| “Telus”) applies for judicial review of the award of arbitrator Colin Taylor, Q.C., by which the arbitrator interpreted the vacation scheduling provisions of the Collective Agreement |
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Reasons for Judgment
INTRODUCTION [1] The petitioner, Telus Communications Company (“Telus”) applies for judicial review of the award of arbitrator Colin Taylor, Q.C., dated August 27, 2008 (“the award”) by which the arbitrator interpreted the vacation scheduling provisions of the Collective Agreement in force between Telus and the respondent, Telecommunications Workers Union (“the Union”). [2] Telus applies for an order quashing and setting aside the award. Alternatively, if the court determines that the arbitrator breached the rules of natural justice or procedural fairness in making the award, the petitioner seeks an order that the matter be remitted to the arbitrator with such directions as the court deems just. [3] The petitioner contends that the arbitrator exceeded his jurisdiction, or erred in law by: (a) interpreting the Collective Agreement in such a manner as to effectively amend the language of the collective agreement; (b) placing upon the terms of the Collective Agreement an interpretation and construction which the Collective Agreement cannot reasonably bear; (c) interpreting the Collective Agreement in such a manner as to create conflicts between the terms of the Collective Agreement; (d) applying interpretive principles in an arbitrary manner without regard to the express language of the Collective Agreement; (e) asking the wrong questions, answering questions not before him, basing his decision on extraneous matters, and failing to take relevant matters into account; and (f) ignoring or failing to consider relevant evidence and submissions. [4] As a further ground for judicial review, Telus says that the arbitrator breached the rules of natural justice and/or procedural fairness by failing to provide any, or any sufficient reasons for certain of his interpretive conclusions respecting the vacation scheduling provisions of the Collective Agreement. The Parties, the Grievances, and the Collective Agreement [5] Telus is in a collective bargaining relationship with the Union, which is certified under the Canada Labour Code, R.S.C. 1985, c. L-2 as amended (the “Code”) to represent a national bargaining unit of approximately 14,000 Telus employees. [6] Telus and the Union are parties to a Collective Agreement with a term which commenced on November 20, 2005 and will expire on November 19, 2010 (the “Collective Agreement”). Telus is the successor to BC Tel which was a party to the previous collective agreement with the Union. Although the term of that collective agreement ran from January 18, 1999 to December 31, 2000, it continued in force and was not terminated until Telus and the Union entered into the Collective Agreement. [7] The award concerned two policy grievances filed by the Union pursuant to the Collective Agreement respecting Telus’s application of the vacation scheduling provisions of the Collective Agreement. Both grievances raise disputes regarding the proper interpretation of those provisions of the Collective Agreement. [8] Articles 17.07 to 17.14 of the Collective Agreement set out the vacation scheduling provisions, and provide as follows: 17.07 Vacation scheduling shall be by associated work group. A minimum 20% of employees rounded up or down to the nearest whole number shall be allowed off at any one time on annual vacations, calculated as a percentage of the total number of employees in the associated work group as of November 1 for the first four (4) month period of the upcoming vacation scheduling year and, as of February 1 of the vacation scheduling year for the last eight (8) month period of the vacation year. 17.08 Employees shall select their vacation periods in order of seniority, however, only one vacation period shall be selected by seniority until all employees on the vacation schedule have selected one period. When selecting the above period of vacation, an employee may not select more than three (3) weeks’ vacation in the period between the first Monday in June and the last Friday and September. Subsequently, all employees on the schedule who have chosen to take their vacations in broken periods shall select in order of seniority for a second vacation period and again for subsequent periods until all periods are chosen. 17.09 Employees may split their vacation periods into increments of less than one week, with the approval of management. 17.10 Vacation schedules are for a calendar year. Vacation schedules shall be posted on December 1 to allow employees to select any vacation period in the first four (4) months of the upcoming vacation year. Selections for the first four (4) month period need not be the employee’s first choice. All other vacation selections shall be completed by March 15, although it is understood that later additions or changes can be made by mutual agreement. 17.11 If any employee who has approved vacation scheduled transfers to another group, the employee retains the vacation selection previously approved unless another arrangement is mutually agreed to by the employee and management. 17.12 Vacation schedules shall be posted on bulletin boards within the work locations of affected employees. 17.13 When a holiday is observed on a normal working day within an employee’s annual vacation, the employee may elect to take (1) additional day’s pay in lieu of the holiday or, subject to mutual agreement with the immediate manager, to take the vacation day so displaced on another date. 17.14 Except under special arrangement with management, vacations earned in different calendar years shall not be cumulative, nor taken consecutively. [9] The grievances arose as a result of the introduction by Telus’s Customer Solutions Delivery Business Unit of an electronic vacation scheduling process called Service Resource Management (“SRM”), by which employees book their annual vacation on-line. [10] At para. 7 of the award, the arbitrator described how the employer implemented SRM for 2008 vacation scheduling. He found that scheduling for the last 8 months of 2008 occurred over two rounds, with each round consisting of a 12 day period broken into four seniority segments. Each of the four seniority groups had a two day bidding window followed by an approval date on which the employees’ selection would be approved or denied by Telus. Failure to bid during the two day window resulted in a bid not counting until the following round. The Union contended this resulted in an impermissible derogation of seniority rights. The arbitrator found that the vacation scheduling process began on February 7, 2008 for seniority group number one. The Union argued that its members have until March 15th to bid for vacation time, and that employees are not restricted to a two day window which, if missed, diminishes their seniority rights to vacation. The Arbitration and the Award [11] The parties appointed Mr. Colin Taylor Q.C. as the chairperson of a board of arbitration under the Collective Agreement. Mr. Taylor was also constituted as a board of arbitration under the Code. [12] The arbitrator began the award by noting that there was no common ground between Telus and the Union on the most fundamental aspects of the vacation scheduling scheme negotiated by the parties. [13] At para. 4 of the award, the arbitrator found that the essential elements of the Union’s position on the proper interpretation of the vacation scheduling provisions of the Collective Agreement were: a. Vacation schedules are for a calendar year; b. Employees are entitled to one first choice by seniority in the year; c. Rolling seniority must be followed so that each employee is afforded an opportunity in accordance with seniority; d. Employees have the opportunity to exercise seniority until March 15 for the last eight months of the year; e. The 20% minimum allotment applies throughout the year; f. Changes to vacation are permissible after March 15 if within the 20% minimum; g. Vacation time which becomes available after March 15 must be offered by seniority but employees are still required to stipulate first choice; h. Canvasses cannot begin before November 1 and February 