2007 BCCA 232 Canadian Broadcasting Corp. v. Canadian Media Guild

Before:	The Honourable Madam Justice Saunders
	The Honourable Mr. Justice Smith
	The Honourable Madam Justice Kirkpatrick

M. Wright	Counsel for the Appellants
P.A. Gall, Q.C. and C. Bell	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
October 16, 2006
Place and Date of Judgment:	Vancouver, British Columbia
April 25, 2007

Written Reasons by:

The Honourable Madam Justice Saunders

Concurred in by:

The Honourable Mr. Justice Smith

The Honourable Madam Justice Kirkpatrick

Reasons for Judgment of the Honourable Madam Justice Saunders:

[1] On February 14, 2003, the Canadian Broadcasting Corporation dismissed Mr. Keating for misconduct. He was a radio reporter and editor in Nelson, British Columbia. Mr. Keating's misconduct was mailing a box of contaminated chocolates to a person who had been publicly critical of him. On a grievance arbitration, the arbitrator, Nicholas Glass, ordered Mr. Keating’s reinstatement, substituted a three-month suspension and directed him to attend an anger management course.

[2] The CBC brought a petition for judicial review. The learned chambers judge overturned the arbitrator's decision and reinstated Mr. Keating's dismissal. This appeal is from the order of the chambers judge setting aside the decision of the labour arbitrator. The reasons for judgment of the chambers judge are indexed at 2005 BCSC 1. The arbitrator's reasons are dated March 4, 2004.

[3] The appellant, the Canadian Media Guild, is the certified bargaining agent for the bargaining unit of which Mr. Keating was a member. The Guild and the CBC were parties to a collective agreement negotiated under the Canada Labour Code, R.S.C. 1985, c. L-2. The arbitration award of Mr. Glass was rendered under the collective agreement.

[4] The sequence of events may be summarized thus: the dispute arose from the action of Mr. Keating in mailing, anonymously, a box of chocolates that he had contaminated with dirt and raw chicken to the head of an activist organization who had publicly attacked his integrity as a journalist. On the evening of the day he mailed the box, Mr. Keating told his wife what he had done and decided to tell the target of his retaliation. Mr. Keating did so promptly. The target of the retaliation called the police. Mr. Keating then told his supervisors at CBC what he had done and accepted full responsibility for his actions. He also promptly contacted a psychologist and sought assistance.

[5] The CBC held a disciplinary meeting with Mr. Keating and a representative of the Guild. At the meeting, Mr. Keating showed remorse and apologized. Two days later, the CBC dismissed Mr. Keating from his employment for misconduct.

[6] The Guild filed a grievance on Mr. Keating's behalf. The grievance led to the arbitration decision. Mr. Glass found that Mr. Keating's conduct was "clearly aberrant and disciplinable", but concluded that the disciplinary response was excessive. He held that the CBC did not have reasonable grounds to dismiss Mr. Keating, and substituted a three-month suspension in lieu of dismissal. Further, as a term of the reinstatement, he ordered that Mr. Keating attend an anger management course acceptable to both the CBC and the Guild. In so concluding, Mr. Glass said:

This was not just a case of an isolated vengeful impulse but a mindset which persisted for a considerable period of time. It is not unusual for human beings to harbour angry and vengeful feelings towards another person. However the capacity to move from merely harbouring those feelings, to taking positive malicious actions against that person, in furtherance of an intent to do physical harm, is a capacity which fortunately only manifests itself within a relatively small portion of the population. It is the demonstration of this capacity on the part of the grievor which constitutes the most disturbing aspect of this case.

The employer's concerns, expressed by [the CBC representative], and described above, are real legitimate concerns. It is necessary nevertheless to assess the complete circumstances surrounding the grievor's vengeful act and it cannot be ignored that before any possibility of harm actually occurring to [the target], the grievor came to his senses and took every possible step to neutralize what he had done, including making a full admission to the [target] of what he had done, knowing that by doing so he was placing his own job in jeopardy.

What the grievor actually did could be characterized within the range of an act demonstrating an extreme lack of judgement and/or maturity, all the way to an act indicating some level of mental instability. At the end of the day the grievor took his own steps to undo or neutralize the potential consequences of his act. Yet should the employer, faced with questions about the grievor's maturity, judgement, and even mental stability, have to run the risks associated with maintaining such a person in its employment?

…

… The present case, apart from not involving issues of honesty, is one in which the misconduct was brought to a halt and then confessed to by the employee, rather than discovered by the employer. The risk of recurrence must be assessed in the light of this fact. In other words, when the grievor's conduct is viewed as a whole, it should be taken into account that he did not in the end carry through with his angry and vengeful plan against [the target]. Completely of his own volition, he took steps to prevent the consummation of the plan. There was a confession and there was positive action to prevent any harm coming to [the target]. Thus, however bizarre and immature the grievor's conduct was on the 29th of January he demonstrated maturity and responsibility on January 30th and immediately thereafter, in dealing with the dreadful situation he had created. This case is therefore not readily amenable to comparisons with the dishonesty cases cited by the employer. …

…

The employer is rightly concerned with its reputation, particularly as a public service broadcaster held to very high standards. The grievor's conduct is sufficiently related to his work that it is legitimate for the corporation to be concerned. The union indeed did not directly argue that the grievor's conduct was off duty conduct which was not subject to discipline. Is the reputation of the CBC likely to suffer significant injury if the grievor is retained in employment?

