Date: 20110228
Docket:
T-1717-09
Citation: 2011 FC 232
[REVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
February 28, 2011
PRESENT:
The Honourable Madam Justice Bédard
BETWEEN:
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CANADIAN UNION OF POSTAL WORKERS
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Applicant
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and
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CANADA POST CORPORATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
The
applicant, the Canadian Union of Postal Workers (the CUPW), has brought proceedings
to have the respondent, the Canada Post Corporation (the CPC), condemned for contempt
of court under Rules 466 to 469 of the Federal Courts Rules, SOR/98-106
(the Rules).
I. Background
[2]
The
parties are bound by a collective agreement. In February 2004, the CUPW filed a
grievance that was allowed by Arbitrator André Bergeron (the arbitrator). The arbitrator
rendered an initial award on September 16, 2008 and he rendered a second one on
September 1, 2009, after the CUPW had brought the matter before him again
to complete his first award.
[3]
On October 21,
2009, the CUPW filed the two awards in question in the Court under section 66
of the Canada Labour Code, R.S. 1985, c. L-2, and Rule 242 of the Rules.
[4]
Being of
the opinion that the CPC was refusing to comply with the arbitrator’s awards,
the CUPW brought these contempt proceedings. First, it filed a motion under
Rule 467 of the Rules for a show cause order naming the CPC’s labour relations
director. The CPC consented to this motion and an order was issued by Justice
Beaudry requiring the labour relations director, Karen Casselman, to appear to
hear proof that the CPC had disobeyed Arbitrator Bergeron’s awards and to be
prepared to present a defence.
[5]
An initial
hearing took place on October 21, 2010, in Ottawa. It was understood at the outset that
the issue would be severed in two, that I would first deal with the issue of the
CPC’s guilt and that a second hearing would be scheduled to rule on the penalty
if I were to find that the CPC was in contempt of court.
[6]
After the CUPW
completed its case, the CPC filed a motion for nonsuit, which I dismissed in the
order Canadian Union of Postal Workers v Canada Post Corporation, 2011 FC
25. The hearing continued on February 7, 2011. The CPC chose to present a defence
and it called Ms. Casselman as a witness.
[7]
For the
reasons that follow, I find that the CPC is not in contempt of court.
II. Awards on which the contempt proceeding is based
[8]
The CUPW
filed a grievance in which it alleged that the CPC had breached clause 37.01(a)
of the collective agreement when it modified the Isolated Posts Vacation Travel
Allowance Policy (the Policy) without its consent. This clause of the
collective agreement reads as follows:
37.01 Conditions Not Covered
(a) The existing working
conditions concerning the payment of a premium, the payment of an allowance or
the payment of any other financial benefit that are not covered by this collective
agreement shall remain in effect until such time as they are otherwise renegotiated
between the parties.
(b) The parties shall conduct
meaningful consultation about any changes planned in other existing working
conditions that are not covered by this agreement.
[9]
The CUPW
argued that before 2004, the Policy was based on the Treasury Board’s Isolated
Posts Directive (S-30), which included a provision that employees assigned to
isolated posts and the members of their family, at the time of their annual
leave, would receive an allowance equal to an economy class airline ticket
without restrictions (“Y” class) for round-trip travel between their assigned
post and the nearest major urban centre. Under the terms of this directive,
employees could apply the allowance to the type of trip of their choice and
they received the amount of their actual expenses or the cost of a “Y” class airline
ticket, whichever was lower. Employees could also receive a travel advance.
[10]
The CUPW
argued that in 2004, the CPC modified the Policy so that the conditions were
less advantageous to employees because it no longer provided a travel allowance
payment, but instead the payment of an annual lump-sum allowance, and because the
amount of the allowance was lower than the amount employees had been receiving up
to that point. In this respect, the CUPW claimed that the allowance was
calculated based on the cost of the least expensive airline ticket for round-trip
travel between the isolated post and the nearest urban centre, and not on the
cost of a “Y” class airline ticket. Given that the CPC had modified the Policy
without the CUPW’s consent, it was in breach of clause 37.01(a) of the
collective agreement.
[11]
The CPC
claimed that the Policy, as it had always been applied, did not correspond to
the Treasury Board’s Isolated Posts Directive (S-30), but rather to the CPC’s
policy on unionized employee travel (E-1), and that it had not modified the Policy,
but merely simplified its application.
