QL Update: 980427

Indexed as: Canadian Pacific Co. v. Picher

IN THE MATTER OF the Canada Labour Code, R.S.C. 1985, c. L-2
(as amended)

AND IN THE MATTER OF an Arbitration pursuant to s. 57 of the said Canada Labour Code, between Canadian Pacific Railway Company (formerly Canadian Pacific Limited) and National Automobile, Aerospace, Transportation and General Workers' Union of Canada (CAW-TCA Canada), Local 101

Between

Canadian Pacific Railway Company,
applicant,

and

Michel G. Picher,
respondent

[1998] A.J. No. 326
DRS 98-12075
Action No. 9701-05307

Alberta Court of Queen's Bench

Brooker J.

Judgment: filed March 12, 1998.

Statutes, Regulations and Rules Cited:

Canada Labour Code, R.S.C. 1985, c. L-2, ss. 57(1), 58. Maintenance of Railways Operations Act, 1995.

Labour law - Public service labour relations - Collective agreement, job classifications - Reclassification - Judicial review, decisions of adjudicators or grievance appeal boards - Patently unreasonable decisions.

Application by Canadian Pacific Railway (CPR) for certiorari quashing the decision of an arbitrator. In 1991 CPR decided to close what was known as the Angus Shop. A special agreement with a unique set of job security benefits was negotiated between the Union and CPR, which applied to employees adversely affected by the closure. Appendix D of the agreement provided that employees who took positions outside the bargaining unit and were then laid off would resume employment security status. In 1995, CPR and the Union renegotiated the job security agreement and modified the Angus agreement. The new agreement affirmed that the Angus agreement continued to apply subject to specific amendments but did not specifically modify Appendix D. The definition of Angus employee in the new agreement did not include the Appendix D employees, but was preceded by the qualifier "For the purposes of this agreement." In 1996 grievances were initiated by a group of employees who would have fallen under Appendix D and were laid off. The matter led to arbitration. The arbitrator Picher found that the new agreement made no specific reference to the Appendix D employees and that therefore they continued to enjoy the same benefits as they had previously under the Angus agreement. He found that the definition was not intended to remove entire classes of beneficiaries.

HELD: Application dismissed. Picher answered the essential question put to him by CPR and the Union, which was the status of certain employees under the circumstances. Moreover, his decision was not irrational or unreasonable. Both parties had made cogent and forceful submissions arguing for two separate interpretations of the documents, one of which was adopted by Picher. This alone demonstrated that the decision was not patently unreasonable.

Counsel:

Harold R. Huber and Macleod Dixon, for the applicant.

Lyle Kanee, for the respondent.

REASONS FOR JUDGMENT

A. INTRODUCTION

This is an application by the Canadian Pacific Railway Company (the "Applicant") for judicial review of the decision of the arbitrator, Michael J. Picher (the "Respondent") dated January 2, 1997 (the "decision"). In relation to a dispute between the Applicant and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-TCA Canada) Local 101 (hereinafter referred to as "the Union"). Specifically, the Applicant seeks an order for certiorari quashing or setting aside the decision and a direction that the matter be remitted to the Respondent for a new hearing and decision.

The briefs filed by the Applicant and the Union set out the factual background to the decision. Most of the facts are not in issue. The facts recited hereafter come from those briefs or the decision unless otherwise stated.

B. FACTS

Effective May 26, 1989 employees who were represented by predecessor unions to the Union were entitled to certain employment security benefits pursuant to a Job Security Agreement. The 1989 Job Security Agreement was eventually superseded by subsequent agreements in 1992 and 1995. The most recent Job Security Agreement is effective July 24, 1995.

The Job Security Agreement is an agreement under which employees who are members of the Union and who meet the eligibility requirements may become entitled to a variety of employment security benefits. The provisions of the Job Security Agreement are general in nature and apply in all localities where the Applicant's employees who are members of the Union work.

On September 16, 1991 the Applicant issued notice that it intended to close its Angus Shop in what was known as the Applicant's "Atlantic Region", effective February 3, 1992.