In considering this point, I have reviewed carefully the employer's journalistic standards and practices, which were placed in evidence, and which I have partially quoted above. It is difficult to characterize the grievor's misconduct as contravening specifically any of the principles set out in the standards and practices booklet. The reason for this is that the standards and practices which rightly govern conduct at the CBC, are in fact "journalistic" standards and practices which apply to and govern journalism rather than private and essentially "non journalistic" behaviour. Counsel for the employer referred me to the requirements and demands set out in this booklet for accuracy, integrity, and fairness as well as the demand for credibility. In each case, the concern is for the avoidance of any reporting which is misleading or false, and also any associations or contacts which "could reasonably give rise to perceptions of partiality."

The grievor's conduct while clearly aberrant and disciplinable, was not essentially journalistic misconduct. There was a potential for journalistic consequences, which was articulated by [the CBC representative], but these consequences were relatively confined in terms of the grievor's ability to function as a journalist and in terms of their impact on the corporation. A summary of the circumstances in this case amounts to this: the grievor responded to defamatory statements by a newsmaker against him by plotting personal harm. The grievor's response was a personal and private response to a personal attack which he resiled from before it was completed. The bizarre and immature nature of this response damages the grievor's personal credibility, but not beyond repair and not directly in terms of his integrity as a journalist.

Thus applying the test of what a fair-minded and reasonably informed member of the public or relevant constituency might think, I do not find that there [is] sufficient evidence of significant injury to the reputation of the CBC as a respected and impartial public broadcaster if the grievor is retained in employment and subjected to some disciplinary action short of dismissal.

[Emphasis added.]

[7] During the arbitration hearing, the Guild had sought to introduce a report from a psychologist who offered her opinion as to Mr. Keating's psychological condition at the time of the incident and subsequently. The CBC objected to the report's admissibility. The arbitrator permitted the report to be admitted and then, considering all the circumstances, substituted a suspension in place of dismissal:

… I am of the view that the information contained in the report could have been obtained prior to the final decision to discharge the grievor. He could have been placed on suspension without pay pending an assessment of this type. With that information in hand, the employer’s disciplinary response, bearing in mind as well the other considerations reviewed above, would have been excessive and in fact was excessive.

In all these circumstances I find that the employer did not have reasonable grounds to dismiss the grievor. I hereby substitute a three-month suspension.

A term of the grievor’s reinstatement is that he must attend an anger management course acceptable to both employer and union. …

[8] In her reasons for judgment disposing of the CBC's petition for judicial review, the chambers judge assumed that the appropriate standard of review was that of patent unreasonableness. Applying that standard, she concluded that the decision of the arbitrator was patently unreasonable:

[25] I agree with Mr. Gall that the arbitrator’s opinion is patently unreasonable. The credibility of CBC and of the grievor as a newscaster was seriously undermined by his unprofessional conduct, which reflected a strong actual bias against the spokesman of the SOS. How could he possibly report objectively and credibly on any of the activities of the SOS and avoid the public perception that he was strongly biased against the group and [the target] personally? It would be reasonable for CBC to expect that there would be a “ripple effect”, either real or perceived, with respect to his impartiality to report the activities of other community groups.

[26] In any event, the grievor’s vengeful act, which was intended to personally harm [the target] in response to the latter’s criticism of his journalistic work, was directly related to his role as a journalist. His continued presence as a CBC reporter would likely create a “chill” with respect to anyone in the community who might wish to criticize his news coverage. I agree with Mr. Gall that the grievor’s conduct went to the heart of his credibility as a CBC reporter, which was irrevocably damaged as a result of his actions, and also to the credibility of CBC.

[9] On judicial review, the CBC contended that the arbitrator had erred in admitting the report. The chambers judge agreed, saying:

[32] With respect to the timing of the service of the Report, the arbitrator had a broad discretion to deny or permit its admission. Further, CBC had not requested [the psychologist’s] presence at the hearing for the purpose of cross-examination or sought an adjournment for that purpose. However, I agree with Mr. Gall that the arbitrator erred in permitting post-termination evidence.

[33] In Cie minière Québec Cartier v. Quebec (Grievances arbitrator), [1995] 2 S.C.R. 1095, 125 D.L.R. (4th) 577, an employee who was an alcoholic completed a treatment program after he was terminated for committing an employment offence. The Court ruled that an arbitrator must uphold an employer’s decision to dismiss an employee if the employer had just and sufficient cause for dismissal at the time of the dismissal. Evidence about rehabilitation efforts after the event or misconduct leading to dismissal is inadmissible in arbitration cases. At para. 13, the Court noted that to hold otherwise:

…would lead to the absurd conclusion that a decision by the Company to dismiss an alcoholic employee could be overturned whenever that employee, as a result of the shock of being dismissed, decides to rehabilitate himself, even if such rehabilitation would never have occurred absent the decision to dismiss the employee.