1; i. Vacation schedules must be posted on bulletin boards at the work site. [14] At para. 5, the arbitrator identified the employer’s position as follows: a. There are two separate vacation bid processes – one for the first four months of the vacation year and one for the next eight months of the year; b. Employees bid by seniority in each of the two periods, meaning there is a first choice in each period; c. Rolling seniority applies in each of the two bid periods; d. Employees exercise their seniority within the bid windows of the computerized SRM program; e. The 20% minimal allotment does not apply after March 15. Thereafter it is by mutual agreement; f. Employees can bid after March 15 on a first come first served basis; g. Vacation schedules are posted on bulletin boards at the work site. [15] As the arbitrator observed at para. 6 of the award, there was a “Himalayan” gulf between the parties on whether the vacation scheduling scheme involved two separate bid processes or one schedule for the calendar year; whether employees had one first choice or two first choices; and whether the 20% minimum allotment applied throughout the year, or only until March 15. [16] At the arbitration, Telus and the Union both lead extrinsic evidence of collective bargaining history and past practice to support their respective positions on the proper interpretation of the vacation scheduling provisions. The arbitrator found that the extrinsic evidence showed a lack of consensus and therefore did not assist him in interpreting the Collective Agreement. [17] At paras. 61 and 62 of his award, the arbitrator said this: [61] When I consider the extrinsic evidence, I conclude that no facts were established which can be relied upon in asserting an interpretation which goes beyond the language of Article 17 itself. [62] There is no evidence which permits me to give the relevant vacation scheduling language a meaning other than that which accords with the plain and ordinary meaning of the language chosen by the parties to reflect their bargain. [18] After concluding that the extrinsic evidence did not assist him, the arbitrator interpreted the vacation scheduling provisions based on his construction of the language of the Collective Agreement. [19] At para. 84 of his award, the arbitrator summarized his conclusions on the interpretation of the vacation scheduling language of the Collective Agreement: a. Vacation schedules are for a calendar year; b. Employees are entitled to one first choice by seniority in the year; c. Rolling seniority must be followed affording each employee an opportunity to select vacation periods in accordance with seniority until all vacation periods are assigned; d. Employees have the opportunity to exercise seniority until March 15 for the last eight months of the year; e. The 20% minimum allotment applies throughout the vacation year; f. Additions or changes to vacation are permissible after March 15th if within the 20% minimum. Otherwise they are subject to mutual agreement; g. Vacation time which becomes available after March 15th must be offered by seniority while maintaining the one first choice principle; h. Canvasses cannot begin before November 1 and February 1, the calculation dates stipulated in Article 17.07; i. Vacation schedules must be posted on bulletin boards within the work locations of affected employees. [20] The petitioner does not dispute the arbitrator’s conclusions on the interpretation of the Collective Agreement as stated at paras. 84(a), (b), (c), and (i) of the award. [21] Telus submits the arbitrator breached the rules of natural justice or procedural fairness by failing to provide any reasons for the interpretive conclusions stated at subparagraphs 84(d), (g), and (h) of the award. The petitioner also challenges those conclusions on the ground that they are unreasonable. [22] The petitioner contends that the arbitrator’s interpretation of subparagraphs 84(e) and (f), that the 20% minimum allotment applies throughout the vacation year, and that additions or changes are permissible after March 15 if they are within the 20% allotment, are unreasonable. [23] In support of its application for judicial review, Telus relies upon the affidavit of Kate Nemeth. She is a senior labour relations consultant employed by Telus, who attended the arbitration, and was one of the witnesses called by the Employer to give evidence on past practice. The exhibits to Ms. Nemeth’s affidavit include the relevant provisions of the Collective Agreement, and the previous collective agreement, the award, and copies of all of the documents submitted by both the Employer and the Union at the arbitration. All of these materials constitute the record of proceedings for this judicial review application: Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s.1. [24] There is no transcript of the arbitration hearing. [25] Paras. 7 through 9 of Ms. Nemeth’s affidavit refer to evidence adduced and submissions made by the Employer in response to positions taken by the Union at the arbitration hearing. Telus seeks to rely on this evidence in support of its argument that the arbitrator failed to consider material evidence and submissions of the Employer, and failed to provide adequate reasons. [26] The Union applies to strike paras. 7 through 9 of Ms. Nemeth’s affidavit on the ground that this material is inadmissible because it is not part of the record for this judicial review, and is unnecessary for the adjudication of the issues raised by the petitioner. Issues [27] This application for judicial review raises the following issues: (a) Are paragraphs 7 through 9 of Ms. Nemeth’s affidavit admissible? (b) What is the applicable standard of review? (c) Did the arbitrator breach the requirements of procedural fairness by failing to give reasons, or sufficient reasons? (d) Did the arbitrator make any reviewable error in his interpretation of the vacation scheduling provisions of the collective agreement? A. Admissibility of Nemeth Affidavit [28] An application for judicial review is conducted on the record before the tribunal to determine whether the tribunal acted within its jurisdiction, and “to ensure the legality, reasonableness and fairness of the administrative process, and its outcome”:Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 28 (“Dunsmuir”). Under s. 1 of the Judicial Review Procedure Act, the "record of the proceeding" is defined as follows: “record of the proceeding” includes the following: (a) a document by which the proceeding is commenced; (b) a notice of a hearing in the proceeding; (c) an intermediate order made by the tribunal; (d) a document produced in evidence at a hearing before the tribunal, subject to any limitation expressly imposed by any other enactment on the extent to which or the purpose for which a document may be used in evidence in a proceeding; (e) a transcript, if any, of the oral evidence given at a hearing; (f) the decision of the tribunal and any reasons given by it. [29] Evidence extrinsic to the record may be admissible to show lack of jurisdiction or denial of natural justice: Evans Forest Products Ltd. V. British Columbia (Chief Forester), [1995] B.C.J. No. 729 (B.C.S.C.) (QL) at para. 4. [30] In Karbalaeiali v. British Columbia (Deputy Solicitor General), 2006 BCSC 13 the court stated at paras. 