Docket: T-422-14
Citation:
2015 FC 355
[UNREVISED
CERTIFIED ENGLISH TRANSLATION]
Montréal, Quebec, March 20, 2015
PRESENT: The Honourable Madam Justice Bédard
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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
ALAIN RHAINDS
DOMINIQUE ALLARD
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Respondents
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JUDGMENT AND REASONS
[1]
The applicant, the Canadian Union of Postal
Workers (the Union) is seeking a declaration that the respondents are guilty of
contempt of court under rules 466 to 472 of the Federal Courts Rules,
SOR/98-106 (the Rules) on the basis that they deliberately breached the
arbitration award issued on September 20, 2013, by Arbitrator Huguette Gagnon. For
the reasons that follow, the application is dismissed.
I.
Background and procedural history
[2]
The Union is composed of a group of employees of
the Canada Post Corporation (the Corporation), which includes letter carriers.
The parties are bound by a collective agreement that governs, inter alia,
the hours of work, the organization of the work and the times of employees'
breaks and meals. Arbitrator Gagnon had before her eight grievances in which
the Union claimed that the Corporation was not complying with certain
provisions of the collective agreement concerning the organization of the day-to-day
work and the parameters for the taking of meal periods by letter carriers at
the Roberval office.
[3]
On September 20, 2013, the Arbitrator allowed
the grievances. It quickly became clear that the parties did not agree on the
scope and interpretation of the arbitration award or on what the Corporation
was required to do to comply with it.
[4]
On February 17, 2014, the Union filed a notice
of registration of the arbitration award with the Court pursuant to subsection
66(1) of the Canada Labour Code, RSC 1985, c L-2 [the Code]. Subsection
66(2) of the Code provides that an arbitration award registered in the Court
has the same force and effect as a judgment obtained in the Court. The notice
of filing, certificate of filing and a copy of the award attached thereto were
served on the Corporation's legal department on February 19, 2014.
[5]
On June 5, 2014, the Union filed an ex parte
motion with the Court for an order requiring the respondents to appear before
the Court to respond to a charge of contempt of court. This motion was granted
on July 4, 2014, by Justice Simon Noël.
[6]
It was agreed at the beginning of the hearing
that the argument would be split, that the evidence and representations of the
parties would deal first with the issue of whether the respondents were guilty
of contempt of court and that a hearing to address the sanction would then be
scheduled if needed.
II.
Legal principles applicable to a contempt of
court proceeding
[7]
There is no real disagreement between the
parties about the general principles that apply to a contempt of court
proceeding. Contempt of court is governed by rules 466 to 472 of the Rules, and
the general principles that apply to contempt of court are well established in
the jurisprudence.
[8]
First, it is recognized that civil contempt of
court is quasi‑criminal in character (Bhatnager v Canada (Minister of
Employment and Immigration), [1990] 2 SCR 217 at page 224, 71 DLR
(4th) 84; Pro Swing Inc v Elta Golf Inc, 2006 SCC 52 at para 35, [2006]
2 SCR 612; Canadian Union of Postal Workers v. Canada Post Corporation,
2011 FC 232 at para 25, [2011] FCJ No. 267 [Canada Post Corporation]; Rameau
v Canada (Attorney General), 2012 FC 1286 at para 1, [2012] FCJ No 1641 [Rameau]).
[9]
The burden of proof is on the party who seeks a
declaration of contempt (Canada (Minister of National Revenue) v Marangoni,
2013 FC 1154 at para 22, [2013] FCJ No. 1272), in this case the Union, and a
finding of contempt of court must be based on proof beyond a reasonable doubt
(rule 469 of the Rules).
