Thoughts from a Management Lawyer

Pending Criminal Charges and Arbitration

A employee was charged with sexual assault.  Among his bail conditions, he could not act as a paramedic, nor could he attend at his employer's headquarters and communicate or associate with certain named co-workers.  He was placed on an administrative leave and a meeting with the employer was scheduled.  The employee's lawyer wrote the employer saying:

"I have advised [the employee], in order to protect his constitutional rights and the integrity of the criminal case, that he is to respectfully decline to answer any questions touching upon the allegations that are before the criminal courts. I cannot contemplate an interview, as described in your letter, which would not trespass into this area."

The employer noted that it could not, in the circumstances, complete the investigation.  Further, the employee "was informed by management that he was being placed on an "indefinite authorized leave of absence without pay" and that "your bail conditions preclude you from acting as a health care or first aid provider, among other conditions, and as a result you are unable to perform the duties of your job." 

The Union grieved and the central issue was whether the employer had the right to suspend the employee in light of the criminal charges.  

The arbitrator observed that:

It is now generally accepted that the right to suspend an employee who has been criminally charged must be assessed in the light of a balancing of interests between the employer and the employee:

The employee, of course, has a legitimate interest in being considered innocent until he has been proven guilty. If, however, the alleged offence is so related to the employment relationship that the continued employment of the employee would present a serious and immediate risk to the legitimate concerns of the employer as to its financial integrity, security and safety of its property and other employees as well as its public reputation, then indefinite suspension until the charges have been disposed of would appear to be justified. In determining the nature of the legitimate interests of the employer, it is necessary to look at the nature of the offence, the work being performed by the employee, and the nature of the employer's business...The board has carefully considered the cases to which we were referred and from those cases, we would extract the following general principles:

1. The issue in a grievance of this nature is not whether the grievor is guilty or innocent, but rather whether the presence of the grievor as an employee of the company can be considered to present a reasonably serious and immediate risk to the legitimate concerns of the employer.
2. The onus is on the company to satisfy the board of the existence of such a risk and the simple fact that a criminal charge has been laid is not sufficient to comply with that onus. The company must also establish that the nature of the charge is such as to be potentially harmful or detrimental or adverse in effect to the company's reputation or product or that it will have a harmful effect on other employees of the company or its customers or will harm the general reputation of the company.
3. The company must show that it did, in fact, investigate the criminal charge to the best of its abilities in a genuine attempt to assess the risk of continued employment. The burden, in this area, on the company is significantly less in the case where the police have investigated the matter and have acquired the evidence to lay the charge than in the situation where the company has initiated proceedings.
4. There is a further onus on the company to show that it has taken reasonable steps to ascertain whether the risk of continued employment might be mitigated through such techniques as closer supervision or transfer to another position.
5. There is a continued onus on the part of the company during the period of suspension to consider objectively the possibility of reinstatement within a reasonable period of time following suspension in light of new facts or circumstances which may come to the attention of the company during the course of the suspension. These matters, again, must be evaluated in light of the existence of a reasonable risk to the legitimate interests of the company ( Re Ontario Jockey Club and SEIU, Local 528 ,17 LAC (2d) 176 (Kennedy) at 178-9).

The employer was directed to determine whether there are other employment opportunities for the grievor and to engage in that process in good faith and on an on-going basis pending the outcome of the criminal charge.  

The employer sought judicial review of this Award which application was recently dismissed by the Divisional Court.  In so doing the Court noted:

"This jurisprudence requires that in a situation where the employee is precluded from performing his or her normal duties due to pending criminal charges or for other reasons, the employer must attempt to identify an appropriate temporary position for the employee, consistent with the employer’s reasonable interests."

The Court rejected the argument that these principles did not apply because principle is inapplicable because "the employer’s actions were in response to the bail restrictions imposed following the employee’s arrest".

 

All Words Have a Meaning (at arbitration and everywhere)

Arbitrators get their jurisdiction from the collective agreement between the Union and employer, and their task is to interprete the words negotiated by the parties.  There is a presumption that in construing a collective agreement, all of the words used were intended to have some meaning.  The words must be interpreted in a manner that makes sense.  This requires that the words be read, understood and interpreted.

In Hospital for Sick Children, the issue was whether an employee had lost seniority and his employment deemed terminated under the following provision:  

“An employee shall lose all seniority and service and shall be deemed to have terminated if he:  

… (d)         is absent from scheduled work for a period of three (3) or more consecutive working days without notifying the Hospital of such absence and providing to the Hospital a satisfactory reason.

