Between: Canada Post Corporation (Canada Post)

Transcription

1 SUPREME COURT OF NOVA SCOTIA Citation: Canada Post Corporation v. Canadian Union of Postal Workers, 2010 NSSC 336 Date: Docket: Hfx. No Registry: Halifax Between: Canada Post Corporation (Canada Post) v. Applicant Canadian Union of Postal Workers (CUPW) Respondent Judge: Heard: Counsel: The Honourable Justice Kevin Coady. June 30, 2010, in Halifax, Nova Scotia Thomas Groves, for the applicant Raymond Larkin, Q.C. and Meredith Wain, for the respondent

2 Page: 2 By the Court: [1] This application for Judicial Review arises from a decision of Arbitrator Guy Dulude, Q.C. dated February 14, Arbritrator Dulude found that Canada Post violated Article 3.04(a) of the Collective Agreement between Canada Post and CUPW. He based his decision on a letter dated March 18, 2009 to the National Director, Atlantic Region of CUPW, that certain CUPW directors would be granted access only to the cafeterias of several Canada Post facilities and only during meal and rest periods and would be denied access to work areas. [2] Article 3.04 of the Collective Agreement reads as follows: Article 3.04 Union Access to Place of Employment (a) Full-time officers of the Union, or local officers not on post office duty, will be granted permission to enter the non-public area(s) of a postal installation, providing they contact the organizational level of the Corporation equivalent to that of the Union representative who desires access or the management representative in charge on duty, to state the approximate time, place and purpose of the visit. (b) Where it is not possible to make the arrangements described in paragraph 3.04(a), officers of the Union will be granted permission to enter a postal installation, provided they first contact the management representative in charge on duty, state the purpose of their visit and secure that permission.

3 Page: 3 [3] The facts of this case are not in dispute. On March 17, 2009, representatives of CUPW requested permission to access certain Canada Post workplaces for the purpose of meeting workers to hear their views regarding a strategic review of Canada Post and proposed changes to Federal Legislation relating to the workers pension plans. The requesting letter states as follows: By means of this letter the Union is requesting access to the following workplaces be granted to both myself and Toni MacAfee, Regional Education and Organization Officer:! Dieppe Mail Processing Plant and Mark Avenue Letter Carrier Depot Wednesday, March 18 and 19. The visits will take place between 5:00 pm and 9:00 am.! Fredericton Plant, Oromocto Post Office and CRO Thursday March 19 between the hours of 1:00 pm and 9:00 am.! Summerside Post Office Friday March 20 between the hours of 11:00 am and 1:00 pm! Charlottetown Post Office and CRO Friday March 20 between the hours of 2:00 and 8:00 pm. The purpose of these visits is to meet workers and to hear views on the Strategic Review of Canada Post and proposed changes to Federal Legislation relation to our pension plans. The times referred to above are estimated arrivals. [4] On March 18, 2009, Canada Post responded to the request from CUPW as follows:

4 Page: 4 Mr. Volpe has asked that I contact you regarding your request for access to those facilities identified in your letter of march 17/09. As per clause 3.04 you will be permitted access to the lunchrooms only in those facilities for which you have requested access. Access will also be granted during scheduled breaks (lunch, rest periods, etc.). There will be no access granted to the work areas. [5] Mr. Callahan (CUPW) did not see the reply letter until he returned to his office on Monday, March 23, However, an assistant from his office conveyed to him a summary of the letters content by telephone on March 18, Over the course of March 18, 19, and 20, 2009, Mr. Callahan and Mr. MacAfee gained what Mr. Callahan described as satisfactory access to six of eight listed facilities. [6] Although Mr. Callahan was granted satisfactory access to Canada Post facilities, CUPW filed a Grievance alleging that the reply letter violated Article 3.04(a) of the Collective Agreement in that it denied the CUPW directors access to

