SHP 711

 

In the matter of an Arbitration under Part 1 of the Canada Labour Code,

 

BETWEEN:

 

            National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) [now “Unifor”], Local 100

                                                                                                                                     (“The Union”)

 

                        – and –

 

            Canadian National Railway Company

                                                                                                                                (“The Employer”)

 

 

                                                       Interim Award as to Venue

 

 

Arbitrator:                               Augustus Richardson, QC

 

 

Heard at:                                 By teleconference and written submissions

 

 

Written submissions:               By Union:       November 22, 2013

 

                                                By Employer:  December 3, 2013

 

 

For the Union:             Brian Stevens, National Representative

 

 

For the Employer:                   Susan Blackmore, Senior Manager Labour Relation

 

 

Date of Interim Award:          December 5, 2013

 

 

 

 

 

 


In the matter of an Arbitration under Part 1 of the Canada Labour Code,

 

BETWEEN:

 

            National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) [now “Unifor”], Local 100

                                                                                                                                     (“The Union”)

 

                        – and –

 

            Canadian National Railway Company

                                                                                                                                (“The Employer”)

 

                                                       Interim Award as to Venue

 

[1]        On or about May 6, 2013 I was appointed by the Federal Minister of Labour as arbitrator to hear the grievance in this matter. The first step in the resulting process was the selection of a date and place for the hearing. As it turned out, the parties were unable to agree on either the date or the place for the hearing. A teleconference was held with the representatives for the parties on November 7th, 2013. At that time it was agreed that January 21-22, 2014 would be set aside for the hearing. It remained the case, however, that the parties could not agree on where the hearing should take place. The Employer submitted that it should take place in Montreal, Quebec. The Union submitted that it should take place in Halifax, Nova Scotia.

 

[2]        The parties’ representatives were asked to make written submissions on the issue. The representative for the Union submitted written submissions dated November 22, 2013. The representative for the Employer submitted her written response dated December 3, 2013. I have reviewed both submissions, as well as the Union’s “Statement of Issue” filed November 17, 2013 and the Employer’s “Statement of Issue” filed November 15, 2013. I have also reviewed an article by the well-known and respected arbitrator, Michel Picher, titled “The Canadian Railway Office of Arbitration: Keeping Grievance Hearings on the Rails” in Lancaster House’s Labour Arbitration Yearbook (1991), pp.37-54; and a copy of remarks by Abe Rosner, titled “Ad-Hoc Arbitrations on Canadian Railways” presented at the 50th Annual Meeting of the National Academy of Arbitrators on May 23, 1997 in Chicago.

 

 

Background to the Issue

 

[3]        The Union and the Employer are parties to a collective agreement effective January 1, 2011 between the Employer and the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) [now “Unifor”], Local 100 (the “Collective Agreement”).

 

[4]        Rule 28 (Final Disposition of Grievances) deals with grievances that have been referred to arbitration by one of the parties. The following clauses (called “Rules”) are relevant to the issue before me:

 

            28.5     The hearing shall be held by the Arbitrator in the office of the Railway unless otherwise mutually arranged, or unless the Arbitrator deems it advisable because of special circumstances to holding the hearings elsewhere.

 

            28.6     At the hearing before the Arbitrator, argument may be given orally and/or in writing, and each party may call such witnesses as it deems necessary.

 

            28.8     Each party shall respectively bear any expenses each has incurred in the presentation of the case to the Arbitrator but any general or common expenses, including the remuneration and expenses of the Arbitrator, shall be divided equally.

 

[5]        The grievance in issue concerns the termination of Kristopher Tait (the “grievor”), a Diesel Mechanic working for the Employer in Halifax. A complaint of harassment was lodged against him by a co-worker in Halifax. A Supervisor undertook a “Formal Investigation” under the Collective Agreement. On September 18, 2012 he took statements from the complainant as well as three other co-workers. All four employees, as well as the Supervisor, work at the Halifax rail yards. Following the investigation the Employer terminated the grievor effective September 25, 2012. The grievor has apparently since found temporary employment in Alberta.

