Arbitration – Award – Judicial Review – Appeal, Labour Law – Arbitration Board – Judicial Review – Standard of Review, Labour Law – Collective Agreement – Interpretation, Labour Law – Collective Agreement – Jurisdiction
The respondent union brought a grievance against the appellant employer under a collective bargaining agreement between the parties (collective agreement). The sole arbitrator found in favour of the union. The employer’s application for judicial review of the arbitration award was dismissed by a Court of Queen’s Bench judge in chambers. The employer appealed the chambers decision. The employer had reorganized the way its employees worked in the self-checkout, or “u-scan,” areas of its grocery stores. When the self-checkout machines were first installed, there was a cashier podium that was equipped with an anti-fatigue mat. In 2016, the employer changed the system for self-checkouts by providing the cashiers with handheld iPads and removed the podiums and anti-fatigue mats. The parties disagreed as to whether the removal of the anti-fatigue mats breached the collective agreement. The arbitrator found that the installation of mats in the self-checkout areas was reasonable. He found that the “refusal to have anti-fatigue mats in the u-scan area was a breach of the [collective agreement].” The employer’s application for judicial review of the arbitration award was not successful. The issues were whether the chambers judge erred by failing to find that the arbitrator: 1) expanded the matter beyond the dispute between the parties; 2) was unreasonable in how he addressed the employer’s management rights; 3) improperly dealt with the employer’s expert evidence; 4) ignored evidence regarding safety concerns with anti-fatigue mats; and 5) ignored the employer’s regulatory obligations.
HELD: The appeal was dismissed. The issues were determined as follows: 1) the employer argued that the grievance was whether the mats were required at u-scan podium areas and since the podiums were removed there was nothing left to grieve. It was not clear to the court whether the employer made the jurisdictional argument before the arbitrator. The record suggested that the parties agreed that the arbitrator had jurisdiction to decide the issue. The jurisdictional argument was made to the chambers judge, but the chambers judge did not explain why he concluded that the arbitrator’s assumption of jurisdiction was reasonable. The appeal court noted that the approach to appellate review of the chambers decision allowed it to step into the shoes of the lower court to review the arbitrator’s decision. The standard of review regarding the arbitrator’s jurisdiction was reasonableness. The appeal court determined 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. The arbitrator briefly addressed whether he should turn his mind to whether he should adjudicate the dispute even though the u-scan podiums had been removed. The arbitrator accepted the union’s argument that the grievance should be interpreted to include the area where the self-checkout machines were located; 2) the employer argued that the arbitrator substituted his decision for a discretionary decision of the employer as per management rights under the collective agreement. The employer further argued that the chambers judge compounded the arbitrator’s error by substituting his own reasons for why the management rights clause did not prevail over the anti-fatigue mat clause. The parties agreed that the standard of review of this issue was reasonableness. Because the arbitrator’s decision did not contain any overt discussion of management rights the employer argued that the award was not reasonable. The arbitrator focused on the meaning and factual applicability of the anti-fatigue mat clause, which was coherent and followed a logical path. It was reasonable. The employer substantially recast the argument from what had been advanced before the arbitrator. The chambers judge did not err; 3) the employer called an occupational therapist as a witness and he was qualified to give expert opinion “as to whether anti-fatigue mats would be useful in the situations described at the u-scan stations.” The union tendered evidence of employees who said the anti-fatigue mats provided some relief to them. The employer argued that the arbitrator ignored the expert evidence. The chambers judge correctly identified and applied the reasonableness standard to the issue. The arbitrator found that the expert’s options were based on assumptions that were at odds with the evidence led in the arbitration, such as length of time an employee was standing at any one time. The appeal court did not find anything to suggest that the arbitrator ignored or misconceived the expert’s evidence. The evidence of the other employees was also not found to be opinion evidence as suggest by the employer: it was fact evidence; 4) the employer argued that it provided evidence of a slip and fall incident created by an anti-fatigue mat in a u-scan area. The arbitrator held that there was no evidence of any actual trip and fall incident. There was no consensus as to what evidence was before the arbitrator. The appeal court found that it was impossible to say that the arbitrator’s decision was unreasonable because there was nothing on the record nor was there an affidavit to supplement the record; and 5) the employer argued that the arbitration award was unreasonable because it ignored s. 79(1) of The Occupational Health and Safety Regulations, 1996 and the employer’s duty pursuant to Part III of the Act regarding occupational health and safety. The appeal court agreed with the chambers judge, who said “as neither party argued this area of law in the arbitration, it is not applicable to raise those arguments in the appeal.” The union was awarded costs of the appeal.