Telus Communications Inc. v. Telecommunications Workers Union, 2014 ABCA 199

Keywords: Administrative law; employment; termination; reasonableness standard.

Synopsis: The Appellant’s request to take Monday off work to play in a slo-pitch tournament was denied by his employer (Telus) due to staffing concerns. The day of the slo-pitch tournament, minutes before the start of his shift, the Appellant texted his manager that he could not make it into work “due to unforeseen circumstances.” Suspicious, the manager went to the ball park and saw the Appellant pitching in the tournament. When later questioned about his absence, the Appellant told his employer he had awoken in the night with severe diarrhea that persisted into the next morning. He had been playing ball all weekend and ate something “that may have been funky.” He explained he “got the runs [and] woke up at 3:30 [and] was on the toilet for

a couple of hours.” The Appellant explained he went “back to bed” in the morning had “runs (uncontrollable symptoms)” and “went back to the ball diamond at 10:45 (to watch team) and did not play.” When confronted with evidence that his manager observed him playing he then admitted to playing but said was only pitching and not batting. Telus terminated the Appellant. The Union grieved the termination. The arbitrator, despite finding the Appellant lied twice and intended to claim a sick day when he was not sick, ruled the termination could not stand. On J.R., the chambers judge held the arbitrator’s decision unreasonable, quashed the decision, and upheld the termination. The Appellant appealed to the Alta. C.A. arguing the chambers judge incorrectly applied the reasonableness standard of review to the arbitrator’s decision. Appeal dismissed.

Importance: The C.A. identified reasonableness as the applicable standard of review attracting deference to the decision of the chambers judge. Referring to SCC decisions of Canada v. Khosa, 2009 SCC and Law Society of New Brunswick v. Ryan, 2003 SCC 20*, the C.A. held the chambers judge was required to consider whether the arbitrator’s decision fell within a range of possible acceptable outcomes defensible in light of the facts and the law. The chambers judge was also required to consider the decision-making process and determine whether the decision is intelligible, transparent and justiciable. The C.A. agreed the chambers judge was correct to conclude the arbitrator’s decision was unreasonable and not within the range of possible outcomes defensible in light of the facts and law. The remedial decision of the chambers judge to quash the arbitrator’s award is a question of mixed fact and law reviewable on a standard of palpable and overriding error. The judge did not err in failing to send the matter back to the tribunal considering the circumstances and all the evidence there was only one possible interpretation and solution. The C.A. concluded:

“The reviewing chambers judge concluded that ‘the only reasonable conclusion on the evidence is that the grievor lied about being sick’ and that termination was the only reasonable outcome. He found that, based on any line of analysis, to order the reinstatement of an employee who falsely called in sick in order to play baseball, then repeatedly lied to his employer after the fact, and at arbitration undermined the trust relationship between Telus and the grievor such that it could not be repaired.” (at para. 38).

Counsel for Appellant: William Johnson, Q.C. (McGown Johnson, Calgary)

Counsel for Respondent: John Gilmore & Stephen Beernaert (Bennett Jones, Calgary)

* I (Eugene) was S.C.C. agent on this particular appeal, to Marc Richard Q.C. (now on the N.B.C.A.); CLICK HERE for the first page of the factum — a good example of a first paragraph that ‘leads with strength’, ie strongest argument put up first — the whole para. is very deliberately one long sentence, grammatically should not be, but read for yourself and see if it works. And yes, we won, the Leave (ie successful in getting Leave). And we won the Appeal as well.

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