PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION

Citation: Maritime Electric v. Burns & ors. Date: 20040304 2004 PESCTD 19 Docket:S-1-GS-19049 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Between: And: Maritime Electric Company, Limited Applicant Patrick Aylward, Roddie Campbell and Frank Gillan, a board of arbitrators constituted to hear and determine a grievance that arose under a collective agreement dated August 11, 2001 between Maritime Electric Company, Limited and Local 1432 of the International Brotherhood of Electrical Workers, Kevin Burns and Local 1432 of the International Brotherhood of Electrical Workers Before: Madam Justice Jacqueline R. Matheson Respondents Appearances William G. Lea QC, for the applicant, Maritime Electric Company, Limited Rosemary Scott QC, for the respondent, Kevin Burns & Local 1432 IBEW Place and Date of Hearing Place and Date of Judgment Charlottetown, Prince Edward Island October 3, 2003 Charlottetown, Prince Edward Island March 4, 2004

Citation: Maritime Electric v. Burns & ors. Date: 2004020304 2004 PESCTD 19 Docket:S-1-GS-19049 Registry: Charlottetown Between: And: Maritime Electric Company, Limited Applicant Patrick Aylward, Roddie Campbell and Frank Gillan, a board of arbitrators constituted to hear and determine a grievance that arose under a collective agreement dated August 11, 2001 between Maritime Electric Company, Limited and Local 1432 of the International Brotherhood of Electrical Workers, Kevin Burns and Local 1432 of the International Brotherhood of Electrical Workers Respondents Supreme Court of Prince Edward Island, Trial Division Matheson J Date of Hearing: October 3, 2003 Date of Judgment: March 4, 2004 ( 13 pages) Administrative Law - Judicial Review - Standard of Review - Arbitration Board Interpretation of Collective Agreement - Meaning of every reasonable effort Cases Referred to: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (S.C.C.); Ward v. University of Prince Edward Island (1998), 159 Nfld & PEIR 246; Pushpanathan v. Canada (Minister of Citizenship & Immigration), [1998] 1 S.C.R. 982; Maritime Electric Company Ltd. v. IBEW, Local 1432, [1993] 2. PEIR 45(A.D.); Dayco (Canada) Ltd. v. CAW - Canada, [1993] 2 S.C.R. 230; Toronto Board of Education v. Ontario Secondary School Teachers Federation, District 15, [1997] 1 S.C.R. 487 (S.C.C.); Canadian Union of Public Employees, Local 3373 v. Queens County Residential Services Inc. Docket # S-1-AD-0997; Law Society of N.B. v. Ryan, [2003] S.C.C. 20 Justice Iacobucci; Canadian Air Traffic Control Assoc and NAV Canada, [1998] C.L.A.D. No. 734; Re The Crown in Right of Ontario (Ministry of Community & Social Services) and OPSEU: (1997), 64LAC (4 th ) 22; Re: City of Cornwall and CUPE, Local 3251 (1999), 85 LAC (4 th ) 255; Statutes Referred to: Labour Act R.S.P.E.I. 1988 Cap. L-1, s. 37 Texts Referred to: R.W. Macaulay & J.L.H. Sprague, Practice and Procedure Before Administrative Tribunals, vol. 4 (Toronto: Carswell) pp. 40-8 & 40-9 Appearances: William G. Lea, Q.C., for the applicant Rosemary Scott, Q.C. for the respondents

