Thursday, 25 April 2013

Reasonableness, Reasons and Reasoning by Incorporation

In Canada Post Corporation v. Canadian Union of Postal Workers, 2013 BCCA 108, the applicant employer had been accused of using regional forums where management would address employees in order to undermine the respondent union.

Here is an excerpt from one of the addresses:
I have had unbelievable support from you since I’ve been at the company. I know what I say does not meet the agreement of everybody. We’re a big place. We’ve got 72,000 full and part-time people, and we’ve got a lot [of] history and a lot of heavy culture that we’ve got to kind of get over. But I see we are getting over it. We’re having discussions like this about what it takes to be successful. We’re making the changes that are necessary. We’re not focused as much on the petty grievance mentality that’s seen to be the basis of everything in Canada Post four years ago.
Read one way, the quoted passage suggests "management good, union bad". The union complained, charging a violation of s. 94(1) of the Canada Labour Code on the basis that the employer had "interfere[d] with the formation or administration of a trade union or the representation of employees by a trade union".

The arbitrator found in favour of the union and imposed sanctions. At first instance, the award was quashed as unreasonable, but the British Columbia Court of Appeal allowed an appeal by the union.

One interesting aspect is that the same arbitrator had previously decided a similar dispute between the parties, as had another arbitrator. His reasons in the present case referenced heavily those reasons. Bennett J. concluded that this sort of reasoning by incorporation was permissible: "[the] reasons in the instant case, when viewed in light of previous arbitral decisions, exhibit the requisite transparency and justification customary with the reasonableness standard" (at para. 65, emphasis added). This is of a piece with the Supreme Court of Canada's decision in Alberta Teachers, where the Court relied on previous decisions of the Information and Privacy Commissioner to uphold the conclusions under review.

All in all, the arbitrator's conclusion in the instant case was reasonable:
[70]        As stated above, it seems to me that the arbitrator’s award clearly delineated what was the matter with the forums: management communications that went beyond merely an informational or factual exchange and had the effect of interfering with the Union’s representation of its members on issues of workplace conditions and benefits. This was particularly so in light of the approaching negotiations. When one reads the reasons of the arbitrator as a whole, it is clear that regional forums per se are not impermissible. Rather, management may hold such forums, but only to the extent that they do not encroach on the Union’s right to exclusive representation on matters such as benefits and working conditions.
Bennett J. also commented more generally on the Supreme Court of Canada's decision in Newfoundland Nurses, now the leading authority on the relationship between reasons and reasonableness. Applied to the present case, it supported Bennett J.'s decision to uphold the arbitrator's award as reasonable:
[73]        Furthermore, it is clear that [the first-instance judge's] analysis cannot stand in light of Labrador Nurses Union. In that decision, the Court stressed that reasonableness requires that the conclusions be supported in fact or in principle. Even if the reasons are not wholly adequate to support every aspect of the conclusion, a reviewing court has an obligation to support the reasons – not subvert them. The law does not require reasons to be perfect.
[74]        In this way, the fact that the arbitrator did not refer to s. 94(2)(c) of the Code specifically does not impugn the validity of his decision. The Supreme Court of Canada is clear that a failure to reference and connect every constituent principle in the reasons is insufficient to attack the decision of an administrative tribunal. It cannot be said that the arbitrator did not consider the evidence and s. 94 in their entirety and arrived at an unreasonable outcome. The outcome arrived at in this case was available to him on the basis of s. 94(1) and the Agreement. He referred to s. 94 in the order. He was clearly alive to the issue before him, and failure to reference s. 94(2)(c) does not mean he failed to consider it.
I agree with Bennett J.'s ultimate conclusion, although I think she might have drawn a closer link to Alberta Teachers. This sort of approach, with its openness to reasoning by incorporation, makes it very tough to challenge arbitral decisions under Newfoundland Nurses.

Consider also the following passage from Pathmanathan v. Canada (Citizenship and Immigration), 2013 FC 353:
[28]           Newfoundland Nurses does not authorize a court to rewrite the decision which was based on erroneous reasoning.  The reviewing court may look to the record in assessing whether a decision is reasonable and a reviewing court may fill in gaps or inferences reasonably arising and supported by the record.  Newfoundland Nurses is a case about the standard of review.  It is not an invitation to the supervising court to re-cast the reasons given, to change the factual foundation on which it is based, or to speculate as to what the outcome would have been had the decision maker properly assessed the evidence.
Bennett J.A. was not rewriting the arbitrator's reasons, just reading them fairly. It might be difficult to identify quite what fairly requires in different cases, however. Such is life for judges reviewing the substance of administrative decisions. 

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