[10]
The Union must establish, through proof beyond a
reasonable doubt, the three constituent elements of contempt: (1) the existence
of an order (2) the respondents’ knowledge of the order and (3) the respondents’
knowing disobedience of the order (Canada Post Corporation, para 25; Rameau,
para 13, Orr v Fort McKay First Nation, 2012 FC 1436 at para 15, [2012]
FCJ No. 1650; Canada (Minister of National Revenue) v Vallelonga, 2013
FC 1155 at para 18-19, [2013] FCJ No. 1273). The parties agree on the three
constituent elements of contempt, but they put forward nuanced positions on the
intention required to establish knowing disobedience of the order. However, I
find it unnecessary to deal with the nuances submitted by each of the parties
because they have no impact on my decision.
[11]
The jurisprudence also requires that the order a
party alleges has been disobeyed be enforceable, clear and unambiguous and that
it must be clear on the face of the order what is required for compliance. In Telus
Mobility v Telecommunications Workers Union, 2004 FCA 59 at para 4, [2004]
FCJ No. 273, the Federal Court of Appeal stated the following in this regard:
4. . . A finding of contempt 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. There
are numerous examples where contempt proceedings failed because the order was
obscure or vague: see, for example, United Steelworkers of America, Local
663 v. Anaconda Co. (Canada) Ltd. (1969), 3 D.L.R. (3d) 577 (B.C.S.C.), C.U.P.W.
v. Canada Post Corporation, [1987] F.C.J. No. 1021, (1987) 16 F.T.R. 4 (T.D.).
[12]
The Union also argued that the order must be
read in light of the reasons contained in the order. In Warman v Tremaine,
2011 FCA 297 at para 57, [2011] FCJ No. 1502, the Federal Court of Appeal in
fact stated “that the Tribunal order itself cannot be
dissociated from the reasons given for its issuance”. The reasons of an
order may be used for the purpose of supporting the disposition, but they
cannot replace or be substituted for the disposition (Canada Post
Corporation, para 33).
[13]
The Corporation argued that the contempt of
court proceeding could not include respondents Alain Rhainds and Dominique
Allard because the Union did not establish that they knew about the notice of
filing of the arbitration award with the Court. I do not believe it is
necessary for me to address this issue because the arbitration award is not sufficiently
clear and precise to ground a finding of contempt of court.
III.
Provisions of the collective agreement,
grievances and arbitration award
A.
Provisions of the collective agreement and the nature
of the disagreement leading to the grievances
[14]
It is useful to reproduce certain provisions of
the collective agreement to understand the nature of the dispute that led to
grievances being filed, as well as the arbitration award issued by the
Arbitrator and the parties' interpretation of it.
[15]
The evidence established that the regular work
schedule of full-time employees begins at 7:00 a.m. and ends at
3:00 p.m. The employees are paid for 8 hours a day regardless of the actual
time required for their daily mail delivery. The employees' work day consists
of a mail delivery route that includes one portion in the morning and one
portion in the afternoon with a 30‑minute meal period. At the Roberval
office, the meal period is scheduled from 12:00 to 12:30 p.m.
[16]
The interpretation of the provisions of the
collective agreement that set out the general principles governing the
organization of the work day does not cause any real problems between the
parties. It is, however, useful to state them in order to understand the
dispute that led to grievances being filed; this dispute stems from the
application of an appendix to the collective agreement (Appendix BB) that
provides for deviations from some of the parameters that govern the
organization of the work.
[17]
Therefore, I will begin by setting out the
general principles.
[18]
Clause 14.05 of the collective agreement states
the parameters that apply to meal and rest periods for full-time employees. It
reads as follows:
14.05 Meal and Rest Periods - Full-time Employees
(a) Time off for a meal for full-time
employees shall be as close as possible to mid-shift and shall be for a minimum
of one-half (½) hour. The provisions of this paragraph do not apply to Group 4.
(b) The meal period for Letter Carriers on
foot, Motorized Mail Courier passengers and Mail Mobile Letter Carrier
passengers shall start between four (4) hours and five (5) hours after the
official starting time of the route.
[19]
The distribution of work for the purposes of the
employees' routes is governed by clause 48.03 of the collective agreement,
which provides for the distribution of work between two portions, one in the
morning and the other in the afternoon:
48.03 Distribution of Work on Letter Carrier Routes
(a) Letter carrier routes are to be set up
with a.m. and p.m. portions using the Letter Carrier Route Measurement
assessment information.
