IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Nova Scotia (Justice) v. Nova Scotia Government and General Employees Union,
2004 NSSC 207
Date: 20041020
Docket: S.H. 220671
Registry: Halifax
Between:
The Nova Scotia Department of Justice
representing Her Majesty the Queen
in Right of the Province of Nova Scotia
Applicant
and
Nova Scotia Government and General Employees Union
(Murray Munro) and William H. Kydd, QC
Respondents
DECISION
Judge: The Honourable Justice Gerald R. P. Moir
Date Heard: 17 August 2004
Counsel: Dale A. Darling, Counsel for the Applicant
Gail L. Gatchalian, Counsel for the Respondent Union
Moir, J.:
[1] Introduction - Mr. William H. Kydd, QC was appointed sole adjudicator of a grievance brought by Murray Munro, a member of the Nova Scotia Government and General Employees Union, against the Nova Scotia Department of Justice. Mr. Munro’s employment as a corrections officer with the Department was terminated because, “...you admitted knowing of the presence of a significant number of marijuana plants in your residence. You also admitted to smoking marijuana.” Although it agreed that the Department had just cause for termination, the Union grieved for a reduced penalty. The Learned Adjudicator allowed the grievance, set aside the discharge and substituted a one year suspension without pay. The government applies for an order in the nature of certiorari.
[2] The government basis its case for review upon two evidentiary rulings made against it by Adjudicator Kydd in the course of the six days of hearing before him and upon the Learned Adjudicator’s determination of the merits of the question before him. I will deal with those issues after making some reference to Adjudicator Kydd’s findings and describing the statutory and contractual framework of the adjudication.
[3] Facts - After having worked with the RCMP for a number of years, Mr. Munro joined the Department of Justice as a part-time corrections officer in 1994. Eventually, he worked full-time although he remained classified as a part-time worker. In August 2001, he became a full-time corrections officer. The Department terminated his services in December of that year.
[4] On 12 October 2001 the RCMP searched the home of Mr. Munro and his wife, Judith Munro. They found sixty-five marijuana plants growing in the basement of the Munro home. Both husband and wife were charged with cultivation of marijuana, possession for the purposes of trafficking, possession of marijuana and theft of electrical power. That same day, the police advised the Department of what had happened and Mr. Munro was suspended pending investigation. On 4 December 2001 the Deputy Minister terminated Mr. Munro’s employment by letter and the letter gave the reasons quoted in paragraph one above.
As the letter suggests, the degree of Mr. Munro’s culpability is in his knowledge of the presence of the plants in his home. The plants had been grown by his wife over his objection. Ms. Munro suffers from medical conditions that she tolerates better when under the affects of cannabis. Nevertheless, the Deputy Minister was of the view that Mr. Munro’s knowledge was enough to make his conduct “incompatible with your employment at the Department of Justice”.
[5] The Munros were never tried. One of the investigating officers turned out to have been dealing in drugs and the charges were stayed. Mr. Munro grieved his dismissal. The Learned Adjudicator accepted his evidence and that of his wife concerning Ms. Munro’s cultivation of the sixty-five plants and Mr. Munro’s opposition to her activity. The hearing lasted for six days. Arbitrator Kydd rendered a lengthy decision in which he articulated his key findings of fact:
...it was Mr. Munro’s acquiescence to the grow operation in his home of a significant amount of marijuana that [was] the major conflict with his duties as a correctional officer.
The Union concedes that one of the factors that justify an Employer imposing discipline for off duty conduct, namely conduct that harms the Employer’s reputation, is present and admitted in this case.
There are a number of strong mitigating factors which had to be weighed against the grievor’s serious breach of trust as a corrections officer.
Mr. Munro had seven years of satisfactory performance as a corrections officer.... Mr. Munro’s performance reviews were overwhelmingly positive.
One of the strongest mitigating factors is that Mr. Munro was involved in wrongdoing because of compassion for his wife. He could see that she believed that marijuana use was controlling her pain, and he acquiesced because he says he loved her and was not willing to leave her.
He expressed what I believe was sincere remorse for any injury done to the Employer’s reputation. He said that he is relying on Mrs. Munro’s promise [to refrain from smoking marijuana], and that if she brings marijuana in the house again he will leave her.