[34] The Court stated that post-discharge evidence could only be relied on by an arbitrator if it helped shed light on the reasonableness and appropriateness of the dismissal at the time the decision was made, e.g., a medical condition that caused the misconduct. The Court held that the arbitrator had exceeded his jurisdiction by relying on subsequent-event evidence as grounds for annulling the dismissal. An arbitrator must determine whether or not the employer had “just and sufficient cause” for dismissing the employee at the time of dismissal.

[35] Here, [the psychologist] expressed the opinion that the grievor had acquired tools to control his anger. There is no suggestion that he was suffering from any medical condition that caused his misconduct. Nevertheless, the arbitrator commented that the impugned conduct was “indicative of a person whose mental state was questionable”. In his opinion, CBC should have taken his request for counselling into consideration before finalizing its decision to dismiss the grievor.

…

[39] It is settled law that while arbitrators are entitled to curial deference with respect to decisions made within their jurisdiction, if they exceed or act outside their areas of jurisdiction, they are no longer entitled to curial deference: Québec Cartier, supra at para. 8. In my opinion, by relying on subsequent-event evidence as grounds for reversing the termination, the arbitrator exceeded his jurisdiction.

[40] I do not agree with Mr. Wright’s submission that the Report provided relevant information that could reasonably have been known to CBC before it terminated the grievor. The essence of the psychologist’s opinion was that, as a result of the post-termination counselling sessions, the grievor had acquired the tools to cope with his anger.

[10] Further, in the arbitration proceedings, the CBC sought to introduce evidence concerning prior incidents in which Mr. Keating was said to have exhibited angry behaviour. The arbitrator refused to admit the evidence. The chambers judge found that the arbitrator erred in declining to admit the evidence.

[11] In conclusion the chambers judge said:

[48] The arbitrator’s decision that the grievor’s gross misconduct did not directly damage his journalistic integrity and credibility is patently unreasonable. That misconduct fundamentally breached his employment relationship with CBC, thus justifying his termination.

[49] The relevant issue before the arbitrator was not whether the grievor’s aberrant behaviour might recur, but whether his gross misconduct had irreparably undermined his credibility as a CBC reporter, and, as a result, destroyed the employment relationship. In my opinion, the arbitrator erroneously focussed on the fact that the grievor had taken steps to ensure that [the target] did not eat the contaminated chocolates and the fact that [the psychologist’s] Report concluded that a repetition of such aberrant conduct was unlikely. By doing so, the arbitrator mistakenly viewed the issue as one of personal integrity rather than journalistic credibility. I find that CBC was entitled to conclude that the grievor had lost his credibility as [a] CBC reporter and that the public’s trust in him had been irrevocably destroyed.

[50] Further, I find that the arbitrator exceeded his jurisdiction by considering post-discharge evidence of the grievor’s apparent rehabilitation.

[12] The Guild appeals the order quashing the arbitration decision. It says that the chambers judge erred:

1. in failing to give appropriate deference to the decision of the labour arbitrator and instead substituting her own opinion as to a reasonable penalty.

2. in holding that the arbitrator lacked jurisdiction to admit and rely upon the report of the psychologist; and

3. in holding that the arbitrator erred by excluding evidence concerning Mr. Keating's prior conduct.

Discussion

[13] The parties agreed before us that an arbitrator’s decision must be accorded deference and that the standard of review of the arbitrator's decision is patent unreasonableness. On appeal the question for us is whether the chambers judge erred in her conclusion.

[14] The standard of patent unreasonableness recognizes the position of an arbitrator under the Canada Labour Code. The Code requires a collective agreement to have a provision for settlement of disputes without stoppage of work by arbitration or otherwise:

57. (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.

(2) Where any difference arises between parties to a collective agreement that does not contain a provision for final settlement of the difference as required by subsection (1), the difference shall, notwithstanding any provision of the collective agreement, be submitted by the parties for final settlement

(a) to an arbitrator selected by the parties; or

(b) where the parties are unable to agree on the selection of an arbitrator and either party makes a written request to the Minister to appoint an arbitrator, to an arbitrator appointed by the Minister after such inquiry, if any, as the Minister considers necessary.

…

[15] An arbitrator's power is defined in s. 60 of the Code:

60. (1) An arbitrator or arbitration board has

(a) the powers conferred on the Board by paragraphs 16(a), (b), (c) and (f.1);

(a.1) the power to interpret, apply and give relief in accordance with a statute relating to employment matters, whether or not there is conflict between the statute and the collective agreement;

(a.2) the power to make the interim orders that the arbitrator or arbitration board considers appropriate;

(a.3) the power to consider submissions provided in the form that the arbitrator or the arbitration board considers appropriate or to which the parties agree;

(a.4) the power to expedite proceedings and to prevent abuse of the arbitration process by making the orders or giving the directions that the arbitrator or arbitration board considers appropriate for those purposes; and

(b) power to determine any question as to whether a matter referred to the arbitrator or arbitration board is arbitrable.