5 Page: 5 the employees work floor and limited access to the cafeteria during meal and rest periods. [7] The grievance filed on March 25, 2009 was a national policy grievance and stated as follows: Statement of Grievance The Union grieves on behalf of all affected employees and union officers that the employer violated the Articles 2, 3 and all other related provisions of the collective agreement and appendices, and the Canada Labour Code. By letter dated March 18/09, from D. MacDonald, Manager, Labour Relations, to Jeff Callaghan, National Director, CUPW Atlantic Region, the employer exceeded their rights as manager by limiting access of union officers to the lunchrooms of postal facilities and further limiting access to rest periods and lunch periods of the employees of that facility, contrary to the provisions outlined in the collective agreement. Corrective Action Requested The Corporation recognize in writing that violations of the collective agreement and the Canada Labour Code has occurred with respect to these matters and acknowledge that the Union has access to all non-public areas of postal installations in accordance with clause 3.04 of the collective agreement. Further, the employer grant full redress to all affected employees in the way of any and all lost rights, earnings and benefits resulting from these violations. The Union reserves the right to seek additional redress including but not limited to damages and interest at the Bank of Canada rate. [8] On April 9, 2009, Canada Post responded to the Grievance as follows:

6 Page: 6 An investigation reveals that CPC responded to a letter dated March 17, 2009 from the Union requesting that CPC grant Mr. Callaghan access to Dieppe MPP and the Mark Avenue LCD on March 19, 2009, the Fredericton Plant, Oromocto PO and CRO on March 19, 2009; the Summerside PO on March 20, 2009 and the Charlottetown [sic] PO and CRO on March 20, 2009 with the purpose of meeting with employees to hear their views on the Strategic Review of Canada Post. CPC responded to the Union by letter dated March 18, 2009 from LR Manager, Mr. McDonald which advised that Mr. Callaghan had been granted permission to access the listed CPC premises with the restriction that he remain in the Lunchroom areas and he would be able meet with employees during their breaks should they chose to do so. The grievance is denied. [9] The grievance was referred to formal arbitration. Arbitrator Dulude sustained the grievance and concluded as follows: I RULE that the letter of reply of 18 March 2009 to the Union directors denying them access to the operation sites where their members were working and limiting their tour solely to the cafeterias, and to the times of the meal and rest periods, was contrary to paragraph 3.04(a) and violated the prescriptions of that provision. [10] It is Canada Post s position that Arbitrator Dulude committed a number of reviewable errors in concluding that Canada Post violated the Collective Agreement. They argue that his decision was both incorrect and unreasonable and, as such, should be quashed.

7 Page: 7 [11] CUPW s position is that the award of Mr. Dulude is reasonable and should not be disturbed. They argue that his reasoning was transparent, intelligible and justifiable and that his conclusion was well within the range of acceptable outcomes. [12] The applicant, Canada Post, submits that this application for Judicial Review raises the following issues: 1. What is the appropriate standard of review? 2. Did Arbitrator Dulude commit reviewable errors by: (a) (b) (c) failing to give effect to Article of the Collective Agreement by refusing to hold the parties bound by an earlier award made under substantially identical circumstances; misapplying Article by finding the parties were bound by another earlier award which was made under circumstances which were not identical and/or substantially identical to those before him; failing to apply the proper test in determining whether Canada Post ought to have granted access pursuant to Article 3.04(a) of the Collective Agreement by taking into account irrelevant considerations; (d) effectively shifting the burden to Canada Post to prove that CUPW intended to obstruct production; or

8 Page: 8 (e) altering, changing or adding to the terms of the Collective Agreement contrary to the express limitation in Article STANDARD OF REVIEW: [13] In Dunsmuir v. New Brunswick, 2008 SCC 9 the Supreme Court of Canada clarified the standard of review analysis and established that there are now two standards of review; correctness and reasonableness. In reviewing a decision on the correctness standard, the reviewing Court shows no deference to the decision maker under review. In reviewing a decision on the reasonableness standard, the reviewing Court will show substantial deference. A review on reasonableness concerns issues of justification, transparency and intelligibility within the decision making process and whether the decision falls within a defensible range of possible acceptable outcomes. [14] In Dunsmuir, supra, the Court discussed these standards of review at paras. 47 and 50: 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness:

9 Page: 9 certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 50 As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct. [15] The applicant Canada Post submits that according to the Dunsmuir analysis, Issues 2(a) and (b) attract the reasonableness standard of review while Issues 2(c), (d) and (e) attract the correctness standard. The respondent CUPW argues that all the grounds raised by Canada Post attract the reasonableness standard of review. [16] In taking the position that Issues 2(c), (d) and (e) attract the correctness standard, Canada Post argues that Arbitrator Dulude acted without jurisdiction. It is their view that when an arbitrator relies on irrelevant evidence, or considers an

