2005BCSC0001

Docket: L040970

Registry: Vancouver

In the matter of the Judicial Review Procedure Act,

R.S.B.C. 1996 and in the matter of an arbitration decision of March 4, 2004

Between:

Canadian Broadcasting Corporation Radio-Canada

Petitioner

And

The Canadian Media Guild

and Nicholas Glass

Respondents

Before: The Honourable Madam Justice Allan

Reasons for Judgment

Counsel for the petitioner:	Peter Gall, Q.C.
Counsel for respondents:	Michael Wright
Date and place of hearing:	December 7, 2004
	Vancouver, B.C.

[1] In February 2003, the petitioner Canadian Broadcasting Corporation Radio-Canada (“CBC”) terminated the employment of one of its radio reporters for gross misconduct: anonymously mailing a box of chocolates contaminated by dirt and raw chicken to the head of a political lobby group in Nelson, B.C. The respondent Canadian Media Guild (the “Guild”) filed a grievance on the reporter’s behalf, grieving his termination and seeking his reinstatement. The CBC and the Guild were parties to a collective agreement, negotiated under the Canada Labour Code, R.S.C. 1985, c. L-2. Nicholas Glass, a single arbitrator, heard the grievance and substituted a three-month suspension and an order that the grievor attend an anger management course. CBC seeks a judicial review of that decision.

[2] Mr. Gall, counsel for CBC, submits that the decision should be overturned because the arbitrator reached the patently unreasonable conclusion that the grievor’s vengeful misconduct did not directly damage his journalistic integrity and thus did not constitute an irreparable breach of his employment obligations to CBC as a reporter. He also submits that the award should be overturned because it was based on an expert report that was inadmissible because it dealt with the grievor’s “rehabilitation” efforts after the misconduct. Finally, he argues that CBC received inadequate notice of the expert report and was unable to cross-examine its author, and was not permitted to introduce evidence of a previous incident involving the grievor.

[3] Mr. Wright, counsel for the Guild, submits that the arbitrator’s decision was reasonable and correct and that his decisions to admit the expert report and to exclude evidence of the prior event were in accordance with the principles of natural justice.

Background

[4] The grievor commenced employment with CBC in Nelson in July 2000. He broadcast a news report concerning the abandonment of a lawsuit against the Provincial Government to preserve government services by an organization called Save Our Services (“SOS”). Mr. Hamilton, the head of SOS, spoke critically of the grievor in the community and filed a written complaint with CBC about the news report. The grievor understood that Mr. Hamilton had publicly stated words to the effect of “[The grievor] was a toady of the government; he was not to be trusted; how could he function as a journalist?” The grievor, believing that Mr. Hamilton had publicly questioned his journalistic ethics, contacted CBC counsel with a view to initiating a defamation action. He was advised against starting an action.

[5] At about 9:00 a.m. on January 29, 2003, the grievor purchased a box of chocolates with a view to spitting on them and sending them anonymously to Mr. Hamilton, in order “to get back at him”. Later that day, however, he took the chocolates home, threw them on the dirty kitchen floor and returned them to the box. He then took two of the chocolates and rubbed them in thawed, raw chicken and replaced them in the box. He enclosed an anonymous note that said “keep up the good work” and mailed them to Mr. Hamilton at approximately 4:00 p.m.

[6] That evening, the grievor told his wife what he had done and they decided he should tell Mr. and Mrs. Hamilton in the morning. He was not able to contact them the following day, but finally reached Mrs. Hamilton at about 7:00 a.m. on January 31 and told her what he had done. He told her “if you want to go to the police or CBC then you should.” Mr. Hamilton was extremely angry when he learned what had happened and called the police. The police contacted the grievor.

[7] The grievor realized he would have to advise CBC about the incident and contacted his supervisors, Joan Andersen, Director of English Radio for B.C., and Lorna Haeber. They were shocked. The grievor admitted all of the relevant facts of the incident and accepted full responsibility for what he had done. On February 4, he contacted a psychologist through the CBC’s Employee Assistance Program (“EAP”).

