Canadian Association of Labour Lawyers

Foothills Provincial General Hospital v. U.N.A., Local 115 (1998), 188 W.A.C. 122; 168 D.L.R. (4^th) 64 (Alta. C.A.)

The collective agreement provided that employees were entitled to 14 days notice of layoff. The Union grieved layoff notices that provided more than 14 days notice to employees asserting that the collective agreement called for "exactly" 14 days notice.

The appeal involved the interpretation of the layoff notice provisions in a collective agreement. The Union grieved the employer’s procedure in a massive layoff of staff, wherein the employer gave layoff notice of much more than the 14 days specified in Article 15.05 of the collective agreement. Under the collective agreement, an employee had 48 hours after receiving the notice of layoff to decide on the position they wished to seek and initiate bumping rights. The Arbitration Board upheld the Union’s grievance, concluding that a literal interpretation of Article 15.05 required "exactly" 14 days notice. The decision was upheld on judicial review.

The Employer then appealed, arguing, among other things, that the decision was patently unreasonable because requiring exactly 14 days’ notice would create major practical problems in a large layoff, and that the mechanics of "exactly" 14 days’ notice were unworkable. The Employer’s position was that the 14-day notice period was merely the minimum period of notice required.

The Court of Appeal granted the Employer’s appeal and concluded that the Board’s analysis was patently unreasonable. The Court applied a purposive analysis to Article 15.01 and noted that the purpose of the notice period was to provide an employee with adequate time to make other arrangements. That purpose, the Court decided, was served by longer, rather than shorter, notice periods.

The Court emphasized several factors which, cumulatively, indicated that the Board’s decision was patently unreasonable:

The Court of Appeal has set aside an arbitration board’s decision on a matter deep within the Board’s expertise – the interpretation of a collective agreement clause dealing with layoff notice. While acknowledging that the standard of review is whether the decision is patently unreasonable, the Court closely examined the result of the decision rather than how the tribunal arrived at its conclusion as called for by the Supreme Court of Canada in C.A.I.M.A.W., Local 14 v. Canadian Kenworth Co. [1989] 6 W.W.R. 673 (S.C.C.):

The Court of Appeal contends that the Board failed to adequately analyse the provision in question, when what the Court really means is that it disagrees with the Board’s analysis.

An Alberta court has already relied on this decision to justify judicial review. In I.A.T.S.E., Local 212 v. Plymouth Productions (Honey I Shrunk the Kids TV Series), (1999) Carswell Alta 365 (Q.B.) Justice Kent set aside an arbitrator’s interpretation of a collective agreement term dealing with holiday pay during a hiatus. The arbitrator analysed two provisions in the collective agreement dealing with hiatus and vacation pay, and dismissed the union’s grievance, concluding that there was no obligation to pay holiday pay for Christmas Day, Boxing Day or New Year’s Day during a temporary layoff that was effective December 20 to January 4. Justice Kent noted that the Court of Appeal in the Foothills case held that the decision was patently unreasonable where there was an "absence of analysis" or the "interpretation of the relevant clauses was flawed." In this case, the arbitrator’s decision similarly lacked analysis and was flawed, Justice Kent concluded, and was therefore patently unreasonable.

This is a worrisome precedent given that the Supreme Court has noted repeatedly that reviewing courts must be careful not to merely substitute their opinion for the tribunal’s, and must adhere to a strict standard of review of decisions made within jurisdiction.

Alberta v. A.U.P.E. (1998), 223 A.R. 169; 183 W.A.C. 169; 8 Admin. L.R. (3d) 8; 68 Alta. L.R. (3d) 351 (C.A.)

The collective agreement between the provincial Crown and A.U.P.E. provided that laid off employees were entitled to severance unless the employer arranged continuing employment "in the Alberta Public Service or with any successor employer, or with any employer under the Public Service Employee Relations Act or with any other Crown Agency (including Boards, Corporations, Agencies and Commissions)." The union grieved the government’s failure to pay severance to employees who received continued employment with the federal government when the Grand Cache Correctional Centre was transferred from the provincial to the federal jurisdiction. The grievance was upheld on the basis that "successor employer" under the collective agreement meant an employer within the provincial public sector. The decision was upheld on judicial review and before the Alberta Court of Appeal.