The closure ultimately impacted more than 900 workers (known to the parties as the "Angus employees" or the "ex-Angus employees"). Negotiations between the Union and the Applicant to mitigate the effects of the Angus Shop closure began.

On February 3, 1992, the Applicant and the predecessor unions to the Union entered into the Atlantic Region Mechanical Reductions Special Agreement ("the Angus Special Agreement").

The Angus Special Agreement provided a unique set of benefits to employees who were adversely affected by the organizational changes arising from the closure of the Applicant's Angus Shops in Montreal in 1992 ("the Atlantic Region Mechanical Reductions").

Pursuant to Article 1.2 of the Angus Special Agreement, the benefits were provided to "Eligible Employees" (defined as employees who had completed eight years of cumulative compensated service on or before February 3, 1992 and who were entitled to Employment Security pursuant to Article 7 of the Job Security Agreement) and who satisfied one of the following conditions:

(i) the employee's position was abolished as a result of the Atlantic Region Mechanical Reductions, or

(ii) the employee was displaced by a senior employee where such displacement was brought about by the Atlantic Region Mechanical Reductions, or

(iii) an employee who by accepting one of the benefits provided in Articles 2 to 10 [of the Angus Special Agreement] would provide permanent employment for himself or another employee with Employment Security adversely affected by the Atlantic Region Mechanical Reductions.

Article 16.3 of the Angus Special Agreement stated that the terms and conditions therein would prevail notwithstanding the terms and conditions of the Job Security Agreement which was in place at the time, such that the Eligible Employees who qualified under Article 1.2 of the Angus Special Agreement were entitled to the unique set of benefits provided, separate from the benefits that they would otherwise have been entitled to under the Job Security Agreement.

The Union was concerned that Angus employees who took positions outside of their bargaining unit instead of opting for buy-out packages would lose their enhanced status. Without that enhanced status, the Angus employees would be vulnerable to layoff without access to enhanced job security benefits. The parties addressed the Union's concern in a letter from the Applicant to the Union, which was then appended to the 1992 Angus Special Agreement as Appendix D. Appendix D provided in part:

The Company understands the concerns of the Unions in the context of an operational change which is of unprecedented magnitude. For the sake of finalizing a negotiated settlement ... the Company is prepared to make some further assurances to help alleviate the Unions' concerns.

Specifically, when an employee on Employment Security status covered by this Agreement performs work outside his/her bargaining unit pursuant to Article 7 of the Job Security Agreement the Company agrees that when no longer required to perform that work, the employee will resume Employment Security status rather than being laid off. Additionally, when an employee is recalled to work within his/her own seniority classification, and where the nature of that work is that it is expected to be of a defined term, or a special project of any kind, then the same result will apply.

Since the coming into effect of the Angus Special Agreement, the Applicant kept lists of employees who were entitled to the benefits under the Angus Special Agreement (the "Angus employees") to track their status, and to identify the total number of remaining Angus employees. Updated lists of Angus employees were provided on a regular basis to the Union. Accordingly the list of Eligible Employees was comprised of i) employees that actually worked at the Applicant's Angus shops in Montreal and lost their positions as a result of the closure of the Angus shops (the "Former Angus Shop Employees") and, ii) employees who did not work at the Angus shops but who lost their positions as a result of being displaced by a senior Former Angus Shop Employee. When an Eligible Employee was provided with a permanent position, his name was removed from the list. Where an Angus benefit package, consisting of severance, bridging or early retirement benefits, was paid out to an Eligible Employee, that employee's name was removed from the list.

The Union has never taken issue with or challenged the validity of these permanent removals from the list of Angus employees, but rather, it appears to have accepted the lists as the means by which the Angus employee population count was monitored.

Any employee who lost his benefits under the Angus Special Agreement as a result of being provided a permanent position would still be entitled to the benefits available under the Job Security Agreement.