Another relevant mitigating factor that is usually considered is the economic hardship imposed by a termination. Mr. Munro has spent the better part of his working life to date in the law enforcement area, and the termination of his employment makes his prospects of obtaining a similar paying job somewhat bleak. Mrs. Munro’s medical condition requires expensive medication and renders her unemployable, so that the Munros continue to face serious economic hardship.
In addition to contesting his conclusions, the Department of Justice takes exception to the Learned Adjudicator’s findings on mitigation in reference to two subjects in particular. The Department argues that Adjudicator Kydd put too much emphasis on the evidence of Acting Sergeant Rose to the exclusion of other senior staff when the Learned Adjudicator made his findings concerning rehabilitation:
I also accept the Union’s submission that there is a high potential for rehabilitation. This is apparently the only blemish in a successful career as a corrections officer. It was brought on by circumstances that pressured Mr. Munro into making a bad decision. Those circumstances have now been removed. Acting Sargent Rose testified that in his opinion the Criminal Code charges that were made (and then stayed) against Mr. Munro would not have an effect on Mr. Munro’s ability to control or otherwise deal with inmates. He said that it was a “given” that any new officer would be approached by inmates to bring in drugs, but that he was confident that in all of the years he worked in the Correction Centres no officers had succumbed, and that he didn’t think that Mr. Munro would face any unusual pressure because of the publicity this case had received in the newspapers.
The Employer’s concerns in the present case however go beyond harm to its reputation. There was evidence that contraband drugs are one of the most serious threats to the security of the Correctional Centre and the well-being of its staff and inmates. Inmates are constantly seeking new means of smuggling drugs into the Correctional Centre. Needless to say senior staff were very apprehensive about having Mr. Munro continue as a corrections officer after the publicity about the grow operation in his basement. Mr. Parsons, the Director of Correctional Facilities for the province, testified that in the circumstances the Employer felt that Mr. Munro’s behaviour did not merit the progressive discipline approach as they considered that he would be a “walking target” for the inmate population in its efforts to get drugs. However after considering the particular facts in this case and in particular the evidence of Acting Sargent Rose, I believe Mr. Munro should be able to be successfully reinstated as a corrections officer, and so there is no need for termination on the grounds of incompatibility. There remains the question of deterrence which I believe can be satisfied with an appropriate lengthy period of suspension.
Also, the Department argues that the comparison of Mr. Munro’s conduct with impaired driving was inappropriate in this passage of Adjudicator Kydd’s decision:
The Union also submits that another mitigating factor is that other corrections officers, sometimes in more senior positions, have only received relatively short suspensions for Criminal Code infractions. As an example evidence was produced of a corrections officer with the rank of Sargent who had been convicted under the Criminal Code of impaired driving in 2001 and was given a two-day suspension by the Employer. In 2003 the same officer was again convicted of impaired driving and this time the Employer imposed a 15 day suspension. The Employer sought to distinguish those offenses, on the basis that alcohol is not a banned substance. The evidence indicates that access to illegal drugs is of great concern to the security of a correctional facility, and in that respect a corrections officer with ready access to a large supply of marijuana has to be considered a serious threat to security. However an important part of the Employer’s argument justifying Mr. Munro’s termination is the effect the publicity about his conduct in flouting the law has on the reputation of the Correction Centre and the correction officers that staff it. Impaired driving is now treated much more seriously than simple possession of marijuana. If the public was aware of the circumstances giving rise to Mr. Munro’s conduct, I doubt that his actions would be judged as flouting the law more than the actions of an impaired driver.
[6] Statute and Collective Agreement - Schedule “A” to the Corrections Act, RSNS 1989, c. 103 concerns collective bargaining. Management rights are, subject to the collective agreement, dealt with in s. 17(2) of the Schedule, which includes:
it is the exclusive function of the Employer to...(b)...discipline an employee, provided that...a claim that an employee has been discharged, suspended, disciplined or demoted without reasonable cause may be the subject of a grievance where a collective agreement provides for a grievance procedure.
