NOVA SCOTIA COURT OF APPEAL
Citation: Halifax Shipyard v. Industrial Union of Marine
and Shipbuilding Workers of Canada, Local 1, 2005 NSCA 111
Docket: CA 239132
Registry: Halifax
Between:
Halifax Shipyard, a Division of Irving Shipbuilding Inc.
Appellant
v.
Local 1, Industrial Union of Marine and Shipbuilding
Workers of Canada
Respondent
Judges: Cromwell, Saunders and Fichaud, JJ.A.
Appeal Heard: June 13, 2005, in Halifax, Nova Scotia
Held: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Saunders, J.A. concurring; Fichaud, J.A. concurring by separate reasons.
Counsel: Brian G. Johnston, Q.C. and Rebecca Saturley, for the appellant
Ronald Pizzo, for the respondent
Reasons for judgment:
I. Introduction:
[1] For illegally stopping work at its shipyard, the appellant employer fired several members of the respondent union. An arbitrator set aside the dismissals and substituted long suspensions without pay. The employer applied to Moir, J. in the Supreme Court to quash that decision and restore the dismissals, but he refused. The employer appeals.
[2] Underlying the issues on appeal is one straightforward question: Did the arbitrator have authority to set aside the dismissals and substitute a different penalty? The answer turns on whether the collective agreement specifies a penalty for the employees’ conduct. If it does, the arbitrator was bound by it and had no authority to substitute a different penalty. If it does not, the arbitrator could impose penalties which to him seemed just and reasonable. The arbitrator found there was no applicable specific penalty clause and that he could therefore substitute new penalties. The employer’s main contention is that Moir, J. should have found this to be a reviewable error.
[3] In my view, Moir, J. was right to uphold the arbitrator’s decision. The arbitrator made findings of fact that were not patently unreasonable and gave the collective agreement provisions a meaning that they could reasonably bear. There was, therefore, no proper basis to quash his award. I would dismiss the appeal with costs.
II. Facts and Decisions:
1. Overview:
[4] This case arises from the dismissal of seven unionized employees of the Halifax Shipyard. (For convenience, I will refer to them as “the grievors”. In fact, eight employees were dismissed, but there is no longer any issue concerning the arbitrator’s reinstatement of the eighth, Mr. Terry.) The grievors stopped working for about half an hour and then returned to work. The employer says that they were guilty of both an illegal work stoppage and the major offence of insubordination (wilful disobedience of authority) and that for both offences the collective agreement specifies the penalty of dismissal.
2. Arbitrator MacLellan:
[5] The employees grieved their dismissals and the grievances were heard by Arbitrator J. A. MacLellan over some 17 days. In a 66 page award, he set aside the dismissals. In the case of the seven grievors we are concerned with on this appeal, he found that the employer had just cause to impose discipline but that there was no specific penalty of dismissal applicable to them. For the dismissals, he substituted 6 month suspensions without pay.
[6] I will briefly summarize the arbitrator’s critical conclusions.
i. work stoppage:
[7] The grievors left their work out of concern about the employer’s treatment of a fellow-worker, Mr. Tufts. There was extensive conflicting evidence before the arbitrator concerning this incident, but on virtually every point, he preferred the evidence given on behalf of the employer. While the grievors argued that there had been no illegal work stoppage, the arbitrator rejected this contention. He found as follows:
DID THE ACTIONS OF THE GRIEVORS CONSTITUTE AN ILLEGAL WORK STOPPAGE
Cessation of work is included in the definition of a “strike”. A strike is defined in the Trade Union Act as:
“Strike” includes a cessation of work, or refusal to work or continue to work, by employees, in combination or in concert or in accordance with a common understanding, for the purpose of compelling their employer to agree to terms or conditions of employment or to aid other employees in compelling their employer to agree to terms or conditions of employment. (Emphasis added)
I. A Cessation of Work
The evidence presented by the Employer has established to my satisfaction that the Grievors were not carrying out their job duties that each was supposed to be doing while they were in the Machine Shop. I am satisfied that the Grievors who were assigned to Ship Repair were supposed to be assisting with the readying of the dock for the Maritrans Tug and Barge. Those who were in New Construction were supposed to be on the Machine Shop work carrying out duties associated with that project.
II. In combination or in concert or in accordance with a common understanding
I am satisfied that the Employer has established that the Grievors came to the Machine Shop to find out what was happening to Lou Tufts and that they were there in support of Lou Tufts, in effect to influence the Employer’s decision concerning Mr. Tufts.
III. For the purpose of compelling their Employer to agree to terms or conditions of employment or to aid other employees in compelling their employer to agree to terms of conditions of employment
The evidence supports the conclusion that the Grievors left their job sites on May 29th in support of Lou Tufts. I am satisfied that their actions were intended to pressure the Employer and to send a message to the Employer that the Grievors were not pleased with the Lou Tufts situation.