When the Grande Cache Correctional Centre was transferred to the federal government, Alberta arranged for the continued employment of its employees by the federal government. Under the transfer agreement, Alberta was responsible for providing any termination entitlements to the transferring employees. As a result, there was no transfer of employee seniority for severance purposes, and a long-term employee would only be eligible for severance benefits based on length of service with the new employer.

Alberta argued that the federal government was a successor employer with whom it had arranged continued employment for the employees and, therefore, there was no right to severance under Article 15.05 of the collective agreement. The article reads:

Arbitrator Koshman ruled that the parties had intended "successor employer" to refer to the transfer of an undertaking as contemplated in labour relations legislation, and that the federal government was indeed a successor employer. Further, he held, the parties intended that "successor employer" be modified by the context of the words surrounding the term. He concluded that since the list of excluded employers in Article 15.05 was a list of employers within the provincial public sector, "successor employer" was intended to be limited to employers within the provincial public sector. His decision was upheld on judicial review and then appealed to the Alberta Court of Appeal.

The Court of Appeal agreed that it was reasonable for the arbitrator to consider the surrounding words, and to conclude that Article 15.05 contemplated two categories of situations where severance entitlements would not arise:

The Court noted that the Board’s analysis of the parties’ intentions properly focused on the factual context – that employment within the provincial public sector would protect employees’ previous benefits and entitlements as much as possible, while employment outside that category would not provide the status quo ante. The Court rejected the employer’s argument that it would be absurd to interpret Article 15.05 as providing for severance pay to employees who would never miss a day of work. Instead, the Court decided that it would be absurd to conclude that the parties would intend otherwise, as it would deprive long-term employees of reasonable notice based on their prior length of service.

This decision is a practical application of a basic principle of contract interpretation – interpret the subject phrase in context. Moreover, context involves not only the context of the phrase within the article, within the paragraph and within the agreement as a whole, but also within the factual context. Technical language and terms of art will not be considered in isolation, but will be interpreted purposively to give effect to the parties likely intentions.

Wideman v. Edmonton Police Service Senior Officer's Association et. al, [1999] Alta.L.R.B.R. 64

A police association was found to have breached its duty of fair representation when it failed to process a member’s grievance which sought to set aside a resignation tendered with the assistance of legal counsel. The original panel concluded that the grievance was without merit and the association had not breached its duty to the member. The reconsideration panel concluded that the original panel had erred by focusing on the merits of the grievance. The reconsideration panel was concerned that there was no evidence that the association had performed the legal analysis or obtained a legal opinion which supported the original panel’s conclusion that the grievance was without merit. The reconsideration panel’s decision was upheld on judicial review.

Wideman, a long-term police officer, was charged with shoplifting and discipline proceedings were commenced against him. With the assistance of his own legal counsel, he resigned, with the result that the discipline panel no longer had jurisdiction over him. He had pleaded guilty to the shoplifting charge and during sentencing advised the court of his resignation. Approximately three months later, Wideman attempted to revoke his resignation. When the Police Service refused to accept the revocation of his resignation, he asked the Association to file a grievance. The Association had several meetings that Wideman was not invited to and decided not to file a grievance on his behalf. Wideman filed a duty of fair representation complaint and, with the assistance of the Labour Relations Board, another meeting of the Association was convened at which Wideman and his psychiatrist made presentations. The Association again decided not to proceed with the grievance.

The original panel of the Board concluded that the Association had cured its earlier procedural flaws by permitting Wideman and his psychiatrist to make a presentation to the Association. It also concluded that, given the circumstances of the resignation, the grievance was unlikely to succeed. Therefore, the Association had not breached its duty of fair representation.

The reconsideration panel did not agree that the earlier procedural flaws had been cured. The reconsideration panel was not satisfied that there was an in-depth analysis of the merits of Wideman’s case. The panel emphasized the absence of evidence that the Association had sought legal advice or performed research of the kind a lawyer might have engaged in. Further, the reconsideration panel concluded that the Association should have at least processed the grievance through the initial steps of the grievance procedure, even if it was not going to proceed to arbitration.

The reconsideration panel’s decision was upheld on judicial review. The Association has filed an appeal to the Court of Appeal.