Paragraph 17(2)(c) specifies offences, such as theft, for which the employer is entitled to discharge the employee. None of these apply here. The collective agreement between the government and the NSGEU Correctional Officers Union provides in Article 29(1) that the employer may only discipline, suspend or discharge for “just and sufficient cause”. An employee who has been suspended or discharged in violation of art. 29(1) “may invoke the grievance procedure including provisions for adjudication”: art. 29(3).
[7] Grievance procedures are provided in s. 29 to s. 33 of the statutory schedule and in art. 30 of the collective agreement. In accordance with s. 29(1) of the Schedule, which requires “a provision for final settlement...by adjudication or otherwise”, art. 30 of the collective agreement provides for grievance in certain cases including “where an allegation is made...that an employee has been demoted, discharged, suspended, or disciplined without just and sufficient cause”. The agreement provides for three steps in the grievance procedure to attempt settlement without adjudication. Step One of the grievance procedure involves an attempt to settle with the superintendent. Step Two involves an attempt to settle with “the person designated by the Employer as the second level in the grievance procedure”: art. 30(4). Step Three leads to a decision by the Deputy Minister, which “shall be final and binding upon the employee(s) and the Union unless the grievance...may be referred to adjudication”: art. 30(5). It may be referred to adjudication if it is “with respect to the application and interpretation of the provisions of this collective agreement”: art. 30(6). Also, as I said, Article 29(1) permits suspended or discharged employees to invoke grievance procedures including adjudication and s. 29(4)(b) of the statutory Schedule is to like effect. For the most part, procedure on adjudication is found in the statutory Schedule rather than the collective agreement. The Schedule provides for adjudication by a board of adjudication or, where, as in this case, the parties agree, a single adjudicator. Subsections 33(2) and 33(3) require the parties to take such action as the adjudication decision requires and s. 33(4) specifically allows for substitution of penalty:
Where an adjudicator or an adjudication board determines that an employee has been discharged or disciplined by the Employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject of the adjudication, the adjudicator or the adjudication board has power to substitute for the discharge or discipline any other penalty that to the adjudicator or the adjudication board seems just and reasonable in the circumstances.
Employees cannot strike: Schedule, s. 34(1). The Union cannot sanction, encourage or support a strike: s. 35.
[8] Evidentiary Ruling on Privilege - The first issue raised by the government concerns one of Adjudicator Kydd’s evidentiary rulings. He excluded a letter of Mr. Munro’s to the Deputy Minister in which Mr. Munro made admissions and asked for reconsideration. The Learned Adjudicator held that this was a communication in the course of the grievance process, which communications are accorded privilege in arbitrations. The government argues that this ruling constituted a denial of natural justice reviewable in accordance with the principles in Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471. In the submission of the government the evidentiary ruling is “to be reviewed on the standard of correctness”. Following the Wigmore conditions for privileged communications, the ruling will not withstand that review because “while confidentiality was essential during the grievance process, what is meant by that is that communications during step hearings should not be used in arbitration”. In the government’s submission, the letter written by Mr. Munro to the Deputy Minister asking for reconsideration was not in connection with a step hearing and fell outside “the grievance procedure”.
[9] The Larocque case concerned an arbitrator’s decision to exclude relevant evidence. In general, an erroneous decision on a question of relevancy does not amount to an excess of jurisdiction justifying interference by the courts: para. 37. It will, however, justify interference “if by his erroneous decision the arbitrator was led to infringe the rules of natural justice”: para 37. See also, para. 43. I see no difference for these purposes between a ruling on relevancy and a ruling on privilege. And so the issue is the same as that expressed at para. 43 of Larocque: “[w]as there a breach of natural justice as a result of the mis en cause arbitrator's refusal to admit the evidence submitted by the [employer]?” Chief Justice Lamer wrote at para. 46:
For my part, I am not prepared to say that the rejection of relevant evidence is automatically a breach of natural justice. A grievance arbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirable for the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice.
In my assessment, an arbitrator is also in an advantaged position to assess a claim of privilege where the claim concerns a privilege developed in arbitral jurisprudence for communications in a process unique to labour relations.