This case was heard on three (3) days and an evening by a tripartite Board of Arbitration.   While the Award allowing was a short 6 paragraphs long,  the lessons emerging from the Award are many.  

The employee (grievor) was off work for three (3) months starting October 5, soo8.  He supplied the employer with medical notes substantiating his absence from work.  His sick leave entitlement expired shortly after he started his medical leave.  In these circumstances:

As such, there is no question that the Hospital was notified of Mr. Baker’s absence. What there is a question about is whether Mr. Baker was “absent from scheduled work” and, if so, whether there was a “satisfactory reason” for that absence.

The Board of Arbitrator had no problem quickly finding that the first condition was "clearly not met" and there was no need to go on to consider whether the proferred reason for absence was satisfatory.  

Given that the employee was absent from work for three (3) months, if the employer now wanted to invoke article 9(3) of the Collective Agreement, it had to meet the terms of the article.  Here's where the Board of Arbitration provides some direction:

Here, that meant more than simply advising Mr. Baker, after a request for further (and detailed) “clarification” from his physician (on which Mr. Baker had not been copied) made substantially over the Christmas/New Year’s period, did not generate a response within the stipulated deadline, that he was now, for the first time in three months, considered to be “absent without authorization” and that his employment “may be in jeopardy” unless he responded to that request within three days; leaving aside any concerns one might have as to the “fairness” of that approach, or as to the legal or factual ambiguity of the message, it required both that Mr. Baker actually be scheduled for work (so that he could have some “scheduled work” from which he could properly be said to be “absent”) and that he be so advised.  In this case, there is no evidence that either of those things happened and, for that reason alone, the termination cannot stand.

Before invoking the consequences of a clause of this nature (realy any collective agreement provision), pause and step back.  Here's some questions (there are more):

1. Read the article that you're trying to bring yourself within - what does the article say (i.e. what are the agreed to words?)
2. What do all of the words mean (alone and together)? How will this provision be interpreted?
3. Are there other collective agreement provisions that might impact one way or the other on the interpretation of the article on which you intent to rely?
4. Now that you've read the collective agreement, and the specific article in question, and understand it, what are the circumstances of your specific case and how should you reasonably deal with those circumstances to bring the situation into the clause?  In fact, can you bring yourself within the terms of the collective agreement at all?

Trying to fit a square peg into a round hole, rushing, or ignoring the collective agreement language or the particular circumstances of the case, greatly increases the odds that the case will end badly.  

In the Hospital for Sick Children case, the Board of Arbitration allowed the grievance, and reinstated the grievor with no loss of service or seniority, and with full compensation and all lost salary and benefits.

Costs in Labour Arbitration

One party seeking its costs in labour arbitration under a collective agreement is a rare occurrence.  That's not to say that it doesn't happen, it just doesn't happen all that often.  

The general rule was succinctly stated in the leading text by  Brown & Beatty Canadian Labour Arbitration (4th) at paragraph 2:1430:

Collective agreements customarily provide that the costs of the arbitrator and the arbitration proceeding are to be borne equally by the parties.  Counsel fees and legal costs, however, are rarely, if ever, dealt with by the collective agreement and the general view is that an arbitrator has no jurisdiction, in the absence of an express provision in the agreement, to order that such costs be paid by the losing party.  Rather, arbitrators have assumed that, in view of the long-standing practice of each party bearing its own costs , an express provision granting the arbitrator such a power would be required to support making such an order. [Emphasis added]

An excellent recent review of the law of costs in arbitration is found in Weeneebayko Health Ahtuskaywin (a case where the Canada Labour Code applied). The following basic principles were expressed and accepted by the parties to the arbitration:

1. Normally, the costs of an arbitration hearing are borne equally by the Union and Employer;
2. Costs of a labour arbitration proceeding are not ordered to follow the cause;
3. Costs will not be ordered in a labour arbitration matter as a punitive measure;
4. Costs may be ordered in granting an adjournment, as the exercise of arbitral authority to control the process;
5. It is generally accepted arbitral thought that only exceptional circumstances will give rise to an order for costs; and
6. Arbitral discretion to award costs have been exercised rarely, and only in cases in which it appears that the party seeking the adjournment had reasonable control over the circumstance that caused the need to adjourn. (As, for example, in Hawker Siddeley Canada Inc. And I.A.M. Lodge 1922, [1989] O.L.A.A. No. 67, 7 L.A.C. (4th) 172, (Gorsky), in which an employer had ability to alter the vacation schedule of key witnesses, and assure their availability for hearing).