[12]
In the
September 16, 2008 award, the arbitrator allowed the grievance and
dismissed the CPC’s claims. He further decided that the Policy, in its pre-2004
version, corresponded to the Treasury Board’s Isolated Posts Directive (S-30)
and not the CPC’s policy on unionized employee travel (E-1), and that by modifying
the Policy without the CUPW’s consent, the CPC had breached clause 37.01(a) of
the collective agreement.
[13]
In his
reasons, the arbitrator acknowledged that the CPC had the authority to modify
the Policy for strictly administrative purposes by switching from an allowance
system to a lump-sum payment system, but he indicated that this “simplification”
could not result in a reduction of the financial benefits that had been
available to employees up to that point. He found that the CPC had unilaterally
modified the working conditions set out in the Policy and was in breach of clause
37.01(a) of the collective agreement.
[14]
In the disposition
of the award, the arbitrator ordered the CPC to modify its Policy to take into
account the following two elements: the right of employees to receive, for
themselves and their dependants, an allowance equal to the cost of a “Y” class airline
ticket between their isolated post and the nearest urban centre, and the right
for them to apply this allowance to the trip of their choice, including a
package trip. The arbitrator also ordered the CPC to reimburse the employees
for the amounts they would have received had the Policy recognized these two
rights, and he retained jurisdiction over the amounts owing in the event of
disagreement.
[15]
The implementation
of the award resulted in a disagreement between the parties. First, the parties
did not agree on amounts owing to employees, but this disagreement is not
relevant to the contempt proceeding because it is currently being argued before
the arbitrator.
[16]
Second, there
was also a disagreement regarding the following components of the Policy. After
the award was rendered, the CPC decided to return to an expense reimbursement process
whereby employees would be entitled to an allowance equal to the cost of a “Y”
class airline ticket or the employees’ actual expenses calculated in accordance
with the CPC policy on unionized employee travel (E-1), whichever is lower. The
CUPW objected to any reference to the policy on unionized employee travel
(E-1). It claimed that, before 2004, employees received the cost of a “Y” class
airline ticket or the amount of their actual expenses, whichever was lower, and
that the actual eligible expenses were not subject to, or restricted by, the
policy on unionized employee travel (E-1). The CUPW also alleged that the CPC
no longer allowed employees to receive travel advances, whereas this practice
was allowed before the 2004 modifications. The CUPW asked the CPC to modify
these two components of the Policy, but it refused.
[17]
Faced with
this impasse, the CUPW again brought the matter before the arbitrator and asked
him to complete the disposition of his award of September 16, 2008, so as
to add an order compelling the CPC to modify the Policy to provide for the
right of employees to receive a travel advance and to eliminate references to
the policy on unionized employee travel (E-1) in calculating actual expenses. In
support of its request, the CUPW argued that the arbitrator had failed to rule
on some questions raised by the grievance and that he had jurisdiction to
complete his award. The CPC objected to the motion, arguing that the arbitrator
was functus officio.
[18]
In the
award rendered on September 1, 2009, the arbitrator allowed the CPC’s
objection and dismissed the CUPW’s motion. However, he explained that he did
not have to answer the CUPW’s questions because he had already implicitly ruled
on these questions in his award of September 16, 2008.
III. Analysis
[19]
The CUPW
recognizes that it must prove beyond a reasonable doubt the three constituent
elements of contempt: (1) the existence of the order, (2) the respondent’s knowledge
of the order and (3) the respondent’s knowing disobedience of the award. It
also acknowledges that case law requires that the order in question be clear,
enforceable and unambiguous.
[20]
It also
argues that the following principles must guide the Court in its review of the
order:
a.
The order
must be read and interpreted as a whole;
b.
The Court
must not interpret the order narrowly;
c.
The Court
must take the context into account;
d.
The party that
is the subject of an order must comply with the letter and the spirit of the
order.
[21]
The CUPW bases
its argument on Dursol-Fabrik Otto Durst GmbH & Co. v Dursol North
America Inc., 2006 FC 1115, 297 FTR 301, and Nadeau Poultry Farm Limited
v Groupe Westco Inc., 2010 CACT 2 (available on Quicklaw).
[22]
It argues
that the award of September 16, 2008, must be interpreted taking into
account the award of September 1, 2009, and that it has all the necessary
characteristics to give rise to contempt of court. Furthermore, it argues that
the award of September 1, 2009, clarified the scope of the award of
September 16, 2008 and that, in order to comply, the CPC must calculate
the allowance amount based on the actual expenses incurred by employees and
allow them to receive an advance.
