just cause, and those matters requiring judgement as to the competency of the employees, is the sole right and function of [Superstore]. … The parties agree that the foregoing enumeration of Management’s rights shall not be deemed to exclude other recognized functions of Management not specifically covered by this Agreement. [Superstore], therefore, retains all rights not otherwise specifically covered by this Agreement. [ 40 ] Superstore points out that the Arbitration Award contains no overt discussion of management rights.

As a result, it argues that the award is not reasonable. Its submissions in this regard are closely tied to the principle that an administrative body’s reasons must address the main points of argument put to it in order to pass muster as being reasonable. Superstore criticizes the Chambers judge for failing to examine the Arbitration Award to ensure that its reasons were transparent, intelligible and justified in relation to this argument.

Superstore says that the Chambers judge committed further error by supplementing the reasons of the arbitrator with his own reasons as to why its management rights should yield on this issue.

In oral argument, Superstore placed particular reliance on the following passage from Vavilov : [96] Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: [ Delta Air Lines Inc. v Lukács , 2018 SCC 2 , [2018 1 SCR 6], at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion.

This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision.

To the extent that cases such as [ Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 SCR 708] and [ Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 SCR 654 [ Alberta Teachers ]] have been taken as suggesting otherwise, such a view is mistaken. [ 41 ] There is some force to Superstore’s argument that the Chambers judge, to some extent, provided his own rationale for why Superstore’s management rights clause did not provide it with the authority to remove the anti-fatigue mats from the u-scan area.

In this regard, paragraph 17 of the Chambers Decision contains reasoning not found in the Arbitration Award . That said, I pause to observe that the Chambers judge did not have the benefit of Vavilov when he undertook his review of the Arbitration Award . However, the validity of Superstore’s criticism of the Chambers Decision depends on whether the arbitrator failed to address the argument it now says was ignored in the award.

To assess this, it is necessary to unpack in greater detail the submissions Superstore made in the arbitration. [ 42 ] Superstore’s argument before the arbitrator had proceeded on a basis that recognized that management rights under

article 10 were subject to other terms of the collective agreement. Superstore specifically accepted that if

article 14.8 of the collective agreement required the use of the mats, it followed that the management rights clause did not allow Superstore to refuse to provide them. All of this emerges from the brief of law that Superstore filed with the arbitrator. Superstore wrote in that brief:

18. Before commenting on the issue of the necessity of a mat, it is necessary to point out what this case is not about. It is not about the removal of the podium. Clearly, under the management rights

article of the Collective Bargaining Agreement, i.e.

article 10, management has the right to plan, direct and control the store operations. The issue is what requirement there is under

article 14.8 when the company decided to remove the podium and modify the job, in order to attract and service the customers that were coming to the u-scan area. It is clear that the company would like to have the area, where there are six cash stations, used as often as possible, as there would be cost savings associated with not having six cashiers tied up when the customer themselves can do their own cashier work.

Given the management rights clause and the changes made in 2016 that led to the removal of the anti-fatigue mats, the issue is only whether the provisions of 14.8, when the podiums were removed, would reasonably require a mat in that area. … 22. When considering the right of the company to manage its business in all respects, as well as the reserved rights provisions of the management rights clause, the issue is whether the removal of an anti-fatigue mat in the u-scan area was a violation of 14.8 of the Collective Bargaining Agreement .

It is the position of the company that with the removal of the podium, which is all that 14.8 refers to, the time standing in one place was greatly reduced, and that management at that point had a right to make a decision as to whether there was a need for the anti-fatigue mat.

It is clear that if we look at the reasoning behind the use of the anti-fatigue mat in Ontario, the expert evidence that was presented in our case and not contradicted by the union, and the lack of evidence as to the need for an anti-fatigue mat, given the circumstances in the store, that the decision to remove the mats after the podium was removed was a reasonable decision both for [Superstore] and based on the expert witness in this case. (Emphasis added) [ 43 ] In the emphasized passages, Superstore directed the arbitrator to focus his attention on the meaning and application of

article 14.8 rather than whether its actions were justified under

article 10. It was in this context that the arbitrator considered “whether the u-scan area is an ‘appropriate area’ for an anti-fatigue mat” (at para 11) and made the findings of fact that led to his conclusion that it was. The grievance therefore required the arbitrator to interpret