I am satisfied that the Employer has established on the balance of probabilities that there was a strike as defined in the Trade Union Act because of an illegal work stoppage on May 29, 2003.
ii. insubordination (wilful disobedience to authority):
[8] There was considerable evidence before the arbitrator about discussions between the grievors and management during the work stoppage. While the arbitrator found that the grievors should have gone back to work, he concluded that they were not guilty of the major offence of insubordination (wilful disobedience to authority) because they had not been intentionally or wilfully insubordinate:
Having heard seventeen days of testimony I was able to ascertain a flavour of what happened on the morning of May 29. The majority of the Grievors were upset. They did not know what was happening to a fellow employee. They were under a misunderstanding as to why the fellow employee was being disciplined. As it turned out, they were wrong in their understanding for the reason for the discipline. At the time the Grievors were in the Machine Shop there was probably a small lull in the crane operation, however, there was work to be done as a large barge was expected in the yard that day. The entire incident took approximately one-half hour and happened just before the morning break. ...
Having listened to the testimony I have concluded that in Mr. Durrell’s own mind he was directing the Grievors to return to their work sites. However, I am concerned that the directions given to the Grievors may not have been taken as seriously as it should have been, possibly because of some of the words used by Mr. Durrell, “We gotta go back to work”, or, “Guys - let’s go back to work.” This does not excuse the fact that the Grievors should have gone back to their job sites. The conversations with Mr. Durrell and the Grievors was part of a discussion, which again does not excuse the Grievors’ actions, but at least goes to explain their behaviour. In these circumstances I am satisfied that the Grievors may not have heard Mr. Durrell or at least felt they were not given a specific order to return to their work sites. In any event they should have taken Mr. Durrell’s comments much more seriously than they did.
In the circumstances I have to say that the Grievors’ actions or inactions in not returning to the work site immediately cannot in any way be condoned. However, I am satisfied that their failure in not returning to the job site was not intentionally insubordinate. Although they were not wilfully insubordinate they were at least reckless in their actions; which falls, in my view, just short of being wilfully insubordinate. They should have acted in a much more responsible manner. However, in this factual situation I am not prepared to classify this matter as being a major offence as outlined in Schedule “B” of the Collective Agreement. I note that Schedule “B” of the Collective Agreement provides that if an employee is found insubordinate (wilful disobedience to authority) [he or she] will be liable to instant dismissal. In this factual situation I have come to the conclusion on the balance of probabilities that the wilful insubordination alleged by the Employer has not been proven.
(Emphasis added)
iii. just and reasonable penalty:
[9] With respect to the penalty to be imposed, the arbitrator found that all of the grievors had lengthy good work records, ranging from 23 to 35 years of service and that the incident was an isolated and “spur of the moment” situation. He also emphasized the seriousness of the offence. He stated his conclusions as follows:
I have found that the Grievors’ participation in the illegal work stoppage was an effort to pressure the Employer regarding the Lou Tufts’ matter. They were clearly there in support of Lou Tufts. Their actions were ill-advised and their behaviour cannot be tolerated in the workplace. These employees completely ignored and defied the purpose and intention of the grievance procedure as set out in the Collective Agreement. This type of action cannot be condoned. If there ever was any question in the past about the seriousness of illegal work stoppages there should no longer be any question about the seriousness of these stoppages. There can be no doubt that any further involvement of this nature will be dealt with swiftly and concisely by the Employer. Any recurrence of this type of behaviour will, without doubt, result in those participating employees putting their jobs on the line.
The question then remains as to whether I should exercise my discretion to substitute a lesser penalty, other than discharge, for these seven Grievors. A brief profile of each Grievor covering their years of work and work performance was provided by the Employer.
HARRY BONIN was described as having a very good work record. Mr. Bonin was employed as a rigger for thirty-five years.
STAN CHAULK was a rigger chargehand and was described as having a very good work record, having been employed for thirty-one years.
ROGER DOREY was employed as a chargehand, new construction - rigger. Mr. Dorey has been employed for thirty years and was described by the Employer as them being very pleased with his performance.
BOBBY HATCH was employed for twenty-eight years as a rigger and was described as a very good employee.
GARY MCEWAN is a crane operator, new construction and was employed for a lengthy period of time and was described by the Employer of having a good job performance.
ALAN FALL has been employed for twenty-three years and was described as having a good work performance.
CARL SHEA has been employed as a rigger and has been employed for twenty-three years. The Employer is pleased with Mr. Shea’s work performance.
The factors considered by arbitrators in determining whether to mitigate the penalty of discharge are varied but include some of the following:
1. Previous good record of the Grievors
All of the Grievors have a very good work record over their years of employment.