 

[6]        The issue at hand arises in part because the phrase “the office of the Railway” in Rule 28.5 is not a defined term. The Employer’s representative has taken the position that “the office of the Railway” refers to the Employer’s Head Office which has been located in Montreal since 1923. The Union’s representative responds that the language does not clearly define “the office” as being the Employer’s Head Office in Montreal. He notes that the Employer has offices in other parts of the country, including Halifax. And even if the office intended is the one in Montreal, he submits that the balance of convenience and cost weighs constitute “special circumstances” that favour holding a hearing in Halifax instead.

 

 

Submissions on Behalf of the Union

 

[7]        The Union’s representative acknowledges that Rule 28.5 provides that, at least as a starting point, the hearing is to be held in the office of the Employer. He submits that there is no hard and fast practice as to the location of hearings as between the parties, pointing to arbitrations in the past that have (albeit by agreement of the parties) been held in Belleville and Toronto, Ontario; Edmonton, Alberta; Montreal, Quebec; and Vancouver, British Columbia.  He also places emphasis on the discretion in the Arbitrator “because of special circumstances to holding the hearings elsewhere.”

 

[8]        The Union’s representative also stresses what he submits are elements of natural justice, procedural fairness and convenience. He submits that while the Employer has indicated that it does not intend to call evidence from any of the four co-workers, they may nevertheless be called at the last minute. It would be an extreme inconvenience to them, and would as well be very costly (in terms of travel, accommodation and meals), if they had to be brought to Montreal. The Union’s representative does not appear to be saying that the Union will itself subpoena these witnesses, but if it did it would have to shoulder a significant expense to bring them to Montreal.

 

[9]        The Union’s representative also relied upon the decisions in Re Air Canada and International Association of Machinists and Aerospace Workers, District Lodge 148 (1984) 15 LAC (3d) 69 (McKee) and Re Westfair Food Ltd and United Food and Commercial Workers, Local 401 (2005) 142 LAC (4th) 367 (Price).

 

 

Submissions on Behalf of the Employer

 

[10]      The Employer’s representative submits that the language of Rule 28.5 is clear. A hearing “shall” be heard at its office in Montreal unless there are “special circumstances” that would warrant a departure from the rule.

 

[11]      She acknowledges that on occasion hearings have been held elsewhere, but it has always been by agreement. In the absence of agreement (as is the case here) the office in Montreal should prevail.

 

[12]      The Employer’s representative submits that there are no “special circumstances” that would warrant a departure from the rule. She acknowledges that while the Employer does have “a small office” in Halifax, it has no Labour Relations representative there. The Labour Relations Manager responsible for the case resides in Montreal, and she herself is located in Edmonton, Alberta.

 

[13]      With respect to the Formal Investigation that resulted in the termination, the Employer’s representative submits that neither the grievor nor the Union challenged the investigation at the time it was being conducted. The Employer accordingly had no intention of calling any of the co-workers it interviewed in September 2012, and was content to rely upon the transcripts of the investigation.

 

[14]      Insofar as the cost of bringing witnesses to the hearing was concerned, the Employer’s representative submitted that the Union’s position was simply a function of its litigation strategy. Whoever chooses to call a witness has to bear the cost of calling that witness. There was, in any event, no real need for the Union to call the co-workers as witnesses, since transcripts of their interviews were available. She further submitted that the Union and the grievor had elected at the time of the Formal Investigation not to ask any questions of the witnesses, and it would not be fair to permit them to bootstrap themselves into a hearing in Halifax simply because they had not challenged the witnesses when they had the opportunity to do so in Halifax.

 

 

Analysis and Interim Award

 

[15]      Pursuant to Rule 28.5 the parties agreed that in ordinary course hearings would be held at “the office of the Railway.” The first question obviously is what particular office of the Employer did the parties agree to? The Employer has a number of offices across Canada, and one Head Office, located in Montreal. However, the parties referred to “the office” rather than “an office.” The Employer is a federally incorporated company that operates across the country and into the U.S. Had the parties intended that any office of the Employer would do they would have used the words “an office.” They did not. I accordingly conclude that the parties must have understood and intended the words “the office of the Railway” to refer to the Employer’s Head Office in Montreal.