The collective agreement and Job Security Agreement in force at the time that the Angus Special Agreement was entered into, expired on December 31, 1993. Lengthy negotiations resulted in a legal strike/lockout during March of 1995 involving all national railways and a number of unions. The Maintenance of Railways Operations Act, 1995 ordered the parties to resume working and appointed a commission chaired by Mr. Justice George Adams ("the Adams Commission") to resolve, by mediation or arbitration, all issues in dispute between the parties.

On June 14, 1995 the Adams Commission rendered a decision, ordering significant changes to the terms of the Angus Special Agreement. It directed that the Angus Special Agreement be modified in a number of ways, and that the parties meet and agree to more detailed provisions to implement the intent of the terms of the award.

Consequently, the Union and the Applicant subsequently freely negotiated two agreements which entirely superseded the Adams award. The larger general agreement was the 1995 Job Security Agreement, to which a 1995 Memorandum of Agreement, generally referred to by the parties as "Appendix F", was appended. Article 10.14 of Appendix F recites:

this Memorandum of Agreement supersedes in their entirety any and all rulings of the Mediation-Arbitration Commission in respect of the Angus Special Agreement.

The preamble to Appendix F expressly affirms that the 1992 Angus Special Agreement continues to apply, subject only to modifications made in Appendix F. The subject matter of Appendix F goes to the modification of Angus employee benefits. For example Article 3 of Appendix F provides, amongst other things, that the duration of the benefit pertaining to "Angus employees" shall be eight years, and that the wage replacement benefit level will be reduced from 100% to 90%. Article 4 of Appendix F provides that Angus employees who elect, on a voluntary basis, to relocate outside the Region, thereby terminating their "Angus employee" status, will be eligible for a lump sum relocation allowance of $50,000 and will retain their original seniority date at the location to which they have transferred. Article 5 of Appendix F provides that Angus employees may elect, during the special bidding procedure, to be covered by the enhanced SUB provisions of Article 7B of the Job Security Agreement instead of the Employment Security provisions. Article 6 of Appendix F provides that Angus employees who are on employment security SUB or enhanced SUB status three months after they reach eligibility for five years of bridging or early retirement will lose their entitlement to those benefits. Article 7 of Appendix F states that the benefit levels provided in the Angus Special Agreement shall remain in effect until October 14, 1995, after which date they will be replaced, modified, or supplemented in accordance with the revised Job Security Agreement, except as otherwise provided in Appendix F.

The preamble of the Appendix F states:

... the parties to this Memorandum of Agreement hereby agree that the Angus Special Agreement be continued, subject to the amendments as set out herein.

Article 13 of Appendix F states:

The parties agree that the Angus Special Agreement shall be rewritten to reflect the modifications embodied in this Memorandum of Agreement, and that the Special Agreement so modified shall be attached as an Appendix to the revised Job Security Agreement.

The parties appear to have acknowledged in the 1995 Job Security Agreement that the 1992 Angus Special Agreement survives where it states:

This Job Security Agreement also cancels and supersedes all Special Agreements signed prior to June 14, 1995 other than Atlantic Region Mechanical Reductions Special Agreement signed February 3, 1992 and the protection provided under the Calgary Transfer Agreement.

There is no mention in the 1995 Job Security Agreement that the provisions of Appendix D of the 1992 Angus Special Agreement no longer applied.

Appendix F of the 1995 Job Security Agreement provides the definition of "Angus employee" as follows:

1. For the purposes of the Memorandum of Agreement, the term "Angus employee" shall denote an employee belonging to the bargaining unit represented by the Union who satisfies at least one of the following conditions:

(a) As of June 14, 1995, the employee was deemed to be on Employment Security status whether or not physically employed by the company, as a result of the Atlantic Region Mechanical Reductions, dated February 3, 1992; or

(b) The employee is in the future subject to displacement, in an "involuntary" manner as defined elsewhere in this Memorandum of Agreement, by another employee satisfying condition 1(a) above and is unable, as a result, to hold a permanent position in his seniority classification.