article 14.8 and determine whether Superstore had breached its obligation under that provision. [ 44 ] Superstore’s submissions recognized that its management rights would yield if

article 14.8 required the use of anti-fatigue mats. Said another way, the position taken by Superstore before the arbitrator was that the issue of whether it had the right to remove the anti- fatigue mats was answered when the arbitrator determined whether the removal of the anti-fatigue mats constituted a breach of

article 14.8. Somewhat ironically, this was implicitly recognized by Superstore in its factum in this Court when it introduced its argument in relation to this issue by stating as follows: 23. When considering the right of the company to manage its business in all respects, as well as the reserved rights provisions of the management rights clause, the issue is whether the removal of an anti-fatigue mat in the u-scan area was a violation of

section 14.8 of the [collective agreement]. [ 45 ] Accordingly, the arbitrator’s approach to deciding the grievance – by focusing on the meaning and factual applicability of

article 14.8 – was coherent and followed a logical path. In short, it was reasonable. I further agree with the Union’s position that Superstore has substantially recast the argument from what was advanced before the arbitrator. Contrary to Superstore’s submissions in this Court, a review of the record shows that the reasonableness of the exercise of managerial discretion under

article 10 of the collective agreement was not directly in issue before the arbitrator. [ 46 ] Based on all of this, I do not hesitate to conclude that the Chambers judge did not err by declining to find that the Arbitration Award was unreasonable in how it addressed Superstore’s management rights under

article 10 of the collective agreement. C. Did the Chambers judge err by failing to find that the arbitrator improperly dealt with Superstore’s expert evidence? [ 47 ] Mr. Ryan Dueck, an occupational therapist called as a witness by Superstore, was qualified by the arbitrator to give expert opinion “as to whether anti-fatigue mats would be useful in the situations as described at the u-scan stations” ( Arbitration Award at para 22). For its part, the Union had tendered the evidence of employees who worked in the u-scan areas.

As summarized by the arbitrator, these witnesses “each provided evidence that the anti-fatigue mats offered relief to their legs and back, even though they were only standing for shorter periods of time (up to 10 minutes)” (at para 26). [ 48 ] Before the Chambers judge, Superstore argued that the arbitrator had “ignored” the evidence of its expert and “did not understand or consider the expert opinion” (at para 25). It linked these arguments to alleged deficiencies in the reasons of the arbitrator.

Superstore submitted in its factum that the errors allegedly committed by the arbitrator were reviewable on a correctness standard. The idea was that the issues required “an assessment of not only complex legal principles, and the laws of evidence, but also policy considerations and other fundamental principles of our legal system”.

All of this is said to give rise to questions of law that are of “central importance to the legal system … and outside the … specialized area of expertise” of the arbitrator ( Dunsmuir at para 55 , quoting Toronto (City) v C.U.P.E., Local 79 , 2003 SCC 63 at para 62 , [2003] 3 SCR 77). [ 49 ] In oral argument in this Court, Superstore did not pursue the suggestion that a correctness standard of review was applicable to this issue. This is, perhaps, because the submission is answered by Vavilov , which has now restricted the circumstances where a correctness standard may apply on this basis.

I will quote Vavilov at length: [60] This Court’s jurisprudence continues to provide important guidance regarding what constitutes a general question of law of central importance to the legal system as a whole.

For example, the following general questions of law have been held to be of central importance to the legal system as a whole: when an administrative proceeding will be barred by the doctrines of res judicata and abuse of process ( Toronto (City) [ v C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 SCR 77], at para. 15); the scope of the state’s duty of religious neutrality ([ Mouvement laïque québécois v Saguenay (City) , 2015 SCC 16 , [2015] 2 SCR 3], at para. 49); the appropriateness of limits on solicitor-

client privilege ([ Alberta (Information and Privacy Commission) v University of Calgary , 2016 SCC 53 , [2016] 2 SCR 555], at para. 20); and the scope of parliamentary privilege ( Chagnon [ v Syndicat de la function publique et parapublique du Québec , 2018 SCC 39 , [2018] 2 SCR 687], at para. 17).