After reviewing the governing legislation (the Canada Labour Code) the arbitrator noted:

The Code specifies the elements of the authority of the board of arbitration to control its own procedure. Unlike the related provision of the Ontario Labour Relations Act, R.S.O., c. 228, s.45, (which only requires that the parties share equally the cost of the arbitrator when appointed by the Minister), the Code requires that regardless of the manner of appointment, each party shall bear its own costs, and shall pay the fees and expenses of the arbitration board, unless the collective agreement provides otherwise.

In this case, neither the Canada Labour Code nor the collective agreement conferred jurisdiction upon the arbitrator  to award costs and the arbitrator refused to do so.

The case is instructive on the (limited) circumstances in which costs will be awarded and the policy reasons for a restrictive approach.

Costs Award at Arbitration - Not So Much

Can an arbitrator award costs against one or the other of the parties (the Union or Company)?  

Each party to a labour arbitration bears their own costs and then split of costs of arbitration.  Such costs would include, for example, the arbitrator's fees and expenses associated with the hearing (for example, the cost of the hearing room).  This is normal and usual, in fact, most collective agreements address this specifically.

In Shoppers Meat Markets Arbitrator Solomatenko stated that "as a general rule, costs of an abortive hearing should only be awarded where there are extraordinary factors", such as where there has been an abuse of process.  He noted:

"The overriding consideration, however, must be the labour relations context itself. It is a long-established principle of the labour relations process that each party shares equally in the cost of the procedure, regardless of its success in the matter. Whenever costs of an aborted hearing are awarded as a term of granting an adjournment, it should still be in the context of this historical principle that the parties normally share all costs"

There must be some "extraordinary circumstances" present.  

In Community Addiction and Mental Health Services of Haldimand-Norfolk [2010] 101 C.L.A.S. 304 (Chauvin), despite the following unusual provision, the Arbitrator nonetheless refused to grant costs against the Union where it was found that the "extraordinary circumstances" were not present:

The Parties to this collective agreement shall pay the fees and disbursements of their respective appointees to the Board of Arbitration and shall share equally in the fees and disbursements of the Chair. The Parties further agreed that, in the event of any cancellation fees being levied by the Board of Arbitration members, the Party responsible for such cancellation shall be solely responsible for all such fees.

Most recently, Arbitrator Stout considered the matter and, in refusing to award costs against the Union noted that the employer:

.... has sought an order for their costs thrown away.  The costs associated with my fees and expenses are addressed in the collective agreement, see article 7.15.  This is not unusual in labour relations.  In fact, the splitting of costs is normal. It is only in exceptional circumstances that an arbitrator may order costs, see Community Addiction and Mental Health Services of Haldimand-Norfolk v. Canadian Union of Public Employees, Local 4700 (MacLeod Grievance) [2010] O.L.A.A. No. 183.  I would add that it is only where a clear abuse of process has occurred that an arbitrator should depart from what the parties have agreed to in the collective agreement. I am not satisfied that extraordinary circumstances exist. Further, I do not find that the adjournment request is an abuse of process. 

And, according to Brown and Beatty's leading (and fantastic) text Canadian Labour Arbitration (paragraph 2:1430 Ordering costs):

... even where the cause of the delay and the resultant abortive hearing could be attributed to one party, most arbitrators have expressed the view that they had no authority to order that the costs associated therewith be paid by that party.  One arbitrator, however, ordered costs to be paid where the party had persistently refused to produce relevant documents when ordered to do so,  and another ordered that the employer pay a portion of the union's share of the cost of an arbitration where it was required to take such proceedings to enforce the award.  The costs associated with adjournments made at the request of one party may be awarded as a term of granting the adjournment.  As well, at least one arbitrator has compelled the posting of security, on a motion to adjourn.

So, costs awards are a rare occurrence at labour arbitration.  Leaving aside the fact that arbitrator's are reluctant to award costs, simply making the request and pursuing that request to arbitration can have some practical consequences on the party advancing the argument.  Labour law is about give and take, not just take.  The old adage of "what goes around comes around" comes to mind.

 

Take Care When Drafting Discipline Letters

It pays to spend time drafting disciplinary letters.  Failing to do so can have some serious consequences at least in the Unionized workplace.  A recent case discusses the matter in helpful terms.  In this case, the employer was able to dodge the Union's bullet. 

