Home Arbitration/Labour Relations Saskatchewan appeal court upholds ruling that ‘rude and childish’ behaviour was not harassment under Saskatoon Co-op’s policy or legislation

Saskatchewan appeal court upholds ruling that ‘rude and childish’ behaviour was not harassment under Saskatoon Co-op’s policy or legislation

by HR Law Canada

The Court of Appeal for Saskatchewan has dismissed an appeal brought by the United Food and Commercial Workers, Local 1400 (UFCW), against a previous decision concerning a harassment grievance filed by an employee of the Saskatoon Co-operative Association Limited (Co-op).

The grievance, initially heard by a board of arbitration, was filed in response to alleged harassment by the employee’s manager and co-workers following a contentious labour dispute.

The arbitration board majority concluded that, while the behavior in question might have been rude and childish, it did not constitute harassment under Co-op’s Workplace Discrimination and Harassment Policy or The Saskatchewan Employment Act.

UFCW sought judicial review of this decision at the Court of King’s Bench, which upheld the arbitration board’s findings, deeming them reasonable. Dissatisfied, UFCW appealed this judgment, arguing that the Chambers judge failed to apply the correct standard of review. However, the Court of Appeal has now affirmed the lower court’s decision, dismissing UFCW’s appeal.

In its detailed analysis, the Court of Appeal examined whether the arbitration board’s decision was transparent, intelligible, and justified concerning the relevant factual and legal constraints. The Court highlighted that a reasonableness review is not an exhaustive search for errors but rather an assessment of whether any alleged flaws are significant enough to render the decision unreasonable.

UFCW’s appeal was based on three main arguments. First, they argued that the arbitration board ignored the effect of a return-to-work protocol, which mandated higher standards of conduct post-labour dispute. However, the Court of Appeal found no evidence suggesting that this protocol intended to redefine the concept of harassment in the Policy or the Act.

Secondly, UFCW contended that the board should have drawn an adverse inference against Co-op for not calling certain witnesses. The Court clarified that the decision to draw such an inference is discretionary and found the board’s reasoning in this matter to be justified and reasonable.

Lastly, UFCW claimed that the board’s conclusion was unjustified when considering the evidentiary record as a whole. The Court disagreed, stating that the arbitration board had appropriately assessed the evidence in its totality and context.

The appeal was dismissed and Co-op was entitled to costs of the appeal, “calculated in the usual way.”

For more information, see United Food and Commercial Workers, Local 1400 v Saskatoon Co-operative Association Limited, 2023 SKCA 122 (CanLII)

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