United Food v. Commercial Workers,, 2023 SKCA 122

Court of Appeal for Saskatchewan Docket: CACV4173 Citation: United Food and Commercial Workers, Local 1400 v Saskatoon Co-operative Association Limited , 2023 SKCA 122 Date: 2023-11-10 Between: United Food and Commercial Workers, Local 1400 Appellant (Applicant) And The Saskatoon Co-operative Association Limited Respondent (Respondent) Before: Kalmakoff, McCreary and Drennan JJ.A.

Disposition: Appeal dismissed Written reasons by: The Court On appeal from: QBG-SA-00999-2021 (Sask KB), Saskatoon Appeal heard: November 2, 2023 Counsel: Patrick Thomson for the Appellant Brent Matkowski for the Respondent The Court [ 1 ] An employee of the Saskatoon Co-operative Association Limited [Co-op] alleged that, in the aftermath of a lengthy and divisive labour dispute, she had been harassed by her manager and co-workers, contrary to Co-op’s Workplace Discrimination and Harassment Policy [Policy], and/or The Saskatchewan Employment Act , SS 2013, c S-15.1 [ Act ].

The employee’s union, the United Food and Commercial Workers, Local 1400 [UFCW], filed a grievance on her behalf. In accordance with the terms of a collective agreement, the grievance was heard by a board of arbitration [Board]. A majority [Majority] of the Board dismissed the grievance because it concluded that, while the behaviour complained of may have been rude and childish, it did not amount to harassment under either the Policy or the Act ( Saskatoon Co-operative Association Ltd. v United Food and Commercial Workers Union, Local 1400 (30 March 2021), The Honourable W.J.

Vancise, Laura Sommerville and Catherine Knox, Arbitrators [ Board Decision ]). [ 2 ] UFCW applied to the Court of King’s Bench for judicial review of the Board Decision .

A Chambers judge determined that the Board Decision was reasonable and dismissed UFCW’s application ( United Food and Commercial Workers, Local 1400 v The Saskatoon Co-operative Association Limited (17 February 2023) QBG-SA-00999-2021, Saskatoon (KB) [ Chambers Decision ]). [ 3 ] UFCW appealed against the Chambers Decision , contending that the Chambers judge erred by failing to properly apply the reasonableness standard of review , as set out in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ], to the Board Decision.

At the conclusion of the hearing, we dismissed UFCW’s appeal, with a promise of written reasons to follow. These are those reasons. [ 4 ] In an appeal of this nature, there are two questions for us to determine (see: Dr. Q. v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at paras 43–44 , [2003] 1 SCR 226; and Danychuk v The University of Regina , 2022 SKCA 146 at para 26 ). The first is whether the Chambers judge selected the appropriate standard of review to apply to the decision of the administrative tribunal.

The parties agree that the Chambers judge made no error in that regard; the applicable standard of review was reasonableness. [ 5 ] The second question is whether the Chambers judge applied the standard of review correctly. In this respect we, as an appellate court, owe no deference to the Chambers judge’s conclusions.

We step into her shoes and review the Board Decision using the same standard that she was required to apply ( Teamsters Canada Rail Conference v Canadian National Railway Company , 2021 SKCA 62 at para 41 , 327 LAC (4th) 322; P&H Milling Group a Division of Parrish & Heimbecker, Limited Saskatoon v United Food and Commercial Workers Local 1400 , 2023 SKCA 14 at para 7 , 478 DLR (4th) 604).

In the context of a review for reasonableness, this requires us to consider whether the Board Decision is transparent and intelligible, and whether it is justified in relation to the relevant factual and legal constraints that bear upon it ( Vavilov at para 102 ). [ 6 ] We approach this task with an understanding that a reasonableness review is not a line-by-line treasure hunt for error.

Before we can interfere with the Board Decision , we must be satisfied that any shortcomings or flaws relied on by UFCW in challenging it are sufficiently central or significant to render it unreasonable (see: Saskatoon Polytechnic Faculty Association v Saskatchewan Polytechnic , 2022 SKCA 30 at paras 23–24 ). [ 7 ] UFCW suggests that the decision rendered by the Majority of the Board was unreasonable for three reasons. [ 8 ] The first is an allegation that the Majority failed to properly consider the effect of a return-to-work protocol implemented by Co-op following the labour disruption that mandated a “zero-tolerance” approach for “name-calling, ignoring/shunning, threats, malicious gossiping, or any other bullying or harassing behavior [ sic ] towards any employee” (at para 7).

UFCW contends that this protocol, which was grounded in an April 21, 2019, letter sent to Co-op’s employees by its Chief Executive Officer [CEO Letter], and a Letter of Agreement [LOA] signed between UFCW and Co-op on April 14, 2019, created a higher standard of conduct for employees in the workplace. UFCW says the Majority’s reasoning was internally inconsistent because, even though it accepted that the CEO Letter and LOA were relevant, it still found that what had happened in this case did not amount to harassment.