The discipline letter was broadly drafted and included sweeping statements in support of the discipline imposed.

The Union argued that, despite that the only ground specifically referred in the discipline meeting and relied upon by the employer in imposing discipline was was that of double reimbursement.  Accordingly, they argued that the Aerocide Dispensers Ltd., (1965) 15 L.A.C. 416 (Laskin) applied:

"The board is justified in a case of challenged discharge to hold the employer fairly strictly to the grounds upon which it has chosen to act against an employee who consequently feels himself aggrieved. This is not to say that the board should be overly technical in assessing an assigned cause of discharge but it does mean that it ought not to permit an assigned cause to be performed into one different from it merely because the evidence does not support the assigned cause but rather one something like it."

Accordingly, as a general rule, the employer may not alter the grounds cited for discipline once those grounds have been advance.  In Carter Carburetor Division of A.C.F. Canada Ltd. (1977) 16 L.A.C. (2d) 166 (Adams)Arbitrator Adams (as he then was) said that the employer is "limited to the grounds upon which it first replied in discharging or disciplining an employee". 

In Brown and Beatty, Canadian Labour Arbitration review the topic of the alteration of grounds of discipline and the Aerocide case and write:

"The principle that an employer cannot justify disciplining an employee on grounds that are different from those it gave when the penalty was actually imposed is, however, neither absolute nor inviolable. Many exceptions and limitations have been recognized."

There are numerous exceptions to this general statement of the "rule".  In Toronto (City) (2003), 121 L.A.C. (4th) 362 (Brown), the arbitrator held:

"The cases reviewed in the preceding section demonstrate my task is to strike an appropriate balance between the dictates of fairness and the mandate to resole the real issue between the parties.  Fairness and natural justice require that an allegation of misconduct, resulting in discipline, be made in a timely fashion so that an accused employee is able to gather exculpatory evidence before it is diminished or lost through the passage of time.  An employer's failure to satisfy this requirement of natural justice can cause significant prejudice to a grievor."

The issue was put as follows by Arbitrator Munroe in Canadian Airlines International Ltd. (1988), 35 L.A.C. (3d) 66 (Munroe):

"...the true justification for the rule, if such it be, lies in the unyielding requirement of a fair hearing on the real substance of the parties' differences. To carry the rule further, and to refuse its relaxation even where there is no threat to natural justice and no real prejudice to anyone would be the sort of mistaken symbolism that tends to bring the system into disrepute. We also believe that to be the modern arbitral consensus..."

More recently in Inventronics Ltd. (2010), 101 C.L.A.S. 34 (Wood), the arbitrator concluded that the "test which has developed is more complex than that sought to be applied from the Aerocide Dispensers Ltd.  decision".

To the same effect is the arbitrator's conclusion in Toronto District School Board decided a couple of weeks ago and the springboard to this post.

In short, while arbitrators have shown a willingness to be somewhat flexible when looking at the grounds for discipline where fairness demands it and where no real prejudice results.  This being said, employers would be wise to consider their words (and their grounds) carefully when drafting disciplinary letters. 

Surveillance Evidence Admitted Even if Improperly Obtained

I'm a little behind on my blog reading, but I did want to thank Dan Michaluk for bringing a helpful case called McKesson Canada Corp. (Birch Grievance) to my attention through his post.  Arbitrator Hood notes in the McKesson case:

"Video evidence, even if improperly obtained, is admissible. As a general rule, subject to circumstances where the Canadian Charter of Rights and Freedom apply, the test for admissibility of evidence in a court of law is relevance and if admissible, the court is not concerned with how the evidence was obtained (see R. v. Wray , [1971] S.C.R. 272)."

This is similar to a comment made by the Arbitrator in a case that I argued:

"Put simply, I agree with arbitrator Bendel that the test for the admissibility of videotape surveillance is relevance. I do not see that the method by which evidence is obtained has any impact on its admissibility before me. It is either relevant evidence in which case I must admit it or it is not. How it was; obtained is of no concern to me. For example, let us assume a situation where a person breaks into a manager's office and while in the office finds a document that is relevant to a question before an arbitrator.  Clearly the action of the person breaking into the office could be pursued criminally and if that person was an employee (bargaining unit member or not) it might be pursued civilly. The illegality of the method by which the document was obtained, however, would not be a consideration in respect of its admissibility before an arbitrator. If evidence that is obtained in a clearly illegal way can be admitted, how is it that evidence that is obtained in a way that offends the sensibilities of many arbitrators but is not illegal is not admissible? The simple answer is that it is admissible."