(1.1) The arbitrator or arbitration board may extend the time for taking any step in the grievance process or arbitration procedure set out in a collective agreement, even after the expiration of the time, if the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension.

(1.2) At any stage of a proceeding before an arbitrator or arbitration board, the arbitrator or arbitration board may, if the parties agree, assist the parties in resolving the difference at issue without prejudice to the power of the arbitrator or arbitration board to continue the arbitration with respect to the issues that have not been resolved.

(2) Where an arbitrator or arbitration board determines that an employee has been discharged or disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject of the arbitration, the arbitrator or arbitration board has power to substitute for the discharge or discipline such other penalty as to the arbitrator or arbitration board seems just and reasonable in the circumstances.

[Emphasis added.]

[16] The power of the Board referred to in s. 60(1)(a) is established by s. 16:

16. The Board has, in relation to any proceeding before it, power

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;

…

(b) to administer oaths and solemn affirmations;

(c) to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not;

…

(f.1) to compel, at any stage of a proceeding, any person to provide information or produce the documents and things that may be relevant to a matter before it, after providing the parties the opportunity to make representations;

…

[17] The arbitrator's decision is protected by a strong privative clause:

58. (1) Every order or decision of an arbitrator or arbitration board is final and shall not be questioned or reviewed in any court.

(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an arbitrator or arbitration board in any of their proceedings under this Part.

…

[18] Further, an arbitrator is given power to determine his or her own procedure:

61. An arbitrator or arbitration board shall determine their own procedure, but shall give full opportunity to the parties to the proceeding to present evidence and make submissions to the arbitrator or arbitration board.

[19] The terms of the grievance procedure are not in the record; the case proceeded on the basis that the grievance procedure fulfilled the statutory requirements for arbitration and that the arbitrator's powers were as set out in the Code.

[20] Labour arbitrators are selected by the parties. Arbitrators' place in the scheme was described by Laskin C.J.C. in Volvo Canada Ltd. v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 720 (1979), [1980] 1 S.C.R. 178, 99 D.L.R. (3d) 193 at pages 203-04:

… In other cases of a reference to consensual arbitration, the approach to review ought also to be marked by caution in the light of the fact that the parties to a collective agreement have thereby established their own legislative framework for the regulation of the work force engaged in the enterprise, have designated their own executive and administrative officers to apply the agreement on an ongoing basis and have provided for their own enforcement machinery to resolve and, if need be, to effect a final and binding settlement of all differences arising under the terms of the agreement.

[21] Arbitration is generally recognized as an important component of the legislative scheme to foster sound industrial relations. In Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, 144 D.L.R. (4th) 385, Cory J., writing for the majority, observed:

[35] Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 (PSAC No. 2), emphasized the essential importance of curial deference in the context of labour relations where the decision of the tribunal, like the Board of Arbitration in the instant appeal, is protected by a broad privative clause. There are a great many reasons why curial deference must be observed in such decisions. The field of labour relations is sensitive and volatile. It is essential that there be a means of providing speedy decisions by experts in the field who are sensitive to the situation, and which can be considered by both sides to be final and binding.

[36] In particular, it has been held that the whole purpose of a system of grievance arbitration is to secure prompt, final and binding settlement of disputes arising out of the interpretation or application of collective agreements and the disciplinary actions taken by an employer. This is a basic requirement for peace in industrial relations which is important to the parties and to society as a whole. …

[22] In United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402, Sopinka J. spoke of the "relative expertise" of the arbitrator.

[23] Matters of discipline are particularly within this area of deference. The approach to dismissal in the common law is quite different to the approach mandated by labour legislation and collective agreements. For example, the question for a court in a wrongful dismissal action is whether there was cause for dismissal, and a court may not substitute a lesser penalty (absent an agreement permitting substitution). In contrast, in a dismissal covered by a collective agreement which is regulated by a provision such as s. 60(2) of the Canada Labour Code, the questions are first whether there was cause for discipline or dismissal and, second, whether in any event the dismissal should be upheld or another penalty substituted.

[24] This difference in approaches to dismissal derives from Port Arthur Shipbuilding Co. v. Arthurs et al. (sub nom. R. v. Arthurs), [1967] 2 O.R. 49, 62 D.L.R. (2d) 342 (C.A.), rev'd (1968), [1969] S.C.R. 85, 70 D.L.R. (2d) 693 and the response of Parliament and certain legislatures to that decision. The collective agreement in Port Arthur Shipbuilding referred to "proper cause", a term the arbitrator interpreted as permitting consideration of a broad range of circumstances. At the Ontario Court of Appeal, Laskin J.A. (as he then was) described at pages 363-64, the significance of the addition of the adjective "just" or "proper" to the noun "cause" which then applied in wrongful dismissal cases under the law of master and servant:

The collective agreement leaves the extent of discipline (be it as light as a warning or as heavy as discharge) at large under the formula of "proper cause". By this I mean that there are no fixed consequences for specified types of misconduct. This is so even in respect of a violation of such a specific prohibition as is involved in art. 11.03. The reason is simple; experience has shown that there must be a pragmatic and not a cut and dried, Medes and Persians approach to discipline. Employers and unions are, in my opinion, wise to leave room in collective agreement administration (which includes arbitration) for consideration of the worker as an individual, and not as simply part of an indistinguishable mass. The formulae of "just cause" or "proper cause" or "reasonable cause" or "just and proper cause" which are found in collective agreements join to the pragmatic case by case approach a sensible individualization in the assessment of punishment for misconduct. Whether the qualifying word be "proper" or "just", it expresses the duty to act according to the circumstances of the case in which an issue of discipline, reaching perhaps to discharge, arises.

[25] This decision was overturned by the Supreme Court of Canada, which held that the arbitrator's authority was limited to determining whether there was proper cause for discipline and that the arbitrator could not substitute a different penalty. Port Arthur Shipbuilding led directly to the efforts of legislatures across Canada to pass legislation applicable to the unionized sector mitigating its effect. The result was labour legislation that clearly provided that an arbitrator was first to enquire into the existence of cause for discipline or dismissal, and then to consider whether, in the circumstances, the penalty imposed was just/proper/reasonable/fair. This history is well recounted in William Scott & Co. v. CFAW Local P-162 (1976), [1977] 1 Can. L.R.B.R. 1 (B.C.L.R.Bd), a decision written under the chairmanship of Paul Weiler.

[26] I turn then to the case referred to by the chambers judge, Cie minière Québec Cartier v. Quebec (Grievances arbitrator), [1995] 2 S.C.R. 1095, 125 D.L.R. (4th) 577, a case which engaged the Quebec labour legislation, Labour Code, R.S.Q., c. C-27, and the collective agreement concluded thereunder. The Supreme Court of Canada held that the arbitrator in that case, having found just and sufficient cause for dismissal at the time of dismissal, acted without jurisdiction in considering subsequent-event evidence. The Court concluded:

[13] This brings me to the question I raised earlier regarding whether an arbitrator can consider subsequent-event evidence in ruling on a grievance concerning the dismissal by the Company of an employee. In my view, an arbitrator can rely on such evidence, but only where it is relevant to the issue before him. In other words, such evidence will only be admissible if it helps to shed light on the reasonableness and appropriateness of the dismissal under review at the time that it was implemented. Accordingly, once an arbitrator concludes that a decision by the Company to dismiss an employee was justified at the time that it was made, he cannot then annul the dismissal on the sole ground that subsequent events render such an annulment, in the opinion of the arbitrator, fair and equitable. In these circumstances, an arbitrator would be exceeding his jurisdiction if he relied on subsequent-event evidence as grounds for annulling the dismissal. To hold otherwise would be to accept that the result of a grievance concerning the dismissal of an employee could vary depending on when it is filed and the time lag between the initial filing and the final hearing by the arbitrator. Furthermore, it would lead to the absurd conclusion that a decision by the Company to dismiss an alcoholic employee could be overturned whenever that employee, as a result of the shock of being dismissed, decides to rehabilitate himself, even if such rehabilitation would never have occurred absent the decision to dismiss the employee.

[14] … There is no provision in Quebec labour law or in the collective agreement between the Company and the Union which would permit a labour arbitrator to overturn a decision by the Company to dismiss an employee notwithstanding the fact that the Company demonstrated just cause for the dismissal.

[Emphasis added.]

[27] The chambers judge in this case took Québec Cartier, in the context of the case at bar, to mean that Mr. Glass was required to uphold the CBC’s decision to dismiss Mr. Keating if it had just and sufficient cause for dismissal at the time of dismissal. She further relied upon Québec Cartier in finding that Mr. Glass erred when he relied upon the psychologist's report to the effect that Mr. Keating had, since his dismissal, acquired tools to control his anger.

[28] With respect, I do not read Québec Cartier as saying that an arbitrator's role under the Canada Labour Code is restricted to determining only whether there was cause for dismissal at the time of dismissal, or that only if no cause is found can an alternative remedy be substituted. In Canadian Airlines International Ltd. v. Canadian Air Line Pilots Association (1997), 95 B.C.A.C. 40, leave to appeal to S.C.C. refused, (1998), 119 B.C.A.C. 319 (note), this Court considered an award of an arbitrator reviewing the dismissal of a pilot who had been using and transporting drugs on his employer's aircraft for over fifteen years. The arbitrator's award reinstated the pilot into an airline pilot health and rehabilitation program, which could, but not necessarily would, entitle him to resume active employment upon successful completion of rehabilitation. The chambers judge concluded that the arbitrator had jurisdiction under s. 60(2) of the Canada Labour Code to substitute a remedy even if there was just and proper cause for dismissal. However, the chambers judge held that the arbitrator had not substituted a remedy, but rather had added a new term to the collective agreement and thus acted outside of his jurisdiction, with the result that the arbitration award was quashed. This Court upheld that order. In doing so, this Court noted, without adverse comment, that the "chambers judge interpreted s. 60(2) of the Canada Labour Code to give arbitrators the jurisdiction to order the reinstatement of a discharged employee even where the discharge was for just and proper cause" (para. 33).