This decision appears to be inconsistent with labour board jurisprudence indicating that unions are not required to obtain legal opinions. It also suggests that it is not enough that the union "gets it right"; it must also show that it has a thorough legal analysis to support its conclusion that a grievance is without merit.

was no evidence that it "disapproved of our disavowed the conduct of its members on the picket line".

This case imposes a positive duty on union officers to dissuade members from illegal activity, failing which unions will be found in civil contempt.

Report submitted by Lyle Kanee of the law firm Chivers Greckol and Kanee in Edmonton, Alberta.

On January 21, the B.C. chapter of CALL had its annual get together to discuss "recent developments in B.C." This year we had about 35 people attend, down slightly from last year. We were encouraged by the number of new faces and the number of in-house counsel that attended. There seems to be a great deal of interest in the August conference in Halifax, so we’re hoping for a good B.C. turnout.

The timing of our meeting was fortuitous because on the morning of the meeting, the Chair of the B.C. Labour Board announced his resignation effective March 31, 2000. Keith Oleksiuk, who formerly worked for the Steelworkers in Ontario and B.C. before he joined the Board in 1992, was the subject of much criticism from the employer community over the last year and one half. Gossip was rampant about who his replacement would be.

On a more legalistic note, there have been a number of important decisions in the past year from B.C. The Supreme Court of Canada decision in UFCW v. K-Mart Canada (1999), 176 D.L.R. (4th) 607, and its companion case from New Brunswick, Allsco Building Products v. UFCW (1999), 176 D.L.R. (4th) 647, were issued on September 9, 1999 and overturned the picketing laws in B.C. The Court went to some length to differentiate between picketing and leafleting and the societal and legal distinctions between the two. The Court effectively upheld leafleting as a freedom of expression issue. There has now been a subsequent decision of the B.C. Labour Relations Board related to the IATSE Projectionists strike, which interpreted and applied the K-Mart decision: Sony v. Projectionists, December 20, 1999, BCLRB B519/99.

Another major decision out of B.C. was the Meiorin decision (also known as the "Firefighter’s case") in which the Supreme Court of Canada reviewed the duty to accommodate in the context of reasonable "qualifications" for a job. [See British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. (1999), 176 D.L.R. (4th) 1.] The decision eliminates the distinction between indirect and direct

discrimination and replaces it with a unified approach to questions of discrimination. The Court set up a three-step test to determine whether an employer has established, on a balance of probabilities, that a prima facie discriminatory standard is a bona fide occupational requirement. This is obviously a gross simplification of an important decision which must be read in conjunction with the Supreme Court’s decision in Grismer. [See British Colubia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (1991), 181 D.L.R. (4th) 385.]

On the human rights side, the B.C. Human Rights Tribunal found Professor Donald Dutton guilty of creating a "sexualized environment" when he invited a university student to his house for a meeting and served wine, and had low lighting, candles and music. The Tribunal ruled that sexual harassment includes physical touching or conduct of a sexual nature which has a psychological effect. The fact that a complainant tolerates the conduct is no defense: Mahmoodi v. University of British Columbia, B.C. Human Rights Tribunal, October 26, 1999.

Lastly, the B.C. Court of Appeal ruled that the B.C. Labour Relations Board may review arbitration decisions that are inconsistent with the principles expressed or implied in the Labour Relations Code or another act dealing with labour relations. However, the Board cannot review awards dealing primarily with matters of general law, including human rights issues such as the duty to accommodate. Section 100 of the Labour Relations Code provides that such appeals proceed directly to the Court of Appeal: USWA, Local 7884 v. Fording Coal; CAW-Canada v. Westmin Resources United; BCGSEU v. Public Service Employee Relations Commission (1999), 179 D.L.R. (4th) 284 (B.C.C.A.).

Report submitted by Daniel Rogers and Diane MacDonald of the Victory Square Law Office in Vancouver, British Columbia.

In Schroen v. Steinbach Bible College et al (1999), 35 CHRR D/1 (Man. Bd. Adj.), a human rights tribunal determined that a small Mennonite bible college was entitled to fire its accounting clerk because she was a Mormon rather than a Mennonite. The College testified that it would not have hired the clerk if it had known she was Mormon. It fired her as soon as it learned of this fact.

The evidence was that the College was a tight-knit community of students and staff and that the accounting clerk interacted extensively with students. Among other things, for example, the clerk sold students religious books, some of which discussed Mennonite beliefs, including the Mennonite belief that Mormonism is a cult.