The Mckesson case is another in a line of cases that have struggled with the underlying bases advanced by union's in support of their claims that video surveillance evidence ought not be admitted at arbitration even where that evidence is relevant to the issues in dispute.

When can a Unionized Employee Sue the Employer?

The Court of Appeal in Walters v. TTC (February 11, 2010, Ont. C.A.) recently confirmed that, in deciding whether to allow a unionized employee to sue his or her employer in Court, rather than file a grievance under a collective agreement, the task of the Court "is to determine whether, viewed as a whole, the essential character of the dispute raised by the employee’s statement of claim arises from the interpretation, application, administration or violation of the collective agreement."  This test comes from a long line of cases since Weber.

The test has been expansively interpreted by subsequent decisions, with the effect that very few lawsuits  brought by a unionized employee against their employer will withstand a motion to strike by the employer.  That said there are some that will or can.  In most cases, though, the employee's recourse against the employer is under the collective agreement. 

In the face of Weber, and for a host of reasons, employees, former employees and their lawyers, will sometimes try to to find creative ways of pleading their case to avoid having to pursue a remedy under the collective agreement before an arbitrator.  

The claim in Walters was, in part, framed as "malicious prosecution" and, the plaintiff argued, this "displaced" the usual jurisdictional test.  The Court disagreed:

 "In this case, the employer is alleged to have instigated a traffic charge against the employee arising out of the performance of his duties, but the statement of claim is about much more than an alleged malicious prosecution.  It attacks a wide array of employer conduct in managing the workplace that could have been the subject of grievance.  Viewed as a whole, there can be no doubt that the essential character of this dispute prevents it being advanced in the courts through this statement of claim."

The motion court judgment is here.  Of significance and importance, is that it's not a simple matter of pleading that transforms the case so as to allow the Court to assume jurisdiction.  According to the motions judge: 

".... it is clear as a matter of law that an employee may not avoid the exclusive jurisdiction of the dispute resolution process, established pursuant to the statutory scheme and the collective agreement, by repackaging or labeling an act complained of as a tort not specifically addressed in the collective agreement. .... In short, the application of the label “malicious prosecution” cannot transform the present case from one subject to the exclusive jurisdiction of the arbitration process where, as here, it is clear that the dispute, viewed as a whole, “arises from the interpretation, application, administration or violation” of this collective agreement."

Again, this is one more case in a long line of cases on this issue.

Determining Jurisdiction in a Unionized Workplace

Sometimes unionized employees will sue their employer instead of pursuing the complaint as a grievance under the collective agreement.  After considering the claims advanced and the collective agreement in issue, the employer will often bring a motion to strike out the claim on the basis that the Court has no jurisdiction to hear the case.  The leading case is Weber v. Ontario Hydro decided by the Supreme Court of Canada in 1995 and applied in countless subsequent decisions. 

The most recent case to discuss the Weber doctrine is Kohlhammer v. Modern Railings & Metalcraft Ltd. where the court considered a number of claims brought by a unionized employee, applied the Weber principles and concluded that it was without jurisdiction to hear the matters.

The Court also discussed the Workplace Safety and Insurance Act and whether "assaults" fall within the exclusive jurisdiction of the Tribunal.  The Court held, in obiter, that:

The second submission addresses the claim for assault which is clearly a workplace injury within the “exclusive jurisdiction” of the statutory scheme for such injuries established by ss.26 and 118 of the Workplace Safety and Insurance Act 1997.  Even deliberate assaults fall within the extended definition of an “accident” in s.2 of the Act.  The Court has no jurisdiction to hear this matter and it must be heard by the regulatory tribunal established under the legislation.

It's an interesting case in a long line of cases.

The Most Recent Word on Random Alcohol Testing

I was about to write about the most recent case of Petro-Canada Lubricants Centre (Mississauga) and Oakville Terminal dealing with random alcohol testing and saw that Dan Michaluk has a great summary of the case at his blog.

You'll see that Arbitrator Kaplan references a leading case of Arbitrator Picher in Imperial Oil that was judicially reviewed and, in fact, recently made its way to the Court of Appeal. 