53 and 54 that the rule against admitting fresh evidence on a judicial review is not absolute, but emphasized that only extrinsic evidence relevant to the issues of lack of jurisdiction or denial of natural justice may be admitted. [31] The evidence that Telus seeks to have admitted does not go to a jurisdictional question in the narrow sense as explained by the Supreme Court of Canada in Dunsmuir, at para. 59: “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction.... [32] The interpretation of the Collective Agreement is a matter falling squarely within the arbitrator's jurisdiction: British Columbia Maritime Employers’ Assn. v. International Longshore and Warehouse Union, Local 500, 2008 BCSC 764 (“B.C. Maritime Employers’ Assn.”), at para. 30. [33] However, a “[f]ailure to consider or decide an essential question is an example of an error that may go to jurisdiction”:Winnipeg School Division No. 1 v. Winnipeg Teachers’ Assn. of the Manitoba Teachers’ Society, 2007 MBQB 23 at para. 31. A failure to give reasons adequate to enable the court to conclude that the Board gave proper consideration to the issues submitted to it may also constitute jurisdictional error: AOV Adults Only Video Ltd. v. Manitoba, 2003 MBCA 81 (“AOV Adults only Video”) at para. 41. [34] Affidavit evidence extrinsic to the record may be introduced where it is necessary to prove error going to jurisdiction which cannot be proved on the record. If the error can be proven from the record, extrinsic evidence is neither necessary nor admissible: AOV Adults Only Video Ltd., at para. 39. [35] The Union submits that the petitioner's grounds for judicial review relating to the arbitrator's interpretation of the Collective Agreement are intra-jurisdictional, and that there is therefore no basis for the introduction of extrinsic evidence. Further, the Union submits that to the extent that the petitioner has raised any jurisdictional issues, such as the allegation that the arbitrator exceeded his authority by amending, rather than interpreting the Collective Agreement, those issues may be resolved by recourse to the arbitrator's reasons and do not require extrinsic evidence. [36] The Union also argues that whether the arbitrator ignored or failed to consider relevant evidence or submissions, or asked himself the wrong questions may be determined by examining his reasons. [37] The arbitrator, like a trial judge, is not required to address every argument made by the parties, or to demonstrate that he or she has considered all aspects of the evidence adduced at the hearing: R v. Burns, [1994] 1 S.C.R. 656 at para. 17. Nor is the arbitrator under an obligation in law to record all or any specific part of the process of deliberation. He or she “must consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was error in law in this respect”: R. v. Morin, [1992] 3 S.C.R. 286 at para. 20. [38] In AOV Adults Only Video Ltd., at para. 56, the court held that : The Board does not have to recite all of the evidence, or even all its highlights. What it must have done ... is to provide a sufficient, rational explanation for its decision... [39] Whether the arbitrator met that standard may be determined by an examination of his reasons. For the following reasons, I have concluded that recourse to the extrinsic evidence tendered by the employer in this case is unnecessary. [40] First, the arbitrator clearly understood the parties’ positions. At paras. 4 and 5 of the award, to which I have previously referred, Mr. Taylor summarized the essential positions of Telus and the Union on the interpretation of the vacation scheduling provisions of the Collective Agreement. [41] Second, the evidence that Telus seeks to introduce through para.7 of Ms. Nemeth’s affidavit, in order to set the factual context for the dispute, is already in the record. [42] Para. 7 of Ms. Nemeth’s affidavit summarizes evidence led by the Employer regarding the operation of the SRM vacation scheduling process. Ms. Nemeth describes vacation scheduling as involving two bid processes; one that takes place in or around late October or early November for the first four months of the next calendar year, and a second bid process that takes place in or around early February for the last eight months of the calendar year. Employees are categorized within their associated working group, and each associated working group is divided into four equal seniority segments. Ms. Nemeth deposes that the employees then select one, continuous vacation by seniority, with each seniority segment having a two-day bid window to make their selections. Each two-day bidding window is followed by an approval day when the employees’ selections are approved or denied by Telus. Ms Nemeth says that after all employees from each seniority segment have selected one continuous vacation period, the process is repeated until all vacation periods have been selected. [43] This paragraph of Ms. Nemeth’s affidavit is a summary of the information set out in the Employer’s 2008 Vacation Scheduling Process document, contained in the Telus book of documents, which formed part of the record before the arbitrator. Furthermore, the arbitrator referred to the introduction of the SRM process at para. 7 of his award, and touched upon the evidence of Ms. Nemeth and other witnesses for the Employer respecting various features of the vacation scheduling process at paras. 27, 28, 39, 57 and 70 of his award. Ms. Nemeth’s summary of the SRM process adds nothing to the record. It is therefore unnecessary to the adjudication of any of the petitioner’s grounds for review that may raise jurisdictional issues, or that concern the arbitrator’s alleged failure to comply with the requirements of procedural fairness. [44] Para. 8 of Ms. Nemeth’s affidavit sets out her recollection of certain evidence and submissions presented by the Employer in response to the Union's positions on the proper interpretation of the vacation scheduling provisions. She deposes that the arbitrator did not refer to these matters in the award. First, in response to the Union's position that an employee may exercise seniority until March 15 for the last eight months of each year, Ms. Nemeth deposes that counsel for Telus argued that the Union's position was administratively unworkable. The Employer argued that if a senior employee selected vacation on March 15, that selection could displace a more junior employee’s vacation selection made before March 15, potentially resulting in “a cascade of bumping”, as displaced junior employees’ selected vacation. Ms. Nemeth then referred to certain testimony of Union representatives at the arbitration hearing which the Employer relies upon as tending to support its position that if a senior employee waited until March 15 to select vacation for the last eight months of the year, the bid process would, in effect, have to start over. [45] Also at para. 8 of her affidavit, Ms. Nemeth discusses the Employer’s submissions in response to the Union's position that vacation time which becomes available after March 15 must be offered by seniority, while maintaining the principle that each employee has one first choice of vacation time. She deposes that counsel for the Employer argued that the effect of that interpretation would be to require Telus to administer, and bear the costs of administering, a year-long vacation canvas rather than two separate bid processes, one for the first four months of the year, and the second for the last eight months. [46] Ms Nemeth also refers to evidence led by Telus in response to the Union's position that the bid processes could not commence before November 1 and February 1, the dates prescribed in Article 17.07 for calculation of the 20% minimum allotment. She refers to the evidence of Mr. Layos, who testified that the petitioner was able to determine the headcount for each associated workgroup about a week before November 1 and February 1. [47] The Union takes issue with Ms. Nemeth’s recollection of some of the testimony at the hearing, and submits that if the employer's extrinsic evidence is admitted, then the court should also admit an affidavit from one of the Union representatives at the arbitration hearing. That affidavit qualifies or rebuts portions of Ms. Nemeth’s evidence, particularly as it relates to the testimony of Union witnesses, and raises conflicts which this court, in the absence of a transcript, is in no position to resolve. [48] It is not the role of the reviewing court to conduct a new hearing, or to re-weigh the evidence before the arbitrator: V.M. v. British Columbia (Director of Child, Family and Community Service), 2007 BCCA 315, 69 B.C.L.R. (4th) 330 at para. 12; AOV Adults Only Video Ltd., at para. 40. The admission of para. 8 of Ms. Nemeth’s affidavit, and the rebuttal affidavit of the Union would invite just such an impermissible re-weighing of the evidence adduced before the arbitrator. [49] Again, the arbitrator was not required to recite all of the evidence, or to refer to every submission made to him. The arbitrator identified the key elements of each party’s position. He reviewed the evidence of the witnesses called by Telus and the Union. The arbitrator explained why the conflicting evidence of collective bargaining history and past practice did not assist him in interpreting the Collective Agreement, and then at paras. 