 

[16]      The next question is whether I should deem it advisable because of special circumstances to hold the hearing elsewhere. Clearly the parties have agreed that an Arbitrator does have a discretion to order that a hearing be held somewhere other than the Employer’s Head Office. The Union’s representative submits that “special circumstances” do exist. He lays heavy emphasis in his submission on the convenience of the parties, and most particularly of the cost associated with any decision to subpoena the potential witnesses from Halifax to Montreal. As a result, he submits that I ought to order the hearing to be held in Halifax.

 

[17]      I have three difficulties with this submission.

 

[18]      First, my discretion as the Arbitrator under Rule 25.8 is not unlimited. It is not any circumstance that I am to take into account. It is only special circumstances. It is not clear to me that as a matter of interpretation the parties intended the phrase “special circumstances” to include the usual and ordinary costs associated with litigation strategy as to who should be called–if at all–to give evidence at a hearing. The Employer, as noted, carries on operations across the country as well as into the U.S. The Union too is a nation-wide organization. I can imagine that there may be times when potential witnesses would have to be called from various parts of the country. The same may apply with respect to counsel or senior labour relations officers or union representatives. But notwithstanding the resulting potential complexities and costs associated with holding arbitration hearings in such a context, the parties agreed that in normal course hearings would be held in Montreal. That suggests to me that the parties had in mind something other than the cost and inconvenience associated with bringing witnesses, counsel and representatives from various parts of the country when they used the term “special circumstances.” There is nothing “special” or “out-of-the-ordinary” about the cost of bringing people–whether witnesses or representatives–to a hearing. It is part of the ordinary cost associated with litigation, especially when one is dealing with national entities that have nation-wide operations.

 

[19]      Second, even if the term “special circumstances” was intended to confer an unlimited discretion on the Arbitrator, it is not clear to me that the costs pointed to by the Union in this case are sufficiently “special” to warrant an order that the matter be held in Halifax. There is always a cost–often a significant one–associated with bringing witnesses and representatives to a hearing, wherever it is held. The parties can be taken to have known and understood that when they agreed to Rule 28.5. Yet they agreed that in normal course the hearing should be held at the Employer’s Head Office. That to me indicates that the costs associated with holding a hearing at the Head Office as opposed to elsewhere would have to be unusually high or entirely out of the ordinary in order to trigger the discretion granted by the phrase “special circumstances.”

 

[20]      Third, and flowing from the second, I am not persuaded that the costs that the Union might shoulder if it decides to bring some or all of the witnesses to Montreal are sufficiently extreme or burdensome to justify the order it seeks. As noted above, such costs are generally a function of litigation strategy. The Employer here has advised that it does not intend to call the Halifax witnesses. The onus is on it to justify the termination. It is entitled to run its “defence” as it sees fit. The Union has not advised that it definitely intends to call the Halifax witnesses. It may decide, given the Employer’s apparent decision to rest its case on the investigation reports and statements alone, and given that the onus of establishing just cause falls on the Employer, not to call those witnesses either. Against that background, I am left with the uncomfortable feeling that the question of where the hearing is to be held is more a question of litigation strategy than of procedural justice.

 

[21]      In this regard I also take note of the Formal Investigation process that the parties agreed to under Appendix III of the Collective Agreement, the details of which I have appended as Appendix “A” to this interim award. The process calls for a detailed investigation that includes taking and recording of witness statements, copies of which are provided to the Union and the grievor, who are given an opportunity to respond and ask questions. Following up on that practice, historically the Employer and its various unions have held arbitration hearings that generally depend only on the documents, statements and other materials gathered during the Formal Investigation process together with oral submissions. In other words, in practice and in ordinary course witnesses are rarely called at a hearing: see Michel Picher, “The Canadian Railway Office of Arbitration: Keeping Grievance Hearings on the Rails” in Lancaster House’s Labour Arbitration Yearbook (1991), pp.37-54; and Abe Rosner, “Ad-Hoc Arbitrations on Canadian Railways” presented at the 50th Annual Meeting of the National Academy of Arbitrators on May 23, 1997 in Chicago.

 

[22]      But be that as it may, even if the Union does elect to call some or all of the Halifax witnesses there is nothing, as noted above, that indicates to me that such costs would be so extraordinary as to amount to “special circumstances.” And as far as the parties themselves are concerned, the Union’s counsel operates out of Toronto; the Employer’s counsel out of Edmonton; and the grievor is currently working in Alberta. The differential between requiring them to come to Montreal as opposed to Halifax is in my view negligible and well within the ordinary.