We caution, however, that this jurisprudence must be read carefully, given that expertise is no longer a consideration in identifying such questions: see, e.g., CHRC , at para. 43 . [61] We would stress that the mere fact that a dispute is “of wider public concern” is not sufficient for a question to fall into this category — nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue: see, e.g., Communications, Energy and Paperworkers Union of Canada, Local 30 v.

Irving Pulp & Paper, Ltd. , 2013 SCC 34 , [2013] 2 S.C.R. 458, at para. 66 ; McLean [ v British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 SCR 895], at para. 28; Barreau du Québec v. Quebec (Attorney General) , 2017 SCC 56 , [2017] 2 S.C.R. 488, at para. 18 . The case law reveals many examples of questions this Court has concluded are not general questions of law of central importance to the legal system as a whole.

These include whether a certain tribunal can grant a particular type of compensation ([ Canada (Canadian Human Rights Commissions) v Canada (Attorney General) , 2011 SCC 53 , [2011] 3 SCR 471 [ Mowat ]], at para. 25); when estoppel may be applied as an arbitral remedy ( Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals , 2011 SCC 59 , [2011] 3 S.C.R. 616, at paras. 37-38 ); the

interpretation of a statutory provision prescribing timelines for an investigation ( Alberta Teachers , at para. 32 ); the scope of a management rights clause in a collective agreement ( Irving Pulp & Paper , at paras. 7, 15-16 and 66, per Rothstein and Moldaver JJ., dissenting but not on this point); whether a limitation period had been triggered under securities legislation ( McLean , at paras. 28-31 ); whether a party to a confidential contract could bring a complaint under a particular regulatory regime ( Canadian National Railway [ Co. v Canada (Attorney General) , 2014 SCC 40 , [2014] 2 SCR 135], at para. 60); and the scope of an exception allowing non-advocates to represent a minister in certain proceedings ( Barreau du Québec , at paras. 17-18).

As these comments and examples indicate, this does not mean that simply because expertise no longer plays a role in the selection of the standard of review, questions of central importance are now transformed into a broad catch-all category for correctness review. [62] In short, general questions of law of central importance to the legal system as a whole require a single determinate answer.

In cases involving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows. [ 50 ] None of Superstore’s arguments relating to how the arbitrator treated the evidence raise the kind of question that Vavilov suggests might be considered to be a general question of law of central importance to the legal system.

Instead, Superstore is challenging routine decisions made by a fact-finder regarding the relative weight to be placed on evidence called by the parties. [ 51 ] In my respectful view, the Chambers judge therefore correctly identified the reasonableness standard as applicable to Superstore’s arguments relating to the arbitrator’s treatment of the evidence. Further, in my view, the Chambers judge also correctly applied that standard of review. [ 52 ] The Chambers judge summarized the arbitrator’s treatment of Mr.

Dueck’s testimony and concluded that the arbitrator understood and considered that evidence, but in the end simply found it to be unhelpful: [22] At the arbitration the applicant tendered Mr. Ryan Dueck, an occupational therapist, as an expert witness. The arbitrator qualified Mr. Dueck as an expert with expertise in office and industrial ergonomics. The arbitrator noted that the parameters given to Mr. Dueck for his opinion included the statement that the employees would be standing stationary for at most 2 to 5 minutes.

The evidence at the hearing and found by the arbitrator was that employees might be standing for up to 10 minutes at a time. At paragraph 24 of the award the arbitrator stated: 24. … Mr. Dueck’s evidence and report indicates that his opinions would be much more applicable to long term standing. He acknowledged that he did not do any research on his own in regard to the work requirements or habits of the u-scan cashiers ... [23] The arbitrator then quoted from the report Mr.

Dueck had tendered as part of his evidence where he stated: I was not able to find research associated with the effectiveness of an anti-fatigue mat as it relates to short term standing. All of the research focuses on interventions related to prolonged standing in one spot. However, a review

article that examined the negative health outcomes and interventions related to stationary standing (Waters and Dick, 2015) concluded the following: ‘Workplaces should not be static. Work should be designed so that the worker can adopt various postures during the work. For example, the worker should be able to walk around rather than stand in one place, or a sit-stand chair/workstation should be provided. Also, the worker should be encouraged to modify their posture so that they mix sitting, standing, leaning and use of a foot rail or footrest as much as possible.’ [ 53 ] I agree with the Chambers judge.

