2005 BCSC 123 Terasen Gas Inc. v. Office&Professional Employees' Union, Local 378

Before: The Honourable Madam Justice Humphries

Reasons for Judgment

Counsel for the Petitioner:	T. Sigurdson
Counsel for the Respondent:	M. Gropper, Q.C.
Counsel for the Interested Party:	D. Garner
Date and Place of Hearing:	January 24, 2005
	Vancouver, B.C.

[1] This is an application for judicial review of the decision of a panel of the Labour Relations Board ("LRB") dated February 4, 2003 on reconsideration of a previous panel's decision pursuant to s. 141 of the Labour Relations Code (the "Code").

[2] On January 21 and 22, 2002, the arbitrator chosen by the parties heard a grievance concerning entitlement to sick leave pay of the Grievor pursuant to the Collective Agreement in place between Terasen Gas Inc. ("the company") and the respondent union. He issued his award on January 30, 2002. This was the subject of review by the LRB pursuant to s. 99 of the Code, who sent it back to the arbitrator for further consideration on July 18, 2002.

[3] The arbitrator's second decision dated October 9, 2002, was again reviewed by the LRB pursuant to s. 99 of the Code. The second panel, consisting of one member, overturned the arbitrator's decision on April 23, 2002 and ordered the matter heard by a new arbitrator. However, the union asked for a reconsideration pursuant to s. 141 of the Code, and it is that reconsideration by a three-member panel which is now before me for judicial review.

[4] On the s. 141 reconsideration, the second panel overturned the s. 99 decision dated April 23, 2002, and reinstated the arbitrator's decision dated October 9, 2002.

[5] The substance of the dispute between the union and the company before the arbitrator concerned an interpretation of Article 10 of the Collective Agreement which deals with paid sick leave. The relevant Articles are:

10.02 Employees who are unable to work as a result of a disability caused by an off-the-job sickness or accident will be eligible to receive the following paid leave benefits...

10.10 Employees absent from work for any of the following reasons will not be eligible for paid sick leave benefits:

b) disabilities covered by an Workers' Compensation Act

...

[6] The Grievor, Ms. Robertson, had been assigned temporarily to another position with the company. She found it stressful. She also had some personal difficulties at the time which added to her stress. Her doctor recommended she take three weeks off work and be returned to her original position.

[7] In his first decision, the arbitrator held that the employee was entitled to sick leave benefits because she was disabled from working because of sickness from August 24, 2000 to September 18, 2000. He said:

Ms. Robertson was suffering from anxiety and depression resulting from the stressors of the temporary job she had taken, which stressors she had been unable to sustain. These may have been compounded by other factors, but this is not a case which would require some percentage assessment of contribution.

[8] The company sought a review of this decision on the basis that the arbitrator had not considered their argument that the disability had not been caused by an "off-the-job sickness." The Company was successful and the matter was referred to the arbitrator for further consideration.

[9] In his second set of reasons, the arbitrator stated he had not overlooked the company's argument. He went on to discuss Article 10.02 and Article 10.10 as follows:

Article 10.02 of the collective agreement is concerned with "entitlement"; Article 10.10 is concerned with "disentitlement". The employee is clearly obliged to establish entitlement under Article 10.02. Necessarily flowing from its submission, the Company would also oblige the employee to disprove disentitlement under Article 10.10. That would require the employee to prove a negative, and would be contrary to the principles underlying the obligation of proving one's case. ...In sum, therefore, the burden of proof with respect to Article 10.02 is upon the Grievor; the burden of proof with respect to Article 10.10 is upon the company.

.....

...I was indeed persuaded that the Grievor was entitled to paid sick-leave pursuant to Article 10.02. Firstly, although Article 10.02 is concerned with "entitlement" and Article 10.10 with "disentitlement", the provisions are related, and each should be interpreted in relation to the other. Article 10.02 is concerned with "off-the-job sickness or accident"; Article 10.10(b) is concerned with "disabilities covered by any Workers Compensation Act" i.e. inferring coverage for "job-caused sickness or accident. It is not my understanding from a reading of these provisions that the parties intended there to be a gap between the two, such that a person legitimately disabled from working could find himself/herself without any coverage whatsoever.

[10] This decision was also reviewed by a single member of the LRB, who found that the arbitrator had not confined himself to an interpretation and application of the collective agreement. She found that he had decided the merits of the grievance "on the basis of an intuitive assessment of the equities", and had thus denied the employer a fair hearing. She allowed the review and remitted the matter to a new arbitrator.