Matheson J.: Facts [1] The applicant, Maritime Electric Company Ltd., seeks judicial review of a decision of Patrick Aylward, Roddie Campbell and Frank Gillan, a board of arbitrators (the Board) constituted to hear and determine a grievance which arose under a collective agreement between the applicant and Local 1432 of the International Brotherhood of Electrical Workers (the respondent) and Kevin Burns (Burns). [2] The applicant is a corporation which supplies electricity throughout Prince Edward Island. Burns, an employee of the applicant and a member of the respondent union, filed a grievance under the collective agreement regarding vacation time. The collective agreement provides a grievance procedure to be followed, when either party, or an employee represented by the respondent, alleges a breach of the collective agreement. The grievance procedure is prescribed by s. 37(1) of the Labour Act R.S.P.E.I. 1988 Cap. L-1, which requires that every collective agreement shall contain a provision for the final and binding settlement by arbitration of all differences between the parties arising from the agreement. [3] Article 12.08 of the collective agreement provides: 12.08 When vacations are scheduled every reasonable effort will be made to give the employee the vacation time requested by him/her. Vacations are to be taken during the calendar year. However, if due to work requirements, the Company is unable to grant vacation within the calendar year, such vacation shall be carried over to the following year. [4] The applicant operates two on-island generators, including one in Charlottetown. The system peak is the highest demand put on the power system during any year and this normally occurs in December. When this occurs the Charlottetown steam plant must be operated. Between 1997 and 2001 the Charlottetown steam plant has operated more in December, than in the other eleven months of the year. In 1999, the applicant gave a verbal direction that December would be blocked off for vacations at the Charlottetown steam plant and in 2000 and 2001 December was blocked out in writing. At the same time, Maritime Electric lifted the cap on the number of people who could take vacations simultaneously in the summer. In the spring of 2001, the applicant posted a document on which plant employees could indicate when they wanted to take their vacations with the exception of December, which was blocked off. Burns, a #1 plant operator, was the first employee entitled to claim vacation dates and he did so. He requested three weeks in the summer and the week of December 23 to December 29 as his final vacation week. [5] The December week was not approved and Burns was requested to submit alternative dates. He did not do so and filed a grievance. At the first level of

Page: 2 the applicant s reply Burns was advised that, if the plant was not running during the requested period, he would be granted the time requested. This was not acceptable to him and he pursued his grievance. In December, 2001, Burns shift for the week of December 23, 2001, included three twelve hour shifts on Wednesday, December 26, Thursday, December 27, and Friday, December 28. The plant was in operation each day between December 23, 2001, and December 29, 2001. During this period the applicant had granted floating vacation time to another #1 operator. [6] The Board determined that in not granting Burns one of his four weeks vacation during the Christmas week, as requested, the applicant had not complied with article 12.08 of the collective agreement, in that it had not made every reasonable effort to grant Burns request. Issues: Respondent [7] The respondent argued that the applicant had not attacked the Board s decision but only its reasons, which alone are not subject to judicial review. In its notice of application, the applicant alleges that the majority failed to properly exercise their jurisdiction, made a patently unreasonable error of law in arriving at their decision, did not in fact determine whether Maritime Electric had made every reasonable effort to give the employee the vacation time requested, and failed to give reasons which supported their conclusions relying on irrelevant matters, thereby making a patently unreasonable error of law in failing to properly exercise their jurisdiction. Based on the wording of the application itself, it is apparent the applicant is in fact attacking the Board s decision, as opposed to its reasons only. Applicant [8] The applicant raised the following issues: (a) Procedural fairness requires reasons for a decision. (b) Procedural fairness requires reasons to be adequate. (c) The test or standard of review is unreasonableness not patent unreasonableness. (a) Requirement for Reasons [9] The first issue raised by the applicant is whether the Board is required to give reasons for its decision. There is no common law requirement for an administrative tribunal to give reasons for a decision. However, there is a common law requirement for tribunals to provide procedural fairness and procedural fairness may require reasons for a decision, even when there is no such statutory requirement.

Page: 3 [10] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (S.C.C.), the court dealt with the issue of reasons as part of the requirement for procedural fairness. The court determined that whether or not reasons are required as a part of procedural fairness depends on various factors, including the nature of the decision being made and the process followed in making it, the nature of its statutory scheme and the terms of the statute under which the decision maker operates, the importance of the decision being made to those affected by it, the legitimate expectations of the person challenging the decision, and the choices of procedure made by the decision maker. [11] Madam Justice L Heureux-Dubé, writing for the majority, discussed each of these elements in paras. 21-28 of her decision. She found that the more the nature of the decision making body, the process provided for making the decision, the function of the tribunal, and the determinations that had to be reached resembled judicial decision-making, the more likely that procedural protections closer to the trial model would be required by the duty of fairness. [12] One must also look at the role of the particular decision within its statutory scheme to determine the procedural protections required: [24]...Greater procedural protections...will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted...(baker, supra) [13] The third factor to be considered is the importance of the decision to the individual or the individuals affected. The more important the decision is to those affected, and the greater its impact upon them, the more stringent the procedural protections that will be required. This is a significant factor affecting the content of the duty of procedural fairness. [14] The legitimate expectations of the person challenging the decision affects what procedures the duty of fairness requires. Legitimate expectations are part of the doctrine of fairness or natural justice, but do not create substantive rights. [26]...This doctrine, as applied in Canada, is based on the principle that the circumstances affecting procedural fairness take into account the promises or regular practices of administrative decision makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.(baker, supra) [15] The procedures required by the duty of fairness should also consider the choices of procedure made by the decision maker itself, particularly where the statute leaves to the decision maker the ability to choose its own procedures....important weight must be given to the choice of procedures made by the agency itself and its institutional constraints... (Baker, para. 27). [16] Justice L Heureux Dubé pointed out that this list is not exhaustive and other