64 through 84 of the award set out his interpretation of the language of Articles 17.07 to 17.14. [50] In this case, whether the arbitrator asked himself the wrong questions, or failed to take into account relevant considerations may be determined from a review of the award, and does not require recourse to the information set out in para. 8 of Ms. Nemeth’s affidavit. [51] Similarly, the question of whether the arbitrator breached the requirements of procedural fairness by failing to provide any, or any sufficient reasons for certain of his interpretive conclusions may be answered by an examination of the award, and the record. Paras. 7 to 9 of Ms. Nemeth’s affidavit are unnecessary to a determination of this ground of the petitioner’s application for judicial review. [52] Finally, at para. 9 of her affidavit, commenting on Article 17.10, which provides in part that vacation schedules are for a calendar year, Ms. Nemeth refers to testimony from the Employer’s Call Centre Operations Manager Brian Doyle that prior to the current Collective Agreement, Telus administered vacation scheduling using a May 1 to April 30 vacation year in Alberta and a January 1 to December 31 vacation year in British Columbia. [53] This evidence is not necessary to the determination of any jurisdictional or procedural fairness issue raised on this application. Telus does not dispute the arbitrator’s conclusion that vacation schedules are for a calendar year. Further, in the course of finding that the extrinsic evidence of past practice did not reveal any consensus in the parties’ positions, and therefore did not assist him in interpreting the vacation scheduling provisions, the arbitrator noted at para. 57 of the award that Mr. Doyle’s evidence “does not serve to nudge the dispute into an illuminating light”. [54] In my view, the disputed portions of Ms. Nemeth’s affidavit are unnecessary to the resolution of any issue going to jurisdiction or procedural fairness raised by the petitioner. On that basis, I have determined that paragraphs 7, 8 and 9 of the affidavit are not admissible. B. Standard of Review Review for Procedural Fairness [55] The petitioner challenges both the adequacy of the arbitrator’s reasons and the reasonableness of the award. The alleged failure of the arbitrator to provide adequate reasons is framed as a breach of the requirements of natural justice and/or procedural fairness. [56] The concept of judicial deference to administrative decisions has no application to questions of procedural fairness. The Court determines whether the process by which the tribunal makes its decision meets the requirements of procedural fairness applicable to that tribunal. The Court, rather than the Tribunal provides the legal answer to questions of procedural fairness:Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 100. (“C.U.P.E. v. Ontario”). [57] As Binnie J. for the majority, said in C.U.P.E. v. Ontario at para. 102: The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations. Standard of Review [58] Here, the end product is the award. [59] The parties agree that an award of a labour arbitrator on the interpretation of a collective agreement is reviewable on the standard of reasonableness. [60] The first inquiry of a court on judicial review is to ascertain whether the jurisprudence has already determined the degree of deference to be accorded to the tribunal with respect to a particular category of question: Dunsmuir, at para. 62. The question before the arbitrator was not a true jurisdictional question. Rather, it concerned the proper interpretation of the vacation scheduling provisions of the Collective Agreement. As the arbitrator put it, his task was to ascertain what the parties meant by the language they used in Articles 17.07 to 17.14. [61] Existing authority establishes that the standard of review of a labour arbitrator’s decision on the interpretation of a collective agreement is reasonableness: Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 S.C.R. 609 at paras. 29, 30 (“Voice Construction Ltd.”); B.C. Maritime Employers’ Assn., at paras. 32-34, 40; Telus Communications Inc. v. Telecommunications Workers Union, 2008 BCSC 658 at para. 59. [62] In Dunsmuir at para. 47, the Court defined the standard of reasonableness as follows: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [63] A review for reasonableness involves a determination of both whether the decision falls within a range of acceptable outcomes, and whether the tribunal has articulated an analysis that reasonably supports its conclusion: Dunsmuir at para. 47 andNewfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2008 NLTD 200, [2008] N.J. No. 364 (QL) (“Newfoundland and Labrador Nurses Union”), at para. 21. [64] The Supreme Court of Canada has held that the deference inherent in the reasonableness standard requires respect for Parliament’s choice to assign some matters to administrative tribunals and for the particular expertise and experience of administrative decision makers, as well as the different roles of the courts and administrative tribunals within the Canadian constitutional system: Dunsmuir at para. 49. [65] I will first consider the procedural fairness question before turning to the issue of whether the arbitrator’s award meets theDunsmuir standard of reasonableness. C. Procedural Fairness [66] Telus contends that the arbitrator beached the rules of procedural fairness by failing to provide any, or any adequate reasons for the conclusions he expressed at paragraphs 84(d), (g), and (h) of the award. [67] The Union, while arguing that the arbitrator’s reasons are sufficient to fulfill any applicable requirement of procedural fairness, submits that the arbitrator was under no common law duty to provide reasons. [68] In my view, the arbitrator was under both a common law and a contractual duty to provide reasons for his decision. Furthermore, regardless of whether the arbitrator had a common law or contractual duty to provide reasons, he did so, and was therefore obliged to provide adequate reasons: Guy Regimbauld, Canadian Administrative Law, First Edition, p. 279. [69] The content of procedural fairness must be decided in the specific context of each case: Dunsmuir at para. 79. [70] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (“Baker”), Madam Justice L’Heureux-Dubé, for the majority, at para. 39 stated: Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well-articulated and, therefore, more carefully thought out. The process of writing reasons for a decision by itself may be a guarantee of a better decision. Reasons will also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review: RA MacDonald and D. Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123 at p. 146; Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 FC 646 (C.A.), at para. 38. Those affected may be more likely to feel they were treated fairly and appropriately if reasons are given: de Smith, Woolf & Jowell, Judicial Review of Administrative Action (5ed 1995), at pp. 459-60. I agree that these are significant benefits of written reasons. [71] In Baker, the Court identified five factors which determine the content of the common law duty of procedural fairness at paras. 