[11] The union sought a reconsideration under s. 141 of the Code. That panel found that, on a reading of the whole of the reasons, the arbitrator's decision was based on his interpretation of the relevant collective agreement provisions. Although there were passages in the award which "suggest a concern for the equities or fairness of the situation, " those passages were not essential to the analysis. The arbitrator had demonstrated that he had carefully considered the language of Articles 10.02 and 10.10 as well as the arguments made to him. He had given reasons. He had therefore done the job he was required to do and was entitled to the deference accorded the decision of an arbitrator pursuant to s. 101 of the Code. His decision was reinstated.

[12] On this judicial review, the company contends that the arbitrator's interpretation of these sections in determining the grievor's entitlement to sick leave benefits was patently unreasonable. The arbitrator determined that the grievor was entitled to sick leave benefits for a disability caused by on-the-job sickness in the face of a clear and unambiguous term in the collective agreement providing for sick leave for disability caused only by off-the-job sickness. The company says such an interpretation is outside the agreement of the parties, exposes the company to significant claims beyond the range of claims agreed to in bargaining, and is patently unreasonable. Thus, the s. 141 decision of the LRB reinstating that decision is also patently unreasonable. The Company says the LRB's decision is patently unreasonable on its own in any event, because it is based upon the proposition that as long as the arbitrator mentioned the relevant sections, it does not matter what he does with them. If this approach is correct, then any decision can be protected from review by merely reciting the relevant terms of the collective agreement.

[13] Counsel for the LRB argues that there can be no attack at this stage on the decision of the arbitrator. Under s. 82(2) of the Code, the arbitrator must have regard to the real substance of the matters in dispute and the respective merits of the positions of the parties under the terms of the collective agreement, and must apply principles consistent with the industrial relations policy of the Code. A decision of an arbitrator is subject only to the review of the LRB within the limited parameters of s. 99 of the Code: denial of a fair hearing or inconsistency with the principles expressed or implied in the Code. All the Board need be satisfied of is that the arbitrator expended a genuine effort in interpreting the relevant terms (see Lornex Mining Corp and U.S.W. (BCLRB Decision 96/76)). The Board having properly conducted that review, their decision cannot be overturned. If the Company cannot live with the results of the arbitration, they should re-negotiate the Collective Agreement in light of the arbitrator's decision and clarify the issue.

[14] Counsel for the Union adopts the position of the LRB on the scope of review for this court, but also submits that the arbitrator did not interpret the section in the manner described by the company in any event, and his interpretation is not patently unreasonable. Counsel says the arbitrator found the stressors which led to the disability were mixed, caused by on-the-job factors and off-the-job factors, which he expressly declined to apportion. The arbitrator did not have to decide the issue of whether a disability caused purely by on-the-job stressors would be covered by Article 10.02 because those were not the facts he found. Counsel for the Union agrees with counsel for the LRB that the arbitrator must expend a genuine effort within the context of the collective agreement he is interpreting. The LRB was not patently unreasonable in finding that he has done so; therefore the decision should stand.

[15] It is common ground that the issue of sick leave for work-related stress is a contentious one in both the collective agreement context and the workers' compensation context. Nevertheless, the LRB takes the position that the arbitrator's determination to fill in this gap by interpretation of these terms of the collective agreement was within his jurisdiction; his view that it does not make sense to have a scheme in which an employee can obtain sick leave for a disability caused by off-the-job factors and not for a disability caused by work-related factors is not unreasonable.

[16] The Union's approach is more cautious, recognizing the possibility that disability from pure work-related stress may not be covered by the collective agreement, but saying the facts here support a combination of work-related and personal stress that was not apportioned and which led to a disability. The Union says that decision is not patently unreasonable.

[17] The Union's position that the arbitrator was really concerned with sick leave for a combination of on-the-job and off- the-job stressors, not simply off-the-job sickness, has some merit because the arbitrator, in his second decision, qualifies or explains his first decision by saying he meant "sickness" to refer to all sources of stress, work and personal. However, it appears from a reading of his entire award that he was determined not to rest his decision on that such a distinction, regardless of the facts before him.

[18] Courts are accustomed to according deference to administrative tribunals, particularly in the labour relations area. On the most deferential standard of review, courts will not interfere with the decision of a tribunal unless it is patently unreasonable. In the case before me, because of the unique structure of labour relations tribunals in British Columbia, arbitrators' decisions are reviewable only by the LRB. Therefore the court is put in the position of reviewing, not the decision of the arbitrator, but the decision of the LRB.

