Dutil, Cotnam, Moore

Appeal from a judgment of the Superior Court dismissing an application for judicial review of a grievance arbitral award dismissing a complaint under section 59 of the Labour Code (CQLR, c. C-27) (LC). Allowed.

The arbitrator decided that the employer, who operates an amusement park, did not breach section 59 LC and acted like a reasonable employer by dismissing, during the collective agreement bargaining process, all employees responsible for providing first aid and contracting out their duties. The trial judge held that the decision was reasonable.

The judge erred by adopting the arbitrator’s interpretation of the analytical method set out in United Food and Commercial Workers, Local 503 v. Wal‑Mart Canada Corp. (S.C. Can., 2014-06-27), 2014 SCC 45, SOQUIJ AZ-51085581, 2014EXP-2094, 2014EXPT-1214, J.E. 2014-1183, D.T.E. 2014T-445, [2014] 2 S.C.R. 323. Pursuant to that judgment, the impugned change must be consistent with the business’s normal management practices. To satisfy this requirement, the change must be in accordance with the employer’s past management practices. When a new situation makes it impossible to analyze past management practices, the change must be analyzed according to the standard of a reasonable employer in the same circumstances. These are not alternative criteria. Therefore, the arbitrator should have first considered its past management practices before assessing whether the employer’s conduct was reasonable, which he failed to do. Had he done so, he should have concluded that the decision was not consistent with the employer’s normal management practices and granted the complaint. In fact, the financial difficulties raised by the employer to justify its decision have existed for many years. Despite this, it never laid off employees. Moreover, its reaction is likely a direct response to the wage demands during the normal course of negotiations and not a solution in response to precarious financial circumstances. The arbitrator’s decision was unreasonable. It was also irrelevant for the arbitrator to comment on the union demands during negotiations or to analyze the parties’ conduct in this regard.

Text of the decision: http://citoyens.soquij.qc.ca