Page: 4 factors may be important. [28]...The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial and open process, appropriate to the statutory, institutional and social context of the decision.(baker, supra) [17] The benefits of reasons include, articulation of the issues and insuring more transparent decision making, allowing the parties to see that the applicable issues have been carefully considered providing a valuable record if the decision is to be appealed or judicially reviewed, and giving those affected by the decision the opportunity to feel that they have been treated fairly and appropriately. [18] Justice L Hereux Dubé concluded at paragraph 43 of Baker: [43] In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere... [19] The applicant takes the position that the Board was required in the circumstances of this case to give reasons for its decision. The respondents state it was not required to do so. To determine this question one must look at the factors outlined in Baker in relation to the facts of this situation. (i) Resemblance to judicial decision making [20] A review of the grievance and arbitration procedures set out in articles 26 and 27 of the collective agreement shows there is an established procedure with set time limits for dealing with the grievance, and if it is not resolved at the initial stages, reference to arbitration. The collective agreement provides for the establishment of an arbitration board within certain time periods. The actual conduct of proceedings before the board of arbitration is quasi-judicial in nature in that the witnesses are examined and cross-examined under oath, documents are entered into evidence as exhibits, the parties give written or oral argument and, following argument, a decision is prepared. On the other hand, labour arbitration boards are intended to operate as an alternative to the court process to provide prompt and relatively inexpensive resolution of labour disputes. A blanket requirement for reasons could impinge on the benefits of this type of alternative procedure.

Page: 5 (ii) Lack of appeal procedures [21] There are no appeal procedures provided in the collective agreement or the Labour Act, but the decision is subject to judicial review. Justice L Heureux Dubé pointed out that greater procedural protections will be required where there is no appeal procedure provided for within the statute. Since there is no appeal procedure provided for, this would seem to militate in favour of a requirement to give reasons. (iii) Importance of decisions to the parties affected [22] With regard to the importance of the decisions to the parties affected, the decision in this case is certainly not as important to the parties as an order for deportation or a decision regarding future employment would be. However, it was of considerable importance to the griever because it is only once in seven years that he has the opportunity to have first choice of vacation dates and it was important for him to be able to spend time at Christmas with his family. In addition, the decision is of importance to the applicant, because it affects its ability to operate the Charlottetown plant during its peak demand period and appears to be the first time this provision of the collective agreement has been interpreted. (iv) Legitimate expectations of the person challenging the decision [23] Legitimate expectations in this circumstance refer to the legitimate expectation that certain procedures will be followed. The applicant pointed out that arbitration decisions are routinely reported in a labour cases and therefore it has legitimate expectation that reasons would be given by this arbitration panel. However, the expectations must be based on some statement or undertaking by or on behalf of the body making the decision, not on the processes of another unrelated decision maker. (R.W. Macaulay & J.L.H. Sprague, Practice and Procedure Before Administrative Tribunals, vol. 4 (Toronto: Carswell) pp. 40-8 & 40-9. (v) Choices of procedure [24] Regarding the choices of procedure made by the Board itself, there is nothing in this case to indicate that the board took any particular steps to insure a duty of fairness or failed to take any steps which impinged on the duty of fairness. The board has extensive authority over its own procedures, including accepting evidence which may not be admissible in a court of law. [25] Looking at the above factors in the context of the present case, I find that the Board in this case was required to give reasons. This decision was of particular importance to the parties for differing reasons. Burns was anxious to have this vacation time, as it would be seven years before he had the opportunity for first choice again. The applicant is interested in having an interpretation of the