(c) Within the twelve (12) months preceding June 14, 1995, the employee, previously satisfying the terms of condition 1(a) above, was recalled to a permanent position in his/her own seniority classification as provided in Appendix "D" of the Angus Special Agreement.

The Applicant and the Union also entered into a Collective Agreement No. 101, revised November 15, 1996 ("the Collective Agreement"). It contains provisions establishing a grievance procedure for the resolution of disputes between the parties. Rule 29 therein states that a grievance concerning the interpretation or alleged violation of the Collective Agreement and which is not settled through the grievance procedure may be referred to arbitration.

In 1996, individual grievances were initiated on behalf of three employees who were laid off pursuant to Articles 8.1(a) and 8.1(c) of the Job Security Agreement while holding permanent positions outside the original bargaining unit classifications that they held at the time of the Atlantic Region Mechanical Reductions. In order to resolve the dispute with respect to all potentially affected employees the Applicant and the Union agreed to identify other employees that were holding permanent positions outside the original bargaining unit classifications that they held at the time of the Atlantic Region Mechanical Reductions even though such employees had not been laid off. Nineteen additional employees were so identified and as a result a total of twenty-two employees were identified as falling into the disputed group of employees (the "Grievors").

The Applicant took the position that none of the Grievors met the definition of "Angus employees" in Article 1 of the Memorandum of Agreement (Appendix F) and accordingly, they did not possess a right to the benefits provided under the Angus Special Agreement; rather, they were governed solely by the remaining terms and conditions of the Job Security Agreement, and in particular, Article 7A.13.

The Union took the position that the Grievors were entitled to the benefits provided under the Angus Special Agreement, and in particular under Appendix "D" to that agreement.

The parties were unable to resolve this disagreement through the grievance procedure, and accordingly the Applicant and the Union agreed to appoint the Arbitrator, Michel G. Picher, to resolve the dispute through arbitration.

The matter for arbitration was set out in a Joint Statement of the Applicant and the Union and submitted to the Respondent. The Joint Statement was as follows:

Joint Statement of Issue:

The Union alleges that any employee in the aforementioned group, who was previously on Angus Employment Security status, should be entitled to revert to such status as provided in Appendix "D" of the 1992 Angus Special Agreement when affected by a job reduction of the permanent position the employee last occupied (outside of his 1992 bargaining unit).

The Company contends that the link to the 1992 Angus Special Agreement has been severed and denies the Union claim.

On December 9, 1996 the arbitration hearing was convened before the Respondent. On January 2, 1997 the Respondent rendered his decision in favour of the Union. In his reasons, the Respondent concluded that:

Plainly, on its face, Appendix F makes no specific reference to persons who fall within the circumstances of the twenty-two employees who are the subject of this grievance. It therefore becomes necessary to determine whether they are impliedly intended to be excluded from protections which they previously had, by necessary inference from the terms of the appendix.

... the Memorandum of Agreement which is Appendix F specifically confirms the continuation of the Angus Agreement, as modified by the terms of the Memorandum. Secondly, the classification of persons designated as 'Angus Employees' is specifically said to be limited 'for the purposes of this Memorandum of Agreement'. In that circumstance it is difficult for a board of arbitration to conclude that the definition of Angus employees found within Appendix F is conclusive for all purposes, including those of other agreements, including the Angus Special Agreement of 1992 and the Job Security Agreement of July 24, 1995.

The logical result of that analysis is that, if the twenty-two employees who are here in question are not Angus employees, as the company contends, for the purposes of Appendix F, they nevertheless continue to enjoy such status as they previously had under the terms of the Angus Special Agreement of 1992 and the Job Security Agreement. Quite simply ... there is no language on the face of Appendix F which clearly indicates that any person who had the benefit of the Angus Special Agreement forfeited their status, rights or benefits, save as specifically provided within the terms of Appendix F ... the defining of Angus employees for the limited purposes of the memorandum of agreement, Appendix F, was not intended to wipe out entire classes of beneficiaries such as the employees in question ... the Company itself acknowledged that the employees, assigned to permanent positions in other bargaining units, nevertheless retained rights as former Angus employees. It is not disputed, for example, that they continue to be paid wages and benefits on the basis of their trade or seniority group as Angus Shop employees, notwithstanding that they may be holding permanent positions in a lower paid trade or seniority group.