(b) Letter carrier routes must be so
arranged that time off for meals shall be as close as possible to mid-shift and
shall be for a minimum of one-half (½) hour. Therefore, a letter carrier will
not be allowed to commence duty on the p.m. portion of his or her shift before
thirty (30) minutes after his or her evaluated finishing time on the a.m.
portion.
[20]
The collective agreement also provides that
employees must prepare the mail for the entire day in the morning but that when
they leave for the morning portion, the mail for the afternoon delivery portion
is left in the office. Clause 48.05 governs this obligation:
48.05 Processing of mail
(a) Letter carriers serving residential
routes will normally prepare the mail for delivery for the entire route in the
morning. The letter mail for the afternoon delivery portion will be left in the
office to be picked up by the letter carrier after lunch.
(b) Mail required to be processed at noon
and intended for the p.m. portion of the route is to be delivered on that day.
[21]
Employees are also to return to their emanating
installation following the completion of their morning delivery, and they
cannot commence their afternoon portion prior to the official starting time in
the afternoon. These requirements are set out in clause 48.08 of the collective
agreement:
48.08 A.M. Finishing Time
(a) Letter carriers are to return to their
emanating installation at noon immediately following the completion of their
a.m. delivery duties for the purpose of washing up and recording their a.m.
finishing time.
(b) Letter carriers are to record their time
of arrival at the postal installation but will not proceed to their work
stations and commence duty until their official starting time in the p.m.
[22]
The evidence adduced shows that these provisions
translate as follows on the ground. Employees begin their shift at 7:00 a.m.
and, on their arrival, they prepare the mail that will be delivered during
their entire route. They keep with them the first bag of mail for the morning
portion of their route as well as the first bag for the afternoon portion of
their route. The other bags are picked up at the station around 8:00 a.m.
by the Combined Urban Service, which distributes them in various relay boxes
located on the route of the letter carriers, who will pick them up during the
course of their route. The keys to the relay boxes are given to the employees
every morning by Dominique Allard, who is the Local Area Superintendent at the Roberval
office.
[23]
Employees may not leave the station before
8:30 a.m. to begin delivering the morning portion of the mail. When they
leave to do the morning portion of their route, they bring with them the first
bag of the morning portion and leave the first bag of the afternoon portion at
their office.
[24]
When they finish delivering the mail assigned to
the morning portion of their route, employees return to the station. Employees have
generally finished delivering the morning portion before noon. However, the
meal period is scheduled for 12:00 to 12:30 p.m., and they may not begin
delivering the afternoon portion of the mail before 12:30 p.m. Moreover,
although they are not required to eat at the station, employees must go back at
the end of the meal period to pick up the first bag of their afternoon mail,
and they may not begin delivering the afternoon mail prior to the end of the
meal period, which finishes at 12:30 p.m. When employees finish delivering
the afternoon mail, they must return to the station, and before leaving for the
day they are to deposit the keys to the relay boxes that were given to them in
the morning, in a box provided for that purpose.
[25]
Appendix BB to the collective agreement provides
for deviations from Article 48 of the collective agreement. It is the
interpretation and scope of this appendix that caused a disagreement between
the parties and led to grievances being filed. The relevant provisions are as
follows:
Appendix BB
FLEXIBLE MEAL PERIOD
The parties recognize the importance of
letter carriers taking their meal break as provided for in the collective
agreement.
However, the parties acknowledge that there
may be individual circumstances when a letter carrier may choose to not return
to the installation for the meal period.
Further, the parties agree that it is
preferable to seek voluntary compliance in these matters.
Therefore, the parties agree to the
following:
1.Subject to the provisions set out below
and notwithstanding Article 48, a letter carrier whose route provides that he
or she must return to the postal installation to have his or her meal may
choose not to return and to take his or her meal break elsewhere.
. . .