[29] The legislation applicable in the case at bar differs from that considered in Québec Cartier, where the Court observed that there was "no provision … which would permit a labour arbitrator to overturn a decision by the Company to dismiss an employee notwithstanding the fact that the Company demonstrated just cause for the dismissal" (para. 14). By s. 60(2), the Canada Labour Code expressly permits substitution of a disciplinary penalty. In my view, the reasoning of Québec Cartier, to the extent it is said to limit the ability of the arbitrator to substitute a penalty even where there is cause for discipline or dismissal, regardless of the circumstances, has no application to this Code.

[30] The second conclusion of the chambers judge as to the application of Québec Cartier was that an arbitrator was limited in the use to which he could put post-event evidence. The nature of such evidence may vary and may include evidence that the employee had received substance abuse counselling, or ceased his or her substance abuse, or, as in this case, sought assistance with anger management. It may also be evidence that favours the employer, such as evidence that the employee has not desisted from the behaviour which attracted the censure. The latter was the case in Toronto Board of Education. There the employee was dismissed in response to threatening letters he had sent. After his dismissal, the employee sent another letter to the effect that he was unable to curb his natural urge to put his thoughts to paper and send them to the concerned parties. The Supreme Court, in saying the evidence should have been admitted, referred to Québec Cartier:

[74] It is true that the third letter is, to some extent, “subsequent-event evidence” since it was written after the dismissal of Mr. Bhadauria. However it has been decided that such evidence can properly be considered “if it helps to shed light on the reasonableness and appropriateness of the dismissal”: Cie minière Québec Cartier v. Quebec (Grievances Arbitrator), [1995] 2 S.C.R. 1095, at p. 1101. In this case, it would not only have been reasonable for the arbitrators to consider the third letter, it was a serious error for them not to do so.

[31] With this discussion in mind, I address the issues raised by the Guild, although not in the order in which they are set out above. The first question I address is whether the chambers judge erred, as contended by the Guild, in finding a reversible error in the admission by Mr. Glass of the psychologist’s report. As to Mr. Keating’s willingness to avail himself of treatment and as to the report, Mr. Glass said in part:

… There is also the fact that prior to the implementation of the decision to dismiss, when a resignation was being considered, the grievor asked for continuing access to the employee assistance program. This request was made before the final implementation of the decision to dismiss and it could have been taken into account prior to finalizing the decision. The implication is in fact that the request was taken into account, because access to the EAP was granted, and so the statement of the employer that he had no interest in obtaining treatment and failed to state that he had such an interest is not entirely accurate.

… In terms of assessing the risks associated with retaining the grievor on the payroll, the report of [the psychologist] is positive. … I am of the view that the information contained in the report could have been obtained prior to the final decision to discharge the grievor.

[32] Considering the broad jurisdiction accorded labour arbitrators to substitute a penalty under the Canada Labour Code, discussed above, it is my view that the chambers judge erred in concluding, on the authority of Québec Cartier, that the arbitrator's consideration of the psychologist's report was an excess of jurisdiction. Rather, in my view the arbitrator could have been criticized for failing to admit it. Indeed, I am of the same mind even on the narrow view of the mandate of an arbitrator expressed in Québec Cartier, for the evidence of the psychologist was, in my view, relevant to the events at the time of dismissal. It is significant that, as noted by Mr. Glass, the employer took the position that Mr. Keating had no interest in obtaining treatment. The report’s contents directly address that issue by recording the degree of Mr. Keating’s participation in counselling sessions. In my view, both under the narrow Québec Cartier approach to the arbitrator’s role and under the fuller mandate provided by s. 60(2) of the Code, an enquiry was necessary by Mr. Glass into questions of Mr. Keating’s behaviour towards others and the likelihood of that behaviour recurring, to the extent evidence was adduced addressing those issues.

[33] With respect, therefore, I conclude that the chambers judge erred in finding that admission of the psychologist's report was an excess of jurisdiction.

[34] The second question concerns the arbitrator's refusal to admit evidence of a prior outbreak of Mr. Keating, which was said to reveal his temper. Subsection 60(1)(a), by reference to s. 16(c), earlier replicated, gives to an arbitrator the authority to receive or exclude evidence as he or she may see fit. The rules of admissibility applicable in a court of law are not binding upon an arbitrator, who may determine his or her own procedure provided the rules of natural justice are observed.

[35] In Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471, 101 D.L.R. (4th) 494, the Supreme Court of Canada addressed an arbitrator's role with respect to evidence. Lamer C.J.C., speaking for a majority of the Court, said at page 488:

The only rule of natural justice with which the Court is concerned here is the right of a person affected by a decision to be heard, that is, the audi alteram partem rule. The question is whether there is a breach of that rule whenever relevant evidence is rejected by a grievance arbitrator. In order to answer this question, we must determine whether judicial review should be available whenever an arbitrator errs, regardless of the seriousness of his error, in declaring evidence submitted by the parties to be irrelevant or inadmissible.

