Labour Arbitrators Need Not Be 'Correct' - Just Be 'Reasonable'

The courts have long struggled with the degree of deference which should be shown to labour relations arbitrators. As labour disputes become increasingly complex, it is more and more difficult to see anything like a "simple" case. As a result, the system of specialized arbitrators who decide cases between employers and unions under collective agreements have become increasingly formalistic and the legal scrutiny which has been brought to bear on these decisions has increased.

In a development which is positive for labour relations practitioners, the Supreme Court of Canada ruled on December 2, 2011 that decisions of labour arbitrators should be shown a high level of deference. The Court's decision in Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals, 2011 SCC 59, involved an appeal which focused on the nature and standard of review of the courts of arbitrator's rulings.

Jacqueline Plaisier had been employed by the Nor-Man Regional Health Authority for 20 years, and she and her union disputed the approach taken by her employer to the calculation of her vacation. The issue involved an interpretation under the applicable collective agreement and whether or not Ms. Plaisier was entitled to a "bonus" week of vacation on the basis of reaching her 20th anniversary with the organization. The collective agreement wording favoured Ms. Plaisier, with "employment" for the purposes of the agreement being equivalent to the period which commenced when she started working for the Health Authority. In actual fact, the employer's longstanding practice was to treat the employee's seniority date as the trigger for vacation entitlements. As a result of this, a period when Ms.

Plaisier worked as a casual employee was not counted by the employer for the purposes of her vacation calculation.

The union submitted the matter to arbitration and was ultimately unsuccessful. While the collective agreement interpretation clearly supported the union's position (the seniority date practice of the employer was not mentioned in the agreement, and the reference was to employment as they alleged), the arbitrator refused to allow the union to rely on the express wording of the collective agreement. Instead, the arbitrator held that the union was subject to an estoppel which prevented them from relying on their collective agreement rights. This was based on a longstanding and widely-known practice of how the wording was applied by the...