6. The Corporation may, at any time, require than an employee
follow the work rules set out in Articles 14 and 48. In making such decision,
the Corporation shall not act arbitrarily, unreasonably or in an unfair manner.
7. This protocol supersedes all arbitration awards and prior
agreements between the parties respecting straight throughs.
[26]
Ms. Allard testified for the respondents. The
evidence shows that, prior to the arbitration award, the Corporation allowed
employees who wished to take advantage of Appendix BB to do so without having
to expressly cite individual circumstances. The Corporation assumed that
employees who chose to not return to the postal installation at noon were
making this choice because of individual circumstances. Accordingly, the
Corporation did not require employees to make a request or to divulge the
specific reasons for which they chose to avail themselves of Appendix BB.
[27]
Moreover, the Corporation did not systematically
verify whether employees who decided to not return to the postal installation
at noon were actually taking their meal period or when they were taking it.
This interpretation of Appendix BB therefore allowed employees who decided to
not return to the postal installation for the meal period to leave in the
morning with their morning and afternoon mail. Employees could also take their
meal period immediately after completing their morning delivery. Consequently,
it was possible that part or all the mail of an employee’s afternoon portion would
be delivered in the morning. In short, for the Corporation, employees could take
advantage of Appendix BB without having to expressly cite individual
circumstances, and when they used it, they benefited from a two‑pronged flexibility:
(1) they could take their meal period wherever they chose and were therefore not
required to return to the postal installation for their meal period and (2) they
could take their meal period when they wished and thus not necessarily from 12:00
to 12:30 p.m.
[28]
The Union did not agree with the interpretation
of Appendix BB adopted by the Corporation. The evidence on this issue consisted
of the testimony of Éric Girard, who was the Vice‑President of Local 277 Haut-du-Lac,
and Manon Gagné, who was the President. The evidence showed that, in the Union’s
opinion, Appendix BB permits employees who cite individual circumstances to not
return to the postal installation for the meal period and to eat wherever they
choose, but they must comply with the meal period schedule, which is from 12:00
to 12:30 p.m. The Union submits that the application of Appendix BB does
not therefore permit employees to advance their meal period or to begin
delivering the mail assigned to the afternoon portion of their route prior to
12:30 p.m. It was this disagreement that led to the grievances.
B.
Arbitration Award
[29]
At paragraph 1 of her award, the arbitrator
summarized the nature of the dispute between the Union and the Corporation. The
paragraph reads as follows:
[translation]
[1] In these grievances, the union alleges
that the employer failed on several occasions to comply with the collective
agreement at the Roberval and Mistassini offices by permitting employees to
begin the afternoon portion of their route prior to their official starting
time in the afternoon. Therefore, the employer did not comply with Articles
14, 48 and Appendix BB of the collective agreement, which adversely
affected the employees and the union.
[Underlined in the arbitration award]
[30]
The arbitrator summarized the evidence at
paragraphs 4 to 10 of the award. Among other things, she noted that one of the
Union’s witnesses, letter carrier Pierre-Marc Bouchard, had stated that letter
carriers were delivering the afternoon portion of their route in the morning
and during the meal period. The arbitrator also noted that Ms. Allard, who
testified for the Corporation, stated that letter carriers made a personal
choice to not return to the postal installation for the meal period. She added
that Ms. Allard also said that if she had required employees to return to the
postal installation for the meal period, they would have had a two‑hour break
before the meal period because they finish their morning delivery between 10
and 10:30 a.m. Ms. Allard also indicated that letter carriers are paid for
eight hours a day, regardless of the time required to do their work.
[31]
The arbitrator then set out the relevant
provisions of Articles 14 and 48 of the collective agreement. At paragraph 11
of her award, she summarized the respective position of the parties as follows:
[translation]
[11] Counsel for the union submits that the
employer breached the collective agreement by allowing employees to deliver the
afternoon portion of their route in the morning. Counsel for the employer asked
the following question: “Why ask letter carriers to spend two hours at the
office without doing anything?” She referred to the evidence, which shows
that letter carriers finish the morning delivery between 10 and 10:30 a.m.