When the clerk was hired, she was asked to sign the college’s Statement of Faith which listed specific religious views held by Mennonites. Expert witnesses who testified about the difference between Mennonite and Mormon beliefs pointed to several items in the Statement of Faith that contradicted Mormon beliefs.

The tribunal held that the College had discriminated against the clerk on the basis of religion. However, given the unique nature of this particular workplace, the tribunal ruled, it was a bona fide and reasonable requirement or qualification for the clerk to be a Mennonite. The Human Rights Commission decided not to seek judicial review of the decision.

In Readyfoods Ltd. and United Food and Commercial Workers Union, Local 832 (1999), 140 Man. R. (2d) 204 (QB), the Manitoba Court of Queen’s Bench upheld an arbitration decision dealing with severance and pay in lieu of notice. Under Manitoba’s employment standards legislation, employers are required to give employees pay in lieu of notice of termination, in cases of group termination. Under the collective agreement, the employer was required, upon plant closure, to pay employees an amount equal to one week’s wages for each year of service. When the employer closed its plant, it argued that it could set off the amount of pay required by the legislation against the amount of pay required by the collective agreement. The employer relied on the common law presumption against double recovery.

In an arbitration decision reported on Quick Law at [1998] MGAD No. 80, December 10, 1998 (Jamieson), the arbitrator held that the statutory pay in lieu of notice and the contractual severance pay were two distinct concepts. The contractual severance pay was an earned benefit while the pay in lieu of notice was a statutory obligation. Therefore, the employer was not entitled to set off one amount against the other. In a brief decision, the Manitoba Court of Queen’s Bench denied the employer’s application for judicial review of the arbitration decision.

The Manitoba Court of Appeal has just decided Assiniboine South Teachers’ Association v. Assiniboine South School Division No. 3, June 16, 2000, Docket Al 99-30-04139. In this case, a lesbian teacher asked permission from her employer to mention her sexual orientation in the classroom during "teachable moments". Her employer ordered her in writing not to disclose her sexual orientation. She obeyed the order and filed a grievance. The teacher’s collective agreement did not contain a no-discrimination clause. The majority of the arbitration board decided that it did not have jurisdiction to deal with the grievance, because it was not related to any specific article of the collective agreement. In a decision reported at (1998), 163 DLR (4th) 343, the Manitoba Court of Queen’s Bench overturned the arbitration decision. Relying primarily on the Ontario Court of Appeal’s decision in Metropolitan Toronto (Municipality) v. CUPE Local 43 (1990), 69 DLR (4th) 268, the Court held that the arbitration board had jurisdiction to deal with the grievance under the discipline provisions of the collective agreement. If the teacher had disobeyed the employer’s order and had been disciplined, an arbitration board would certainly have had jurisdiction to deal with a disciplinary grievance. According to the Court, the employee who obeyed, rather than disobeyed the order, should not be deprived of the right to grieve.

The majority of the Manitoba Court of Appeal disagreed with the lower court and upheld the original arbitration decision as not being patently unreasonable. Referring to the Metropolitan Toronto case, the Court commented that the "principle of testing a rule for reasonableness before its breach is a sound one. It must be recognized, however, that this principle can only be applied where there is a unilaterally imposed workplace rule capable of being judged for reasonableness regardless of the circumstances of its breach." The court reasoned that the workplace rule in dispute in Metropolitan Toronto was an absolute, categorical rule.

However, in the majority view, the rule against disclosing one’s sexual orientation was different, since it might be reasonable to prohibit disclosure in some situations but not in others. The majority also had some doubt that discipline would follow breach of the disclosure rule in all circumstances. Therefore, the decision of the arbitration board was not patently unreasonable. Justice Kroft dissented, and would have sent the grievance to a new board to be decided on its merits.

In Tucker v. Sheet Metal Workers International Association Local 511 et al (1999), 138 Man. R. 153 (CA), reconsideration denied at [2000] 1 WWR 108 (CA), the Manitoba Court of Appeal upheld the Manitoba Labour Board’s decision to hold an oral hearing. The complaint before the Board was brought by a group of employees who objected to the union’s certification. At the time of the certification application, the legislation allowed for automatic certification if 65% of employees were union members at the time of the application. As two of the three

employees at the time had signed union cards, certification was granted. The legislation allowed the employees to object to the certification only on the grounds of union misconduct. The group of objecting employees retained counsel and objected to the certification on the grounds that they did not want the union to represent them. They did not allege union misconduct. Therefore, the Board dismissed their complaint without an oral hearing.