[8] On February 12, 2003, the grievor attended a disciplinary hearing. He showed remorse and apologized, but two days later was fired for gross misconduct.

[9] Following the grievor’s termination, he was permitted to continue to use the services of EAP, which included psychological assistance, for six months.

[10] The Guild grieved the dismissal on the basis that CBC had acted unreasonably and hastily.

The arbitrator’s award

[11] The arbitrator described the grievor’s vengeful actions as premeditated rather than impulsive:

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 action 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.

[12] However, the arbitrator considered it significant that the grievor had “come to his senses” before any harm came to Mr. Hamilton:

The employer’s concerns, expressed by Ms. Enkin, and described above, are real legitimate concerns. It is necessary nonetheless 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 Mr. Hamilton, the grievor came to his senses and took every possible step to neutralize what he had done, including making a full admission to the Hamiltons of what he had done, knowing that by doing so he was placing his own job in jeopardy.

[13] The arbitrator posed the question to be answered in this way:

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, judgment, and even mental stability, have to run the risks associated with such a person in its employment?

[14] The arbitrator considered cases of dishonesty where the employer should not be compelled to run the risk of the employee’s future dishonesty. He found that those cases were distinguishable on the basis that the grievor in this case had taken positive steps to prevent the harm he had planned.

[15] The arbitrator then considered the issue of the harm to the CBC’s public reputation. He noted that:

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?

[16] In the end, Mr. Glass concluded that the CBC did not have reasonable grounds to dismiss the grievor and substituted a three month suspension.

The standard of review

[17] Mr. Wright submitted that courts must accord significant deference to labour arbitrators: Toronto Board of Education v. Ontario Secondary School Teachers’ Federation, District 15, [1997] 1 S.C.R. 487, 144 D.L.R. (4^th) 385 at 397-8. Further, s. 58(1) of the Canada Labour Code contains a strong privative clause:

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

In addition, the Canada Labour Code embodies a scheme for the timely resolution of labour disputes by arbitration.

[18] Accordingly, Mr. Wright submits that Parliament fully intended that matters such as these that are arbitrated under the Canada Labour Code, are insulated from judicial review unless they are patently unreasonable. That strict standard requires the Court to consider whether there is a rational basis for the arbitrator’s decision. A decision can only be found to be patently unreasonable where it is “evidently not in accordance with reason” or is “clearly irrational”: C.A.I.M.A.W., Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, 62 D.L.R. (4^th) 437 at 453; Canada (Attorney-General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, 101 D.L.R. (4^th) 673 at 690-91.

[19] Finally, s. 60(2) of the Canada Labour Code empowers the arbitrator to substitute a lesser penalty for a dismissal that “seems just and reasonable in the circumstances”. Mr. Wright cites Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727, 2004 SCC 28 at para. 22, in which the Supreme Court of Canada stated that arbitrators “are best positioned to assess credibility and weigh evidence put before [them] in fashioning an appropriate remedy.”

[20] In his written submissions, Mr. Gall referred to a number of cases from the Supreme Court of Canada, suggesting that the appropriate standard of review is reasonableness simpliciter. However, rather than engage in a debate with respect to this issue, Mr. Gall argued in oral submissions that, even applying the stricter standard of review of “patently unreasonable”, the arbitration award must be overturned. In this case, I will assume that the appropriate standard of review is patent unreasonableness.

Was there an irreparable breach of the grievor’s employment obligations?

[21] The petitioner describes the grievor, CBC’s only reporter in its Nelson branch, as the “face and voice” of CBC in the Kootenays. The conduct of CBC reporters is governed by CBC’s code of conduct entitled Journalistic Standards and Practices (the “Code”). Emphasis is placed on the fact that, because it is funded, through Parliament, by the people of Canada, it occupies a unique position of trust. The Code states, inter alia, that the high standards described in the Code “together with the integrity and good judgment of CBC staff, will help ensure that the faith and trust which Canadians place in CBC journalistic programming continue to be fully justified.” Further, under the heading “Credibility” appear the following words:

In an open society, credibility is an essential attribute of a journalistic organization. The credibility of the organization and that of its journalists are interdependent, flowing one from the other.