[10] Some might take a narrower view of what constitutes a communication in the course of pre-adjudication grievance procedures. Mr. Munro wrote to Mr. Keefe on 27 December 2001, twenty days after Mr. Munro and his shop steward had signed the grievance form. Mr. Keefe was to be the main decision maker at Step Three. Even if Mr. Munro spoke out of turn, the grievance and Mr. Keefe’s connection with it afforded reasonable bases for Adjudicator Kydd’s determination. The issue is not whether Adjudicator Kydd was correct to exclude the letter. The issue is whether he was so wrong as to have impaired the fairness of the hearing. Unlike the situation in Larocque, Arbitrator Kydd had a reasonable basis for excluding the evidence. That goes to show fairness as much as correctness would do.
[11] I am reinforced in my conclusion upon reading the letter. Larocque says we are not to engage in “speculation as to what the decision on the merits would have been had the rights of the parties not been denied” (para. 51). So, it is no answer to a denial of natural justice that it appears to have lacked consequence. This does not mean that in assessing an alleged breach of natural justice the Court should ignore the apparent value of the excluded evidence. In Larocque, the Chief Justice assessed the “significance of this evidence” and found it to be “prima facie crucial”. To conclude that an evidentiary ruling gave rise to a breach of natural justice one would expect to make some assessment of the value of the evidence. In this case, the admissions in the excluded letter do not appear to add to the admissions described in Mr. Keefe’s earlier letter or to those formally made before the Learned Adjudicator.
[12] There was no denial of natural justice on account of Adjudicator Kydd’s exclusion of Mr. Munro’s letter to Mr. Keefe.
[13] The Ruling on Scope of Charges - Article 29(2)(a) of the collective
agreement provides,
Where an employee is disciplined, suspended without pay or discharged, the Employer shall, within ten days of the suspension or discharge notify the employee in writing by registered mail or personal service stating the reason for the suspension or discharge.
The full text of Mr. Keefe’s letter to Mr. Munro reads,
I am writing to you regarding your employment status as a correctional worker with the Department of Justice.
I am advised, following an investigation, that you admitted knowing of the presence of a significant number of marijuana plants in your residence. You also admitted to smoking marijuana. This behaviour also constitutes a breach of the code of conduct.
I must consider the nature of your duties as a correctional worker and the requirement that an employee in this position project an image of professionalism. Your conduct is incompatible with your employment at the Department of Justice and has tarnished the reputation of this Department and its employees.
Based on the seriousness of this incident your employment with the Department of Justice is terminated effective immediately.
Arbitral jurisprudence has developed a rule of practice to give effect to provisions such as article 29(2)(a). The employer is precluded in discipline arbitration from raising grounds for discipline not covered in the disciplinary letter if the grounds were known to the employer when the letter was delivered.
[14] In this case, the government sought to introduce evidence, including some opinions of an RCMP officer, that Ms. Munro had grown the marijuana for commercial purposes. Mr. Kydd allowed this evidence over Union objections based upon article 29(2)(a) and the rule of practice giving effect to it. Although he ultimately found that the illegal botanical was grown for Ms. Munro’s personal use, he admitted the evidence. He explained that Mr. Keefe’s reference to “a significant number of marijuana plants” was sufficient to permit the government to advance the claim of a commercial operation. The Union made similar objections when the government sought to lead evidence that Mr. Munro failed to personally inform the Department within twenty-four hours of being charged and that he failed to co-operate with the investigators on behalf of the Department. Arbitrator Kydd accepted the Union’s position that the evidence ought to be excluded because it sought to prove misconduct not specified in the letter of termination.
[15] In her written submissions, Ms. Darling, counsel for the government, puts her client’s objection this way:
With respect, this decision does not take into account the nexus between grounds stipulated in the Deputy Minister’s letter of termination, and the issues of the failure to inform of being charged and failure to cooperate, both requirements under the Code of Conduct.
If there is any nexus between the grounds and the allegations of failure to report or failure to co-operate, the nexus would have to be in Mr. Keefe’s reference to a “Code of Conduct”. However, Mr. Keefe’s letter makes reference to the Code of Conduct in relation to specific “behavior”, his word. The behavior was “knowing of a significant number of marijuana plants in your residence” and “smoking marijuana”. The letter did not refer to any other behavior proscribed by the Code of Conduct. (Incidentally, there was controversy as to the extent to which staff had been informed of this Code of Conduct.)