Page: 6 clause in question, which would acknowledge the primacy of its operational requirements. Considering it interprets a clause of the collective agreement which affects all unionized employees, the decision has far reaching effects. In these circumstances, reasons are required to provide procedural fairness to all parties. (b) Adequacy of the Board s Reasons [26] Where a Board gives reasons, they must be adequate. Regardless of whether there is duty to give reasons, any reasons given must be adequate. It is not sufficient simply to outline the evidence and argument and to state the tribunal s conclusion. Nor is it sufficient merely to repeat the applicable statutory provisions. That does not reveal the rational for a decision. Grounds must be set out. To be of any value to parties, reasons should explain how the tribunal reached its conclusions, both on fact and on law or policy. The essential findings of fact on which the decision is based should be stated and explanations given for rejecting important items of evidence pertaining to the central facts in issue, including an explanation of findings of credibility....(sara Blake, Administrative Law in Canada, 3 rd, Toronto, Butterworths pp. 85-86) [27] The standard of adequacy depends on the context of the case and in assessing the adequacy of the reasons consideration must be given to the entire decision and the context in which it was made. Every case does not require lengthy written explanations. [28] In Ward v. University of Prince Edward Island (1998), 159 Nfld & PEIR 246, a committee of the university senate upheld the decision of a faculty dean to dismiss a student for academic reasons. The committee s decision was worded as follows: The ad hoc Senate Committee on Student Academic Appeals, has unanimously upheld the decision of Dean Heider regarding the dismissal of Mr. Paul Ward from the D.V.M. programme, believing that decision to be in the best interests of the University. ( para 3) [29] Upon judicial review, Justice Jenkins found that given the brevity of the committee s decision it was necessary to examine the record and he did so. He concluded that the committee decision was not unreasonable or based on extraneous considerations, and stated: [19]...It is unfortunate that the Committee s expressed reasons are so confined; however, the Committee s reasons do refer directly to the Dean s decision, which in turn addresses specifically the academic reasons for the dismissal... [30] In Baker, supra, Justice L Heureux Dubé found that the immigration officer s notes on Ms. Baker s application were sufficient to constitute the reasons for

the decision. She stated at para. 44: Page: 7 [44]...Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary...when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways... [31] Upon a review of the law submitted by the parties, it appears that reasons given by tribunals need not exhibit the degree of formality required in the judicial process but when given, they must meet the adequacy test. [32] In this case, after reviewing the evidence, the Chair of the Board stated at pp. 13 and 14 of the majority decision: The Employer bound itself to its employees to make every reasonable effort to accommodate the employee s request. Would the reasonable person observing this Employer granting the vacation request say that the Employer acted unreasonably? I don t think so. Some would say that MECL did not run its operation as efficiently as it could have. Those would say that it should have everyone on hand for its peak time. Others would say that MECL made a smart business decision because it rewarded a valued senior employee. These would not that MECL had available two #1 operators on Burns shift. They would note that MECL would be acting prudently to avoid the perception that it was changing the rules in the middle of a rotation that had been followed, and any overtime incurred would be a small price to pay for appearing as a fair employer. These would say granting vacation was a long-term benefit, and any incurred overtime was a worthwhile investment in a climate of increasing demand for generation. I find myself in the latter camp. MECL had two reasonable responses, and it chose the one most favourable to it. Absent a restriction in the Collective Agreement, there is nothing wrong with doing so. But, in this case there is a restriction. The Employer is required to make every reasonable effort. That requires it to choose a response that may not be the one most favourable to it, provided the response requested by the employee is a reasonable one. [33] In short, the majority of the Board found the applicant had chosen the response most favourable to it and had not made every reasonable effort to accommodate the employee s request, as required by the collective agreement. The reasons reveal the rationale for the Board s decision and pointed out options open to the applicant which it had not taken. The reasons are responsive to the issues raised, clearly pointing out that the employer s choice of responses to vacation requests is limited by the wording of the collective agreement. In my view, the Board s reasons meet the adequacy requirement.

