On January 27, 2012, Mr. Justice Luc Martineau issued his decision quashing the Minister of Labour’s appointment of the Honourable Coulter Osborne as interest arbitrator in the collective bargaining dispute characterizing the appointment as unreasonable. CUPW asked the Federal Court to quash the decision of the Honourable Lisa Raitt because the arbitrator she appointed was neither bilingual nor had a degree of recognized expertise in labour relations.  For its part, Canada Post did not take a position on the merits of the Union’s application for judicial review while the Attorney General of Canada maintained the issue was moot and the Minister’s decision was not unreasonable.

The Court noted that since its earlier decision October 20, 2011 staying proceedings in the interest arbitration the arbitrator had “elegantly” resigned leaving a new arbitrator to be appointed by the Minister of Labour. When the Attorney General’s counsel could not confirm whether the future arbitrator would have any labour relations experience or be bilingual the Court decided not to “gamble” and restart the judicial process by declaring the matter moot.  The Minister could again appoint an arbitrator who was not bilingual nor had a degree of recognized expertise in labour relations.  Deciding that the appropriate standard of review in the matter was reasonableness, the court indicated that the selection of a “qualified” arbitrator was not a trivial or gratuitous exercise.

Mr. Justice Martineau rejected the view, advanced by the Attorney General, that the Minister would merely have to act in good faith and deem the person qualified for it to end the judicial review.  Instead, he indicated “common sense, case law, the economy of the Act or the specific labour relations context that govern the parties to the collective agreement” indicated otherwise.  Relying on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 to indicate there is no such thing as absolute discretion (Roncarelli v. Duplessis, [1959] S.C.R. 121 being perhaps the classic statement on the proper exercise of statutory discretion which also supports the proposition Martineau relied upon in Baker) the court admonished the Minister to “not give way to gross unfairness or unduly penalize the employer or the union, or create such uneasiness or uncertainty as to call the credibility of the final arbitration process into question.” Holding that the Minister “appears to have excluded, as relevant criteria, the person’s previous labour relations experience and the bilingualism requirement stemming from the specific context under which the final offer arbitrator would have to make his or her final decision” he deemed the decision of the Minister unreasonable and quashed it.  As a result, the Minister of Labour must now take into account the grounds of the Court’s decision and ensure that the next person selected as interest arbitrator under the Act has some degree of recognized labour relations experience and is bilingual.

While CUPW may rightly claim a difficult legal victory at judicial review – given the standard of review at play – and Canada Post may woefully tally up and pay its costs as a result of this decision this litigation ultimately fails to satisfy the needs of both parties to attain a new collective agreement.  If the parties were truly determined to obtain a new collective agreement without the intervention engendered in the Restoring Mail Delivery for Canadians Act, SC 2011 they could quickly obtain a new agreement with the assistance of a skilled neutral.  The real tragedy of this labour dispute is that both the parties and the government have seemingly lost sight of pragmatic and intelligent ways that mediators and/or arbitrators can help to restore labour peace even when irreconcilable differences seem to prevent agreement.   The good news is the parties still have time to bargain their own solution as the Minister of Labour has yet to appoint a new interest arbitrator under the Act.