10 Page: 10 issue beyond the scope of the submission to arbitration, a jurisdictional error arises. Canada Post cites Halifax Employers Association v. Nova Scotia (Workers Compensation Appeals Tribunal) 2000 NSCA 86 with respect to the standard of review applicable where a tribunal answers a question not remitted to it: There is no dispute that the applicable standard of review for jurisdictional error is correctness.... A Tribunal may commit jurisdictional error if it misinterprets the provisions of a statute so as to embark on an inquiry or answer a question not remitted to it... or where it does not perform the task required of it by the relevant legislation. [17] Canada Post also cites Smyth v. Perth and Smiths Falls District Hospital, 2008 ONCA 794 in support of their position on jurisdiction. That Court noted the following at paragraph 17: By parity of reasoning, an arbitrator must address the issues, and only the issues, referred to him in the arbitration agreement. In this case, the respondent's position was that the Arbitration Agreement set out two specific issues for resolution and did not authorize the arbitrator to go beyond those questions in order to determine whether the board of the Hospital should accept or reject the respondent's application for reappointment. In my view, the respondent's position raised a jurisdictional issue within the description above in Dunsmuir. Accordingly, the application judge's review of the arbitrator's decision on this issue on a correctness standard was appropriate.

11 Page: 11 [18] Canada Post set forth their analysis of why correctness applies to a review of Issues 2(c), (d) and (e) at page 9 of their brief. I have produced it verbatim for reasons of accuracy. With respect to issue 2(c), Canada Post s position is that in determining whether Canada Post ought to have granted access to CUPW pursuant to Article 3.04 of the Collective Agreement, Arbitrator Dulude took into account irrelevant considerations, thereby improperly expanding the scope of the Grievance beyond the submission to arbitration. Consistent with the reasoning of the Ontario Court of Appeal in Smyth and the Nova Scotia Court of Appeal in Halifax Employers Association and Halliday, Canada Post submits that this issue raises a question of jurisdiction, which must be assessed on the correctness standard. Similarly, Canada Post s position with respect to issue 2(e) is that in altering, changing or adding to the terms of the Collective Agreement contrary to the express limitation in Article 9.100, Arbitrator Dulude exceeded his jurisdiction. As Canada Post is alleging a jurisdictional error, this issue also attracts the correctness standard. Finally, Canada Post submits that issue 2(d) also attracts the correctness standard. Canada Post s position on this issue is that Arbitrator Dulude committed a reviewable error in effectively shifting the burden to Canada Post to prove that CUPW intended to obstruct production. Consistent with the analysis in Demangeon and Mohawk Council, Canada Post submits that an arbitrator s determination with respect to the applicable burden of proof must be assessed on the correctness standard. [19] CUPW responds that Issues 2(d) and (e) involve the interpretation and application of the Collective Agreement and therefore attract the standard of

12 reasonableness. Further they submit that Issue 2(c) attracts reasonableness as arbitrators are afforded deference in determining the scope of a grievance. Page: 12 [20] I believe it is fair comment that Courts have shown great deference towards Labour Arbitrators and their role in interpreting and applying collective agreements. In Communications, Energy and Paperworkers Union, Local 1520 v. Maritime Paper Products Limited 2009 NSCA 60, the Court stated after reviewing Dunsmuir: Clearly the reviewing court should apply reasonableness to an arbitrator's interpretation of the collective agreement. [21] In Air Canada v. CUPE 2010 ONSC 456, the Court affirmed this principle at para. 31: Firstly, I am quite satisfied that the appropriate standard of review in this case is reasonableness. The existing jurisprudence clearly establishes that reasonableness is the standard of review in labour arbitration matters such as ours where the arbitrator is interpreting and applying a collective agreement. In Dunsmuir (supra, at paragraph 68), the court observed: This Court has often recognized the relative expertise of labour arbitrators in the interpretation of collective agreements, and counselled that the review of their decisions should be approached with deference: CUPE, at pp ; Canada Safeway Ltd. v.

