CBC: Deference to Labour Arbitrators
On October 4, 2007, the Supreme Court of Canada (“SCC”) dismissed application for leave to appeal in the case of Canadian Broadcasting Corp v Canadian Media Guild, 2007 BCCA 232. This labour law case looked at judicial review of a grievance arbitrator’s decision to discipline, rather than dismiss a Canadian Broadcasting Corporation (“CBC”) journalist and the standards that should be maintained when the courts review an arbitrator’s decision in these circumstances.
In 2003, a CBC journalist based in Nelson, British Columbia (“BC”), Bob Keating, anonymously sent a box of chocolates that was contaminated with dirt and raw chicken to the head of an activist organization, Earl Hamilton, who publicly criticized him. That same evening, the journalist confessed his actions to his wife, as well as to Mr. Hamilton, the target of his retaliation. Further, he told his supervisors at CBC about his actions and sought assistance from a psychologist. He expressed remorse and apologized at a disciplinary meeting, but regardless, was discharged by his employer.
After the Canadian Media Guild filed a grievance on his behalf, the arbitrator found that while the grievor’s conduct was deviant, discharge from his employment was excessive. Instead, he substituted the discharge with discipline, requiring that he attend an anger management course and be subject to a three-month suspension. He explained that while the grievor’s conduct had damaged his personal credibility, it did not damage directly “in terms of his integrity as a journalist”. While he refused to admit hearsay evidence of an alleged prior outburst by the grievor, the arbitrator did consider a psychologist’s report, which included an opinion about his psychological condition at the time of the incident and a positive prognosis for the future.
Following the arbitrator’s decision, the CBC applied for judicial review and the chambers judge allowed this application, finding that the arbitrator’s decision was patently unreasonable and that the arbitrator erred in admitting post-termination evidence and in refusing to admit the evidence of prior misconduct, according to Cie minière Québec Cartier v Quebec (Grievances arbitrator),  2 SCR 1095 [“Québec Cartier“].
The Canadian Media Guild appealed the chamber judge’s decision to the British Columbia Court of Appeal who allowed their appeal and re-instated the decision of the arbitrator. While they agreed that the standard of review was patent unreasonableness, the Court of Appeal found that the arbitrator’s decision was protected by s. 58 of the Canada Labour Code, RSC 1985, c L-2, a powerful privative clause. Further, s. 60(2) of the Canada Labour Code allowed for the substitution of penalty for dismissal, giving labour arbitrators a broad mandate, including jurisdiction to admit the psychologist’s report. The Court of Appeal found that not only did the arbitrator have the jurisdiction to admit the psychologist’s report, but may have been criticized if he refused to admit it, in accordance with the arbitrator’s role in Québec Cartier and his broad jurisdiction. In addition, s. 60(1) conferred the arbitrator discretion to decide to admit the evidence of a prior outburst, so the chambers judge had no grounds to interfere with his ruling in this respect.
Finally, the chambers judge found that the arbitrator was patently unreasonable by considering whether the grievor’s behaviour may recur, rather than whether his actions had destroyed his employment relationship as a result of his damaged credibility as a CBC reporter. The Court of Appeal, however, found that the chambers judge erred in this finding, as the issue that the arbitrator found relevant was not “wrong”, but one aspect to be considered in the matter before the arbitrator. If the Court of Appeal were to allow the chambers judge to take this approach, her opinion would be substituted for the opinion of the arbitrator, which is against the principle of a high degree of deference for labour arbitrators in these circumstances. The Court of Appeal acknowledged that the grievor’s misconduct was “aberrant” and “highly uncivil”, however, it was a single occurrence and the target was warned before harm could ensue, thus, the arbitrator had grounds for determining that public trust was not “irreparably fractured”.
In June 2007, the CBC filed for application for leave to appeal, however, the SCC dismissed their application with costs, refusing to hear the appeal. Further, in an article in the Globe and Mail by Marsha Lederman, [(5 March 2008) online: <www.theglobeandmail.com>] on March 5, 2008, it is reported that Keating will get his job back, as well as almost five years of partial back pay, minus the three months for the arbitrator’s suspension. In the article, Lise Lareau, the president of the Canadian Media Guild, said “It was really a waste of money for the CBC to be doing all of this. That’s the way the CBC has been of late – very litigious”. By spending hundreds of thousands of dollars in appealing this case, as well as about $100, 000 in costs ordered by the SCC to pay for the guild’s legal costs, the public broadcaster has incurred a large expense over this single act of misconduct. By refusing to hear the appeal, the SCC clearly confirms the role and deference owed to the labour arbitrator. If the court allowed the CBC’s appeal, a labour arbitrator’s ruling could essentially be replaced by the views of the court, diminishing the arbitrator’s role and mandate. As Sean Fitzpatrick, lawyer for the Canadian Media Guild explained, “If there’s any lesson to be had out of this, it’s don’t waste your money on trying to get past an arbitrator’s decision that was well reasoned, based on established jurisprudence. If you’ve been found to have made a mistake, accept it”.