[23]
The CUPW
is of the view that given that the CPC deliberately refuses to comply with the
arbitrator’s award, it must be found in contempt of court. It insists that it
does not have to prove intent as defined in criminal law and that in the matter
of contempt of court, evidence of conscious, knowing and intentional disobedience
is sufficient, which, in its opinion, was amply demonstrated in this case. It bases
its contention on Apotex Inc. v Merck & Co. Inc., 2003 FCA 234, 227
DLR (4th) 106, Louis Vuitton Malletier SA v Bags O’fun Inc., 2003 FC
1335, 242 FTR 75, Canadian Private Copying Collective v Z.E.I. Media Plus
Inc., 2007 FC 858, 160 ACWS (3d) 267 and Canadian Private Copying
Collective v Fuzion Technology Corp., 2009 FC 800, 349 FTR 303.
[24]
The CPC
does not interpret the scope of the arbitrator’s award in the same way. It contends
that the award of September 1, 2009, added nothing further to the award of
September 16, 2008, and that it has complied with the orders issued in the
award of September 16, 2008. The CPC also argues that the award of September
16, 2008, is more declaratory than enforceable and is ambiguous. The CPC also
claims that the CUPW has used the contempt proceeding to put pressure on the
CPC in order to expedite the outcome of the proceeding on the amount of
damages. I am immediately rejecting this serious accusation, which is not
supported by the evidence.
[25]
Contempt
proceedings are governed by Rules 466 to 469 of the Rules. The parameters
applicable to civil contempt are well established in the case law. A contempt proceeding
is a very serious matter that is quasi-criminal in character (Bhatnager v
Canada (Minister of Employment and Immigration), [1990] 2 S.C.R. 217, 71 DLR
(4th) 84, ProSwing Inc. v Elta Golf Inc., 2006
SCC 52, [2006] 2 S.C.R. 612). A party claiming that another party is guilty
of contempt must prove beyond a reasonable doubt the existence of an order, the
other party’s knowledge of the order and the other party’s knowing disobedience
of the order. The case law requires that the decision alleged to have been disobeyed
must be neither ambiguous nor merely declaratory (Telus Mobility v
Telecommunications Workers CUPW, 2004 FCA 59, 129 ACWS (3d) 76) [Telus Mobility].
[26]
I am of
the opinion that the arbitrator’s awards have neither the scope nor the
enforceability ascribed to them by the CUPW, even if I analyze them taking into
account the context, letter and spirit of the awards. It is useful to reproduce
the following passage from the award of September 16, 2008, in which the arbitrator
summarized his thinking and discussed the evidence adduced:
[TRANSLATION]
[652] In summary, I have therefore
come to the conclusion that the CPC was entitled, for strictly administrative
purposes, to simplify the management of the vacation travel allowances granted
to employees working in isolated posts, by replacing the process that had been
used up to that point with the payment of an annual lump-sum allowance.
However, this “simplification” was not, under paragraph 37.01(a) of the
collective agreement, to result in a reduction of the financial benefits
available to employees up to that point. In this case, the evidence revealed
that, to maintain these benefits, the allowance would need to be equal to the
cost of a “Y” class airline ticket for each employee and his or her dependants,
for round-trip travel between the isolated post and the nearest major urban
centre, on the date of the employee’s choice, and that the employee would need to
be entitled to apply this allowance to the type of trip of his or her choice,
including package trips, from the departure point of his or her choice.
[27]
In this
paragraph, the arbitrator states the following two principles: (1) the CPC was
entitled to modify its Policy for administrative purposes, but (2) this
modification could not result in a reduction of the financial benefits
available to the employees up to that point. The scope of this statement is
sufficiently broad to cover all modifications made to the Policy resulting in a
reduction of financial benefits. However, the arbitrator limited the scope of
his statement by indicating that the evidence had shown that there were two
elements missing in the Policy in order to preserve the financial benefits available
to employees: the right to an allowance equal to the cost of a “Y” class ticket
and the right to apply the allowance to the type of trip of the employee’s
choice.
[28]
The
disposition of the award reads as follows:
[TRANSLATION]
[653] For all these reasons,
- I allow national grievance
No. N00-03-00005;
- I order the CPC to
modify its vacation travel allowance policy in order to take into account:
· the right of
employees working in isolated posts to receive, for themselves and their
dependants, an allowance equal to the cost of a “Y” class airline ticket (“Full
Fare Economy Ticket”) for round-trip travel between their isolated post and the
nearest major urban centre on the date of their choice;
· the right of these
employees to apply this allowance to the trip of their choice, including a
package trip.