The difficulty of this question arises from the tension existing between the quest for effectiveness and speed in settling grievances on the one hand, and on the other preserving the credibility of the arbitration process, which depends on the parties' believing that they have had a complete opportunity to be heard. …

And at 491:

For my part, I am not prepared to say that the rejection of relevant evidence is automatically a breach of natural justice. A grievance arbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirable for the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice.

[36] In this case, the evidence in issue is hearsay evidence of another CBC employee as to an incident said to have occurred in Whitehorse, wherein Mr. Keating exhibited angry behaviour and "walked off the job", and evidence that Mr. Keating promised the CBC, when he moved to Nelson, not to repeat the behaviour.

[37] The chambers judge, in her reasons, did not find a breach of natural justice. Nor do I consider the material before the Court establishes such a breach. Had the behaviour here more closely imitated the behaviour of the earlier situation, perhaps the limitation on the evidence imposed by Mr. Glass would have amounted to a denial of a fair hearing. But a situation in which a person disagrees with management is vastly different from the behaviour here. In my view, it cannot be said, on the basis of the ruling that the evidence was inadmissible, that there was a breach of natural justice. Rather, the ruling fit within the arbitrator’s mandate described in the Canada Labour Code. Short of a breach of natural justice, there is no basis upon which to interfere with the arbitrator's ruling that the evidence sought to be tendered could not be called.

[38] The last issue is whether, taking the evidence that was properly before the arbitrator, can it be said that the arbitrator's decision was patently unreasonable? The Guild contends that it was not, and that the chambers judge erred in failing to give to the arbitrator the deference to which he is entitled as reflected in the applicable standard of review.

[39] A patently unreasonable decision is one that is "evidently not in accordance with reason" or is "clearly irrational": Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, 101 D.L.R. (4th) 673 at para. 44; Toronto (City) Board of Education v. O.S.S.T.F., District 15, supra, at para. 46.

[40] In this case the chambers judge found, as replicated above in her paragraph 49 that:

The relevant issue before the arbitrator was not whether the grievor’s aberrant behaviour might recur, but whether his gross misconduct had irreparably undermined his credibility as a CBC reporter, and, as a result, destroyed the employment relationship. …

And:

… By doing so, the arbitrator mistakenly viewed the issue as one of personal integrity …

[41] With respect, the approach engaged in this analysis is, as the appellant contends, an application of yesteryear's "wrong question" approach to the review of arbitration awards. The "wrong question" approach risks the danger of unduly narrowing the arbitrator’s mandate, and the court substituting its view, in place of the arbitrator’s, as to the significant aspects of the case before him or her. Although not in the majority on this aspect of his reasons for judgment, Chief Justice Laskin commented adversely on this approach at pages 194-95 in Volvo Canada, supra, in a passage that is, in my view, reflective of the present day appreciation of an arbitrator’s role:

… In my opinion, talk about the right or wrong question is merely a euphemism for addressing the issue which is properly before the arbitrator. It provides a form of judicial control which goes beyond error of law, as that has been hitherto understood, and it is fraught with the danger of substitution of judicial opinion for that of the tribunal which the Legislature has put in place or for that of the arbitration board or arbitrator selected by the parties. There may, of course, be cases, rare ones I would think, in which an arbitration board or an arbitrator in labour-management relations matters has completely misunderstood or misconceived the task before it or him; in short, it or he has not addressed the issue — I mean here, the main issue and not subsidiary or ancillary considerations — which has been committed for determination. That is not true in the present case. The arbitrator, whether correctly or incorrectly, has met and determined the main issue, indeed the single question before him, and there is no room for interference on the ground that he had failed to address himself to the right question.

In my opinion, for a Court to go behind the issue before a consensual arbitrator to whom a specific question of law has been referred for determination, which is the present case, and to find that a subordinate question has not been explicitly addressed, again as in this case, is to enlarge the scope of review open in respect of such consensual arbitration when it has been limited by judgments of this Court. Otherwise, there would be an equivalence with the scope of review generally open in the case of a statutory tribunal. This is subject, of course, to the operative effect of a privative provision which would exclude review of alleged errors of law but not of errors of jurisdiction, of which the typical one in the cases is a denial of natural justice: see Bradley v. Canadian General Electric Co. Ltd. [(1957), 8 D.L.R. (2d) 65, [1957] O.R. 316]; L'Alliance des Professeurs Catholiques de Montreal v. Labour Relations Board of Quebec, [[1953] 4 D.L.R. 161, 107 C.C.C. 183, [1953] 2 S.C.R. 140]. There are no such issues here.

[Emphasis added.]

[42] In the case at bar, it was conceded that there was cause for discipline. The only matter requiring resolution is whether the arbitrator should substitute a penalty for the dismissal imposed. In my view, the question posed by the chambers judge as "the relevant issue" was, with respect, not itself the issue but instead only one aspect of the matter required to be resolved by the arbitrator. It appears to me that this approach led to the substitution of judicial opinion for that of the arbitrator, as forewarned by Chief Justice Laskin.