The Manitoba Court of Appeal held that the Board’s ruling was not patently unreasonable. At paragraph 23 of its decision, the Court pointed out that, in the field of labour relations, it is not uncommon for statutes to provide for union certification without a hearing. There are many reasons for this, not the least of which are the need for a prompt decision and the need for confidentiality of union records. "Certification without a hearing has been held, at the highest level, not to abrogate the principles of natural justice so long as those interested have had an opportunity to put forward their arguments," the court held.

The Court also rejected the argument that the relevant provision of the legislation violated sections 7 and 2(d) of the Charter of Rights and Freedoms. Finally, in an unusual move, the objecting employees asked the Court to reconsider its decision. However, the Court very briefly ruled that the employees’ submissions did not meet the test for reconsideration.

Report submitted by Eliott Levin of the law firm Myers Weinberg Kussin Weinstein Bryk in Winnipeg, Manitoba.

Gloria Mallais and Workplace Health Safety and Compensation Commission, [1999] N.B.J. 463 (NBCA)

In October 1999, the New Brunswick Court of Appeal overturned the decision of an appeal panel of the New Brunswick Workplace Health, Safety and Compensation Commission and placed the onus squarely on the Commission to prove the Appellant’s environmental illness was not caused by the workplace. The Appellant was a pharmacy assistant (and CUPE member) employed at the Dr. Everett Chalmers Hospital in Fredericton. In July 1998, she began experiencing respiratory distress while working at the Fredericton Hospital. The respiratory condition occurred only at the Fredericton Hospital and did not occur at home, in shopping malls or at another hospital where she also worked.

The WHSCC Appeals Tribunal ruled that there was no causal relationship between the employee’s symptoms and her occupation at the hospital. The Court of Appeal applied section 7(2) of the Workers Compensation Act, which legislates a presumption that an injured worker’s disablement occurred in the course of her employment. The Tribunal’s failure to apply the presumption was an error in law reviewable by the Court.

This is an important case as it presumes, given the right facts, that environmental illness is a compensable injury in New Brunswick.

The UFCW, Local 1288P referred to arbitration a grievance concerning the seniority status of a group of employees. The employer raised the preliminary objection that the grievance had not been referred to arbitration within the time limits set out in the collective agreement. The union relied on section 73.1 of the Industrial Relations Act, which permitts an arbitrator to extend the time for the taking of any step in the grievance procedure.

The employer relied on SEIU, Local 204 v. Leisureworld Nursing Home, [1997] O.J. 4815, a decision of the Ontario Court of Appeal, for the proposition that the "grievance procedure" does not include the arbitration procedure. There were no court cases interpreting the New Brunswick legislation.

The arbitrator dodged the bullet by holding that, because the collective agreement provision regarding referral to arbitration was included in the article governing the grievance procedure, he had authority to relieve against the time limit for referring the grievance to arbitration. In his view, it was part of the "grievance procedure" within the meaning of section 73.1 of the Act.

On judicial review, the Court of Queen’s Bench disagreed, ruling that Leisureworld applied and there was no power under s. 73.1 to relieve against arbitration time limits. On appeal to the New Brunswick Court of Appeal, the Court stated:

The Court of Appeal did, however, indicate that the result in this case did not mean that Leisureworld was not applicable in New Brunswick. A time limit missed in an arbitration process that is clearly distinct from the grievance process will, based on the reasoning in Leisureworld, probably not be extended.

Re: Town of Riverview and CUPE Local 2162, decision of Eugene McGinley, September 16, 1998, unreported.

Two grievors were fired for theft of stockroom items. The employer’s primary evidence was videotape from a surveillance camera at its premises. The union raised a number of objections to the introduction of the evidence, all of which were overruled by the arbitration board.

First, in regards to the privacy rights of the individual, the Board distinguished between surveillance outside the workplace and surveillance inside the employer’s premises. The Board also relied upon the fact that the stockroom under surveillance was usually off limits to the grievors.

avenues to identify thieves before installing a video camera. While this was an appropriate concern where surveillance was taking place in general work areas, it did not apply where the surveillance was of a restricted area.