They would therefore be doing nothing for two hours if the employer required
them to return to the office for lunch, which is scheduled from 12:00 to 12:30 p.m.
Letter carriers took advantage of Appendix BB of the collective
agreement to choose to not return to the office for the meal period. According
to counsel for the employer, that Appendix allows for deviation from all the
rules in Articles 14 and 48 of the agreement.
[32]
After reviewing the various provisions of Articles
14 and 48, the arbitrator set out her understanding of these provisions as
follows:
[translation]
[15] It is clear from all the above clauses
that letter carriers on foot are to return to their emanating installation at
noon immediately following the completion of their morning delivery duties
(clause 48.08(a)) and that they cannot deliver the afternoon portion of their
route in the morning. The earliest they can begin delivering that portion is 30
minutes after the evaluated finishing time on the morning portion (clause 48.03(b)).
[33]
The arbitrator then dealt with Appendix BB of
the collective agreement and indicated at paragraph 16 of the award that this
appendix provides for a deviation from Article 48 [translation] “when, because of
individual circumstances, a letter carrier chooses to not return to the postal
installation for the meal period”.
[34]
The arbitrator then spent some time defining the
expression “individual circumstances” and
concluded that this expression referred to a fact specific to a person. She
noted that [translation] “in order for a letter carrier to be able to choose to not
return to the postal installation for the meal period, there must therefore be
a fact that is specific to that person” (paragraph 19 of the award).
[35]
The arbitrator then found that the Corporation was
not verifying whether employees had individual circumstances, which contravened
Appendix BB, which requires that an employee have individual circumstances in
order to take advantage of it. She held that no circumstance specific to
employees had been put into evidence and that the evidence demonstrated instead
that the employees’ choice was connected to how long it took them to deliver
the morning portion of their route, which is a fact that is not personal. She
determined that finishing the morning delivery early did not constitute a
circumstance specific to employees.
[36]
Accordingly, the arbitrator concluded that the
Corporation had breached the collective agreement by permitting employees to
not return to the postal installation for the meal period even though they did
not meet the requirements set out in Appendix BB to make this choice, that is, having
individual circumstances. She added that because of this permission granted by
the Corporation in violation of the collective agreement, the employees had
delivered the afternoon portion of their route prior to the official starting time
in the afternoon. The arbitrator’s reasoning is at paragraphs 22 and 23 of the
award:
[translation]
[22] I conclude that the employer violated
the collective agreement by permitting letter carriers to not return to the
postal installation for the meal period even though they did not meet the requirement
set out in Appendix BB to make this choice, i.e. individual
circumstances.
[23] Because of the permission granted by
the employer in violation of Appendix BB of the collective agreement, letter
carriers delivered the afternoon portion of their route before the official
starting time in the afternoon (clause 48.08(b)) or before 30 minutes
after their evaluated finishing time on the morning portion (clause 48.03(b)),
and they did so with the knowledge of the employer, which did not intervene to
ensure compliance with the collective agreement.
[37]
The disposition of the arbitrator’s award reads
as follows:
[translation]
FOR ALL
THE REASONS SET OUT ABOVE:
[25] I ALLOW
grievances 277-10-00013, 00016, 00019, 277-12-00001, the parties having agreed
to apply my decision to grievances 277-10-00012, 00017, 00020, 277-12-00002;
[26] I FIND that the employer breached
Appendix BB of the collective agreement by permitting letter carriers to
choose to not return to the postal installation for their meal period even though
they did not have individual circumstances that would allow them to make that
choice;
[27] I FIND that, because of the
employer’s breach of Appendix BB of the collective agreement, letter
carriers began delivering the afternoon portion of their route before the
official start time in the afternoon or before 30 minutes after their evaluated
finishing time on the morning portion, and they did so with the knowledge of
the employer, which permitted the breach of clauses 48.08(b) and 48.03(b)
of the collective agreement;
[28] I ORDER
the employer to cease this practice, which is contrary to the collective
agreement;
[20] I WILL REMAIN SEIZED of all the
grievances to resolve disagreements that may arise in the application of my
decision and to determine the quantum, if necessary.