[16] Adjudicator Kydd recorded his conclusions on these objections:
I agree with the Union’s submission that the alleged failure to inform the Employer within 24 hours of being charged with a criminal offense; or the alleged failure to cooperate with the investigation; cannot be used to justify the imposition of discipline in this case, because they were not contained in the reasons given for termination of employment. The evidence is that the information which the Employer seeks to rely in support of these allegations was available to it long before the date of the termination letter. On the other hand I think that the evidence of the R.C.M.P. supporting the opinion that the grow operation was commercial, was relevant to the reasons given in the termination letter. Although the letter does not allege trafficking per se, it does speak of the “significant quantity” of marijuana, which makes relevant the consideration of the various implications of having such a “significant quantity” in the grievor’s residence.
The correctness of this reasoning becomes clear when one understands the reason for the rule of practice excluding collateral grounds. Arbitrator Kydd referred to Re: Noranda Minerals Inc. (1995), 49 L.A.C. (4th) 46 (Arbitrator Brunner) at p. 49:
Where reasons for dismissal are provided under a provision such as article 24.05 of this collective agreement, the Employer cannot rely upon other matters unless it can establish subsequent discovery of facts unknown at the time of the imposition of discipline. The rationale is one of fairness so that the employee will know the case he has to meet and determine whether to challenge the disciplinary penalty by way of grievance and gauge the likelihood of success.
And, he also referred to Arbitrator Slone’s acceptance of the following passage from Brown & Beatty’s Canadian Labour Arbitration, 3rd ed., para. 7:2200 in Re: Ben’s Limited (1992), 28 C.L.A.S. 195 (Arbitrator Slone):
Where the union insists, arbitrators have generally required the employer to justify the action taken on the same grounds upon which it originally relied in invoking the disciplinary sanction.
...The rationale for this principle is that an employee is entitled to know the case against him and that arbitrators are sceptical as to the bona fides of an employer’s conduct when it seeks to change the grounds upon which it initially relied in disciplining the grievor.
...In the result, where an employer disciplines an employee for a particular reason, arbitrators have ruled that unless exceptional circumstances prevail, it may not subsequently seek to justify the discipline imposed by some new and completely unrelated reason.
The rule, which follows logically from terms similar to article 29(2)(a), is designed to promote fairness where the termination letter constitutes the only notice to the employee of the case he has to meet. Where Mr. Keefe’s letter states the charges Mr. Munro was to meet, the employee could not possibly expect the adjudication to concern itself with failures to report or to co-operate. Even if a bauld reference to the Code of Conduct could entitle the government to delve into every possible violation of the Code, which I think would do violence to the contract and the rule, this letter contains a reference to the Code tied to behavior having nothing to do with the supplementary grounds.
[17] Whatever the standard of review, I think Arbitrator Kydd was clearly correct to allow evidence of an alleged commercial operation and to exclude evidence of an alleged failure in timely self-reporting and an alleged failure to co-operate with investigators.
[18] Standard of Review on the Main Decision - As Ms. Darling writes in her submission on behalf of the government, “It is no longer sufficient to say, ‘labour tribunals are an expert panel and therefore patent unreasonableness is the standard.’” Her position is based upon Chamberlain v. Surrey School Board District No. 36 (2002), 221 D.L.R. (4th) 156 (SCC), where the majority insisted upon the pragmatic and functional approach over categorical approaches in all cases determining judicial deference to administrative tribunals. See also, Dr. Q. v. Collage of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 and the application of this approach in the labour context in Voice Construction Ltd. v. Construction and General Workers’ Union, Local 92, [2004] S.C.J. 2 and Alberta Union of Provincial Employers v. Lethbridge Community College, [2004] S.C.J. 28. Ms. Darling’s submission was borne out by a decision of our Court of Appeal released the very day on which the present application was heard.