Finally, the Board took no issue with the fact that the videotape offered in evidence was a copy, rather than the original.

Although not directly raised, the Board seemed unconcerned that there had been no prior warning to employees that they might be the subject of surveillance, a factor which has been relevant in other arbitration cases.

This case signals a much more lenient approach to video surveillance in the context of combating workplace theft.

Report submitted by David Brown of the law firm Brown MacGillivray Stanley in Saint John, New Brunswick.

One hundred years ago, the Northwest Territories was a large part of northern Canada. The area was a vibrant jurisdiction; a place where aboriginal cultures of Dene and Inuit heritage had lived for thousands of years, and then had come into contact with European civilization. The tree line, running diagonally from the northwest corner on the Beaufort Sea to the southeast corner along Hudson Bay, was a natural division between the two cultures.

When the early explorers sought a passage to the riches of China, and recognized the wealth of the fur trade, settlements grew, where aboriginals and Europeans exchanged furs for goods and supplies. Much of the fur trading took place in the western region occupied by the Dene, but settlement occurred in the Inuit area to the east with the establishment of whaling stations.

By the end of the nineteenth century, a vibrant political and judicial system was in place. However, this changed radically in 1905, when a large part of the geographic area became the provinces of Alberta and Saskatchewan. Several years later, portions of the land were added to Manitoba and Ontario. The remainder of the Territories - still a very large geographic area but now very much reduced in terms of population and commercial activity - shrank into a jurisdiction administered by the federal government. Decades passed before political representation of any real significance returned to the area, first at the federal level and then in the legislative assembly governing local and private affairs.

The landscape changed once again on April 1, 1999, when the Territories were divided into two jurisdictions, bringing into reality a political gestation that had taken many years to mature. The division, which had its roots in the cultural differences between the Inuit and Dene/Metis populations, gave the Inuit the new territory of Nunavut.

The division of the territories began as a negotiation of a land claim agreement between the Inuit and the Federal Government. In 1993, the land claim was settled and the Nunavut became a public government under the Nunavut Act, S.C. 1993, c.28.

With the division came significant legal and administrative challenges. A new government had to be set up, and laws and a judicial system put into place. The body of law for the new jurisdiction was comprised of statute law from the Northwest Territories, amended Territorial law and entirely new legislation.

The Nunavut Implementation Commission spent two years developing a detailed report on how the new government would be brought into being. An Interim Commissioner was then appointed under the Act and given instructions to implement the report’s recommendations. Part of this work involved the enactment of laws that would meet the particular needs of the jurisdiction.

Section 29 of the Act provided for a transitional scheme that enabled Nunavut to begin its governance under a set of Northwest Territories laws. These statutes were duplicated to the extent they could apply to Nunavut, and were deemed to be the laws of the new Legislature. Under section 29.1, all rights, privileges, licences, etc. existing in Nunavut prior to the division were preserved.

Where the particular needs of Nunavut required the enactment of new laws or the amendment of existing Territorial law, the Northwest Territories Legislative Assembly put the legislation in place by April 1, 1999 (s. 76.05). This legislative activity took place at the fall 1998 and winter 1999 sittings.

The Nunavut legislation can be accessed at the Court House Library site (http://pooka.nunanet.com/
~ncjlib/english.html) or the Access to Justice Network (http://legis.acjnet.org.). The consolidated statutes and regulations are current to April 1, 1999. The Court House Library is maintaining a table of amendments. The Government of the Northwest Territories will publish the revised statutes of Nunavut later this year.

An election of members to the new Legislative Assembly took place shortly before Nunavut came into being, after which time, the Legislature had full authority to pass laws for the new jurisdiction.. The Commissioner is the executive head of government in much the same fashion as the provincial Lieutenant Governor (see s. 12). Along with an Executive Council, the Commissioner will have authority over government affairs. Sections 5 to 7 define the office of the Commissioner (essentially the same as in the Northwest Territories) and s. 11 establishes the Executive Council which is appointed by the Commissioner on the advice of the Legislative Assembly. The appointment process is similar to that which is followed in the Northwest Territories. Specifically, convention and consensus government, in which there are no political parties are followed. Presently, the MLAs choose both the premier and the cabinet members and the premier then assigns portfolios. In past years, there has been much debate about the appointment process, and therefore, it may change in the future.