This conclusion was unreasonable, says UFCW, because it effectively read out a provision of the collective agreement between the parties.

[9] We are not persuaded by this argument. The Majority noted that the grievance before it was based in allegations of harassmentand was not about non-compliance with a return-to-work protocol. It also observed that the “starting point for the determination of theissues alleged in the Grievance is the definition of harassment found in [the Policy]” (Board Decision at para 47). The Majority reviewedthat definition, along with the definition of harassment contained in the Act. It also considered the return-to-work protocol in light of thoseprovisions.

The Majority then reviewed the relevant evidence and, after having done so, observed that the case turned on whether theconduct of the grievor’s manager and co-workers met the definition of harassment in the Act and the Policy. It determined that the conductof those persons, when assessed on an objective standard, had not risen to that level.

We see nothing in that reasoning that is internallyinconsistent or reflective of legal error. [10] Notably, there was no evidence to suggest that by sending the CEO Letter to its employees, or by signing the LOA, Co-op hadchanged anything about the definition of harassment in the Policy, or that it had altered the collective agreement. Quite the opposite, infact. The LOA made no mention whatsoever of the Policy, and the CEO Letter explicitly confirmed the Policy by directing employees thatthey were “required to read and sign-off” on it.

In our view, this does not suggest an intention to implement a mandate for a higherstandard of employee conduct. Moreover, as is obvious, nothing in Co-op’s return-to-work protocol, the communication it sent to itsemployees, or the LOA could possibly have changed the definition of harassment under the Act.

And, even if it were possible to view thereturn-to-work protocol as evincing an intention on Co-op’s part to elevate the standard of workplace behaviour expected of its employees,we also struggle to see how it would be lawful for Co-op to unilaterally impose upon those employees a standard of conduct that is moreonerous than the terms of the Act. [11] UFCW’s second argument is that the decision of the Majority was unreasonable because it failed, without explanation orjustification, to apply what UFCW describes in its factum as a “well-known and universally applied legal test”, by not drawing an adverseinference against Co-op for failing to call witnesses who had material evidence to provide. [12] We can give no effect to this argument either.

First, the “adverse inference rule” cited by UFCW, which arises from this Court’sdecision in Murray v Saskatoon (City), (SK CA), [1952] 2 DLR 499 (Sask CA), is an evidentiary rule and not a legaltest. There is no absolute requirement that a trier of fact draw an adverse inference where a witness who may have material evidence is notcalled; the decision whether to draw such an inference is discretionary.

In this case, the Majority explained that it was not prepared to drawan adverse inference because the witnesses in question were equally available to both parties, and UFCW could have called them if it hadchosen to do so. When that explanation is considered in context and with an understanding that: (

i) UFCW bore the onus of proving itsallegations; and (ii) the facts upon which UFCW relied in support of its allegations were largely uncontroverted such that the only realissue was whether the conduct in question amounted to harassment when viewed objectively, the Majority’s reasons for not drawing anadverse inference are transparent, intelligible, and justified in light of the facts and the law. [13] UFCW’s final argument is that the Majority’s bottom-line conclusion is unreasonable because it is not justified in light of thefacts and the law when measured against the evidentiary record as a whole.

In this regard, UFCW contends that the Majority unreasonablyconsidered each event complained about in isolation, rather than cumulatively, and that it considered irrelevant facts. [14] We do not accept this argument. The mere fact that the Majority made specific comments about discrete events does not meanthat it considered those events in isolation or that it lost sight of the big picture. Nor do we see the Majority as having considered irrelevantfacts.

Context was crucial in this case and, in our view, the facts that UFCW says were irrelevant provided necessary perspective. [15] As we read the Majority’s reasons, they amply demonstrate that it assessed the evidence in its totality and in context and keptits focus squarely on the legal test it was required to apply when determining whether the allegation of harassment had been proven to therequisite standard.

In other words, the Majority correctly recognized the law that was relevant to the determination it was called upon tomake, made the necessary findings of fact, and applied the law to the facts as it found them. The reasons it provided for doing so are clearand intelligible. We see no fatal flaws in the Majority’s logic or in the path it took to determine the matter. The conclusion the Majorityreached is one that is justified from both a factual and legal standpoint. In short, the decision of the Majority bears all the necessaryhallmarks of reasonableness.

It follows that the Chambers judge did not err by upholding the Board Decision. [16] Accordingly, the appeal must be dismissed. Co-op is entitled to the costs of the appeal, calculated in the usual way. “Kalmakoff J.A.” Kalmakoff J.A. “McCreary J.A.” McCreary J.A. “Drennan J.A.” Drennan J.A.