Digests

Telus Mobility v. Telecommunications Workers Union

T-425-02

2002 FCT 1268, Rouleau J.

6/12/02

23 pp.

Application by Telecommunications Workers Union (Union) seeking determination Telus Mobility and David Wells, Executive Vice-President Employees Services of Telus Mobility in contempt of order against them--Proceeding initiated pursuant to order issued by Hargrave P., determining Telus Mobility and David Wells should appear before judge of Federal Court to hear proof of contempt alleged by Telecommunications Workers Union--Issue reduction of tasks performed by activation representatives and eventual phasing out of involvement by these bargaining unit employees--Group concerned in dispute referred to as activation representatives whose function related to processing new subscribers and activation of cellular telephones--In June, 2001, Telus Mobility transferred all British Columbia dealers' activations to new system in place in Alberta (RDA), thus completely bypassing activation representatives in B.C. bargaining unit--Transfer of RDA to Alberta Processing Centre became subject of arbitration and these contempt of court proceedings--Even though merger of various unions into one bargaining unit as ordered by Canada Industrial Relations Board in November, 2001, collective agreement governing Telus Alberta union members not included in Letter of Agreement of December 4, 1992 which prevailed in British Columbia, hence employees in Alberta Customer Activation Centres not affected--On January 30, 2002, after urging parties to resolve dispute, arbitrator rendered binding decision translated into order--Order now subject of contempt proceedings--To establish contempt of order, Union must prove breach of arbitrator's order beyond reasonable doubt--Violation alleged must be found within order and not by some assumption from surrounding circumstances--Any ambiguity on face of order can go both to issue of enforceability and to proving breach beyond reasonable doubt--Courts have consistently refused to enforce, by way of contempt, decisions of inferior tribunal such as labour arbitrators when orders issued by arbitrators do not contain specific directions of mandatory nature directing party to collective agreement to take specific steps to redress breach of agreement--Courts refused to enforce such orders because order must be precise so party allegedly in breach can make reasonable attempt to comply with order and, if party fails to comply, explain reasons for failure before any conviction for contempt can be found--In present case, three elements in arbitrator's order: requirement that violation of letter of agreement come to end; requirement that RDA system not be used in such way to exclude bargaining unit employees; requirement that system to remain under control of Telus Mobility and operated by Telus Mobility employees--First element consisting of declaratory statement of principle--To person reading order, such requirement does not give any direction or assist in how to comply in meaningful way--Regarding second element, order inviting continued use of RDA but with change, so as not to exclude bargaining unit employees--However, nothing suggested with respect to degree or quality of inclusion expected of bargaining unit employees--Regarding third element, only fault found by arbitrator related to total exclusion of bargaining unit members--No suggestion continued use of RDA in violation of Letter of Agreement--Evidence clearly demonstrated Telus Mobility still maintaining control and operating system--Arbitrator found Telus Mobility had not complied with letter of agreement but did not outline specific or mandatory steps to take to remedy breach--Order suggesting undefined course of conduct not sufficient--Consequently, no compulsory enforcement of merely declaratory award--Further, courts have consistently held order of contempt will not issue where time for compliance not specified--In present case, no specific direction in order as to time period for compliance--Without setting time frame, two possible interpretations arise--First, order immediately applicable rendering compliance impossible--Second, arbitrator intended order to be complied with within reasonable period of time--Conflicting construction with respect to requisite time for compliance leading Court to conclude order not susceptible of enforcement by Court--As stated before, no direction in order as to quality and/or quantity of bargaining unit involvement--Ambiguity coupled with changes introduced by Telus Mobility raises at least reasonable doubt related to breach of order--Telus Mobility intended to comply with order and in good faith spent considerable time, care, money to remedy breach--Proof beyond reasonable doubt must be established to sustain order for contempt--Union has failed to overcome onus to enjoin Telus Mobility and David Wells for contempt--Application dismissed.