[19] In Halifax Employers Association v. International Longshoremen’s Association, Local 269, [2004] N.S.J. 316 (CA) an employee was subject to a “Last Chance Agreement” under which he agreed to abstain from alcohol and he and his Union also agreed that reporting for work when intoxicated would be just cause for dismissal. Within three months, he came to work intoxicated. Some years later, well past the time for grievance, the Union filed a grievance on the ground that the Last Chance Agreement unfairly discriminated against the employee’s disability, alcoholism. An arbitrator extended the time for grievance under s. 60(1.1) of the Canada Labour Code, R.S.C. 1985, c. L-2. Associate Chief Justice MacDonald held that the standard of review was at the patent unreasonableness level and he concluded that the extension was patently unreasonable. All members of the Court of Appeal agreed with the Associate Chief Justice on the standard of review. Cromwell, JA with Saunders, JA concurring, held that the decision had not been patently unreasonable. Bateman, JA disagreed on that point. Justice Cromwell’s treatment of the standard of review issue is presently instructive.
[20] Justice Cromwell wrote at para. 44 and 45:
Prior to Voice Construction and Lethbridge Community College, it was widely thought that the standard of judicial review of labour arbitrators interpreting collective agreement provisions was the patently unreasonable standard, even in the absence of a strong privative clause....
However, the Supreme Court of Canada has made it clear in a series of judgments that the standard of review of all administrative decision-makers is to be determined by applying the pragmatic and functional approach: see, for example, Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. While the “...wisdom of past administrative law jurisprudence need not be wholly discarded, ...the pragmatic and functional approach demands a more nuanced analysis based on consideration of a number of factors. This approach applies whenever a court reviews the decision of an administrative body.”: Dr. Q., paras. 24 - 25; see also Voice Construction at para. 18.
At para. 44 Justice Cromwell explained the automatic deference of the past: “the importance of mandatory contractually rooted statutory arbitration in the labour relations setting has been seen as an important basis for showing deference to the decisions of labour arbitrators.” While no longer a basis for automatic deference at the highest standard, the importance of arbitration in labour relations must enter the pragmatic and functional approach at various points when an arbitrator’s decision is under review.
[21] Determining standard of review is an exercise in statutory interpretation, but one in which the words of the statute are to be weighed among elements of context in a way that differs from classic statutory interpretation, where full context shapes the meaning of the statutory text. Justice Cromwell explained it this way at para. 46 of the Halifax Employers Association case:
The central inquiry for the reviewing court is whether the legislature intended to leave the question raised by the statutory provision to the exclusive jurisdiction of the administrative tribunal....Thus, determining the appropriate standard of review is primarily a matter of statutory interpretation. But the task of interpretation requires attention not only to the text of the legislation, but also to several contextual factors indicative of the appropriate level of curial deference, according to what has come to be known as the pragmatic and functional approach. The relevant factors have been divided into four categories....
There are three possible standards. Correctness is the standard where the legislature intended “there is only one right answer and the administrative body’s decision must reflect it”: Chamberlain, p. 167. On the other end is patent unreasonableness, where the legislature intended utmost deference towards the administrative body’s decision “unless it suffers from a defect that is immediately apparent or is so obvious that it ‘demands intervention by the court on review’”: Chamberlain, p. 168 quoting Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 at p. 237. Between these two poles is reasonableness, where the legislature intended intervention only if the decision “is based on an error or is ‘not supported by any reasons that can stand up to a somewhat probing examination’”, Chamberlain p. 168 quoting from Canada v. Southam Inc., [1997] 1 S.C.R. 748, para. 56. Further in Chamberlain, Chief Justice McLachlin discussed the four factors involved when assessing which of these levels applies:
Which of the three standards is appropriate in a given case depends on the amount of discretion the legislature conferred on the delegate. The relevant amount of discretion is evidenced by four factors, which often overlap: (1) whether the legislation contains a privative clause; (2) the delegate’s relative expertise; (3) the purpose of the particular provision and the legislation as a whole; and (4) the nature of the problem.
In light of the decision in Halifax Employers Association, I must determine the standard of review applicable when an adjudicator decides whether to substitute a penalty under s. 33(4) of the Schedule to the Corrections Act. I must do so by weighing subjects pertinent to the four factors.