13 Page: 13 RWDSU, Local 454, [1998] 1 S.C.R at paragraph 58; Voice Construction, at paragraph 22. [22] CUPW does not dispute these authorities but relies on issues of jurisdiction as an avenue to a correctness standard of review. [23] Dunsmuir, supra, confirmed that questions of fact, discretion and policy, as well as questions where the legal issues cannot be easily separated from the factual issues, attract a standard of reasonableness. Further, it confirmed that legal issues attract a standard of correctness. The Court stated at para. 54: Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context... Adjudication in labour law remains a good example of the relevance of this approach. The case law has moved away considerably from the strict position evidenced in McLeod v. Egan, [1975] 1 S.C.R. 517, where it was held that an administrative decision maker will always risk having its interpretation of an external statute set aside upon judicial review. [24] The Court obviously felt that deference should extend to interpretations of a tribunals own statute or statutes closely connected to its function. [25] Dunsmuir also addressed the jurisdictional issue at para. 59:

14 Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. "Jurisdiction" is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction. Page: 14 [26] In Dunsmuir, supra, the Court stated that the determination of the proper standard of review involves two steps: First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [27] The second step of the analysis occurs when the existing jurisprudence has not determined the degree of deference on an issue. Dunsmuir, supra, directs that Courts should assess the following factors when selecting the appropriate standard of review: 1. The presence or absence of a privative clause;

15 Page: The purpose of the tribunal as determined by interpretation of enabling legislation; 3. The nature of the question at issue; and 4. The expertise of the tribunal. [28] It is my view that the reasonableness standard applies to all issues in this review and that this question is well decided in existing jurisprudence. Courts deference towards Labour Tribunals is well established. It has been extended to statutory interpretation of related legislation. [29] I believe it is fair comment that there has been consistent judicial deference shown towards the decisions of labour arbitrators. I have cited many of those authorities. Courts have acknowledged and accepted that legislators have delegated this authority and that such delegations must be supported on review. CUPW does not suggest otherwise in their submissions. Instead they argue jurisdiction. [30] I do not accept that in this case correctness should apply on the basis of jurisdiction. Dunsmuir addressed this approach at paragraph 84:

16 Page: 16 Before dealing with the scope of the duty of fairness in this case, a word should be said about the respondent's preliminary objection to the jurisdiction of the adjudicator under the PSLRA [page234] to consider procedural fairness. The respondent argues that allowing adjudicators to consider procedural fairness risks granting them the inherent powers of a court. We disagree. We can see nothing problematic with a grievance adjudicator considering a public law duty of fairness issue where such a duty exists. It falls squarely within the adjudicator's task to resolve a grievance. However, as will be explained below, the proper approach is to first identify the nature of the employment relationship and the applicable law. Where, as here, the relationship is contractual, a public law duty of fairness is not engaged and therefore should play no role in resolving the grievance. [31] I can find nothing in the record to suggest that Arbitrator Dulude relied on irrelevant evidence or considered anything beyond the scope of the submission to arbitration. I conclude that Arbitrator Dulude is entitled to considerable deference when considering the substantive issues in this judicial review. ISSUE 2(a): [32] Canada Post submits that Arbitrator Dulude committed a reviewable error by: failing to give effect to Article of the Collective Agreement by refusing to hold the parties bound by an earlier award made under substantially identical circumstances;

17 Page: 17 [33] Article of the Collective Agreement reads as follows: The final decision rendered by an arbitrator binds the Corporation, the Union and The Employees in all cases involving identical and/or substantially identical circumstances. [34] Article 9.07 reads as follows: The decision of the Arbitrator shall not constitute a precedent and shall not be referred to in subsequent arbitrations. Clause shall not apply to such a decision. [35] It is important to note that the grievance procedure in the Collective Agreement includes a regular arbitration procedure and a formal arbitration procedure. [36] The regular arbitration procedure attracts Clause 9.70 (non-precedential) and the formal arbitration procedure attracts Clause (precedential). Arbitrator Dulude conducted a formal procedure. [37] In reaching his decision, Arbitrator Dulude reviewed prior arbitration interpretations of Article Canada Post advanced the argument that he should

18 Page: 18 follow awards in Canada Post v. CUPW (The Ponak Award) and Canada Post v. CUPW (The Burkett Award). Arbitrator Dulude declined to follow these awards on the basis that Arbitrator Burkett should not have referred to an award of Arbitrator Ponak decided in a regular arbitration procedure as a final decision binding on him pursuant to Article He also concluded that, in any event, Arbitrator Burkett s award was not a final decision since it was subject to Judicial Review. [38] CUPW argued two decisions by Arbitrator Lauzon ( Mapp and Mooney) and referenced the following comments: Given the state of case law in such matters, and given my understanding of clause 3.04 (as set out in my award of 26 June 1998, N ), I have no hesitation in stating that by denying Mr. Mooney access to its premises, the Employer was prima facie in violation of his right expressly stated in this clause [39] Arbitrator Dulude accepted CUPW s submissions at para. 80: In the case before me, this award by Arbitrator Lauzon is a fully established authority pursuant to clause regarding the interpretation of certain elements of clause 3.04, especially in respect of the stated purpose of the tour as a condition of exercising this right of access.