The arbitrator explained that Mr. Dueck was called “to testify as to whether anti-fatigue mats would be useful in the situations as described at the u-scan stations” ( Arbitration Award at para 22). The arbitrator observed that Mr. Dueck’s opinions were based on assumptions that were at odds with the evidence led in the arbitration. Specifically, the arbitrator noted that Mr. Dueck’s opinions were “based on information provided to him by [Superstore] that the employees stood for a maximum of two to five minutes at any one time”, but the “evidence, in fact, disclosed that the standing may be up to 10 minutes”.

The arbitrator also took note that Mr. Dueck’s “evidence and report indicates that his opinions would be much more applicable to long term standing” and he also acknowledged that “he did not do any research on his own in regard to the work requirements or habits of the u-scan cashiers” (at para 24).

This led the arbitrator to observe that one of the articles relied on by the expert identified alternatives to the use of use of anti- fatigue mats, but that Superstore “has provided none of the alternative methods of offering relief and simply argues that employees should just continue to walk around within the u-scan area” (at para 25). Based on all of this, the arbitrator concluded that the expert “was not able to offer reliable opinions on the effect of anti-fatigue mats for short term periods of standing” and “any opinions provided by Mr.

Dueck in regard to relief for back and leg issues for short term standings would be of very little value” (at para 28). [ 54 ] The arbitrator contrasted the expert’s evidence with that provided by workers who supervised the u-scan areas: [26] The Union called a number of employees who work or have worked in the u-scan area and each provided evidence that the anti- fatigue mats offered relief to their legs and back, even though they were only standing for shorter periods of time (up to 10 minutes).

… [29] The evidence we do have in regard to the effects of anti-fatigue mats for short term standing all came from cashiers working in the area. They all testified that the anti-fatigue mats did provide them with relief from leg and back soreness. In addition, they testified that while carrying out their functions as u-scan cashiers, they all had periods of time where they were in a stationary position.

This varied from a minute or two to up to 10 minutes at a time. [ 55 ] There is nothing in any of this to suggest that the arbitrator “ignored, forgot, and/or misconceived” the expert’s evidence as submitted by Superstore in its factum.

To the contrary, the written reasons for the Arbitration Award convince me that the arbitrator understood and considered Superstore’s expert evidence but, in the end, simply found it to be unhelpful. [ 56 ] As part of its argument under this ground, Superstore suggests that it was improper, and therefore unreasonable, for the arbitrator to accept the “opinion” evidence of other cashiers. However, there is no suggestion in Superstore’s factum that the evidence from these other cashiers was not admissible. Superstore misconceives the evidence of the other workers. It was not opinion evidence.

Rather, it was fact evidence, relaying their personal experiences, and was properly treated as such by the arbitrator. D. Did the Chambers judge err by failing to find that the arbitrator ignored evidence regarding safety concerns with anti-fatigue mats? [ 57 ] Superstore’s fourth argument relates to the arbitrator’s treatment of the evidence relating to safety concerns if anti-fatigue mats were installed in the u-scan areas.

The arbitrator discussed the evidence before him in the context of considering whether the u-scan area is an “appropriate area” to have anti-fatigue mats, stating as follows: [18] In answering that question, the first factor to consider is safety. A number of the witnesses testifying suggested that one of the reasons provided by [Superstore] for removing the anti-fatigue mats was that it was unsafe to have the mats in that area. The suggestion was that customers may trip over the mats. These mats are quite thick, although they are rounded or bevelled on the edge to prevent such tripping.

There was no evidence provided by either employee or employer witnesses of any specific incident of a customer tripping over an anti-fatigue mat.

This may have been a reason provided by [Superstore] for the removal of the anti-fatigue mats, but was not based on any actual incidents. [ 58 ] Superstore brought its concern with the arbitrator’s treatment of the evidence before the Chambers judge, who concluded as follows: [29] [Superstore] also raised the issue of safety in that there could be a tripping hazard in the placement of anti-fatigue mats in the u- scan area once the podiums had been removed. [30] Some evidence was tendered at the hearing that the anti-fatigue mats might cause a trip and fall possibility if left once the podium was removed.