2. Service of the Grievors
The Grievors have been employed with the Employer for many years, ranging from twenty-three to thirty-five years service.
3. Isolated incident
The Grievors’ records do not reveal a significant amount of previous discipline. Indeed, the Employer advised that they did not rely on any previous disciplinary record to support the discharge.
4. Premeditated nature of the offence
I am satisfied that this was a “spur of the moment” situation and was not something that had been planned in advance.
5. Special economic hardship created for the Grievors
There is no need to go into details. Clearly the Grievors have suffered economic hardship. Some of them indeed have mortgages and debts which has caused them to suffer extreme hardship.
6. Seriousness of the offence
There is no doubt in this particular situation that the actions of the Grievors were very serious.
In deciding whether to mitigate the discharge of the seven Grievors I have considered and weighed all of these factors. Many of the factors weigh in favour of the Grievors. However, the matter is serious and that is a fact that has to be taken into consideration.
Having considered all of the factors and the facts herein I have come to the conclusion, with some difficulty, that I should exercise my discretion and rescind the Grievors’ termination. The Grievors’ terminations are to be substituted with a period of suspension. Because of the seriousness of the offence the suspensions will be lengthy. Hopefully these suspensions will be a deterrence to any other employees who consider an illegal work stoppage. I am confident that at least these Grievors would not contemplate any further illegal work stoppages. The suspensions will be without pay from the date of the Grievors’ terminations until January 7, 2004.
...
iv. specific penalty:
[10] The employer’s position was that the arbitrator had no authority to substitute a lesser penalty because the collective agreement set out a specific penalty for these offences: Trade Union Act, R.S.N.S. 1989, c. 475, s. 43(1)(d). The employer pointed to three provisions in the collective agreement which it said set out the specific penalty of dismissal: article 25.03 dealing with work stoppages, Schedule “B” dealing with insubordination (wilful disobedience to authority) and a notice dated in March of 2001 which the employer says is an amendment to the collective agreement. I will review the arbitrator’s findings on each of these in turn.
a. Schedule “B”:
[11] Schedule “B” to the collective agreement lists minor and major offences. One of the major offences is “Insubordination (wilful disobedience to authority)”. The list of major offences is followed by this: “Any employee committing any of the above offences will be liable to instant dismissal. The above list is illustrative and not exhaustive, however, any changes will be subject to negotiations between the Company and the Union.” (Emphasis added)
[12] Following the decisions of other arbitrators (including himself) in matters between these parties, the arbitrator decided that Schedule “B” was a specific penalty clause in relation to the listed major offences. As noted, he found, however, that the grievors’ conduct did not fall within the listed offence of “Insubordination (wilful disobedience to authority)” because they had not been intentionally or wilfully insubordinate.
b. article 25.03:
[13] Article 25.03 provides:
25.03 There shall be no strikes, walkouts, slowdowns, lockouts, or other similar interruption of work during the life of this Agreement until compliance with all requirements of the Trade Union Act.
Any employee or employees violating any of the provisions of this Article shall be subject to dismissal.
[14] The arbitrator contrasted this language with that used in Schedule “B” which, as noted, he found to be a specific penalty clause. He found that the words in 25.03, “... shall be subject to dismissal ...” did not convey that dismissal was the prescribed penalty in light of the use of the clearer language in Schedule “B” that the employee would “... be liable to instant dismissal” for the listed offences.
c. amendment of collective agreement:
[15] The employer also relied on a document dated in March of 2001 and signed by both its manager of employee relations and the union’s business agent. The employer says that this notice is an amendment to the collective agreement which added unlawful interruption of work to the list of major offences set out in Schedule “B”, thereby making it subject to the specific penalty of dismissal. This document is an important one from the employer’s perspective and I, therefore, reproduce it in full:
N O T I C E
TO: ALL LOCAL 1 EMPLOYEES
DATE: MARCH 13, 2001
RE: ILLEGAL WORK STOPPAGE
*******************************************************
ON FEBRUARY 9, 2001 AN ILLEGAL WORK STOPPAGE OCCURRED AT HALIFAX SHIPYARD WHEN A NUMBER OF LOCAL 1 EMPLOYEES REFUSED TO GO TO WORK OR RETURN TO WORK IN PROTEST OF A MANAGEMENT ACTION/INACTION THAT THEY WERE IN DISAGREEMENT WITH.
THIS IS TO NOTIFY ALL LOCAL 1 MEMBERS THAT SUCH UNLAWFUL INTERRUPTION OF WORK IS A BREACH OF ARTICLE 25.03 OF THE COLLECTIVE AGREEMENT AND IS A MAJOR OFFENSE UNDER THE TERMS OF THE COLLECTIVE AGREEMENT.