19 Page: 19 [40] Arbitrator Dulude dismissed Canada Post s argument that Article 3.04 was limited to issues of time and place. He stated as follows at paras. 81 through 83: [81] All that now remains is for me to examine the two (2) other conditions for purposes of the instant dispute: the location and the approximate time of the tour. [82] Such information conveyed to the Employer in advance could hardly be intended to grant it discretionary power of assessment, more so than with respect to that related to the purpose of the tour on which Arbitrator Lauzon was required to rule. [83] The concept of location is based here on the designation of the postal installation to be toured, not the specific areas within that site, since paragraph 3.04(a) stipulates no restriction in this regard:...will be granted permission to enter the non-public area(s) of a postal installation... [41] He also rejected an argument that Article 3.04 must bow to Article 2.01 giving management the right and responsibility to manage production. He further dismissed arguments on the purpose of the visit. [42] I have closely reviewed the Ponak, Burkett and Lauzon awards. I must say that they are very similar. Any real difference relates to the purpose of the Article 3.04 visits. Arbitrator Dulude felt that the Lauzon award provided a very specific

20 Page: 20 interpretation of clause 3.04 and, as such, must serve as an authority. He cited the following from Arbitrator Lauzon: The fact that clause 3.04 stipulates that the purpose of the tour must be indicated does not mean that the Employer enjoys genuine discretion to grant or deny the requested access. It may very well occur, and I am certain that this is often the case, that the Employer takes a dim view of such a meeting with employees on a controversial topic; however, it must grant the access requested provided the Union s planned action is not patently illicit, illegal or immoral, or to use a standard expression, does not run counter to public order or good morals. [43] I accept that the Ponak award has no precedent value and that it was an error for Arbitrator Burkett to rely on it. Given such a glaring, yet unintended error, the Burkett award could be quite vulnerable. In light of the similarities between the two, it was not surprising that Arbitrator Dulude relied on the Lauzon award. [44] I conclude that Arbitrator Dulude did not commit a reviewable error when he relied on the Lauzon award. In Casino Nova Scotia v. SEIU, Local 2009 NSCA 4 discusses the application of a reasonableness standard as follows: In applying reasonableness, the court examines the tribunal's decision, first for process to identify a justifiable, intelligible and transparent reasoning path to the tribunal's conclusion, then second and substantively to determine whether the tribunal's conclusion lies within the range of acceptable outcomes.

21 Several of the Casino's submissions apparently assume that the "intelligibility" and "justification" attributed by Dunsmuir to the first step allow the reviewing court to analyze whether the tribunal's decision is wrong. I disagree with that assumption. "Intelligibility" and "justification" are not correctness stowaways crouching in the reasonableness standard. Justification, transparency and intelligibility relate to process (Dunsmuir, para. 47). They mean that the reviewing court can understand why the tribunal made its decision, and that the tribunal's reasons afford the raw material for the reviewing court to perform its second function of assessing whether or not the Board's conclusion inhabits the range of acceptable outcomes. Nova Scotia (Director of Assessment) v. Wolfson, 2008 NSCA 120, para. 36. Page: 21 Under the second step, the court assesses the outcome's acceptability, in respect of the facts and law, through the lens of deference to the tribunal's "expertise or field sensitivity to the imperatives or nuances of the legislative regime." This respects the legislators' decision to leave certain choices within the tribunal's ambit, constrained by the boundary of reasonableness. Dunsmuir, para ; Lake, para. 41; PANS Pension Plan, para. 63; Nova Scotia v. Wolfson, para. 34. [45] The remarks of Fichaud, J.A. in Archibald v. Nova Scotia (Utility and Review Board) 2010 NSCA. 27 were of assistance in arriving at my conclusion. He stated at para. 22: (a) For process, the reviewing court considers whether the decision under review expresses a justifiable, intelligible and transparent reasoning path to the tribunal's conclusion. This is not a correctness analysis in disguise. Rather, the reviewing court determines whether it can understand how the tribunal reached its outcome, and whether the tribunal's reasons afford to the reviewing court the raw material for the reviewing court to perform its next task of assessing whether the tribunal's conclusion inhabits the range of acceptable outcomes. (b) The court then assesses the outcome's acceptability through the lens of deference to the tribunal's "expertise or field sensitivity to the imperatives or nuances of the legislative regime". This respects the legislators' decision to leave