[22] Regarding “(1) whether the legislation contains a privative clause”, it does not. Subsection 29(1) of the Schedule to the statute does require that collective agreements contain “a provision for final settlement”. At the least, a provision for finality implies the same level of deference the Court of Appeal accords to fact finding and exercises of discretion by trial courts. In this case, however, the statute establishes a discretion that is so broad and is so expressed to be dependant upon the adjudicator’s own assessment that the absence of a privative clause should not have determinative consequence for the question of legislatively intended deference.
[23] The Legislature expressed the discretion in very broad terms. It provided that “the adjudicator...has power to substitute for the discharge...any other penalty” and, if that were not broad enough, the Legislature provided this adjectival phrase modifying “penalty”: “that to the adjudicator...seems just and reasonable in the circumstances”. So s. 33(4) provides a “power” to the adjudicator to be exercised according to what “seems” to the adjudicator to be just and reasonable. This language suggests there will be various choices seeming reasonable and it is the seeming reasonable to the adjudicator, not the seeming reasonable to others, that must be chosen.
[24] Regarding “(2) the delegate’s relative expertise”, the situation is like that in Halifax Employers Association where it was said at para. 53, “It has long been recognized that the expertise of labour arbitration boards militates in favour of deference....” and at para 54,
It has also been recognized that collective bargaining law and grievance arbitration are specialized areas and that labour arbitrators have acquired both expertise in this specialized field and sensitivity to this unique context.
One would add that, historically, legislative decisions were made to exclude the courts from adjudicating within this unique context and to set up independent judicial regimes. The “importance of mandatory contractually rooted statutory arbitration in the labour relations setting” indicates deference: Halifax Employers Association, para. 44.
[25] As in Halifax Employers Association, there is a second reason for a high level of deference, which touches on the factor of expertise as well as others. The statute confers a discretion and the challenge calls for review of the exercise of that statutory discretion. (See, Halifax Employers Association, para. 54.) I have already discussed how broad the Legislature cast this discretion and how tied it is to the adjudicator’s own judgment.
[26] Ms. Darling suggests that this particular adjudication raised issues not within the usual expertise of an adjudicator. She pointed out that Adjudicator Kydd had to determine whether Ms. Munro had run “a commercial ‘grow’ operation”. Ms. Darling submitted,
This is not an area of expertise for a Labour Adjudicator. Courts are far better placed for determining issues relating to criminal activity such as marijuana cultivation, and so less deference should be accorded the decision of the Adjudicator in this regard.
With respect, I do not think this enlightens the present inquiry. Arbitrators have to find facts and often those findings will have to do with mundane subjects far from the shop. The present inquiry concerns legislative intent. It is the expertise the statute meant to engage that matters. It meant to engage labour arbitration, a field that commands deference on account of the labour arbitrator’s “expertise” and “sensitivity”.
[27] Regarding “(3) the purpose of the particular provision and the legislation as a whole”, the Corrections Act contains a section describing its purposes and the Department of Justice, through Ms. Darling, argues that this is the end of the subject. Section 2 of the Act provides:
The purpose of this Act is to provide for the safe custody and security and the rehabilitation of offenders and for the integration of offenders into the community while at the same time providing adequate safeguards for the community.
These stated purposes are to be borne in mind, but Schedule A seems to have little to do with them. The Schedule is entitled “Collective Bargaining” and it has to do exclusively with labour relations in a conventional, unionized environment with one special feature.
[28] Schedule A is tied into the Act by s. 6A, s. 7 and s. 11 in such a way as shows that correctional facilities have been unionized for some time. Section 23 makes the special point. Subsections 23(2) to (4) create offences in reference to strikes or lockouts contrary to Schedule A, which proscribes all strikes and lockouts. This is the way the collective bargaining provisions most clearly relate to safety and rehabilitation.
[29] I would characterize the purpose of Schedule A as (1) to provide conventional collective bargaining and administration of collective agreements at correctional centres and (2) to prohibit strikes and lockouts at those places. The latter is more clearly related to the general purposes of the Act.
[30] I would characterize the specific purpose of s. 33(4) as being to mitigate disciplinary penalties where a lesser penalty would be just and reasonable. As this requires a person to make a judgment that cannot be arrived at narrowly or mechanically, this purpose seems to indicate discretion and, therefore, deference. This purpose, in combination with that of Schedule A generally, also touches upon the expertise of labour arbitrators, which suggests deference. (See Halifax Employers Association, para. 57.)