DISPUTES WITHIN THE WORKPLACE ARE TO BE RESOLVED THROUGH THE GRIEVANCE PROCEDURE AND/OR THROUGH DISCUSSIONS BETWEEN THE UNION AND MANAGEMENT.
THE UNLAWFUL INTERRUPTION OF WORK IS NOT AN ACCEPTABLE FORM OF PROTEST OR DISPUTE RESOLUTION AND ANY LOCAL 1 MEMBER PARTICIPATING IN ANY FUTURE SUCH INTERRUPTION OF WORK SHOULD EXPECT TO BE DEALT WITH IN ACCORDANCE WITH ARTICLE 25.03 AND THE MAJOR OFFENSES SECTION OF THE COLLECTIVE AGREEMENT.
DAVID THOMSON STEVE SOUTHALL
MANAGER, EMPLOYEE RELATIONS BUSINESS AGENT - LOCAL 1
[16] The arbitrator found that the grievors were not aware of the contents of the notice and that it could not, therefore, be applied to them:
In regard to the Notice (C-2) David Thompson testified that this was a joint notice from the Union and the Employer which resulted from an illegal work stoppage. Mr. Thompson stated that this notice was mailed to all unionized employees. However, the Grievors testified that they had never seen the Notice before this hearing or did they recall receiving it in the mail. One Grievor, Carl Shea, acknowledged seeing something like C-2 on the bulletin board. On this point the Grievors appeared sincere in their testimony and I have to give them the benefit that they were not aware of the contents of this Notice. As a result they should not be prejudiced because of that fact. Had they received this Notice then the outcome in this matter may have been different.
3. Moir, J.:
[17] Both the union and the employer applied to quash the arbitrator’s award. The union submitted that there had been no illegal work stoppage while the employer maintained that the specific penalty of dismissal applied to the grievors’ conduct. Moir, J. dismissed both applications but only the employer’s application is the subject of this appeal. I will briefly review the learned judge’s reasons in that regard.
i. the issues:
[18] Moir, J. noted that the employer raised three issues:
(1) Did the arbitrator exceed his jurisdiction by failing to find that there was a specific penalty for participation in an illegal work stoppage? (I will call this the Article 25.03 issue);
(2) Did the arbitrator commit reviewable error in concluding that participating in an illegal work stoppage was not a major offence? (I will call this the amendment issue); and,
(3) Did the arbitrator commit reviewable error in finding that the grievors’ actions did not constitute insubordination? (I will call this the Schedule “B” issue).
ii. Standards of Review:
[19] Following a comprehensive discussion of the relevant factors, the judge concluded that patent unreasonableness was the applicable standard for review of the arbitrator’s fact-finding. With respect to the questions of whether the collective agreement contained a specific penalty and whether the grievors were bound by the March, 2001 notice, he concluded the applicable standard of review was simple reasonableness: reasons of Moir, J., para. 34.
iii. the Article 25.03 issue:
[20] The judge said that the arbitrator’s interpretation of Article 25.03 was not advanced as a basis of review, but he considered the point and noted that the article, read in the context of the agreement as a whole, reasonably supported the arbitrators’s conclusion that Article 25.03 was not a specific penalty clause:
...it seems to me that the slight difference in wording between “shall be subject to dismissal” in article 25.03 and “will be liable to instant dismissal” in Schedule “B” might be explained on the ground that major offences attract the ultimate penalty, while dismissal is one end of a range of penalties for a violation of article 25.03. That explanation is attractive because one would expect all offences for which dismissal is the “specific penalty” to be found in the major offences provision.
iv. the amendment issue:
[21] As noted, the arbitrator found that the March, 2001 notice was not binding on the grievors because they had no notice of it. The employer advanced two errors in the arbitrator’s decision on this point, but the judge rejected both. In response to the employer’s submission that the absence of notice was irrelevant, the judge held that it would be unreasonable to interpret a document headed “Notice”, as this one was, as evidencing an amendment unless the amendment was conditional upon notice. He also noted the difficulties of finding a contractual amendment given that the signing parties are substantially different than on the original collective agreement, the document is on the letter head of one of the parties and where it is in the form of a notice and nowhere mentions amendment. The employer also submitted that the arbitrator had erred in finding that no notice had been given, but the judge quickly dismissed this submission on the basis that this factual finding was not patently unreasonable on the record before the arbitrator.
v. the Schedule “B” issue:
[22] Moir, J. did not provide a detailed analysis of the employer’s argument that the grievors had committed the major offence of insubordination (wilful disobedience to authority) as set out in Schedule “B” to the collective agreement. It appears that the arbitrator’s conclusion that there had not been wilful disobedience was considered by the judge to be a finding of fact that was not patently unreasonable.