All of these changes put a new face on old patterns of doing business in the north. There will be a variety of transitional problems as well.

In the area of the administration of justice, s. 31 of the Act creates a Supreme Court and a Court of Appeal with the same powers and jurisdiction that their counterparts in the Northwest Territories have. An amending statute, passed in March 1999 and in force April 1, 1999, created the Nunavut Court of Justice. This is a single-level trial court consisting of three resident superior court judges, together with non-resident appointees. This innovative approach has required extensive amendments to federal and territorial law.

Judicature in this new court and in the Court of Appeal, is dealt with in the Nunavut Judicial System Implementation Act. This statute provides for justices of the peace and repeals the former Territorial Courts Act - a necessary step in the process of establishing the single-level court. The rules of court in the Northwest Territories have been adopted for use in Nunavut.

Nunavut’s Law Society held its inaugural call to the Bar in April 1999, when 28 resident lawyers became its first members. The Bar now has 193 resident and non-resident members. The Nunavut Territory has the most northerly law office in the country - a legal services clinic in Pond Inlet. The Law Society has moved quickly to become an organization able to function on its own. While Nunavut members presently receive their insurance coverage through the Northwest Territories, on July 1, 2000, insurance will be provided directly by CLIA.

In May 1999, a ceremonial call to the Bar took place in Yellowknife for Northwest Territories lawyers wanting to practice in the east. Over 50 lawyers shared the solemnity and collegiality of this additional milestone in the growth of the north.

There are a number of special concerns associated with the transitional stage of the north. Judgments applicable to persons or property in the new jurisdiction, in place at the date of the division, would be difficult to enforce. There is a practice directive dealing with the mechanics of how to enforce such a judgment and s. 76.12 of the Act remedies this problem.

Jurisdiction over causes of action is tied to the date the action was commenced. The courts of the Northwest Territories have jurisdiction over matters commenced before April 1, 1999, and the courts of Nunavut have jurisdiction if the matter is commenced on or after that date (s. 76.1). That said, actions that were pending in the Supreme Court on April 1, 1999 can continue in the Northwest Territories, or they can be transferred into the Nunavut Court of Justice if the judge thinks the transfer is in the interests of justice (Act, s. 76.11). Thus far, the judges of the Northwest Territories have shown a preference to transfer cases over to Nunavut and let the judges deal with them there. This stems from a belief that the two jurisdictions should separate their affairs as quickly as possible. If a case remains physically in the Northwest Territories, the judges of the Supreme Court of the Northwest Territories are also judges of the Nunavut Court. A case can be convened in Nunavut simply by convening the court as the Nunavut Court.

On the labour front, the Canada Labour Code will apply to Nunavut in the same way that it did in the past. This will mean that workplaces organized under a collective agreement will remain under the authority of the Canada Industrial Relations Board. Any new certification drives will similarly come under the Code. Employment standards are a matter of territorial jurisdiction, and the Labour Standards Act in force in the Northwest Territories has been enacted in Nunavut with a few minor changes. Other lesser-known employment laws are also part of the mosaic. As to human rights, the Fair Practices Act is part of Nunavut law.

During the first year of the new territory, the Labour Standards Boards for the two jurisdictions shared the same members. Under cross-appointment and a contract between the two governments, the members of the Northwest Territories Board provided their services to Nunavut. On April 1, 2000 Nunavut appointed its own Board. Similarly, the services of the NWT Labour Standards Officer were provided to the new territory. The contract expired on April 1, 2000 and Nunavut has now appointed its first Labour Standards Officer.

Employees of the new government are regulated under the Public Service Act (Nunavut). Many of these employees are members of the Nunavut Employees Union, a body created by the Nunavut Employees Union Act. These two pieces of legislation are practically identical to the laws that were applicable to Northwest Territories Government employees.

The division effectively means that a great number of tribunals in the Northwest Territories now have counterparts in Nunavut. A detailed examination of the changes is not possible here. From an operational standpoint, a number of existing bodies are given the authority to act under Nunavut laws.

