The Court of Appeal for Saskatchewan has confirmed that when applying the reasonableness standard of review, courts should take a deferential approach. This was also recently confirmed by the Federal Court of Appeal, in Canada (Attorney General) v. National Police Federation  F.C.J. No. 682.
In University of Saskatchewan v. Administrative and Supervisory Personnel Assn.  S.J. No. 112, an employee was successful in setting aside a decision of the Court of Queen’s Bench in chambers. The chambers judge was found to have failed to properly apply the reasonableness standard of review set out in Canada (Minister of Citizenship and Immigration) v. Vavilov  S.C.J. No. 65. What had the chambers judge done wrong?
The chambers judge failed to show the arbitrator sufficient deference. He reviewed the matter de novo, applying his own personal view of what evidence and issues mattered most. However, the reasonableness of a decision does not depend on whether the reviewing court would have taken a
different approach than the original decision maker. If the decision being reviewed is both rational and logical, it is reasonable. The chambers judge should only have set the decision aside if it possessed sufficient shortcomings such that it lacked the necessary degree of justification,
intelligibility, and transparency. Instead, the chambers judge disagreed with the arbitrator’s assessment of the evidence and erroneously overturned the decision on that basis.
The employee was the head coach of the University of Saskatchewan men’s volleyball team. The employee was terminated with cause due to his decision to recruit a student accused of sexual assault. At the time, the student assured the employee he was innocent. However, the student was
not innocent. He eventually pleaded guilty to the charges and was sentenced to two years in prison. News quickly spread, and the coach was eventually terminated with cause. The reasons for his termination included:
1) he had knowledge of the student’s criminal charges, yet proceeded to recruit the student;
2) he failed to inform his supervisor of his intended and eventual recruitment of the student.
The employee’s union grieved the termination and the matter proceeded to arbitration.
Arbitrator orders reinstatement
In the arbitrator’s view, while the employee deserved some discipline for his failure to report the student’s recruitment to his supervisor, termination was excessive. His supervisor should have been informed when it became apparent the student was not innocent and would be pleading guilty. This would have allowed the university to develop a plan to respond to the situation. The employee deserved a warning for this failure, but not a termination. The arbitrator awarded reinstatement.
The arbitrator noted the employee was not obligated to “play detective” and dig deeper into the nature and quality of the charges against the student. While his belief in the student’s proclaimed innocence was mistaken, he had no obligation to investigate further.
Judicial review: Arbitrator was unreasonable
The chambers judge set aside the employee’s reinstatement. The chambers judge correctly noted he was to review the decision on the standard of reasonableness as set out in Vavilov. The chambers judge found the arbitrator’s decision unreasonable for several reasons. Of those reasons, two are particularly noteworthy:
1) The arbitrator believed the employee had no obligation to investigate the nature and quality of the charges against the student; and,
2) The arbitrator failed to address several key arguments and central issues. The arbitrator did not “… meaningfully grapple with … the key arguments raised by …” the university.
On Appeal: Mischaracterizing evidence and the Aerocide Rule
The Court of Appeal identified with some criticism the failings of the chambers judge.
1) The chambers judge mischaracterized findings of the arbitrator.
The chambers judge found the arbitrator’s decision inconsistent for saying the employee had no obligation to investigate the charges while at the same time finding that the employee not knowing the nature and extent of the charges mitigated against his culpability. The arbitrator never said this.Instead, the arbitrator found the employee should not have looked deeper into the nature and quality of the charges, even if he could have done so. Not only was this not an aspect of his job, but it would also have been inappropriate. The employee had neither the obligation nor qualifications to cross-examine the student. It was therefore reasonable for the employee to not investigate further.
2) The chambers judge substituted his view of what the issues should have been.
The rule in U.S.W.A. v. Aerocide Dispensers Ltd. (1965) 15 L.A.C. 416 is well known. The reasons given by an employer at the termination of employment should match the reasons for termination asserted at arbitration. The chambers judge disregarded this rule. The chambers judge erred in considering reasons for termination that had not been raised before, such as the “duty to investigate” issue.
The chambers judge considered other issues he should not have. He introduced a list of new issues which the arbitrator had supposedly failed to deal with. However, that list was “for the most part, a statement of what the chambers judge considered the key issues to be and not a review of the issues omitted or overlooked by the arbitrator.” These were entirely new issues which the chambers judge felt should have been considered at first instance. In considering these new issues, the chambers judge substituted the issues he believed should have been considered with the issues actually considered by the arbitrator. This was improper.
Insufficient deference leads to reversed decision
Ultimately, the chambers judge showed the arbitrator insufficient deference. The role of a reviewing court is not to reassess the evidence. The chambers judge “reviewed the matter de novo” while emphasizing his own view of which issues should have been addressed. He should have instead limited himself to considering those issues arising from the dismissal letter, the arguments made at arbitration, and the arbitrator’s decision.
The Court of Appeal therefore allowed the appeal and upheld the arbitrator’s decision.
This article was written by Shane Burton-Stoner and was originally published by The Lawyer’s Daily on August 5, 2022. Shane Burton-Stoner is an Employment Lawyer at Monkhouse Law.
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