IV.
Interpretation of the arbitration award by the
parties
[38]
The evidence clearly shows that the parties were
not reading the arbitration award in the same way, and there is no evidence
leading me to think that either party acted in bad faith.
[39]
The Corporation understood from the arbitration
award that it was breaching the collective agreement because it was permitting employees
to avail themselves of Appendix BB without citing individual circumstances. The
Corporation therefore stopped assuming that employees who decided not to return
to the postal installation for the meal period had made this choice because of
individual circumstances, and it agreed to apply Appendix BB only to employees
who made the request by citing individual circumstances. Ms. Allard indicated
in her evidence that the parameters in Articles 14 and 48 applied from then on
to all employees with the exception of those who had asked to benefit from
Appendix BB and had cited individual circumstances. Ms. Allard also stated that
she was checking to ensure that employees who were not benefiting from Appendix
BB were complying with the schedule.
[40]
The evidence showed that some employees had, in
fact, asked the Corporation if they could avail themselves of Appendix BB for
individual circumstances. The union opposed the filing of the employees’ written
requests because, in the absence of evidence from the persons who made those
requests, they were hearsay. This objection was dismissed. The employees’
written requests were not evidence of their contents (for example, the fact
that Ms. X cited a particular circumstance in her written request does not
establish the truth of the circumstance cited by Ms. X), but they were
admissible to establish that Ms. Allard received requests from the employees in
question, that the requests referred to individual circumstances and that the
Corporation considered that the circumstances cited were individual
circumstances in the sense that Arbitrator Gagnon intended.
[41]
Moreover, the Corporation continued to interpret
Appendix BB as permitting employees who took advantage of it for individual
circumstances to take their meal period wherever and whenever they chose. From the
Corporation’s point of view, the privileges arising from the application of
Appendix BB were not changed by the arbitration award. The Corporation interpreted
Appendix BB prior to the arbitration award, and has continued to interpret it
since the arbitration award, as permitting a complete deviation from Articles
14 and 48 of the collective agreement. Thus, in the Corporation’s view, employees
to whom Appendix BB applies may leave the postal installation in the morning
with their mail for the morning and afternoon portions of their routes. Those
employees have to do their morning deliveries, and when they finish, they may
take their 30‑minute meal period regardless of the time they finished
their morning deliveries. Those employees may then begin their afternoon
deliveries regardless of the time they end their meal period.
[42]
Accordingly, the respondents submitted that they
had complied with the arbitration award because all the employees who,
according to the Union, had contravened the schedule set out in the collective
agreement had made requests in which they cited individual circumstances and therefore
were not required to wait until 12:30 p.m. to begin their afternoon route.
[43]
The Union reads the arbitration award
differently. First, the Union understands from the arbitration award that the
Corporation could not assume that employees had individual circumstances unless
they formally cited individual circumstances. This aspect is consistent with the
Corporation’s interpretation.
[44]
In addition, the Union considers that the
arbitration award also confirmed that, where Appendix BB applies to an employee,
it permits the employee to take his or her meal period where the employee
chooses but in compliance with the meal period, which must be from 12:00 to 12
30 p.m. In the Union’s view, the only privilege arising from the application
of Appendix BB is not being required to return to the postal installation for the
meal period. Hence, employees who benefit from Appendix BB because of
individual circumstances may leave the installation in the morning with their
afternoon mail but may not begin delivering their mail assigned to the
afternoon portion of their route prior to 12.30 p.m.
[45]
The Union contends that the arbitrator
implicitly endorsed its interpretation of Appendix BB in the arbitration award.