I find that the question is not whether or not there is some risk of a trip and fall if the anti-fatigue mats are left in the current position where the u-scan podium used to be, but whether or not it is safe and reasonable to place anti-fatigue mats or a mat in the area where employees might be standing for periods of up to 10 minutes at a time. At paragraph 35 of the arbitration award the arbitrator states: 35. There are two findings that lead me to the conclusion that the installation of anti-fatigue mats in the u-scan area is reasonable.

The first is the evidence that employees, whether required to or not, do stand stationary for periods of time while performing their duties and secondly, the evidence from the employees that the anti-fatigue mats do offer relief for leg and back issues. Based on these two findings, I conclude that:

a) The u-scan area is “an appropriate area” for anti-fatigue mats;

b) It is safe to place the anti-fatigue mats in the u-scan area; and

c) It is reasonable to have the anti-fatigue mats available for the benefit of the u-scan cashiers. [ 59 ] In this Court, Superstore argues that it “provided evidence at the hearing of a trip and fall incident, which was created by having an anti-fatigue mat in a u-scan area, through a Front End Manager from one of the Superstore locations”.

It asserts that “[t]his evidence must have been forgotten or ignored by the Arbitrator” since the arbitrator held in his reasons that there was no evidence of any actual trip and fall incidents. [ 60 ] A reviewing court may set aside an administrative decision where the decision maker failed to consider all of the evidence. As noted by Donald J.M. Brown and the Honourable John M.

Evans, in Judicial Review of Administrative Action in Canada , loose-leaf (Rel 2020-1, May 2020) (Toronto: Carswell, 2020) at 12:3100: The courts at one time played a relatively minor role in reviewing the findings of fact made by administrative adjudicators. Generally speaking, in the absence of a statutory right of appeal, they were confined to ensuring that the findings on which the decision was based were supported by some logically probative evidence on which the decision-maker could lawfully rely.

Today, however, findings of fact are reviewable both on an appeal or an application for judicial review for “reasonableness.” Accordingly, the courts will likely not intervene where there is some evidence that reasonably supports an administrative decision-maker’s findings of fact. Initially, review of findings of fact was approached from the perspective of fairness in adjudicative decision-making, to ensure that the decision-maker has not been altogether unresponsive to the evidence adduced at the hearing.

Accordingly, some judges have described a finding of fact for which there was no evidence before the adjudicator as a breach of the rules of natural justice. And it is for that same reason, namely to ensure that the parties have had a reasonable opportunity to participate through presentation of proofs and arguments, that the courts scrutinize the fact-finding process for procedural defects. Specifically, decisions have been set aside on the basis of a process error where the tribunal erred in the application of the standard or burden of proof, or misapprehended the evidence, or failed to

draw a negative inference, or erred in the manner in which the credibility of witnesses was assessed, or made mistakes in the use of presumptions, or failed to consider all of the evidence . (Italicized emphasis in original; underlined emphasis added; footnotes omitted) [ 61 ] The difficulty in the present case is that there is no consensus as to what evidence was before the arbitrator.

While Superstore argues that the arbitrator failed to consider all of the evidence before him – more specifically, that he failed to consider the evidence related to the trip and fall incident – the Union argues that what Superstore refers to was not evidence at all, but instead was merely a rumour and, if Superstore had wished to seriously argue this point, it should have presented “an affidavit directly from the relevant Front End Manager as to what his alleged evidence was at the arbitration hearing”. [ 62 ] In Hartwig v Saskatchewan (Commissioner of Inquiry) , 2007 SKCA 74 at para 14 , 304 Sask R 1, this Court expanded the instances when a reviewing court may consider the evidence that was before an administrative decision-maker.

Justice Richards (as he then was) noted that “in order to effectively pursue their rights to challenge administrative decisions from a reasonableness perspective, the applicants in judicial review proceedings must be entitled to have the reviewing court consider the evidence presented to the tribunal in question” (at para 24).