- I acknowledge the
CPC’s right to make the withholdings prescribed by law from these allowances;
- I order the CPC to
reimburse to the employees working in isolated posts, within fifteen working
days following the date of this decision, any amount to which the latter would
have been entitled had the policy implemented by the CPC recognized the
above-mentioned rights, with interest at the statutory rate;
- I retain my
jurisdiction over the amounts owing, in the event of a disagreement between the
parties.
[29]
The
disposition of the award is clearly limited to the two components mentioned at
paragraph 652 of the award. The arbitrator ordered the CPC to modify the Policy
in two specific respects: the right to an allowance equal to the price of a “Y”
class ticket and the right of employees to apply that allowance to the trip of
their choice. The disposition does not contain any order of more general scope
that would, for example, require the CPC to maintain all the financial benefits
arising under the Policy as it applied before 2004, or to reinstate the 2004
version of the Policy.
[30]
It is
precisely because the award of September 16, 2008 did not set out any
conclusions regarding these two aspects that the CUPW asked the arbitrator to
complete his first award.
[31]
It is
useful to reproduce the passage in the September 1, 2009 award in which the
arbitrator states that he already implicitly answered the questions raised by
the CUPW:
[TRANSLATION]
[32] If, as the Quebec Court of
Appeal acknowledged in Contrôle Technique Appliquée, [sic] citing
Justice Paré’s comment, “the reasons are equally as important as the
disposition of a judgment if they are embodied in it and are essential to its
support”, I could only – if I were to allow the CUPW’s motion – repeat
what I already said in my decision.
[33] Prior to the modifications it
made to its isolated post allowances in 2003, the CPC, as shown by communiqué
S-14 issued by Glen Driedger, the compensation policy manager, applied the
Treasury Board’s Isolated Posts Directive, and therefore, under paragraph
37.01(a) of the collective agreement, could not modify the financial
benefits that were available to employees working in isolated posts under this
directive.
[Emphasis added.]
[32]
With
respect, I consider that by refusing to add to the disposition of his award of
September 16, 2008, the arbitrator did not provide a complete determination of
the proceeding and did not extend the enforceability of his initial award. He
did indicate that he thought he had implicitly answered the CUPW’s requests,
and he repeated the principle he had previously stated in the award of
September 16, 2008, to the effect that the modifications made to the Policy
could not have the effect of reducing the financial benefits that employees
received prior to 2004. In my opinion, this finding is merely declaratory and
not enforceable.
[33]
I
recognize the principle stated by the Quebec Court of Appeal in Contrôle
Technique Appliqué ltée v Québec (Attorney General), [1994] RJQ 939, 47 ACWS (3d)
621, to which the arbitrator refers. According to this principle, the reasons
of a judgment may be used for the purpose of supporting the disposition. While
it may be true that the reasons may be used to support a disposition, they
cannot replace or be substituted for the disposition.
[34]
In Telus
Mobilité, the Federal Court of Appeal indicated, at paragraph 4, “[a] finding of contempt of court cannot be based on a court order that
is ambiguous, or an order that is merely declaratory. It must be clear on the
face of the order what is required for compliance” (see also: L.C.U.C. v Canada (Canada
Post Corp.), 8 FTR 93, 2 ACWS (3d) 279, Canadian Union of Public
Employees, Local 4004 v Air Canada, 157 FTR 186, 84 ACWS (3d) 696, C.U.P.W.
v Canada Post Corp., 16 FTR 4, 8 ACWS (3d) 319).
[35]
In the
case at bar, the arbitrator’s award of September 16, 2008, contained a very
clear disposition which ordered the CPC to modify the Policy in a very specific
way. This disposition did not in any way specify how actual expenses were to be
calculated or that employees were entitled to an advance. In any case, this latter
element would have been completely incongruous, since the arbitrator clearly
recognized the CPC’s right to replace the allowance system with the payment of
an annual lump-sum and the concept of an advance is incompatible with a
lump-sum payment system.
[36]
In the
absence of a general order compelling the CPC to modify the Policy so as to
preserve all the financial benefits arising from policy S-30, I believe
that it is impossible, even in reading the additional award of September 1,
2009, to extend the scope of the award of September 16, 2008, to a point where
it can be inferred that the arbitrator was also ordering the CPC to modify the
Policy to specify that employees were entitled to receive an advance and have
their actual expenses reimbursed. In my opinion, this would unduly add to the
award of September 16, 2008, which the arbitrator himself refused to do by
declaring himself to be functus officio.