 

[23]      Finally, I am not persuaded that the decisions in Re Air Canada and International Association of Machinists and Aerospace Workers, District Lodge 148 (1984) 15 LAC (3d) 69 (McKee) and Re Westfair Food Ltd and United Food and Commercial Workers, Local 401 (2005) 142 LAC (4th) 367 (Price) dictate a contrary conclusion.

 

[24]      As I read the Air Canada, Arbitrator McKee was faced with a collective agreement that apparently provided that individual grievances were to be heard in the place of origin (Vancouver in that case), while general policy grievances were to be heard in the headquarters area of both the employer and the union (Montreal). At issue then was the characterization of the grievance. Arbitrator McKee determined that the grievance was a general policy grievance. He accordingly decided that the matter had to be held in Montreal, notwithstanding that some if not all of the potential witnesses were located in British Columbia. In coming to this conclusion he clearly placed the greatest weight on the agreement of the parties that policy grievances should be held in Montreal. In other words, an agreements as to venue outweighed cost considerations, even where the result might be to require witnesses being flown across the country. In the case before me, Rule 25.8 has provided that the normal place of venue is the Employer’s Head Office–which in this case is Montreal–and in my opinion I must place greatest weight on that agreement.

 

[25]      In Westfair Food Arbitrator Price was faced with a collective agreement that did not, unlike here (or indeed in the Air Canada case), contain any agreement with respect to the place of hearing. The Union wanted the matter heard in Grande Prairie, while the Employer wanted it heard in Edmonton. Some of the potential witnesses were located in Grande Prairie; the grievor had moved to British Columbia (though his family remained in Grande Prairie); and both counsel were located in Edmonton. After weighing the balance of convenience Arbitrator Price determined that the matter should be heard in Edmonton. On the facts it is clear that regardless of where the hearing was held there would be costs associated with that location for one or the other–and indeed both–of the parties. The same principle applies here, and for that reason cannot weigh against the general rule agreed upon by the parties in Rule 25.8.

 

[26]      I am accordingly satisfied that

 

a.         The hearing should be heard at the Employer’s office in Montreal, and

 

b.         There are no “special circumstances” that would warrant the exercise of my jurisdiction to order the hearing to instead be heard in Halifax.

 

[27]      The hearing shall take place in Montreal on the dates already agreed upon by the parties, being January 21-22, 2014.

DATED at Halifax, NS this 5th day of December, 2013        _________________________

                                                                                                 Augustus Richardson, QC

                                                                                                  Arbitrator


Appendix “A:”

 

Appendix III: FORMAL INVESTIGATION

 

Except as provided in this Rule 27, when a formal investigation is to be held, the employee and the designated union representative will be given 48 hours’ notice of the investigation and will be notified of the time, place and subject matter of such investigation. (Notification to the designated union representative may be given verbally.) This shall not mean that the proper officer of the Company, who may be on the premises when the cause for such investigation occurs, shall be prevented from holding an immediate investigation.

 

When employees are required to make statements on matters affecting the Agreement, Company working rules or compensation, a duly authorized representative of the employees shall be present, except that when employees are required to make statements on matters not affecting the Agreement, Company working rules or compensation, the employee may have a fellow employee or an authorized representative of the Union present.

 

At or prior to the commencement of the hearing, the employee (and the authorized representative if present) will be provided with a copy of all the written evidence as well any oral evidence which has been recorded and which may have a bearing on their involvement. Sufficient time will be allowed the parties to peruse the evidence. However it is not the intent of this to delay the investigation process due to an unreasonable amount of time taken to peruse the evidence. The employee and the authorized representative will have the right to hear all of the evidence submitted and will be given an opportunity through the presiding officer to ask questions of the witnesses (including Company officers where necessary) whose evidence may have a bearing on their involvement. Where witnesses cannot be present, arrangements will be made to permit them to be questioned upon request, where practicable. The questions and answers will be recorded and the employee and the authorized representative will be furnished with a copy of statements and all other evidence taken. In the event that the Company obtains new evidence having a bearing on the employee’s responsibility, and prior to the assessment of discipline, a copy of such evidence will be provided to the employee, and to the duly authorized union representative.