III. Issues:
[23] On its appeal from the judge’s decision, the employer raises four issues:
1. Did Moir, J. err in law by applying the patently unreasonableness standard of review to Arbitrator MacLellan’s decision as to whether the Grievors’ conduct constituted insubordination?
2. Did Moir, J. err in law by deciding that Arbitrator MacLellan did not make a reviewable error when concluding that the Grievors were not wilfully insubordinate?
3. Did Moir, J. err in law by deciding that Arbitrator MacLellan did not make a reviewable error when concluding that the Grievors should not be terminated as a result of their breach of Article 25.03 of the Collective Agreement.
4. Did Moir, J. err in law by deciding that Arbitrator MacLellan did not make a reviewable error when concluding that the March 13, 2001 Notice which advised the Grievors that an “unlawful interruption of work” was a major offence and which was signed by both a representative of Local 1, Industrial Union of Marine and Shipbuilding Workers of Canada, and Halifax Shipyard, was not an amendment to the Collective Agreement.
IV. Analysis:
1. Standard of Review:
[24] The arbitrator, as noted, found that the grievors’ conduct was not intentionally or wilfully insubordinate. Moir, J. appears to have treated this as a finding of fact and reviewed it on the patently unreasonable standard. The employer says that the arbitrator’s conclusion was one of mixed law and fact because it involved the interpretation of the word “insubordination” and its application to the facts. The applicable standard of review, submits the employer, is reasonableness, not patent unreasonableness.
[25] I will assume, without deciding, that the employer is right and turn my attention to whether it was unreasonable for the arbitrator to conclude that the grievors were not intentionally or wilfully insubordinate.
2. Was the finding in relation to insubordination (wilful disobedience to authority) reasonable?
[26] The employer submits that there is no line of analysis that reasonably supports the arbitrator’s conclusion that the work stoppage in this case did not constitute the major offence of insubordination (wilful disobedience to authority). Two basic points are advanced. First, the employer says that the arbitrator made inconsistent and, therefore, unreasonable findings of fact. Second, the employer submits that the arbitrator’s finding that the grievors acted recklessly, but not wilfully, is unreasonable on a number of grounds. There is no difference, says the employer, between wilful and reckless behaviour. Moreover, insubordination, it is submitted, does not have to be founded on a refusal to follow a direct order so long as the employees were aware of the duties expected of them. Finally, the employer submits that insubordination is “an intrinsically wilful act.”
[27] I do not accept any of these submissions. In my respectful view, they are based on a misunderstanding of the arbitrator’s reasons. The question facing the arbitrator was not whether the grievors failed to do what they knew they should, but whether they committed the major offence of “Insubordination (wilful disobedience to authority)”. The major offence is not simply “insubordination”, but “insubordination (wilful disobedience to authority)”. The arbitrator, therefore, had to determine what was included within that major offence.
[28] In my view, it is reasonable to conclude, as I think the arbitrator did, that the offence of insubordination may be either more or less serious depending on the circumstances. As Donald J.M. Brown and David M. Beatty say in Canadian Labour Arbitration, 3rd ed., (Toronto: Carswell, 1988) at para 7:3612: “... most, though not all, arbitrators have adopted the view that the absence of a subjective intention to defy management ... does not justify the employee’s refusal to comply with the supervisor’s orders, although it may serve to lessen the seriousness of the misconduct.” (Emphasis added). It is not only reasonable but, in my view, simple common sense to say, as Brown and Beatty suggest, that it may be more serious to defy management intentionally than to simply fail to do what the employee knows management wants done. Faced with a penalty clause specifying dismissal as the punishment in the case of “insubordination (wilful disobedience to authority)” it was not, in my view, unreasonable for the arbitrator to conclude that the parties intended, by the use of that language, to refer only to the most serious type of insubordination which involves a subjective intention to defy management.
[29] In light of that conclusion, the arbitrator, understandably, focussed on the grievors’ degree of blameworthiness to determine whether their conduct fell within the major offence of insubordination (wilful disobedience to authority). As noted, he found that they were recklessly, but not intentionally, insubordinate. He equated the word “wilful” with “intentional” as is evident from his comment that “...their failure in not returning to the job site was not intentionally insubordinate. Although they were not wilfully insubordinate they were at least reckless in their actions ...” (Award page 49, emphasis added)
[30] The employer says that this finding is unreasonable or patently unreasonable in light of the arbitrator’s other findings, notably the following:
· that the grievors were aware that they should not have been in the machine shop at that time.
· that they should not have been in the machine shop at the time in question.
· the grievors should have gone back to their job sites.
· they should have taken Mr. Durrell’s [ the ships repair manager] comments much more seriously than they did.
· that the grievors’ actions or inactions in not returning to the work site immediately cannot be condoned.