[31] Regarding “(4) the nature of the problem”, it is not a question of law, as in Voice Construction (see para. 29). The nature of the problem is the exercise of a discretion after resolving facts in dispute. The fact-finding and discretionary nature of the problem indicate deference.
[32] In conclusion, deference is owed at the highest level although the legislation does not expressly prevent review. I should not interfere unless the decision suffers from a defect so obvious that it demands intervention.
[33] Review of Main Decision - I have already summarized the “Facts” as found by Adjudicator Kydd. In my assessment, the present case does not compare factually with Canadian Airlines International Ltd. v. Canadian Air Line Pilots Assn., [1997] B.C.J. 1652 (CA), upon which the government relies. In that case an airline pilot had used marijuana both when on duty and off duty for fifteen years. In addition to the safety risk, the pilot used the employer’s aircraft to transport marijuana, including to Asian countries. The airplane was worth millions and the pilot had risked its impoundment.
[34] The Department of Justice contests Adjudicator Kydd’s having taken account of Mr. Munro’s satisfactory performance for seven years. The Department points out that he was part-time from 1994 until 2001. However, the finding was that Mr. Munro worked full hours before the Department reclassified him. Further, he was employed in law enforcement before that. Ms. Darling wrote, “It is unreasonable to ascribe mitigation based on length of service with as few years of service as Mr. Munro had.” I do not agree with her characterization of the findings.
[35] The Department submits that Mr. Kydd’s findings about Mr. Munro’s compassion for his wife “is not supported by the record”. Ms. Darling says, “the record shows that Mr. Munro was not involved in wrongdoing because of compassion for his wife”. I doubt an experienced arbitrator would reach these findings of fact out of whole cloth. In any event, I have no “record” that gainsays his detailed findings on this point.
[36] There is the comparison made by Adjudicator Kydd of a fifteen day suspension for impaired driving and the termination of Mr. Munro’s employment for tolerating his wife’s growing marijuana, which is described in the “Facts” section of this decision. It is certainly arguable that, “Impaired driving is now treated much more seriously than simple possession of marijuana.”, as Adjudicator Kydd put it. The comparison is apt if one accepts Adjudicator Kydd’s findings of facts, which narrow Mr. Munro’s criminal activity to simple possession at most.
[37] The Department takes issue with economic hardship as a mitigating issue when there was “no consideration for the requirements of the Employer”. Similarly, the Department attacks the finding that “there is a high potential for rehabilitation”. The Learned Adjudicator’s reasons show that he gave every consideration to the Department’s “requirements” and he concluded, contrary to the position of the Department and some of its witnesses, that this was not a case of incompatibility and that it was a case for progressive discipline rather than termination. For the sake of general deterrence, he imposed a very substantial penalty.
[38] Even where the standard is reasonableness, not every element of a tribunal’s reasons needs to be reasonable. One reviews the reasons as a whole to see if they support the conclusion: Voice Construction, para. 31. It is clear from the submissions that the Department does not accept Adjudicator Kydd’s findings of fact. No basis has been shown upon which this Court may interfere with those findings. In the course of submissions, many references were made on behalf of the Department to the seriousness of Mr. Munro’s criminal activities. At one point, Ms. Darling compared his misconduct with theft from an employer. Adjudicator Kydd’s findings of fact are to be accepted. Mr. Munro did not bring marijuana to work. Mr. Munro did not traffic in marijuana. He did not cultivate marijuana. There has never been a finding even that he was in joint possession of marijuana. Given his findings of fact, and they are a given, it was for Mr. Kydd, not the Department, to conclude whether termination was required or a lesser penalty seemed just and reasonable. Given his findings, his rejection of the Department’s position on incompatibility and rehabilitation is beyond the review of this Court.
[39] Conclusion - Arbitrator Kydd made no reviewable error in excluding evidence of a letter from Mr. Munro to Mr. Keefe on the ground of privilege, in refusing to allow the Department of Justice to present evidence of collateral causes or in his exercise of the discretion to substitute penalties. I will grant an order dismissing the application with costs to the respondent Union in the amount of $1,500 plus disbursements.
J.