For this reason, he held that “the parties to a judicial review application should be able to put before a reviewing court all of the material which bears on the arguments they are entitled to make” (at para 32). [ 63 ] Here, in the absence of anything on the record, or of an affidavit to supplement the record, to substantiate Superstore’s contention that the arbitrator failed to consider all of the evidence before him, it is simply impossible to say that the arbitrator’s decision is unreasonable on this basis. E.

Did the Chambers judge err by failing to find that the arbitrator ignored Superstore’s regulatory obligations? [ 64 ] Superstore’s last argument is that the Arbitration Award is unreasonable because the arbitrator ignored s. 79(1) of The Occupational Health and Safety Regulations, 1996, RRS c O-1.1 Reg 1 [ Regulations ], and the duty that it has as an employer pursuant to

Part III of the Act with regard to occupational health and safety. Section 79(1) of the Regulations states: Standing 79

(1) Where workers are required to stand for long periods in the course of their work, an employer or contractor shall provide adequate anti-fatigue mats, footrests or other suitable devices to give relief to workers. [ 65 ]

Section 3 - 8 (

a) of the Act states: General duties of employer 3-8 Every employer shall: (

a) ensure, insofar as is reasonably practicable, the health, safety and welfare at work of all of the employer’s workers ... [ 66 ] Superstore’s fundamental proposition is that any reasonable

interpretation of

article 14.8 of the collective agreement would consider its obligations under these provisions. The only reference in the Arbitration Award to these provisions occurred when the arbitrator distinguished an award in another case: [32] The Union has referred me to the case of Loblaws Supermarkets Limited and United Food and Commercial Workers Union, Local 1000A , a decision of Arbitrator Christopher Albertyn. This case is not particularly relevant as it relates to a time when the cashiers were required to stand at a podium. Arbitrator Albertyn found that removing the anti-fatigue mats from the podium did not breach the applicable

Article in the [collective agreement] which required “any conditions of employment or working conditions now in effect will remain in effect unless changed by collective bargaining.” Arbitrator Albertyn concluded that removal of the anti-fatigue mats did not breach that Article. Interestingly though, he did go on and conclude that removal of anti-fatigue mats did breach the Employer’s obligations under The Occupational Health and Safety Act [RSO 1990, c O.1 ] of Ontario.

The case before me is not a case where either party is arguing the applicability of Saskatchewan’s Occupational Health and Safety Act provisions and therefore, I do not believe that case is particularly applicable or useful to either party. [ 67 ] Superstore argues that a copy of s. 79(1) of the Regulations was brought to the arbitrator’s attention and “his claim that no one was arguing its applicability is false”, and this misapprehension by the arbitrator “interfered with his ability to exercise his function as arbitrator”.

Superstore advanced the same argument before the Chambers judge, who said that “as neither party argued this area of the law in the arbitration, it is not applicable to raise those arguments in the appeal” ( Chambers Decision at para 28). [ 68 ] Superstore’s arguments are closely allied with the other submissions it made to the effect that the Arbitration Award did not respond, or respond correctly to, the submissions it had made in the arbitration.

Again, I find myself in agreement with the Chambers judge on this point. [ 69 ] Based on my review of Superstore’s arbitration brief, I am unable to see how the arbitrator misstated or misapprehended Superstore’s arguments. In its brief, Superstore had sought to distinguish the “Ontario experience with the mats”, emphasizing that the “decision to require the mats [in that province] was based not on the wording of the Collective Agreement but upon the [Ontario] Occupational Health and Safety Act ”, which it then contrasted with s. 79(1) of the Saskatchewan Regulations .

In this context, the arbitrator’s statement that the case before him did not involve a situation “where either party is arguing the applicability of Saskatchewan’s Occupational Health and Safety Act provisions” (at para 32), is a transparent, intelligible and rational response to the argument actually made to him.

IV. Conclusion [ 70 ] The Chambers judge correctly identified the applicable standard of review. While the Chambers judge may have conducted his review differently had he had the benefit of Vavilov , he correctly concluded that the Arbitration Award was reasonable. I would therefore dismiss Superstore’s appeal, with costs in favour of the Union taxed under column 3. “Leurer J.A.” Leurer J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A.