[31] I cannot accept that these findings are inconsistent with the arbitrator’s overall conclusion about the degree of blameworthiness of the grievors’ conduct. The arbitrator heard some 17 days of evidence and, as he put it, was able to ascertain “a flavour” of what happened. With that advantage, he concluded that the grievors “may not have heard [the ship repair manager] or at least felt they were not given a specific order to return to their work sites.” He carefully reviewed the evidence on this point, particularly at page 47 of his award, and his conclusions are reasonably supported by that review. It bears repeating that, at this point in his award, the arbitrator was not dealing with whether the employer had proved insubordination, but whether the employer had proved the major offence of “Insubordination (wilful disobedience to authority)”. His factual findings, placed in that context, are not either unreasonable or patently unreasonable.
[32] The other points raised by the employer may be consolidated into two related questions. The first is whether the arbitrator unreasonably concluded that there is a difference between insubordination in general and the major offence with the specific penalty of dismissal called “Insubordination (wilful disobedience to authority)”. For the reasons I have already given, I conclude that this is not an unreasonable interpretation of the collective agreement. The second question is whether it was unreasonable to conclude that the difference is that the major offence requires a subjective intent to defy management’s authority. In my view, it was not.
[33] As noted, the arbitrator clearly equated the word “wilful” in the collective agreement with the word “intentional” and distinguished both from “reckless”. I reject the employer’s submission that this was an unreasonable interpretation. I accept that “intentional” is not the only meaning which may reasonably be ascribed to the word “wilful”, but it is one of those reasonable meanings. Moreover, although “wilful” may in some contexts include “ reckless”, it may in others mean only “intentional”. That being so, it was not unreasonable for the arbitrator to have interpreted the word “wilful” as meaning “intentional” but not “reckless” in the context of deciding what sort of conduct was included in the major offence of “insubordination (wilful disobedience to authority)”.
[34] The employer says that ‘wilful’ and ‘reckless’ mean the same thing. With respect, the authorities relied on do not support this view. For example, the employer referred us to a definition of “wilfully” from The Dictionary of Canadian Law, 2nd ed., (Toronto: Carswell, 1995). But that definition notes that the word “wilfully” has not been uniformly interpreted and that its meaning to some extent depends upon the context. In fact, the Dictionary definition affirms that the primary meaning of “wilfully” is “intentionally”, that is “deliberately and purposefully.” Moreover, in criminal law, there is a longstanding and well-known distinction between “intention” and “recklessness”. Intentional behaviour is generally that resulting in consequences which the actor knows will ensue. As Lamer, C.J. said in R. v. Hibbert, [1995] 2 S.C.R. 973 at 996, “ ... a person who consciously performs an act knowing the consequences that will ... flow from it “intends” these consequences ...”. (emphasis added) A reckless actor, on the other hand, proceeds even though aware of the risk of the consequences. As McIntyre, J. put it in a memorable phrase, recklessness is “... the conduct of one who sees the risk and ... takes the chance.”: R. v. Sansregret, [1985] 1 S.C.R. 570 at 582; see also Don Stuart, Canadian Criminal Law A Treatise, 4th ed. (Toronto: Carswell, 2001) at 223. Thus, while the word “wilful” has not been uniformly interpreted, it may reasonably be thought to refer to intentional but not reckless behaviour.
[35] The employer relies on the proposition that either “intention” or “recklessness” may be a sufficient mental element for many criminal offences. But that, with respect, is not the point. The point is that, as I have shown, there is a long-standing and well-recognized distinction between intentional and reckless conduct and that it is also well-recognized that “wilful” may be used to mean only “intentional”. In light of this, it was not unreasonable, in the context of interpreting the major offence penalty provision in a collective agreement, for the arbitrator to have equated “wilful” with “intentional” and to have distinguished it from “reckless.” The arbitrator said, in effect, that the employees knew they should be at work and should have gone to work, but they did not intend to defy the authority of management. In my view, neither the distinction he drew between “wilful” and “reckless”, nor the inferences he drew concerning the grievors’ states of mind was unreasonable.
3. The Article 25.03 issue:
[36] In my respectful view, the arbitrator did not fail to give the words of Article 25.03 a meaning which they could reasonably bear when he concluded that it did not create the specific penalty of dismissal for illegal interruptions of work.
[37] As the respondent points out, a number of arbitrators have concluded that penalty clauses using language such as “shall be subject to dismissal” that appears in Article 25.03 merely indicate that discharge may be imposed but do not specify that penalty: see, for example, Re Concrete Supplies of Windsor Inc. and Teamsters Union, Local 880 (1984), 14 L.A.C. (3d) 1 and Re Hibernia Employers’ Association Inc. and Newfoundland and Labrador Oil Development Allied Trades Council (1994), 43 L.A.C. (4th) 354 and the decisions reviewed therein. So there is some arbitral authority for the approach taken by the arbitrator here. In addition, there is in this collective agreement a lengthy and detailed schedule (Schedule “B”) setting out offences with the specific penalty of dismissal. The fact that illegal work stoppage is not listed there reasonably supports the conclusion that Article 25.03 does not attach the specific penalty of dismissal to violations of that article.