... if the Company wished to achieve a position in which it had assurances that employees who had the benefit of the Angus Special Agreement of 1992 who are placed in permanent positions in another seniority group by reason of the incumbent in the position having received an Angus severance or bridging package, with the result that they could no longer themselves revert to ES status, it should have insisted on contract language which would clearly produce that result. That is especially so where the alleged change would clearly reverse the vested contractual rights and obligations previously contained within the Angus Special Agreement of 1992 and the Job Security Agreement. There is, very simply, no language which would support the conclusion that the Company succeeded in gaining such a concession ...

... The Arbitrator finds and declares that the employees who [are] the subject of this grievance, who held employment security protection as a result of this 1992 closure of the Angus Shops and who filled in the past or presently fill positions outside their seniority classification, pursuant to their obligations under the employment security provisions of the Job Security Agreement, are entitled to revert to their employment security status upon their release, for any reason, from the positions held outside their seniority classification. Any employees who may have suffered a loss in wages or benefits as a result of the Company's contrary interpretation shall be compensated accordingly. I retain jurisdiction in the event of any dispute between the parties with respect to the interpretation or implementation of this award.

C. POSITIONS OF THE PARTIES

The Applicant's position is two fold. First, it argues that the Respondent made a jurisdictional error in deciding a question not asked of him and thereby lost jurisdiction. Specifically, the Applicant submits that the Respondent lost jurisdiction when he considered and answered as part of this arbitration the question of whether the employment security status provided in the Job Security Agreement was still available to the former Angus Employees.

Second, the Applicant submits that the Respondent committed a patently unreasonable error in his interpretation of the Memorandum of Agreement (Appendix F) by finding that the definition of "Angus employee" in Article 1 of Appendix F does not apply to determine all those employees who are entitled to benefits under the Angus Special Agreement.

Not surprisingly, the Union's position is that the Respondent acted entirely within his jurisdiction, that he properly characterized and addressed the issues and arguments put before him. Further, the Union submits that the Respondent's decision is not patently unreasonable, that the Respondent's interpretation of the relevant documents and his decision is reasonable, rationally supportable and correct in law.

D. ANALYSIS

The collective agreement between the Applicant and the Union contained an arbitration clause as required by s. 57(1) of the Canada Labour Code, R.S.C. 1985, c. L-2. Thus the provisions of s. 58 of the Canada Labour Code, supra, apply. Section 58 states:

58.(1) Every order or decision of an arbitrator or arbitration board is final and shall not be questioned or reviewed in any court.

(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an arbitrator or arbitration board in any of his or its proceeding under this Part.

(3) For the purposes of the Federal Court Act, an arbitrator appointed pursuant to a collective agreement or an arbitration board is not a federal board, commission or other tribunal within the meaning of that Act.

Having regard to this privative clause, judicial review of the arbitrator's decision is limited to an error of jurisdiction or a patently unreasonable error on a question of law otherwise within the arbitrator's decision: United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction, [1993] 2 S.C.R. 316.

(a) Jurisdiction

The Applicant submits that the Respondent committed a jurisdictional error when he considered and determined whether the employment security status provided in the Job Security Agreement was still available to former Angus Employees. I reject this submission.