Page: 8 (c) Standard of Review [34] Before determining whether the decision itself should be set aside one must determine the standard of review. The applicant takes the position that the applicable standard of review is reasonableness simplicitor ; while the respondent states that the applicable standard is patently unreasonable. This standard of review is to be applied to the board s decision and not to its reasons. [35] The Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship & Immigration), [1998] 1 S.C.R. 982, stated that in determining the applicable standard of review a pragmatic and functional approach must be taken in determining whether the legislature intended the matter to be left to the exclusive jurisdiction of the tribunal. This test requires the consideration and balancing of the following four factors: (a) the presence or absence of a privative clause; (b) the relative expertise of the decision maker; (c) the purpose of the Act as a whole and the provision in issue in particular; (d) the nature of the problem in question. (a) Privative clause [36] The applicant asserts there is no privative clause in this case and the respondent asserts there is. The Labour Act reads in part: s. 37.(1) Every collective agreement shall contain a provision for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration, operation or alleged violation of the agreement, including any question as to whether a matter is arbitrable.... s. 37.(8) An award of an arbitrator or an arbitration board is binding upon all persons bound by the collective agreement and all such persons shall do or abstain from doing anything required of them by the award. [37] In Maritime Electric Company Ltd. v. IBEW, Local 1432, [1993] 2. PEIR 45(A.D.), the Appeal Division of this court found that these provisions, in effect, constitute a privative clause. The court stated at paragraph 19: [19] The board of arbitration is a statutory tribunal created pursuant to the provisions of the Labour Act, R.S.P.E.I. 1988 Cap. L-1 and is subject to judicial review under the Judicial Review Act. The finality provisions contained in the Labour Act regarding decisions of the Board of Arbitration do not expressly preclude judicial review but arbitration under the Labour

Page: 9 Act is compulsory and it is intended to provide a forum for the final and binding resolution of all differences. [38] The court then reviewed the sections in questions and concluded at paragraph 21: [21] The courts have interpreted such finality clauses in the same manner as privative clauses even though they do not expressly forbid judicial review. Accordingly, I find that a privative clause does exist in this case. (b) Relative expertise [39] Labour arbitration boards have been repeatedly recognized by the courts as having expertise in interpreting and applying collective agreements. In Dayco (Canada) Ltd. v. CAW - Canada, [1993] 2 S.C.R. 230 Justice La Forest referred to the expertise of labour arbitration tribunals in the following manner: [19]... This court has stated in previous cases that the court should, as a matter of policy, defer to the expertise of the arbitrator and questions relating to the interpretation of a collective agreements... It is clear that an arbitrator has jurisdiction stricto sensu to interpret the provisions of a collective agreement in the course of determining the arbitrability of matters under that agreement... [40] He continued at paragraph 35 as follows: [35] The jurisprudence of this Court, along with others, is clear on the purpose behind statutory arbitration of collective agreements -- it is to provide for the speedy resolution of disputes over the administration of a collective agreement with minimal judicial intervention;...more generally, administrative tribunals exist to allow decisions to be made by a specialized tribunal with particular expertise in a relevant area of law;...what, then, is the expertise of a labour arbitrator? Undoubtedly it is the interpretation of collective agreements, and the resolution of factual disputes pertaining to them... [41] It is clear that the labour arbitration boards are held to have expertise in interpreting and applying collective agreements. (c) Legislative purpose [42] The purpose of the Labour Act as a whole and the provision for arbitration in particular is to facilitate the reasonably rapid resolution of disputes arising from the collective agreement without a stoppage of work. As Justice Corey pointed out in the case of Toronto Board of Education v. Ontario Secondary School Teachers Federation, District 15, [1997] 1 S.C.R. 487 (S.C.C.) at paragraph 35: 35....There are a great many reasons why curial deference must be

Page: 10 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.... [43] The Labour Act establishes the arbitration board as a means of settling disputes arising from the collective agreement, other than the courts. The deliberate establishment of this procedure by the legislature strengthens the board s claim to a higher degree of deference. (d) Nature of the problem [44] The issue before the board in this case was whether or not the employer had made every reasonable effort to give the employee the vacation time requested by him, which involved an interpretation of a particular clause in the collective agreement. This problem is precisely what the board is designed to do ascertain the facts, interpret the provision of the collective agreement and apply that provision to the facts and reach a conclusion. [45] The presence of a finality/privative clause, the relative expertise of the board as a decision maker, the purpose of the act as a whole, the specific provision for arbitration boards as a means to resolve labour relations disputes, the nature of the problem, the interpretation of a provision of the collective agreement and its application point to a requirement for the highest degree of deference to the board. Accordingly, the standard of review applicable to the board s findings is the patently unreasonable test. This is the position taken by the Appeal Division of this court in many cases, including most recently its decision in Canadian Union of Public Employees, Local 3373 v. Queens County Residential Services Inc. Docket # S-1-AD-0997, January 28, 2004. Meaning of Patently Unreasonable [46] Having determined the test to be used is the patently unreasonable test, one must look at the meaning of patently unreasonable. In Law Society of N.B. v. Ryan, [2003] S.C.C. 20 Justice Iacobucci, writing for the court, again reviewed the approach a court should take in reviewing the decision of administrative tribunals. A court should employ a pragmatic and functional approach to determine the appropriate level of deference, which will, in turn, determine which of the three standards of review the court should apply to the decision; correctness, reasonableness simplicitor, or patent unreasonableness.