23-27. Those factors are: (1) the resemblance of the administrative process to the judicial decision making process; (2) the terms of the statute pursuant to which the administrative body operates and in particular whether or not the statute provides for an appeal procedure; (3) the importance of the decision to the parties; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the agency itself. [72] Here, the arbitration process under the Code and the Collective Agreement has similarities to the judicial decision making process. The parties were represented by counsel who called evidence and made submissions in presenting their client’s cases. The Code makes no provision for an appeal from the arbitrator’s award. Section 58 of the Code contains a strong privative clause which provides that every “order or decision of an arbitrator or arbitration board is final and shall not be questioned or reviewed in any court”. This award, which deals with the interpretation of the vacation scheduling process under the Collective Agreement that regulates the employment relationship between Telus and its employees, is clearly important to the parties. Unless set aside on judicial review, the arbitrator’s interpretation of the Collective Agreement will guide the parties in their administration of the Collective Agreement. Because labour arbitrators now typically provide reasons for their awards, Telus had a legitimate expectation that the arbitrator would provide reasons for his decision. Mr. Taylor, as an arbitrator appointed under the Code had the power pursuant to s. 61 to determine his own procedure. He did so, and issued reasons for his decision by way of the award. [73] All of these factors lead me to conclude that the common law duty of procedural fairness in this case includes the duty to provide reasons. [74] The arbitrator’s contractual duty to provide reasons arose upon his acceptance of the appointment to arbitrate this dispute under the terms of the Collective Agreement. Article 12.06 of the Collective Agreement provides: The Arbitrator will render his or her decision in writing within twenty-one (21) days following the completion of the hearing. [75] The Federal Court of Appeal in Via Rail Canada Inc. v. Canada (National Transportation Agency), [2001] 2 F.C. 25 (“Via Rail Inc.”) at paras. 21 to 22 said this regarding the duty to provide adequate reasons: 21 The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. In the words of my learned colleague Evans J.A., "[a]ny attempt to formulate a standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to give reasons." 22 The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision-maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision- maker must be set out and must reflect consideration of the main relevant factors. [76] In Via Rail Canada Inc., the Federal Court of Appeal reviewed the decision of an administrative tribunal under a statutory duty to provide reasons. In my view, where an obligation to provide reasons arises, whether at common law, by contract or under statute, the requirements that the reasons address the major points in issue, be based on relevant considerations, and set out the reasoning process followed by the decision maker are equally applicable. These requirements all serve the purposes for which the duty to give reasons is imposed. Those purposes include ensuring that the parties – and a reviewing court – understand how the tribunal reached its decision. [77] In National Automobile, Aerospace, CAW-Canada v. Bristol Aerospace Ltd. Transportation and General Workers’ Union of Canada v. Bristol Aerospace Limited, 2006 MBQB 51, [2006] 10 W.W.R. 322, affirmed 2006 MBCA 111, the Manitoba Court of Queen’s Bench at paras. 46-47 said this: 46 In my view, the parties to an arbitration are entitled to more than simply an answer. There must be some analysis or reasoning provided by the arbitrator which permits the parties, albeit that they may not be happy with the answer, to understand how the answer was reached, and that it was reached upon proper principles of interpretation. 47 In this case, in my view, that is missing. I conclude that the award is “clearly irrational” in the sense that the parties could not, following a process of reasoning, understand how the answer was reached but only that it was. [78] In Newfoundland and Labrador Nurses’ Union at paras. 23-25, the Newfoundland and Labrador Supreme Court Trial Division struck down a labour arbitrator’s decision where there was no apparent line of analysis supporting the arbitrator’s conclusion. The Court, at paras. 23-25 held: 23 Reasons are important. They are an integral part of a fair process. They enhance the quality of decisions, assure the parties that their submissions have been considered, allow for meaningful judicial review, and provide guidance to other tribunals faced with similar issues. 24 In the case at hand, the arbitrator was faced with a discrete and narrow question of interpretation. There were only two possible outcomes -- yes or no. The arbitrator was not required to consider a complex administrative regulatory scheme nor exercise an informed discretion after assessing competing policy considerations. 25 A reasonable decision on a question of collective agreement interpretation requires the demonstration of a chain of reasoning that leads to the conclusion. If anything, when only issues of interpretation are engaged, and the range of possible outcomes is narrow, reasonableness of the decision requires more cogency of reasons than might otherwise be the case. [79] It is noteworthy that in Newfoundland and Labrador Nurses’ Union, the arbitrator did no more than set out the respective positions of the Employer and the Union, and then state his conclusion. [80] In the case at bar, the arbitrator issued a 34 page award. After identifying the essential positions of each of the parties on the interpretation of Article 17 of the Collective Agreement, the arbitrator set out in some detail the evidence of the witnesses called on behalf of both the Employer and the Union on collective bargaining history and past practice. He analyzed the conflicts in the testimony of the principal representatives for the Union and Telus, and gave his reasons for concluding that the extrinsic evidence did not assist him because neither the collective bargaining history nor the evidence of past practice revealed any consensus on the key issues in dispute. The last ten pages of the award are devoted to his construction of the language of Articles 17.07 to 17.14. [81] The arbitrator began by noting that under Article 17.07 a minimum of 20% of employees in the associated work group shall be allowed off at any one time on annual vacations. He then observed that the calculation of the 20% minimum allotment shall occur at November 1 for the first four months of the next vacation year and at February 1 for the last eight months of the vacation year. [82] Next, the arbitrator reasoned that while Article 17.07 refers to “vacation scheduling year” and “vacation year”, Article 17.10 clearly states that vacation schedules are for the “calendar year”. This led him to the conclusion that vacation schedules are for a calendar year which is the “vacation scheduling year” and “vacation year” referred to in Article 17.07. [83] At para. 84(d), the arbitrator concluded that “employees have the opportunity to exercise seniority until March 15 for the last eight months of the year”. Telus contends that the arbitrator provided no reasons to support that conclusion. [84] The arbitrator’s reasoning in respect of his conclusion at para. 84(d) may be found at paras. 67 and 75 of the award. At para. 67, the arbitrator stated that Article 17.08 provides that employees, in seniority order, make one vacation selection until each employee has selected one vacation period. That process is then repeated until all vacation periods are chosen. [85] At para. 75 of his award, the arbitrator considered the last sentence of Article 17.10, which provides that : All other vacation selections shall be completed by March 15, although it is understood that later additions or changes can be made by mutual agreement. He interpreted this sentence to refer to all vacation selections other than those made in the first four months (which are dealt with in the previous sentence of Article 17.10). The arbitrator construed the last sentence of Article 17.10 to mean that all vacation selections other than those made in the first four months shall be made by March 15, although later additions or changes could be made after that date by mutual agreement. [86] As I understand the award, the arbitrator reasoned that Article 17.08 requires that vacation be selected in order of seniority, and interpreted Article 17.10 to mean that March 15 is the date by which vacation selections for the last eight months of the year must be completed. This led him to conclude that for the last 8 months of the year, employees had the opportunity to select vacation by seniority until March 15. [87] The arbitrator has provided reasons for his interpretive conclusion (d). I will consider whether those reasons meet theDunsmuir test of reasonableness in the next section of this judgment. [88] Telus also submits that the arbitrator failed to provide reasons for his conclusion, at para. 84(g) of his award that “vacation time which becomes available after March 15 must be offered by seniority while maintaining the one first choice principle”. [89] As previously noted, at para. 67 of his award the arbitrator referred to the provisions of Article 17.08 that employees shall select vacation in order of seniority, and that the process is repeated until all vacation periods are chosen. [90] At paras. 