[38] I would not give effect to this ground of appeal.
4. The amendment issue:
[39] This issue is concerned with whether the March, 2001 document was effective to make dismissal the specific penalty for illegally stopping work.
[40] There was little evidence concerning how the March, 2001 document, headed “ Notice”, came into being. The employer’s manager of employee relations referred to this document in his evidence as a “joint notice” and, so far as we know, there was no evidence before the arbitrator of negotiations between the parties leading up to its signing. It was printed on the company letterhead and expressed in terms of notice rather than agreement. Neither the word “agreement” nor the word “amendment” appears in it. The letters of termination issued by the employer did not refer specifically to this alleged amendment of the collective agreement, but rather specified Article 25.03 and the major offence provisions in Schedule “B”.
[41] The employer submits that the arbitrator committed a reviewable error by finding that the March, 2001 Notice did not add illegal work stoppage to the list of major offences in Schedule “B” and that Moir, J. erred by failing to quash the award on that basis.
[42] Schedule “B” to the agreement, which lists major offences with the specific penalty of instant dismissal, also includes a provision that the list of offences is illustrative and not exhaustive and that “... any changes will be subject to negotiations between the Company and the Union.” The employer notes that the Notice meets the formal requirements for a collective agreement under s. 2(1)(e) of the Trade Union Act, in that the notice is in writing and signed. It submits that an amendment to a collective agreement should not be held to the standard of a commercial contract, that the signatures on behalf of both parties clearly indicates the intention to be bound and that the document was a clear attempt to remedy the problems flowing from the earlier work stoppage to which it refers: see, for example: Re Our Own Bakeries Inc. and Retail, Wholesale & Department Store Union, Local 655 (1964), 43 L.A.C. 467 at p. 469; Re Corning Glassworks of Canada Ltd. and American Flint Glass Workers Union (1981), 29 L.A.C. (2d) 195 at p. 200; Re Chelsey Park Nursing Home and Ontario Nurses’ Association (1982), 4 L.A.C. (3d) 44 at p. 4; and Re Borough of Etobicoke and Nurses’ Association, Community Health Department Borough of Etobicoke (1979), 21 L.A.C. (2d) 233 at p. 240.
[43] The approaches of the arbitrator and Moir, J. to this issue were somewhat different and so I will briefly review them.
[44] The arbitrator’s decision turned on his finding that the grievors had not received the March, 2001 notice. It is not entirely clear to me on what legal basis the arbitrator concluded that notice was the critical issue.
[45] Moir, J., if I properly understand his reasons, found that the arbitrator had reasonably concluded that notice to the employees was critical because the document was in the form of, and seemed intended to be, a notice. He thought there were three possible interpretations of the Notice:
(a) The Grievors were told that they should expect, but were free to argue for a different interpretation; the document had no legal effect.
(b) In Arbitrator MacLellan’s interpretation, the employer had determined to make a company rule about illegal work stoppages and was attempting to give the required notice, but failed to provide the requisite notice.
(c) The document is an amendment as suggested by Halifax Shipyard.
[46] Moir, J. imputed the following reasoning to the Arbitrator:
The third possibility is that the document is an amendment. If so, one cannot ignore all the words about notice. The title. The addresses. The comment, “this is to notify ...”. And, any Local 1 member ... should expect ...”. It would be unreasonable to interpret this document as evidencing an amendment unless the amendment were interpreted as conditional upon notice. These are thoughts that had to underlay the arbitrator’s decision and, in my opinion, it was reasonable for him to treat notice as the ultimate issue.
[47] The employer relies solely on Moir, J.’s third possibility – that the March, 2001 document was an amendment to the collective agreement. That being so, the reception of notice is irrelevant, it is argued, because ignorance of the terms of the collective agreement is no excuse: Dale and Treasury Board (Department of Environment - Parks Canada), [1982] C.P.S.S.R.B. No. 121 at para. 23; United Electrical, Radio & Machine Workers of America in Re Canadian General Electrical Co. (Davenport Works) (1953), 3 L.A.C. 980 at p. 982; Oaklands Regional Centre and O.P.SW.E.U., Local 249, 1991 C.L.A.S.J. LEXIS 10836 at para. 26; Riverdale Hospital and C.U.P.E., Local 79, 1988 C.L.A.S.J. LEXIS 12673 at para. 16; N.S.U.P.E., Nova Scotia Union of Public Employees, Local 2 v. Kendall (1996), 152 N.S.R. (2d) at para. 14; and Canadian National Railway Co. and International Association of Machinists (Lavoie) (1991), 16 L.A.C. (4th) 9 at 12.