Credibility is dependent not only on qualities such as accuracy and fairness in reporting and presentation, but also upon avoidance by both the organization and its journalists of associations or contacts which could reasonably give rise to perceptions of partiality. Any situation which could cause reasonable apprehension that a journalist or the organization is biased or under the influence of any pressure group, whether ideological, political, financial, social or cultural must be avoided.

[22] Ms. Enkin, the Deputy Editor-in-Chief of CBC News and Current Affairs for both radio and TV, made the decision to fire the grievor. She testified that three principles endorsed in the Code — accuracy, integrity, and fairness — are central principles for CBC.

[23] Mr. Gall submits that the arbitrator improperly focused on CBC’s reputation and the risk of a recurrence, rather than on the irrevocable damage to the grievor’s credibility as a CBC reporter. The arbitrator found that it was “difficult to characterize the grievor’s misconduct as contravening specifically any of the principles set out in the [Code]”. He concluded that the grievor’s conduct, “while clearly aberrant and disciplinable, was not essentially journalistic misconduct.” He stated:

There was a potential for journalistic consequences, which was articulated by Ms. Enkin, 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 griever’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.

[24] In determining whether there had been harm to the public reputation of CBC, the arbitrator took into account the fact that there was limited reporting of the incident. In my view, however, at the time that it dismissed the grievor it was reasonable for CBC to be concerned about further adverse publicity if the grievor returned to his job as a reporter in Nelson or, perhaps, anywhere else that had an SOS activist group.

[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 Mr. Hamilton 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 Mr. Hamilton 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.

The admissibility of the expert report

[27] Six days before the arbitration hearing, counsel for the Guild sent counsel for CBC a report from Esta Porter, a psychologist who offered her opinion as to the grievor’s psychological condition at the time of the incident and subsequently (the “Report”). She concluded that after three counselling sessions between February 19 and April 16, the grievor had “learned much about himself and his life from this incident and that he is aware of his issues and has better tools to deal with them in the future.” The Guild sought to introduce the Report on the basis that it was relevant to the issue of whether discharge was the appropriate penalty for the grievor’s actions.

[28] CBC objected to the Report‘s admissibility on the grounds that (1) it had not been served in a timely fashion, (2) Ms. Porter was not present at the arbitration for cross-examination, and (3) it was post-termination evidence. The arbitrator permitted the Report to be admitted, stating that CBC could make submissions at the end of the case with respect to the post-termination issue.

[29] Ms. Porter’s Report concluded:

At no time did [the grievor] blame his actions on others, and he came to the realization that there may have been some old issue that brought up the flared anger and acting out behaviour. In the next sessions, we did discuss and deal with this anger and how past angers when unresolved can and do affect present situations. His understanding is good and he is clear on how this all came to affect him and how to recognize it in the future and that there are options for making his point other than doing dangerous vengeful deeds. I have no question that Bob has learned much about himself and his life from this incident and that he is aware of his issues and has better tools to deal with them in the future.

[30] The Guild argued that, because the employer was concerned about the bizarre nature of the grievor’s conduct and the risk of recurrence, it was appropriate to evaluate that risk before deciding to terminate him. On the other hand, CBC noted that the grievor had not suggested he needed any treatment, instead stating bluntly that he “wanted to get back at Mr. Hamilton”.

[31] The arbitrator concluded that the grievor’s aberrant conduct was indicative of a person whose mental state was questionable and he had, to the knowledge of the employer, sought access to EAP. The arbitrator concluded further that because the grievor’s request for counselling was made before the dismissal, the employer should have taken that request into consideration. He concluded that the information in Ms. Porter’s report could and should have been obtained prior to the final decision to dismiss the grievor, who should have been suspended without pay pending the assessment. “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.”