71 and 72 of his award, the arbitrator considered the language of the third sentence of Article 17.10: Selections for the first four (4) month period need not be the employee’s first choice. The arbitrator considered this language, both on its own, and in the context of the whole of the vacation scheduling provision of the Collective Agreement. He found that its plain and ordinary meaning was that an employee who selected vacation in the first four months of the year may designate a different vacation in the last eight months of the year as his or her first choice. The arbitrator stated that the language of Article 17.10 did not provide, as Telus contended, for a first choice of vacation time in the first four months and another first choice in the last eight months. The arbitrator found support for his conclusion that there is one vacation schedule for each calendar year in the first sentence of Article 17.10, which provides that vacation schedules are for a calendar year. [91] The arbitrator reasoned that under Article 17.08 all vacation time must be selected by seniority and that Article 17.10 provides that only one first choice of vacation per calendar year is permitted. He found that there was no support in the language of Article 17.10 for the employer’s position that each employee had two first choices. [92] The arbitrator’s determinations that seniority applies to all vacation selections, and that employees had only one first choice of vacation time led him to conclude that vacation time which becomes available after March 15 must be offered by seniority, and that the ‘one first choice’ principle applies to this vacation time, as it does to any other vacation time. [93] At para. 84(h) the arbitrator held that the canvasses for vacation selection cannot begin before November 1 and February 1, the dates stipulated in Article 17.07 for the calculation of the 20% minimum allotment. Again, Telus submits that the arbitrator provided no reasons for this interpretive conclusion. [94] The arbitrator’s reasons in support of para. 84(h) may be found at para. 66 of his award, where he considered Article 17.07. He interpreted that article to mean that: There are two dates for calculation of the minimum 20% allotment of employees in an associated work group which shall be allowed off on vacation at any one time. November 1 for the first four months of the “upcoming” vacation scheduling year and February 1 for the balance, i.e. the remaining eight months of the then vacation year which is the calendar year: Article 17.10. [95] Article 17.07 establishes November 1 and February 1 as the two dates for calculation of the minimum 20% allotment. The minimum allotment is calculated as a percentage of the total number of employees in the associated work group as at each of those dates. Until those calculations are made, the parties are not in a position to determine accurately the number of employees who will be allowed off at any one time on annual vacation. [96] The arbitrator concluded, on the plain meaning of the language chosen by the parties that Telus and the Union intended that vacation canvasses could not start before each of the dates stipulated in the Collective Agreement for calculation of the 20% minimum allotment. [97] The arbitrator has provided reasons for each of the interpretive conclusions set out in paras. 84(d), (g), and (h) of the award. Those reasons are adequate to enable the parties to understand the arbitrator’s reasoning process. I find that the arbitrator’s reasons in support of each of these conclusions are sufficient to fulfill the requirements of procedural fairness in this case. [98] I turn now to the separate question of whether the arbitrator’s reasons meet the Dunsmuir test of reasonableness. D. Did the Arbitrator make any Error reviewable on the Standard of Reasonableness? Applicable Principles for Interpretation of the Collective Agreement [99] If an arbitrator interprets a collective agreement in a manner that the words cannot reasonably bear, or which has the effect of amending the collective agreement, then the interpretation will be unreasonable: British Columbia Maritime Employers’ Assn.at para. 58. Here, Article 12.08 of the Collective Agreement expressly provides that the arbitrator “will not have any power to alter or change any of the provisions of this Agreement”. [100] An interpretation of a collective agreement that is internally inconsistent, or leads to an absurdity is unreasonable: Calgary Health Region (Rockyview Hospital) v. United Nurses of Alberta, Local 121R (“Calgary Health Region”), 2007 ABCA 341 at para. 28; Irving Pulp and Paper Ltd. v. Communications, Energy and Paperworkers’ Union of Canada, Local 30, 2002 NBCA 30 at paras. 26 and 27. [101] Similarly, if a decision maker reaches an interpretation in a manner inconsistent with accepted principles of interpretation, his interpretive conclusion is unreasonable: Doucet-Jones v. New Brunswick (Board of Management), 2004 NBCA 65 at paras. 27, 28. [102] Where two provisions of a collective agreement must be construed, a harmonious interpretation will be preferred to one that results in conflict between those provisions: Pacific Press v. Graphic Communications International Union, Local 25 – C, [1995] B.C.C.A.A.A. No. 637 (Bird) (QL) at para. 27. [103] The rules which apply to resolve a conflict where the only permissible construction of a collective agreement puts two provisions in conflict are explained by the learned authors of Brown and Beatty, Canadian Labour Arbitration, 4th Ed. at para. 4:2120: Another related general guide to interpretation is that in construing a collective agreement, it should be presumed that all of the words used were intended to have some meaning, and that they were not intended to be in conflict. However, if theonly permissible construction leads to that result, resolution of the resulting conflict may be made by applying the following presumptions: special or specific provisions will prevail over general provisions;.... and finally, in the case of conflict between an earlier and later clause, there is some authority to the effect that “the part of the contract which is written first overrides that which is written later, and it is only otherwise when the later clause clearly spells out the overriding effect intended”, although the better view would seem to be that effect should be given to that part which best carries out the real intention of the parties [Emphasis added]. [104] Finally, in interpreting a collective agreement, the arbitrator should seek to give meaning to all of the language of the collective agreement, and to read the disputed words in the context of the collective agreement as a whole, and in accordance with the purpose of the provision in question: Brown and Beatty at para. 4:2150: Calgary Health Region at para. 30. [105] Telus submits that in reaching his interpretive conclusions (d), (g), and (h), the arbitrator has placed a construction on the Collective Agreement that it cannot reasonably bear, and has exceeded his jurisdiction by effectively amending the Collective Agreement, contrary to Article 12.08. Interpretive Conclusion (d) [106] The petitioner challenges the arbitrator’s conclusion that employees have the opportunity to exercise seniority until March 15 for the last eight months of the year. Telus argues that there is no language which would, for example, permit the most senior employee in an associated work group to wait until March 15 to make his or her first vacation selection. [107] Again, the last sentence of Article 17.10 provides: All other vacation selections shall be completed by March 15, although it is understood that later additions or changes can be made by mutual agreement. [108] Both parties agreed, and the arbitrator found, that Article 17.08 provides for vacation selection by rolling seniority. This means that