Parties interpret collective agreement differently in calculating separation allowance
Ontario’s Divisional Court has dismissed a judicial review application upon finding an arbitrator’s decision, which accepted that he should calculate a former Canadian Broadcasting Corporation (CBC) employee’s separation allowance using the union’s suggested start date, to be reasonable.
In Canadian Broadcasting Corporation v. Canadian Media Guild et al., 2025 ONSC 4495, the grievor joined CBC in 2000 and became a permanent employee on Oct. 24, 2005. After Oct. 7, 2020, an issue arose when CBC wanted to adjust her work hours.
When the grievor claimed a medical restriction affected her work hours, CBC deemed her medical support insufficient. She declined to participate in an independent medical examination and agreed to a layoff and separation allowance. CBC terminated her employment.
At a grievance between CBC and the union representing most of its English-language staff, they disagreed on the appropriate amount of the grievor’s separation allowance under the collective agreement.
The matter went to arbitration, in line with the collective agreement. The arbitrator:
- deemed the grievor entitled to $96,782 as a separation allowance
- agreed that he should calculate the allowance from the union’s suggested date of Sept. 23, 2002
- deducted the grievor’s leave from January 2016 to January 2017 – which she had requested and which CBC had granted – from her continuous service, as the parties agreed
- refused to deduct CBC’s claimed five other periods of absence, based on its failure to accommodate her disability or grant her sick leave
- saw insufficient evidence supporting CBC’s allegation of a long-standing practice of pro-rating the separation allowance for part-time work
- found no evidence that the union knew about this practice or acquiesced to it
CBC filed a judicial review application challenging the arbitrator’s decision.
Arbitral ruling upheld
The Divisional Court of Ontario dismissed the application and ordered CBC to pay the union all-inclusive costs of $11,000. The court deemed the arbitrator’s decision reasonable and the hearing procedurally fair.
First, the court noted that the issue of the start date to calculate the separation allowance revolved around interpreting the collective agreement’s provisions vis-à-vis whether to count the grievor’s work as a temporary employee as continuous service for separation allowance purposes.
CBC relied on article 5.1, which based the grievor’s corporation seniority on her “continuous service date.” CBC argued that the start date was Oct. 24, 2005, when the grievor became a permanent employee.
The union cited article 27.5.6, which stated that a temporary employee who later became a permanent employee could count their time as a temporary employee as part of their corporation seniority. The union claimed that the start date was Sept. 23, 2002, given that the grievor had been a temporary employee at CBC before becoming a permanent employee.
The court accepted that the arbitrator’s reasons were brief. However, the court noted that the arbitrator said he carefully weighed the parties’ submissions and considered the union’s position correct.
Second, the court disagreed with CBC’s argument that the arbitrator unreasonably decided to include five leaves of absence of the grievor in calculating the separation allowance.
The court noted that the union offered the arbitrator’s 2013 arbitral award involving this grievor as evidence to support its position that CBC’s failure to accommodate or refusal to provide sick leave led to her leaves.
The court ruled that the arbitrator could rely on and draw reasonable inferences from this evidence and issued reasons reflecting his extensive experience as a labour arbitrator assessing collective agreements and tackling issues between CBC and this grievor.
The court added that CBC failed to explain why the arbitrator should not count these five leaves of absence in the separation allowance, regardless of the nature of the reasons the grievor took these leaves.
Third, the court disagreed with CBC’s argument that the arbitrator unreasonably refused to pro-rate the periods when the grievor only worked part-time. The court held that the arbitrator reasonably rejected CBC’s claim of estoppel by past practice, given the lack of evidence that the union knew about or acquiesced to the practice.
The court said the arbitrator’s failure to explain the calculation of the award after rejecting CBC’s request to pro-rate the separation allowance did not make his decision unreasonable, given that he had responded to the arguments raised before him.
Lastly, the court concluded that the arbitrator afforded CBC procedural fairness and granted its request for an opportunity to respond to novel matters the union raised in its reply. The court noted that the parties had agreed to make their arguments through written submissions.