[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 Ms. Porter’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. (4^th) 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, Ms. Porter 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.

[36] In Canadian Airlines International Ltd. v. Canadian Air Line Pilots Assn. (1997), 39 B.C.L.R. (3d) 131, [1998] 1 W.W.R. 609 (C.A.), the arbitrator had reinstated a pilot who had been terminated for using marijuana while off duty and carrying marijuana on national and international flights while on duty. Because the grievor subsequently underwent treatment for his addictions to alcohol and marijuana, the arbitrator concluded that there was a reasonable prospect of him fulfilling his employment obligations.

[37] The Court of Appeal concluded that the arbitrator’s decision was patently unreasonable. He had failed to consider how the company’s trust and confidence in the grievor could possibly be restored, given the grievor’s knowing and protracted breaches of the law and the company’s rules. The Court stated at para. 62:

In treating the grievor’s misconduct solely as a medical problem capable of treatment, with rehabilitation likely, the arbitrator was diverted from the essence of the company’s reasons for dismissal….

[38] CBC submits that, in this case, the arbitrator was diverted by the likelihood of the grievor’s rehabilitation and overlooked or discounted the impact of his actions on his future credibility as a CBC reporter and the high standards of journalistic credibility required of CBC reporters.

[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.

[41] I accept Mr. Gall’s submission that CBC had no duty to wait to see if the grievor could be rehabilitated before terminating him for misconduct. The positive or negative results of rehabilitation efforts are not facts in existence at the time of dismissal, and therefore cannot shed any light on whether the dismissal itself was reasonable.

[42] I conclude that the arbitrator exceeded his jurisdiction in relying on Ms. Porter’s Report to reach his decision to reinstate the grievor.

Previous conduct

[43] CBC had previously employed the grievor at CBC in Whitehorse from May 1998 until September 1999. CBC alleges that he had apparently exhibited angry inappropriate behaviour in a disagreement with management and “walked off the job”. When he applied for his position in Nelson, he was asked about his earlier behaviour at the Whitehorse Bureau and replied that it would not be repeated.

[44] At the arbitration, Ms. Andersen, who interviewed him in Nelson, sought to give that evidence. Counsel for the Guild objected on the basis that it was prejudicial to the grievor, who had no discipline incidents in his record, and not relevant because it had not formed part of CBC’s decision to terminate his employment. The arbitrator sustained the Guild’s objection.

[45] When the grievor was cross-examined with respect to what he had said at his interview with Ms. Andersen, he replied that he could not remember, but that it was possible he had said he had learned from the Whitehorse incident. He described his conduct in Whitehorse as an “argument” about the journalistic direction of the bureau rather than an “outburst”.

[46] In my opinion, Ms. Andersen’s evidence was relevant and should have been permitted. The purpose of introducing Ms. Porter’s Report was to show that the grievor’s aberrant behaviour would not be repeated if he was reinstated. The fact that he had assured his employer that a previous outburst of anger and bad judgment would not be repeated was relevant to the risk of a recurrence of misconduct. His flagrant breach of that previous assurance casts serious doubt on Ms. Porter’s conclusion that the grievor had learned to cope with his anger and was unlikely to lose his temper in the future.

[47] At the CBC disciplinary hearing that led to his termination, the grievor also admitted in cross-examination that there was a hole in the wall of his office, hidden by a waste paper basket, which he had made by throwing a chair at the wall in the past.

Conclusion

[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 Mr. and Mrs. Hamilton did not eat the contaminated chocolates and the fact that Ms. Porter’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 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.

[51] It follows that the arbitrator’s award is set aside and CBC’s decision to terminate the grievor is reinstated.

“M.J. Allan, J.”
The Honourable Madam Justice M.J. Allan

Citation:	C.B.C. v. The Canadian Media Guild and Glass,
	2005 BCSC 1