Page: 11 [47] In Ryan, supra although the court applied the standard of reasonableness simplicitor, it also discussed the standard of patent unreasonableness in the following terms at para. 52: 52. The standard of reasonableness simpliciter is also very different from the more differential standard of patent unreasonableness. In Southam, supra, at para. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted in the immediacy or obviousness of the defect. Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as clearly irrational or evidently not in accordance with reason (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at pp. 963-64,per Corey J.; Centre communautaire juridique de l Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84 at paras 9-12, per Gontier J.) A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand. [48] In this case, the Board reviewed the evidence and determined that the question was not about the applicant s blocking out the whole month of December as a non vacation period, but was limited to whether the applicant had made every reasonable effort to accommodate Burns for the week in December, which he had selected. The applicant admitted the obligation to make every reasonable effort applied to the blocked out period of December and that the applicant s response could be affected by the type of work the employee did. The Board found as a fact that the applicant s denial of Burns vacation request was for legitimate business reasons and this was a reasonable response to the vacation request. It then stated that even if this was a reasonable response, the question was whether it was a response permitted by the collective agreement. The collective agreement requires every reasonable effort to be made by the applicant. [49] The Board pointed out that the applicant had two reasonable responses available to it and it chose the one most favourable to it. However, the restriction in the collective agreement that it must make every reasonable effort, requires a response which may not be the most favourable to the applicant, provided the response requested by the employee, Burns, is a reasonable one. The Board concluded this issue would arise with each individual who requests vacation in December and the response may vary accordingly, based on a number of factors. The majority of the Board concluded that the applicant had not made every reasonable effort to accommodate Burns request. [50] The applicant argues that once the Board determined that the applicant s response to Burns vacation request was reasonable, the grievance should have been dismissed. The applicant is only required to make every reasonable

Page: 12 effort to grant requests, thus implying there will be occasions when it cannot meet the employee s request. This may well be so, but the applicant employer s obligation under the agreement is not just to behave reasonably. It must make every reasonable effort to accommodate the employee s vacation request. In Canadian Air Traffic Control Assoc and NAV Canada, [1998] C.L.A.D. No. 734, J. Christie, Arbitrator, stated at para 72 that while every reasonable effort is not open ended, the employer must satisfy the arbitrator that it has met the requisite level of effort. [51] In Re The Crown in Right of Ontario (Ministry of Community & Social Services) and OPSEU: (1997), 64LAC (4 th ) 22, the Ontario Crown Employee s Grievance Board defined every reasonable effort as follows at p. 35:...First and foremost, as employer counsel argued, making reasonable efforts does not mean every effort or all efforts. It means making efforts that are reasonable all things considered, and that will, given that this is a broadly worded clause of general application, depend on particular circumstances of individual cases. [52] What constitutes every reasonable effort is a question of fact to be determined in every set of circumstances. In Re: City of Cornwall and CUPE, Local 3251 (1999), 85 LAC (4 th ) 255, the arbitrator discussed what must be considered to act reasonably in considering vacation requests, at p. 268: The grievor s job does not involve the provision of essential services, nor does it apparently require to be performed at any specified time. In order to decide whether a specific vacation request could reasonably be declined, it would be necessary to take into account such factors as the overall expense to the Employer, the reasons for the grievor in requesting a particular vacation schedule, the possibility of adjusting the instructional schedule to accommodate the grievor s vacation requests without requiring her specific replacement at the City s expense, and the proportion of the overall agreed schedule of vacation which accommodates the City s desire for efficiency and financial responsibility with the grievor s desire for a vacation schedule which accommodates to a reasonable degree her personal preferences. [53] The case law referred to by counsel indicates that when considering whether an employer has made every reasonable effort to accommodate any employee s vacation request, an arbitration board should consider what the employer did and did not do to respond to the request, and all issues including operational factors, employee preferences, length of service and why a particular period is being selected. The majority decision in this case did consider all of these factors and found that as the employer had only considered operational issues, it had not made every reasonable effort. [54] A review of the Board s majority decision does not reveal that it is immediately obvious there is no tenable line of argument to support the Board s decision. Accordingly it has passed the patently unreasonable test and the Board s decision should stand.

Page: 13 Matheson J. March 4, 2004