[48] Whatever view one takes of the notice question, it seems to me that the amendment issue may be resolved on a much simpler and more secure basis. In my respectful view, the March, 2001 notice was precisely what the employer’s manager of employee relations said it was, a “joint notice”. It warned employees, with the concurrence of the union, that they faced dismissal for work interruptions.
[49] It is fundamental to any contractual agreement that the parties intend to contract: see, for example: Re Bakery and Confectionary Workers’ International Union, Local 322 and Canada Bread Co. Ltd. (1970), 22 L.A.C. 98. As Arbitrator Christie put it long ago, “... whether a document will be treated as part of the collective agreement must depend, in the final analysis, on whether the parties have manifested an intention to make it part of the agreement”: Re Bakery and Confectionary Workers’ International Union, supra at 103.
[50] The Notice of March, 2001 does not purport to be an agreement. It does not indicate the union and the company have agreed on anything. There is no reference to any amendment to the collective agreement. There is no evidence of any negotiations leading up to such agreement. None of this is consistent with an intention to amend the collective agreement. Moreover, the document is ambiguous. It says that employees who participate in future interruptions of work should expect to be dealt with “... in accordance with article 25.03 and the major offence section [Schedule “B”] of the collective agreement.” However, the arbitrator found that Article 25.03 is not a specific penalty clause, so the notice, in effect, tells employees that they may or may not be treated in accordance with a specific penalty provision.
[51] In my view, Moir, J. did not err in concluding that the arbitrator had reasonably concluded that the March, 2001 Notice was not an effective specific penalty clause in the collective agreement.
V. DISPOSITION:
[52] I would dismiss the appeal with costs fixed at $1500 plus disbursements.
Cromwell, J.A.
Concurred in:
Saunders, J.A.
Concurring Reasons for judgment:
[53] I agree with all aspects but one of the reasons delivered by Justice Cromwell, and I concur with the disposition.
[54] I do not share my colleague’s approach to the March, 2001 Notice. Justice Cromwell characterizes the Notice as a “joint notice” with “concurrence”, but not an agreement that unlawful work interruptions are a “major offense”. In my respectful view, the document was joint notice of an agreement that unlawful work interruptions be a “major offense”.
[55] Schedule “B” of the collective agreement permits a change to the list of major offences by an instrument which results from “negotiations between the Company and the Union”. The issue is whether the March, 2001 Notice was such an instrument.
[56] The Notice was signed by agents of the Company and the Union. There is no doubt as to the signators’ authority to execute on behalf of the Company and the Union.
[57] The Notice cites an earlier occasion when “employees refused to go to work or return to work in protest of a management action/inaction that they were in disagreement with”, and then says “such unlawful interruption of work is a breach of Article 25.03 of the Collective Agreement and is a major offense under the terms of the Collective Agreement.” In my view, the instrument embodies a negotiated agreement between the Company and the Union that a “refus[al] to go to work or return to work in protest of a management action/inaction that [the employees] were in disagreement with” ... “is a major offense under the terms of the Collective Agreement.”
[58] I see no uncertainty as to the parties’ intention to agree, manifested objectively by the wording of their executed document. Neither do I detect any ambiguity in the agreement that the defined conduct “is a major offense under the terms of the Collective Agreement.”
[59] It is unnecessary that the Appeal Books contain evidence of the to and fro of negotiations leading to this agreement. The agreement itself establishes the culmination of negotiation. In any case, as there was no transcript of the extensive testimony before the arbitrator, this Court cannot say whether or not there was evidence of events leading to the Notice.
[60] Insofar as the statutory definition of “collective agreement” may be relevant, the document is a signed agreement in writing between an employer and a bargaining agent, executed on their behalf by authorized agents, containing terms and conditions of employment, within s. 2(1)(e) of the Trade Union Act, R.S.N.S. 1989, c. 475.
[61] These conclusions do not end the matter. The instrument is entitled “NOTICE”. The paragraph which designates an unlawful work interruption as a “major offense” begins with: “This is to notify all Local 1 members that ...”. The Company and the Union agreed that the designation of unlawful work interruptions as a “major offense” would be subject to notice to Local 1 members. I do not say that amendments to a collective agreement generally require such notice. But a reasonable interpretation of this instrument manifests an agreement that notice be a trigger. The Arbitrator found that the present Grievors had not received notice and Justice Moir saw no basis to set aside that finding. Neither the arbitrator nor Justice Moir made a reviewable or appealable error in that regard.
[62] For those reasons I would dismiss the ground of appeal with respect to the March, 2001 Notice and, for the reasons stated by Justice Cromwell, I would dismiss the other grounds of appeal.
Fichaud, J.A.