It maintains that it is clear from the award that the arbitrator understood
that the crux of the dispute was that the Corporation permitted employees to begin
delivering the mail assigned to the afternoon portion of their route in the
morning. The Union submits that it is also clear from Appendix BB that the only
deviation permitted is in the place where the meal period is taken and that it
is obvious that the Appendix does not permit advancing the time at which they
begin delivering the afternoon mail.
[46]
For their part, the respondents submit that the
scope of the arbitration award is not as clear as the Union suggests and that
their interpretation is reasonable. They maintain that they cannot be found
guilty of contempt of court in this context.
[47]
The evidence establishes that certain employees
did not leave their afternoon mail at the office and did not wait until
12:30 p.m. to begin their afternoon route. The evidence also shows that
all those employees had made requests to the Corporation, citing individual
circumstances. Thus, if the Corporation’s interpretation is accepted, the
respondents did not breach the arbitration award because all the employees who
deviated from the schedule in the collective agreement had cited individual
circumstances under Appendix BB. On the other hand, if the Union’s interpretation
is accepted, the respondents did contravene the arbitration award because the
Corporation permitted employees to begin their afternoon route prior to 12:30 p.m.
even though Appendix BB does not permit deviating from this rule. Therefore, it
is necessary to determine whether the award clearly decided in favour of one interpretation
over the other.
V.
Analysis
[48]
I find that the arbitration award is not
sufficiently precise regarding the scope and interpretation of Appendix BB and
especially regarding the conduct that the Corporation and the two respondents
had to adopt with respect to the extent of the privileges granted to the
employees who benefited from Appendix BB.
[49]
I agree that part of the award is clear. It is
obvious that the arbitrator determined that the Corporation had breached the
collective agreement because it allowed all employees to take advantage of the benefits
derived from Appendix BB without verifying whether the employees had cited
individual circumstances that would justify availing themselves of the
deviating provisions of the Appendix. It is clear from the arbitration award that
the arbitrator determined that the Corporation’s practice of assuming that employees
who did not return to the postal installation for the meal period were making
that choice because of individual circumstances did not comply with Appendix
BB. The arbitrator stated that the evidence did not show that the employees had
cited individual circumstances and that ending delivery of the morning mail
early did not constitute an individual circumstance.
[50]
The evidence shows that the Corporation ceased
this practice and that the only employees who can now benefit from Appendix BB are
those who have made a request and have cited individual circumstances. The
evidence also indicates that the Corporation deals with employees’ requests by
applying the definition of the expression “individual
circumstances” set out in the arbitration award.
[51]
I agree with the Union that the component linked
to the existence or non‑existence of individual circumstances did not
resolve the entire dispute raised in the grievances because the crux of the
problem was the interpretation of the benefits derived from the application of Appendix
BB. The dispute included the issue of the scope of the deviations permitted by Appendix
BB. Apart from the issue of individual circumstances, the dispute concretely
raised the issue of whether Appendix BB is limited to permitting employees who
benefit from it to take their meal periods at a location of their choice or
whether it also permits them to choose the time at which they may take their
meal period.
[52]
The Union submits that it is implicit in the
arbitration award that the arbitrator endorsed its interpretation of Appendix BB.
With respect, I do not concur.
[53]
I recognize that the arbitrator correctly set
out the dispute between the parties and the respective positions of the
parties, but these references in the arbitration award are not sufficient to
conclude that the arbitrator interpreted the scope of the deviations permitted
by Appendix BB or that she endorsed the interpretation proposed by the Union.
[54]
In addition, the arbitrator did not expressly
address the scope of the deviations from Articles 14 and 48 of the collective
agreement set out at Appendix BB. The reasons and the disposition of the
arbitration award clearly state that Appendix BB can apply only where an
employee has individual circumstances. The arbitrator did not, however,
expressly address the extent of the latitude enjoyed by employees to whom
Appendix BB legitimately applies. The arbitrator did not specify whether the application
of Appendix BB resulted in a complete deviation from Articles 14 and 48 or
whether the only benefit derived from it related to the place where the meal
period could be taken.