the most junior employee in the associated work group has the last opportunity to select vacation. Telus submits that it was unreasonable for the arbitrator, having made that finding, to then interpret the Collective Agreement in a manner that would permit the most senior employee to wait until March 15 to make his or her first selection. As Telus argues, if the senior employee in an associated work group waits until March 15 to make their first selection, it would be impossible to complete the vacation selection process by March 15. The senior employee’s selection of vacation time would displace that of a less senior employee, and would potentially result in a serial “bumping” of vacation time that would prolong the selection process beyond the March 15 completion date. The petitioner submits that the arbitrator’s interpretation of Articles 17.08 and 17.10 is internally inconsistent and produces an absurd result. [109] Telus says that by virtue of the management rights clause contained in Article 8.01 of the Collective Agreement, it is entitled to implement elements of the vacation selection process not expressly governed by the terms of the Collective Agreement, including the use and length of bidding windows. Article 8.01 provides: Unless otherwise explicitly agreed to in this Agreement, management retains the exclusive right to manage its operations in all respects including the direction of the working forces. The Company agrees that any exercise of these rights shall not contravene the provisions of this Agreement. [110] Generally, management retains the residual right to operate its business as it sees fit, subject to the express terms of the Collective Agreement and to the requirements of human rights and other employment-related legislation: Voice Construction Ltd.at para. 32. [111] The arbitrator does not address the practical difficulty of completing the vacation selection process by March 15 if employees have the opportunity to exercise seniority until that date, nor does he address whether the vacation scheduling provisions of the Collective Agreement leave any room for the operation of management’s residual rights under Article 8.01. [112] Article 17.10 does not state that employees will have until March 15 to exercise their seniority rights. Rather, Article 17.10 requires that all vacation selections for the last eight months of the year shall be completed by March 15. The Shorter Oxford Dictionary, sixth edition, defines the verb “complete” to mean “bring to an end, finish or conclude ... make whole or perfect; fill up the amount or number of; add what is required to (a questionnaire etc.) ... accomplish, fulfill.” If all vacation selections are to be completed within the time stipulated, then the vacation selection process must have run its full course by March 15. That includes permitting time to allow for any re-selection of vacation where more senior employees make their first choice of vacation time for the last eight months of the year, and thereby displace the vacation selection of more junior employees. [113] Furthermore, under Article 17.08, employees select their vacation periods in order of seniority. Thus, senior employees will generally select their vacation before more junior employees do so. However, a senior employee may make her first choice of vacation a period falling within the last eight months of the year. Where she does so, her first choice may displace that of a more junior employee, triggering re-selection by the more junior employee, and potentially, those junior to her. If the senior employee waits until March 15 to make her selection, and that selection displaces the selection of a more junior employee, then it will not be possible to conclude “all other vacation selections” by March 15. [114] I accept Telus’s submission that the arbitrator’s conclusion that employees have until March 15 to exercise seniority is inconsistent with his determination that vacation is selected by rolling seniority under a process that the parties intended to be complete by March 15. [115] The arbitrator’s interpretative conclusion (d) is also inconsistent with the purpose of Article 17.10, which is to further the efficient administration of vacation scheduling under the Collective Agreement by establishing a deadline by which “all other vacation selections” shall be completed. The arbitrator’s interpretation would defeat that purpose by rendering it impossible for all vacation selection to be completed by March 15. I find that the arbitrator’s interpretative conclusion (d) is internally inconsistent, is contrary to the purpose of Article 17.10, and is one that the words cannot reasonably bear. It therefore does not meet theDunsmuir test of reasonableness. [116] In my view, it would be open to Telus to establish bidding windows which accommodate the one first choice principle, are consistent with a single annual vacation schedule, and enable all employees to select vacation in order of seniority in time to complete the vacation selection process by March 15. Interpretive Conclusion (g) [117] Telus challenges the arbitrator’s conclusion that vacation time which becomes available after March 15 must be offered by seniority. [118] The petitioner submits that there is no language in the Collective Agreement which obliges Telus to offer vacation time which comes available after March 15 by seniority. Telus points out that there is no reference in Article 17.10 to seniority. According to the petitioner, the reference to seniority in Article 17.08 applies only to the bidding process, which ends by March 15. In the absence of language in the Collective Agreement requiring Telus to process vacation time that becomes available after March 15 by seniority, the petitioner submits that it may exercise its management rights to allocate such vacation as it sees fit, so long as it acts reasonably. The petitioner contends that the arbitrator amended the Collective Agreement by requiring Telus to offer vacation time which becomes available after March 15 by seniority. [119] I do not accept Telus’s submission that the arbitrator has impermissibly amended the Collective Agreement. He was required to construe the vacation scheduling provisions of the Collective Agreement as a whole, and did so. The arbitrator found that vacation scheduling is by seniority. The arbitrator was presented by the parties with two opposing outcomes on the question of whether seniority applied to vacation scheduling after March 15. He accepted the interpretation urged by the Union. It was open to him on his construction of Articles 17.08 and 17.10 to conclude reasonably that seniority also applies to vacation that becomes available after March 15. Interpretive Conclusion (h) [120] The petitioner submits there was no reasonable basis for the arbitrator’s conclusion that canvasses during the vacation selection bid process cannot begin before November 1 and February 1, the dates stated in Article 17.07 for calculation of the minimum 20% allotment. [121] Telus submits that Article 17.07 does not address when the vacation bid process can commence, and that the commencement date for the bid process is properly a matter for Telus to determine in the exercise of its management rights. [122] I reject this submission. The calculation of the minimum 20% allotment is a necessary precursor to the vacation selection process. Until the calculation of the minimum 20% of employees allowed off at any one time on annual vacation is known it would be difficult, if not impossible to begin the vacation selection process. It was not unreasonable for the arbitrator to conclude that the parties intended that the vacation scheduling process would commence on the dates stipulated in the Collective Agreement for calculation of the minimum 20% entitlement. Interpretive Conclusions (e) and (f) [123] The arbitrator’s conclusions at paras. 