[37]
Moreover,
the arbitrator acknowledged the limited scope of his award of September 16,
2008, when he invited the CUPW to file a grievance:
[TRANSLATION]
[34] These are the reasons that led
me to the conclusions contained in my decision of September 16, 2008, and
if, as the CUPW claims, the employer is not complying with this directive
and “[t]he existing
working conditions concerning the payment of a premium, the payment of an
allowance or the payment of any other financial benefit that are not covered by
this collective agreement” [par.
37.01a)] that it contains, it must file a grievance and not ask me each time
to complete my decision in order to include a new aspect of the policy that, in
its opinion, the employer has not complied with.
[Emphasis added.]
[38]
The
remarks of Justice Cattanach in International Brotherhood of Electrical
Workers, Local Union, No. 529 v Central Broadcasting Co., [1977] 2 FC 78
(available on Quicklaw), appear to me to be entirely applicable to the case at
bar:
58 …When the Board's order is filed and
registered with this Court it is for the purpose of enforcement by the processes
of this Court. Viewed realistically, even when filed and registered in this
Court the order remains the order of the Board. Because the order of the Board
is final and not subject to question or review by any court, except in
accordance with section 28 of the Federal Court Act, it is not the function of
a judge of the Trial Division to amend the order of the Board to make that
order enforceable. The order of the Board, even when filed and registered under
section 123, remains inviolate. That, in my view, is the clear intention of
Parliament as expressed in section 122 of the Canada Labour Code. In my view,
the proper forum in which to amend an order of the Board is the Board itself
and I expressed that view, to which I still adhere, on several occasions to
counsel for the applicant during the course of the hearing of the motion. It is
not the function of the Trial Division to anticipate what the Board may have
meant as expressed in its order and to substitute what it thinks the Board may
have meant to do, but did not do, by amending the Board's order accordingly. To
do so would be to usurp the function of the Board.
…
82 If this Court is to punish a person for
not carrying out an order of the Board, which, by virtue of section 123 of the
Canada Labour Code, becomes an order of this Court for the purpose of enforcement
when filed and registered, that order must direct what is to be done in clear
and unambiguous terms and this, for the reasons I have given, the Board has
failed to do.
[39]
The CUPW
argued that in his award of September 1, 2009, the arbitrator confirmed the
enforceability of the award of September 16, 2008. That is true, but the
enforceability of the decision cannot extend beyond its scope. The arbitrator’s
comment was related to the conclusions of the award of September 16, 2008, and
the jurisdiction he retained over the amount of damages:
[TRANSLATION]
[35] As for the decision I rendered
on September 16, 2008, I find that, in light of the Isolated Posts Directive
(S-30) used by the CPC in the past, it is perfectly enforceable and that if the
parties do not come to an agreement on its application, they have only to ask
me to intervene to determine the amounts owing.
[40]
For all of
these reasons, I consider that, having regard to the employees’ right to
receive an advance and have their travel expenses reimbursed on the basis of
the actual expenses, the awards rendered by Arbitrator Bergeron do not have the
enforceability necessary to give rise to a finding of contempt of court. The
enforceability of the award is limited to the specific orders contained in the
disposition of the award of September 16, 2008. And the evidence shows that the
CPC has complied with the orders included in that disposition.
[41]
The
disposition of the award did not include the right to an advance and the
reimbursement of travel expenses based on actual expenses. The arbitrator did
state that the CPC could not modify the financial benefits arising from the
Policy (in its pre-2004 version), but this component of the award is declaratory.
I also consider that the award of September 1, 2009, is ambiguous. The
arbitrator referred to certain passages of the award of September 16, 2008, and
indicated that he already implicitly answered the questions raised by the CUPW,
but he did not in any way indicate whether he considered that the evidence showed
that, prior to 2004, the employees were entitled to an advance and that there
was no limit placed on their actual expenses. Nor did he indicate whether he
considered that these two elements were financial benefits within the meaning
of clause 37.01(a) of the collective agreement. As indicated above, it is not
for the Court to complete the award or to determine what the arbitrator meant.
[42]
The CUPW
has therefore not succeeded in showing beyond a reasonable doubt that the three
constituent elements of contempt of court have been met and that the CPC must
be condemned.
[43]
In my
view, the CUPW’s best course of action for obtaining a determination that the
CPC is still in breach of clause 37.01(a) of the collective agreement is
grievance arbitration, as the arbitrator himself suggested.
ORDER
THE COURT ORDERS that the contempt proceeding
be dismissed with costs to the Respondent.
“Marie-Josée Bédard”
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