[43] In any case, with respect, I do not see the fault found by the chambers judge. On the question of the breakdown of the employment relationship, the arbitrator was entitled, in fact obliged, by s. 60(2) to have regard to the “circumstances”. That is, he was required to consider the broader context discussed in William Scott & Co., supra, and thereby to reach an opinion informed by the entire labour relations context in evidence before him.

[44] Mr. Glass approached the issue without isolating the two steps required of him by s. 60(2), being whether there was cause for discipline or dismissal, and if so, whether it was just and reasonable to substitute another penalty. Rather he concluded that there was cause for discipline, but that there was not “reasonable cause” for dismissal. Although not couched in the terms of s. 60(2) as a substitution of penalty, a fair reading of his reasons, in my view, leads to the conclusion that in finding there was not “reasonable cause” for dismissal, Mr. Glass was saying that it was just and reasonable to substitute a suspension on the condition that Mr. Keating attend an anger management course.

[45] In reaching his conclusion that a three-month suspension should apply to Mr. Keating, Mr. Glass considered the contents of the CBC's written journalistic standards and practices, their import and whether Mr. Keating had breached those particular standards, the potential journalistic consequences flowing from his conduct, the likelihood of repetition, and the effect Mr. Keating's actions may have on the public trust in him and the CBC as assessed by the arbitrator. These are all considerations that properly relate to the broad issue before the arbitrator: "is it just and reasonable to impose another penalty?" By broadly canvassing the situation in evidence before him, he addressed the issue of irreparable severance of the employment relationship. While the employer's view of that question, referred to by the chambers judge, was one aspect of the issue, with respect, in the full context of the case, there were other aspects as well that required consideration.

[46] The chambers judge also disagreed with the arbitrator's conclusion as to the effect that Mr. Keating's behaviour may have on the public trust in the CBC. The arbitrator concluded that the question was to be determined by considering the view of a fair-minded and informed member of the public. One cannot say that the standard he applied was an error in law. Applying that test, he concluded as a finding of fact that the public trust would not be irreparably fractured. Absent patent unreasonableness, a court may not interfere with that conclusion. This takes us to the nub of the question before this Court.

[47] The CBC vigorously contends that the arbitrator's decision was patently unreasonable, calling in aid of that submission the Canadian Airlines case, supra, of this Court.

[48] Canadian Airlines was, however, a different case. The employee in question had engaged in illegal behaviour for over fifteen years, carrying illegal drugs on aircraft and consuming them. For fifteen years, he had posed a safety risk and exposed his employer to loss of its valuable aircraft in foreign jurisdictions. He admitted to his problem only after he was charged with criminal offences. And as a measure of how aberrant his behaviour was, the arbitrator only relieved the grievor to the extent of reinstating him to a status that permitted participation in the health and rehabilitation program, leaving his potential reinstatement to active employment dependant upon the results of rehabilitation. This Court found that the terms of reinstatement created a new term of the collective agreement, which was beyond the power of an arbitrator to create. It also observed that the grievor’s long discipline-free service could not be used to the grievor’s credit because the only reason he was discipline-free was that his misconduct went unnoticed for fifteen years. In concluding that the arbitrator's decision was patently unreasonable, this Court observed:

… Knowing, repeated, and protracted breaches by the grievor of clear and unequivocal rules designed to protect the safety of the company's passengers and property, is manifestly conduct which would destroy an employer's trust and confidence in the employee. …

[49] In contrast, in the case before us, the behaviour in issue was one incident, promptly confessed, acknowledged and rectified by the employee before harm was done. It was clearly aberrant and highly uncivil, and properly of concern to the CBC because it was a work-generated misdemeanor. Yet there was a basis, in my view, upon which the arbitrator, having heard all the evidence, could conclude that the public trust, measured by the test he articulated, was not irreparably fractured, and that a significant suspension was just and reasonable discipline.

[50] The question for the chambers judge, and for this Court, is not whether we agree with the arbitrator's assessment of the evidence or his application of judgment to the labour relations case before him. Rather the question for the Court is whether the decision was evidently not in accord with reason, or was clearly irrational. In my view, the chambers judge made a wrong turn in narrowing the issue before the arbitrator, thereby moving away from the arbitrator’s task under the legislation, and, in so doing, erroneously substituted her view of the question before the arbitrator rather than viewing the case with the broad deferential lens required by the authorities.

[51] I do not consider that the arbitrator's conclusion, based as it was on the evidence before him, can be said to be patently unreasonable.

[52] For these reasons, I would allow the appeal and set aside the order of the chambers judge quashing the decision of the arbitrator.

“The Honourable Madam Justice Saunders”

I AGREE:

“The Honourable Mr. Justice Smith”

I AGREE:

“The Honourable Madam Justice Kirkpatrick”

Citation:	*Canadian Broadcasting Corp. v. Canadian Media Guild,*
	2007 BCCA 232