[55]
It is possible that the arbitrator decided that
it was not necessary for her to address the interpretation of the deviations
permitted by Appendix BB because she had already determined that the
Corporation had breached the collective agreement by applying Appendix BB in
circumstances that did not permit its application. Therefore, once the
arbitrator determined that the Corporation had erred by applying Appendix BB, it
was not necessary, to dispose of the grievances, that she rule on the benefits
that would have resulted from the application of Appendix BB had it been
applied with regard to the employees who met the requirements to avail
themselves of it. This hypothesis would explain why the arbitrator did not
expressly deal with the scope of the benefits derived from Appendix BB.
[56]
It is also not impossible that the arbitrator wanted
to implicitly determine the scope of the benefits derived from the application of
Appendix BB, but if that is the case, the arbitration award is clearly too
imprecise to conclude that she intended to endorse the interpretation proposed
by the Union. The Union submits that it is obvious that Appendix BB allows only
employees who benefit from it to not return to the postal installation to take
their meal period and that even Mr. Rhainds acknowledged that Appendix BB should
not be used to leave early.
[57]
With respect, that is not what the evidence
showed. Ms. Allard stated that Mr. Rhainds had indicated that the benefit of Appendix
BB should not be used by employees solely to leave early and that employees had
to present individual circumstances specific to them. Moreover, the Union objected
to the admission of Mr. Rhainds’ comments because he did not testify and those comments
were reported by Ms. Allard. Ms. Allard’s testimony on Mr. Rhainds’ comments
was admissible to establish what she had understood from Mr. Rhainds’ comments,
and her testimony does not support a finding that Mr. Rhainds understood from the
arbitration award that the arbitrator had adopted the interpretation of Appendix
BB proposed by the Union.
[58]
In the arbitration award, the arbitrator stated
that finishing the delivery of the morning mail early was not a
circumstance specific to an employee. The fact that an employee must have individual
circumstances to be able to benefit from Appendix BB does not, however, negate
the fact that the application of Appendix BB will result in the employee ending
his or her work day before 3:00 p.m.
[59]
In addition, the Union has not satisfied me that
the interpretation adopted by the Corporation to the effect that Appendix BB results
in a departure from Articles 14 and 48 of the collective agreement in their
entirety is unreasonable. I am also not of the opinion that the interpretation
adopted by the Union is unreasonable.
[60]
In any event, it is not for the Court to usurp
the arbitrator’s role and to interpret the provisions of the collective
agreement and determine the extent of the deviations permitted by Appendix BB. However,
it appears that a disagreement about the scope of the arbitration award arose between
the parties after the award was rendered, and I find that, a priori,
neither of the two interpretations is unreasonable.
[61]
I consider that the arbitration award does not
give any insight into whether and why the arbitrator interpreted the scope of
the deviations permitted by Appendix BB and that it does not clearly dictate
how the respondents were to interpret Appendix BB when they applied it to employees
who had actually cited individual circumstances. In the absence of a specific
reference in the reasons or the disposition of the arbitration award, I find
that the arbitration award is not sufficiently clear and precise to give rise
to a finding of contempt of court. There remains an ambiguity as to whether or
not the arbitrator dealt with the scope of the deviations permitted when Appendix
BB is applied. In addition, if the arbitrator dealt with it implicitly, I
consider that her award is not sufficiently precise in this regard to ground a
finding of contempt of court.
[62]
I find, as I found in Canada Post Corporation,
at para 38, that the comments of Justice Cattanach in International
Brotherhood of Electrical Workers, Local Union No. 529 v Central Broadcasting
Co., [1997] 2 FC 78 at para 58, 82 apply in this case:
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.
[Emphasis added.]
[63]
I recognize that, despite the arbitration award,
the parties are still at an impasse in terms of the scope of the benefits that
flow from Appendix BB and the deviations it permits from Articles 14 and 48 of
the collective agreement, but, in my opinion, this impasse cannot be resolved
through this contempt of court proceeding.
[64]
For all these reasons, this application is
dismissed.
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