The generally applicable law was set out by Arbitrator Picher in Imperial Oil:

• No employee can be subjected to random, unannounced alcohol or drug testing, save as part of an agreed rehabilitative program.
• An employer may require alcohol or drug testing of an individual where the facts give the employer reasonable cause to do so.
• It is within the prerogatives of management’s rights under a collective agreement to also require alcohol or drug testing following a significant incident, accident or near miss, where it may be important to identify the root cause of what occurred.
• Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have a problem of alcohol or drug use. As part of an employee’s program of rehabilitation, such agreements or policies requiring such agreements may properly involve random, unannounced alcohol or drug testing generally for a limited period of time, most commonly two years. In a unionized workplace the Union must be involved in the agreement which establishes the terms of a recovering employee’s ongoing employment, including random, unannounced testing. This is the only exceptional circumstance in which the otherwise protected employee interest in privacy and dignity of the person must yield to the interests of safety and rehabilitation, to allow for random and unannounced alcohol or drug testing.
• The cases generally recognize that an employee’s refusal or failure to undergo an alcohol or drug test in the three circumstances described above may properly be viewed as a serious violation of the employer’s drug and alcohol policy, and may itself be grounds for serious discipline. The failure or refusal to take an alcohol or drug test, however, like the registering of a positive test, does not necessarily justify automatic termination. The appropriate disciplinary sanction in such a case remains subject to the general just cause provisions of the collective agreement and is an issue to be determined on a case by case basis, having regard to all of the relevant facts (at para 100).

Arbitrator Picher went on:

…a key feature of the jurisprudence in the area of alcohol or drug testing in Canada is that arbitrators have overwhelmingly rejected mandatory, random and unannounced testing for all employees in a safety sensitive workplace as being an implied right or management under the terms of a collective agreement. Arbitrators have concluded that to subject employees to an alcohol or drug test when there is no reasonable cause to do so, or in the absence of an accident or near miss and outside the context of a rehabilitation plan for an employee with an acknowledged problem is an unjustified affront to the dignity and privacy of employees which falls beyond the balancing of any legitimate employer interest, including deterrence and the enforcement of safe practices. In a unionized workplace, such an extraordinary incursion into the rights of employees must be expressly and clearly negotiated. It is not to be inferred solely from general language describing management rights or from language in a collective agreement which enshrines safety and safe practices (at para 101).

As I said, the Award was reviewed by the Divisional Court and then by the Court of Appeal.

Dan has great summaries of these cases here and here. 

The Importance of the Standard of Judicial Review

Yesterday I wrote about a hot-declaration or hot-cargo case out of British Columbia.  I mentioned how the outcome of a judicial review application is often decided by the standard of review that the reviewing court adopts in looking into the decision of the arbitrator or labour relations board, for example. 

The standard of review that the Court selects determines how deeply they will delve into the decision and whether they will defer to the tribunal, even if they disagree with the decision (the "reasonableness" standard), or whether they will substitute their own decision for that of the tribunal (the "correctness" standard).  Dunsmuir and Canada (Citizenship and Immigration) v. Khosa from the Supreme Court of Canada are the cases to read on the standard of review.

The Alberta Court of Appeal in United Nurses of Alberta, Local 301 v. Capital Health Authority (University of Alberta) recently discussed the type of analysis that a reviewing court should adopt when looking at the decision of a tribunal under the reasonableness standard.  The Court agreed with the the following statement of the law:

.... it submits that on judicial review the court inquires into the qualities of the decision both as to the process of articulating the reasons and to its outcomes. In other words, reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-making process and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: see Dunsmuir. The appellant submits that the board’s decision was reasonable as that term is understood and ought not to have been overturned.

In reviewing a decision for reasonableness, the inquiry is into both the reasons and the outcome.  In this case, the Chambers judge "analysed the specific reasoning to determine whether there were sufficient defects to render the decision unreasonable."  This went too deep because it required a more or less line by line analysis of the decision to determine if there was any basis for finding the decision to be unreasonable.  The Court of Appeal held that this went too far and that, really, the question was "whether taken as a whole “any of those reasons adequately support the decision”:

Guidance from the Supreme Court of Canada in Dunsmuir and Khosa reminds us that the relevant inquiry is not whether the reviewing judge agrees with the interpretation but whether the interpretation given was reasonable; that is, were the reasons intelligible and transparent and the result one of the possible legal outcomes available, not necessarily the most likely.

If on the approach of the Court of Appeal here, the decision is found to be supportable and within the range of legally permissible outcomes it will be upheld even though the Court might have come to a different decision.