84(e) and (f) are as follows: (e) The 20% minimum allotment applies throughout the vacation year; (f) Additions or changes to vacation are permissible after March 15 if within the 20% minimum. Otherwise they are subject to mutual agreement. [124] On the arbitrator’s interpretation, if an employee seeks a change in vacation after March 15, Telus is obliged to grant that change if the requested vacation time falls within the minimum 20% allotment. Only if the requested time is over the minimum 20% allotment is the change in the vacation time subject to mutual agreement. [125] Telus submits that the arbitrator erred when he found that there was no support in the language of the Collective Agreement for the petitioner’s position that the minimum 20% allotment only applied before March 15. Telus says that the plain and ordinary meaning of the second paragraph of Article 17.10 is that the vacation selection process must be completed by March 15, and that any later additions or changes may only be made by mutual agreement. The petitioner argues that this reading of Article 17.10 provides support for limiting the operation of the minimum 20% allotment to the vacation bid process, which ends on March 15. [126] The arbitrator considered the Employer’s submission that any changes or additions after March 15 are subject to mutual agreement at paras. 76 - 82 of his award. At paras. 76 – 79, the arbitrator said this: [76] ...The insuperable hurdle to that submission is found in the plain words of Article 17.07 providing for a minimum “20% of employees... shall be allowed off at any one time on annual vacations...”. The Employer seeks to limit the minimum 20% allotment to the period before March 15. There is no support for that proposition. Article 17.07 does not say a minimum of 20% shall be allowed off prior to March 15. It says a minimum 20% shall be allowed off at any one time. Those words mean what they say: a minimum 20% off at any one time in the context of a vacation scheduling year which is a calendar year. [77] The mutual agreement language in the last sentence of Article 17.10 is not neutered by this interpretation. It is a question of when mutual agreement applies. It clearly applies to post-March 15 additions or changes which exceed the minimum 20% allotment. [78] This interpretation is buttressed in two ways. The first is found in the principles of contract interpretation that specific provisions override general provisions and that which comes first overrides that which comes later. [79] Article 17.10 contains the general provision “[a]ll other vacation selections shall be completed by March 15, although it is understood that later additions or changes can be made by mutual agreement.” The specific provision which overrides that general provision is found in Article 17.07: “A minimum of 20% of employees... shall be allowed off at any one time on annual vacations...” This gains added support by the application of the rule of construction that where there appears to be a conflict in a contract that which appears first overrides that which is written later. [Emphasis in original] [127] At para. 80 of his award, the arbitrator referred to language from the prior collective agreement, which in his view strengthened his interpretation that the minimum 20% allotment applied to all vacation time. Ultimately, he concluded that neither recourse to the principles of contract interpretation nor to the earlier collective agreement was necessary. At para. 82 he said: ...the clear words of the collective agreement read in the context of the whole of the vacation scheduling language, lead inevitably to the conclusion that the minimum 20% allotment is applicable “at any one time”, that is to the entire vacation scheduling year which is a calendar year. [128] I find that there is nothing unreasonable about the arbitrator’s conclusion that the minimum 20% allotment applies throughout the year. That interpretation was clearly open to the arbitrator on the language he was required to construe. He articulated an analysis that reasonably supports his conclusion. [129] Telus submits that the arbitrator’s interpretive conclusion is unreasonable because it fails to give effect to the principle that where two provisions of the Collective Agreement are construed, the preferred interpretation is one that harmonizes the provisions, rather than places them in conflict. [130] There was no requirement for the arbitrator to “harmonize” Article 17.07 and 17.10 in the manner urged by the petitioner when on his plain reading of the last sentence of Article 17.10 in the context of the whole of the vacation scheduling language, the arbitrator found that the minimum 20% allotment applies to the entire vacation scheduling year, which is the calendar year. [131] The petitioner also submits that the arbitrator impermissibly amended Article 17.10 by reading in or adding by implication the phrase “above 20%”. Telus submits that, in effect, the arbitrator has amended the last sentence of Article 17.10 to read: All other vacation selections shall be completed by March 15, although it is understood that later additions or changesabove 20% can be made by mutual agreement. [132] I disagree. Rather than amending the Collective Agreement, the arbitrator has interpreted Article 17.10 in the context of the vacation scheduling provisions as a whole, and in a manner which gives effect to the parties’ agreement, in Article 17.07, that the minimum 20% allotment applies throughout the vacation year, which is the calendar year. [133] The petitioner also takes issue with the arbitrator’s statement at para. 77 of the award, that his interpretation does not “neuter” the reference to “mutual agreement” in the last sentence of Article 17.10. Telus submits that its ability to consider its operational needs is diminished after March 15, as compared with its position prior to March 15 when it may simply deny any vacation request above the minimum 20% allotment. After March 15, where an employee makes a request for a change or addition above the minimum 20% allotment, Telus argues that it must now, acting reasonably, consider whether to agree to the vacation request. However, Telus may still withhold approval where granting the vacation request would interfere with its operational needs. [134] The “mutual agreement “language of Article 17.10 has not been rendered redundant, or meaningless. It still applies to those cases where an employee requests vacation after March 15 in excess of the minimum 20% allotment. The arbitrator considered, but ultimately rejected, Telus’ argument that the minimum 20% allotment was limited to the period of time prior to March 15. [135] Telus considers that the arbitrator’s interpretive conclusions (e) and (f) place it at a disadvantage by limiting its ability to take its operational requirements into consideration with respect to vacation scheduling after March 15. However, the arbitrator performed the task of ascertaining what two parties with equal bargaining power meant by the language they used in Article 17.07 and 17.10 with respect to vacation changes after March 15. [136] The arbitrator’s reasons relating to interpretive conclusions (e) and (f), read as a whole, fall within the range of acceptable outcomes and identify the analytical process, and the interpretive principles he followed in order to reach those conclusions. The arbitrator’s interpretive conclusions (e) and (f) are not unreasonable. CONCLUSIONS [137] The application of the Union to strike paragraphs 7 through 9 of Affidavit No. 1 of Kate Nemeth, sworn December 3, 2008, is granted. [138] I have found that the arbitrator did provide reasons in support of his interpretive conclusions (d), (h), and (g) that are adequate to meet the requirements of procedural fairness. [139] The petitioner has established that the arbitrator’s interpretive conclusion (d) is unreasonable. Accordingly, the petitioner is entitled to an Order quashing and setting aside paragraph 84 (d) of the award. [140] The balance of the relief claimed in the petition is dismissed. [141] If the parties are unable to agree on costs, they may make submissions in writing, through the Registry. “Pearlman J.” ________________________________ The Honourable Mr. Justice Pearlman
Date: 20090921 Docket: S088470 Registry: Vancouver In the Matter of the Canada Labour Code, R.S.C. 1985, c. L-2 as amended And In the Matter of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, as amended And In the Matter of a Decision of Colin Taylor, Q.C., dated August 27, 2008 Between: Telus Communications Company Petitioner And: Telecommunications Workers Union Respondent And: Colin Taylor, Q.C. Respondent Before: The Honourable Mr. Justice Pearlman |