The City of Edmonton can no longer require its unionized transit drivers to automatically pay fines for speeding and running red lights that are issued by photo radar and cameras, the Alberta Labour Relations Board has ruled.
But the ruling, issued after the city appealed the original arbitration decision, is not a green light for these transit operators to break the law, the board said.
ATE program
Edmonton issues red light camera and photo radar tickets as part of its automated traffic enforcement (ATE) program. Municipalities are not required to have an ATE in Alberta, but can elect to do so.
Under Alberta’s Highway Traffic Act, the owner of the vehicle is “guilty of any offence” for such tickets. The City of Edmonton is the registered owner of city vehicles.
Since 2001, it has had a policy or practice of seeking to recover such fines issued against city transit vehicles.
“Essentially, when the city received a Notice of Violation, it identified the operator of the city vehicle at the time, and would require the operator to pay the fine identified in the Notice of Violation,” the Alberta Labour Relations Board said.
If the driver didn’t pay the fine, they faced discipline up to and including termination. The Amalgamated Transit Union (ATU) grieved the practice in 2003 and 2011, but those were resolved before going to arbitration.
The ATU filed this grievance on July 9, 2018, and an arbitrator ruled in its favour. The city appealed.
The original ruling
In the original ruling, the board said that — based on several factors — the city’s policy of requiring operators to pay fines was disciplinary. It also found that, when it required the operator to pay a fine and then imposed some other formal discipline for the offense, it amounted to double jeopardy for the same misconduct.
While the collective agreement allowed the city to discipline an employee for cause, the ticket policy provided a specified penalty without consideration of the facts, which the arbitrator said was “inconsistent with the principle of just cause.”
The city’s review process for these tickets focused only on the standard a court would apply to determine whether an infraction had occurred. It did not include an individualized assessment of the worker’s disciplinary record, work history or any other mitigating factors.
It also shot down the following arguments by the city:
Long-standing practice: Though various iterations of the policy had been in place since 2001, the union has repeatedly contested it and not acquiesced to it.
Cost-recovery basis: The award noted the ATE program is discretionary (i.e., municipalities can choose to use cameras or not) and the city receives 60 per cent of the money from the fines. If the city paid the fine itself, it would have technically suffered a loss of 40 per cent of the amount.
A disciplinary policy
In the original ruling, the board noted that the city:
- viewed the transit operator as culpable for unsafe conduct as a result of receiving the ticket
- said the payment of the fine served to deter future misconduct
- considered payment of the fine as a mitigating factor in consideration of whether future discipline was warranted
- took the Notice of Violation and included it in the transit operator’s record and could use it in the discipline process for subsequent violation.
The original award found the nature and purpose of the policy was disciplinary. In the appeal, this conclusion was called “logical and consistent with the facts and the law.”
The city’s arguments on appeal
The city took issue with the arbitrator’s ruling, because it improperly concluded that traffic violations are a reasonably foreseeable consequence for professional drivers, it said.
It also argued that it trivialized the conduct at issue by comparing it to actions “like an administrative assistant photocopying the wrong file.”
The city’s view was that fines imposed via a Notice of Violation were not arbitrary but commensurate with the level of misconduct.
But on appeal, the board noted the original ruling did not “dismiss or excuse traffic violations.” Rather, it said the city “must consider the individual circumstance of each case when a traffic violation occurs.”
It did not state that a comprehensive review is required for every violation, it noted.
“Essentially, the award finds that the policy automatically requires operators to pay the fine in a Notice of Violation without consideration of the individual circumstances or any mitigating factors, as would normally occur when an employer disciplines an employee,” the board said. “According to the award, this policy does not leave any room for an individualized assessment.”
Although the fines in a Notice of Violation may vary depending on the particular traffic violation, that does not mean the fine is necessarily commensurate with the level of misconduct from an employment or just cause perspective, it said.
Reasonableness of the remedy
The city also took issue with the remedy in the original ruling, which cleared all fines from operators from July 8, 2018, to the date of the award. And it argued that it created a new, forward-looking, legal test the city must meet to impose a monetary penalty.
But the board said it was not unreasonable to vacate the fines, since the arbitrator concluded the policy was void.
Further, it didn’t agree that the ruling set a new legal test for the city moving forward. Rather, it set out conditions for imposing discipline. It did not require the city to conduct any specific form of investigation or administrative review.
Rather, it just shot down the notion of a “blanket policy imposing a defined penalty that does not include consideration of individual circumstances.”
Not a green light to break the law
The arbitration board took time at the end of its reasons to address a point the city made that the ruling effectively permits transit operators to ignore traffic laws.
“Operators may still be disciplined for traffic infractions. In appropriate circumstances, an operator may be terminated for such misconduct,” it said. “The award does not even go so far as to prohibit the city from imposing a monetary penalty on operators in any circumstances.”
Rather, the city is simply prohibited from requiring operators to automatically pay the fines in the Notice of Violation.
For more information, see Edmonton (City) v Amalgamated Transit Union, Local No. 569, 2023 CanLII 16166 (AB LRB).