The Supreme Court of Canada has cautioned courts to be slow to characterize alleged errors as jurisdictional. In International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd. (1996), 96 C.L.L.C. 210-037, (S.C.C.), Cory, J. speaking on behalf of the Court said at p. 141, 330:

It has often been very properly recognized that Labour Relations Boards exemplify a highly specialized type of administrative tribunal. Their members are experts in administering comprehensive labour statutes which regulate the difficult and often volatile field of labour relations. Through their constant work in this sensitive area, Labour Boards, develop the special experience, skill and understanding needed to resolve the complex problems of labour relations. There were very sound reasons for the establishment of labour boards and the protection of their decisions by broad, privative clauses. Parliament and provincial legislatures have clearly indicated that decisions of these board on matters within their jurisdiction should be final and binding. The courts could all too easily usurp the role of these boards by characterizing the empowering legislation according them authority as jurisdiction limiting provisions which would require their decisions to be correct in the opinion of the court. Quite simply, court should exercise deferential caution in their assessment of the jurisdiction of labour boards and be slow to find an absence or excess of jurisdiction.

While Cory, J. was speaking in relation to labour relations boards, I would adopt the same principles to a labour arbitrator or labour arbitration board. For, as Cory, J. noted in Toronto (City) Board of Education v. O.S.S.T.F., District 15 (1997), 144 D.L.R. (4th) 385, (S.C.C.) at pp. 397-398:

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 ... emphasized the essential importance of curial deference in the context of labour relations where the decision of the tribunal, like the Board of Arbitration in the instant appeal, is protected by a broad privative clause. There are a great many reasons why curial deference must be 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.

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 ...

It was for these reasons that PSAC No. 2 stressed that decisions of labour relations tribunals acting within their jurisdiction could only be set aside if they are patently unreasonable. That is very properly an extremely high standard, and there must not be any retreat from this position. Anything else would give rise to the endless protraction of labour disputes resulting in unrest and discontent. Indeed the principle of judicial deference is no more than the recognition by courts that legislatures have determined that members of an Arbitration Board with their experience and expert knowledge should be those who resolve labour disputes arising under a collective agreement.

In the case at bar the issue is complex in that it involves the interpretation of a number of inter-related documents the totality of which allegedly defined the rights and status of the employees which were the subject matter of the grievance. These various agreements, referred to by the Respondent in his award, were put before the Respondent by the parties. Both parties referred to these various agreements in their written submissions to the Respondent and, presumably, also in their oral submissions.

Moreover, the Applicant's own statement of the issue in its written submission to the Respondent states:

7. The fundamental issue to be determined is whether the 22 individuals identified above are entitled to revert to Angus Employment Security status, following staff reductions or displacement from their permanent positions, as per Appendix "D" of the 1992 Angus Special Agreement.

Furthermore, the Applicant's own statement of position in that same written submission clearly placed in issue the applicability of the employment security status under the Job Security Agreement, to these grievors. Paragraphs 8 and 9 of the Applicant's written submission to the Respondent states:

8. The Company does not dispute that, as former Angus ES employees who took permanent positions outside of their original bargaining unit, the grievors may have been entitled to revert back to Angus ES status under the Angus Special Agreement as it read in 1992. This was provided for in Appendix "D" of the 1992 Angus Special Agreement, ...

9. The Angus Special Agreement has, however, undergone substantial amendments since 1992. This group of 22 grievors, as a result, do not now have the ability to revert to Angus ES status.

The "dispute" stated to the Respondent by the parties was the "status of certain 'ex-Angus' employees". The "Joint Statement of Issue" which the parties set out to the Respondent said:

The Union alleges that any employee in the aforementioned group, who was previously on Angus Employment Security status, should be entitled to revert to such status as provided in Appendix 'D' of the 1992 Angus Special Agreement when affected by a job reduction of the permanent position the employee last occupied (outside of his 1992 bargaining unit).

The Company contends that the link to the 1992 Angus Special Agreement has been severed and denies the Union's claim.

The Respondent found and declared that:

... the employees who the subject of this grievance, who held employment security protection as a result of the 1992 closure of the Angus Shops and who filled in the past or presently fill positions outside their seniority classification, pursuant to their obligations under the employment security provisions of the Job Security Agreement, are entitled to revert to their employment security status upon their release, for any reason, from the positions held outside their seniority classification ...