22 Page: 22 certain choices within the tribunal's ambit, constrained by the boundary of reasonableness. The reviewing court does not ask whether the tribunal's conclusion is right or preferred. Rather the court tracks the tribunal's reasoning path, and asks whether the tribunal's conclusion is one of what may be several acceptable outcomes. [46] I have found Arbitrator Dulude s decision to follow the Lauzon award expresses a justifiable, intelligible and transparent reasoning path. When I track his reasoning path I have no difficulty concluding that reliance on the Lauzon award inhabits the range of acceptable outcomes. ISSUE 2(b): [47] Canada Post further submits that Arbitrator Dulude committed a reviewable error by: misapplying Article by finding the parties were bound by another earlier award which was made under circumstances which were not identical and/or substantially identical to those before him; [48] Canada Post argues that Arbitrator Dulude should have relied on a 1983 award of Arbitrator Outhouse instead of the Lauzon award. They submit that he took the Lauzon award entirely out of context. Obviously Arbitrator Dulude felt

23 Page: 23 that the Lauzon award dealt with a sufficiently similar issue and, as such, it was binding on him by virtue of Article [49] Arbitrator Dulude stated as follows at paras. 76 to 80: There is no question that under the strict meaning of the terms, the circumstances in the Randy Mapp case differ on at least one point from those prevailing in the instant case, since the Union was seeking access only to the cafeteria whereas here, the notice sent to Mr. Volpe sought permission to meet with the employees and communicate with them directly, with no restriction as to site. However, I do not find this distinction sufficient to set aside, pursuant to clause 9.103, all consideration by me based on this arbitration award by Arbitrator Lauzon. The main thrust of the dispute on which he had to rule was the purpose of the requested tour, and on this point, I believe he provided a very specific interpretation of clause 3.04 which must serve here as an authority.... In the case before me, this award by Arbitrator Lauzon is a fully established authority pursuant to clause regarding the interpretation of certain elements of clause 3.04, especially in respect of the stated purpose of the tour as a condition of exercising this right of access. [50] These remarks satisfy me that Arbitrator Dulude gave full consideration to the Collective Agreement and the facts in the Outhouse award and the Lauzon

24 Page: 24 award. This exercise discloses a justifiable, transparent and intelligible path of reasoning leading to a conclusion that is within the range of acceptable conclusions. ISSUE 2(c): [51] Canada Post alleges reviewable error by: failing to apply the proper test in determining whether Canada Post ought to have granted access pursuant to Article 3.04(a) of the Collective Agreement by taking into account irrelevant considerations; [52] The Smyth, supra, case establishes that an arbitrator must address the issues, and only the issues referred to him in the Arbitration Agreement. Failure to follow this principle results in jurisdictional error. Consideration of a wrong question constitutes a reviewable error. [53] Canada Post submits that the only question referred to Arbitrator Dulude was the content of the March 18, 2009 letter of reply. They allege that he considered a different purpose than that proposed in the letter of request dated March 17, Canada Post takes issue with Arbitrator Dulude s consideration

25 Page: 25 that the visits themselves did not prove to be disruptive to production. They argue that this expansion of the grievance was a fundamental part of the process leading to the ultimate decision. [54] CUPW takes the view that Arbitrator Dulude reasonably delineated the scope of the grievance when he considered the issue of the purpose of CUPW s requested visit. They argue that the purpose of the visit was before Arbitrator Dulude by virtue of both the statement of grievance and the grievance reply. [55] CUPW relies on the case of Parry Sound v. OPSEU 2003 SCC 42 as authority that Arbitrators are required to decide the real issue before them, even in the absence of explicit enumeration of the issues in a grievance. The Court cited paras. 68 and 69: As a general rule, of course, it is important that the parties to a collective agreement comply with the procedural requirements set out therein. If a union intends to plead that the employer has breached the employee's statutory rights, it should, as a matter of general practice, specify the statutory provision that the employer is alleged to have breached. That said, it is important to acknowledge the general consensus among arbitrators that, to the greatest extent possible, a grievance should not be won or lost on the technicality of form, but on its merits. In Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 8 O.R. (2d) 103 (C.A.), at p. 108, for example, Brooke J.A. wrote as follows:

26 Page: 26 Certainly, the board is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided to give effect to the agreement provisions and this whether by way of declaration of rights or duties, in order to provide benefits or performance of obligations or a monetary award required to restore one to the proper position he would have been in had the agreement been performed. This approach has been adopted by numerous arbitrators. In Spruce Falls Inc. and I.W.A.-Canada, Local 2995 (Trudel) (Re) (2002), 106 L.A.C. (4th) 41, at p. 61, the arbitrator observed that a "grievance must be construed so that the 'real complaint' is dealt with and an appropriate remedy is provided to bring resolution to the matters which have given rise to the grievance". In Peel District School Board and O.P.S.T.F., District 19 (Havery) (Re) (2000), 84 L.A.C. (4th) 289, the arbitrator rejected the employer's motion to dismiss on the basis that the employer suffered no prejudice as a consequence of the union's failure to specify the section of the collective agreement that was alleged to have been breached. See also Re Harry Woods Transport Ltd. and Teamsters Union, Local 141 (1977), 15 L.A.C. (2d) 140; Aro Canada Inc. and I.A.M., Re (1988), 34 L.A.C. (3d) 255; and Liquid Carbonic Inc. and U.S.W.A., Re (1992), 25 L.A.C. (4th) 144. These cases reflect the view that procedural requirements should not be stringently enforced in those instances in which the employer suffers no prejudice. It is more important to resolve the factual dispute that gives rise to the grievance. [56] I cannot accept that Arbitrator Dulude impermissibly expanded the scope of the grievance. It was certainly within his mandate to consider the purpose of the visits and to not limit himself to time and place. Purpose is an important part of Article I do not see this as authority for the proposition that the Employer possesses a discretion to deny a visit on the basis of purpose, short of being unlawful, illegal or immoral.

27 [57] I am satisfied that Arbitrator Dulude s award is reasonable in that it is within the range of acceptable outcomes and the path to award is clear and transparent. Page: 27 ISSUE 2(d): [58] Canada Post argues reviewable error as a result of Arbitrator Dulude: Effectively shifting the burden to Canada Post to prove that CUPW intended to obstruct production. [59] I have considered both parties submissions on this issue and cannot accept that there has been a shifting of a burden. Arbitrator Dulude did not require Canada Post to establish that the Union intended to, or would have disrupted productivity. There was no evidence that such a factor was in play. Arbitrator Dulude stated at para. 92 of the award: [92] It is in fact correct to state that this provision of the collective agreement grants the Union s directors no right to intervene with their members when the latter are at work if the purpose or outcome of such an initiative were to obstruct management s rights, without the Employer s consent, including that of ensuring continuous satisfactory production.

28 Page: 28 [60] I am satisfied that Arbitrator Dulude reasonably interpreted and applied the Collective Agreement and reasonably concluded that there was no evidence to show that CUPW would interfere with the productivity of Employees. This did not amount to a shifting of any burden to Canada Post. ISSUE 2(e): [61] Canada Post argues reviewable error as a result of Arbitrator Dulude: Altering, changing or adding to the terms of the collective agreement contrary to the express limitation in Article [62] Article reads as follows: The Arbitrator shall not modify the provisions of this Collective Agreement. [63] The position of Canada Post is well articulated at p. 21 of their brief: In declining to follow Arbitrator Burkett s decision and finding that the parties were bound by Arbitrator Lauzon s award, which was made under circumstances that were not substantially identical to those before Arbitrator Dulude, Arbitrator Dulude essentially created a new right for CUPW - a right to direct interaction between CUPW representatives and their members while the members are at work on the work floor. However, such a right is nowhere to be found in the Collective

29 Agreement and is entirely inconsistent with basic principles of labour law. As Canada Post argued before Arbitrator Dulude, if CUPW wished to have the right to interact with employees during work hours, on the work floor, it must obtain that right at the bargaining table, just as other unions have been able to do. Page: 29 [64] I do not see that Arbitrator Dulude effectively amended the Collective Agreement by following the Lauzon award and declining to follow the Burkett award. I believe it was within the range of acceptable outcomes that Article 3.04 included contact on the work floor. CONCLUSION [65] In light of my conclusions, I am dismissing this application and allowing Arbitrator Dulude s award to stand. J.