[19] The LRB may review a decision of an arbitrator under s. 99 of the Code. Otherwise, the decisions of arbitrators are protected by a strong privative clause:

s. 101 Except as provided in this Part, the decision or award of an arbitration board under this Code is final and conclusive and is not open to question or review in a court on any grounds whatsoever...

[20] The LRB has determined its own standard of review for the decisions of arbitrators through an interpretation of the relevant provisions of the Code. Their remarks in Lornex are illuminating, if somewhat frustrating, to a court used to applying the test of "patent unreasonableness":

There are a number of alternative approaches theoretically available to the Board in reviewing interpretive awards of labour arbitrators. We could adopt an approach similar to that taken by Canadian courts acting under statutes such as the Arbitration Act. The courts have said that they will not overturn an arbitrator's interpretation of contract language, even if they would have come to a different conclusion, so long as the interpretation given is one which the language of the contract can reasonably bear. We could go to a different extreme by declining to set aside an award unless the arbitrator has clearly been guilty of an intentional flaunting of the language of the collective agreement. Neither of those two approaches is permitted by s. 108 [now s. 99] of the Code. Errors of interpretation, even though relatively serious, are not in themselves errors of labour relations policy. On the other hand, it does not require a clearly intentional disregard of a collective agreement to find that an arbitrator has acted inconsistently with his statutory duty to interpret and apply the terms thereof. In our view, the approach contemplated by s. 108 is this: does the material before the Board indicate that the arbitrator was making a genuine effort to reach his conclusion on the basis of the relevant provisions of the bargain struck by the parties? If so, his interpretation of those provisions (an interpretation made by a person selected by the parties themselves to assist in the self-government of their relationship) will be beyond review by us.

[21] The last sentence is telling in that it characterizes the award as an interpretation for these particular parties on this particular dispute, and explains why the Board has adopted such a limited scope of review. It is my understanding that awards of arbitrators, though accorded some respect by other arbitrators, are not binding precedents.

[22] The approach to review set out in Lornex is clearly the one taken by the LRB in the reconsideration decision before me.

[23] The petitioner argues that such a cursory approach to review means that no award by an arbitrator can really be challenged if all that is required is that the arbitrator must show that he has dealt with the relevant sections in some manner. Of course, more is required than this. A genuine effort to interpret the sections must be evident on the face of the reasons. "Genuine" in this context can, according to the standard of review adopted in Lornex, encompass serious errors of interpretation, arguably even ones which the provisions of the contract will not reasonably bear since that test for review was rejected. Although greatly limiting review, it does not exclude it, as a genuine effort would not include an intentional disregard of relevant provisions, an analysis conducted in bad faith or a decision which was inconsistent with the principles of the Code.

[24] The role of judicial review in labour relations law in this province does not allow the court to apply its own standard of judicial review, that of patent unreasonableness, to the arbitrator's award. The Court is limited to determining if the LRB's decision upon its review of the arbitrator's award was patently unreasonable, or clearly irrational.

[25] The essence of the LRB's decision is in this passage:

...on a fair reading of the Arbitrator's reasoning as a whole, it is evident that, first and foremost, the decision is based on his interpretation of the relevant collective agreement provision. We cannot conclude that the Arbitrator failed to consider the collective agreement provision, or that his consideration of those provision is based only or even primarily on his sense of what would be a just and equitable result, regardless of actually language of those provisions. The Arbitrator carefully considered the actual language of Articles 10.02 and 10.10, and the arguments concerning that language which had been referred back to him by the Board, and provided his reasons for concluding that the language entitled the grievor to sick leave pay.

[26] I cannot say this decision is clearly irrational or patently unreasonable, given the limited role of review accorded the LRB. Obviously, neither my decision nor that of the LRB's is an endorsement of the arbitrator's reasoning. The results are simply a recognition of the circumscribed parameters of review of the awards of arbitrators as prescribed by the legislature.

[27] The petition is dismissed. No submissions, oral or written, were addressed to costs. If sought, they will follow the event at Scale 3.

“M.A. Humphries, J.”
The Honourable Madam Justice M.A. Humphries

Citation:	*Terasen Gas Inc. v. Office & Professional Employees' Union, Local 378,*
	2005 BCSC 123