Accordingly, in my view the Respondent answered the essential question put to him, i.e. the status of certain ex-Angus employees in the circumstances defined in the joint statement of issue. The Respondent therefore did not commit a jurisdictional error.

(b) Patently Unreasonable

The Applicant submits that the Respondent committed a patently unreasonable error thereby justifying the court in quashing the Respondent's decision. Specifically, the Applicant contends that the Respondent's finding that the definition of "Angus employee" in Article 1 of the Memorandum of Agreement does not apply to determine all those employees who are entitled to benefits under the Angus Special Agreement, is patently unreasonable.

It is clear on the authorities that a decision of a tribunal is not patently unreasonable if there is any evidence capable of supporting the decision: Lester (VW)(1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644.

What, then, is the test for "patently unreasonable" error? The Supreme Court of Canada has said it is a severe test. In CAIMAW, Local 14 v. Paccar of Canada Ltd. (1989), 62 D.L.R. (4th) 437 at p. 453 LaForest, J. (Dickson, C.J.C. concurring) said:

Where, as here, an administrative tribunal is protected by a privative clause, this court has indicated that it will only review the decision of the board if that board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error in law in the performance of its function: ... The tribunal has the right to make errors, even serious ones, provided it does not act in a manner "so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review." ... This restricted scope of review requires the courts to adopt a posture of deference to the decisions of the tribunal. Curial deference is more than just a fiction the courts resort to when they are in agreement with the decisions of the tribunal. Mere disagreement with the result arrived at by the tribunal does not make that result "patently unreasonable". The courts must be careful to focus their inquiry on the existence of a rational basis for the decision of the tribunal, and not on their agreement with it. The emphasis should not be so much on what result the tribunal has arrived at, but on how the tribunal arrived at that result ...

Cory, J. (speaking on behalf of the majority) in Canada (Attorney General) v. Public Service Alliance of Canada (1993), 101 D.L.R. (4th) 674 (S.C.C) said at p. 691:

It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational.

Where an arbitrator, in interpreting a collective agreement, gives the words of that collective agreement an interpretation which those words cannot reasonably bear, he commits a patently unreasonable error: Shalansky v. Board of Governors of Regina Pasqua Hospital (1983), 145 D.L.R. (3d) 413 (S.C.C.). Given the comments of Cory, J., supra, I would interpret "cannot reasonably bear" to mean "clearly irrational".

There is nothing to be gained by reviewing in detail the respective positions and arguments made by the Applicant and the Union as to why (the Applicant) or why not (the Union) the Respondent's decision is patently unreasonable. Both parties made cogent and forceful written submissions to the Respondent in support of their position. Both parties have submitted logical and reasonable interpretations of the evidence to the court, in support of their respective submissions. It is clear that there are two separate and opposite positions which can logically be advanced from the evidence. That fact alone convincingly demonstrates that the Respondent's choice of one was not irrational or unreasonable.

It is clear from the Record, that there were conflicting views and interpretations of the evidence, for example the use of the company "lists", the effect of a union RailFax, the nature of the negotiations leading up to the execution of Appendix "F". The Respondent was entitled, indeed obliged, to weigh and consider the evidence which the parties placed before him. He did so. On such matters this court is not entitled to substitute its opinion for the Respondent's.

In the case at bar, I cannot say that the Respondent's interpretation of the relevant documents and in particular the Memorandum of Agreement, is patently unreasonable. The Respondent follows a logical and rational approach to arrive at his interpretation and decision. Whether I agree with his decision is irrelevant, as long as there is a rational basis for it. There is. Moreover, I cannot characterize the Respondent's decision as "clearly irrational". Accordingly, I can find no patently unreasonable error in the decision of the Respondent.

E. DECISION

For the reasons set out in the preceding paragraphs, I find that the Respondent did not make a jurisdictional error, nor did he make a patently unreasonable error of law in his interpretation of the documents, specifically, the Memorandum of Agreement.

The application is dismissed with costs to the Respondent.

(signed) BROOKER J.