There are also new administrative bodies created to deal with the needs of the new jurisdiction. The institutions of public government created under the land claims agreement deserve special mention here. Bodies such as the Nunavut Water Board, the Nunavut Wildlife Management Board and the Nunavut Impact Review Board are given important powers and responsibilities, but it will take time to work out how these tribunals will interact with government and its agencies.

The Workers’ Compensation Board also deserves mention, because of the breadth of the Board’s activities. When the Workers’ Compensation Act was being duplicated, the Interim Commissioner agreed that provision should be made to have the Northwest Territories Board be the responsible authority for Nunavut as well. There is now one body with the legal mandate for compensation claims, occupational health and safety and mining safety throughout both jurisdictions. Because the old regime is effectively

being empowered to carry on as it did before, but in a shared arrangement under two sets of laws, the Minister responsible for the Nunavut legislation is authorized to enter into agreements with the Government of the Northwest Territories establishing the terms and conditions under which the G.N.W.T., the Board and the appeals tribunal (this body hears the appeals from decisions on compensation claims and assessments) will serve Nunavut under its legislation.

There are provisions in the Nunavut Judicial System Implementation Act for judicial review. Although applicable to all tribunals, these provisions appear to be designed primarily to review decisions made by justices of the peace. Any decision from which there is a statutory appeal can be appealed to the Nunavut Court of Justice. The legislation sets out a procedure for bringing the evidence into court, filing appeal books and getting the appeal on for a prompt hearing. Sections 83 through 91 contain the relevant law. The traditional avenues of judicial review are found in the Rules of Court.

Report submitted by Austin F. Marshall of the law firm Marshall & Co. in Yellowknife, Northwest Territories.

Dwyer v. Cavalluzzo, Hayes, Shilton McIntyre & Cornish, unreported judgment by Ground, J., June 25, 1999, Court File 96-CU-109538; Scarponi v. Hadwen, [1997] O.J. No. 1649, Corrigendum released [1997] O.J. No. 804 (Ont. Ct. Gen. Div.) – to the same effect.

For the third time in three years, an Ontario Court has held that it has no jurisdiction to entertain a negligence claim against trade union lawyers.

The plaintiff grievor sued the law firm Cavalluzzo, Hayes, which his trade union, the Canadian Union of Postal Workers, had retained to represent him on a grievance arbitration. The plaintiff alleged that the defendant solicitors were negligent and had maliciously compromised his rights. The solicitors brought a motion to dismiss the action.

Judge Ground held that a trade union’s duty of fair representation included the duty to retain competent counsel to represent a grievor. This important component of the duty of fair representation falls within the exclusive jurisdiction of the Canada Labour Relations Board. On the authority of French v. Chapman (unreported, Ont. Ct. Gen. Div., Brockenshire, J. November 18, 1996, affirmed [1997] O.J. No. 4035 (C.A.)), the Court held that it had no jurisdiction to entertain the claim against the defendant solicitors. Since the Canada Labour Relations Board and the Ontario Divisional Court had already dealt with CUPW’s alleged failure to provide fair representation to the plaintiff, the allegations raised in the lawsuit were res judicata in any event.

Natrel (Ontario) Inc. and Teamsters, Local 647, unreported decision of Elaine Newman dated August 7, 1999.

Unions have been hampered with the Court of Appeal decision in Leisure World and the subsequent arbitration awards dealing with grievance procedure time limits. These decisions suggest that if the union violates the time limits for referring a grievance to arbitration, the grievance is inarbitrable. In a recent award, Arbitrator Elaine Newman has provided a way around the Leisure World problem. Arbitrator Newman has determined that, in circumstances where the parties have developed a lax approach to referring a matter to arbitration, an estoppel has arisen which would preclude the employer from raising a Leisure World argument.

Therefore, if a union is faced with a Leisure World argument from an employer, it should immediately investigate the past practice of the parties to determine whether the time limits for arbitration have been strictly adhered to or whether the employer has not required the union to comply with the referral provisions of the collective agreement.

Report submitted by Michael McCreary of the law firm Jesin, Watson & McCreary in Toronto, Ontario.

Two 1995 decisions of the Supreme Court of Canada (Weber v. Ontario Hydro (1995), 125 D.L.R. (4^th) 583; O’Leary v. The Queen, (1995) 125 D.L.R. (4^th) 609) continue to cause confusion about the proper forum for litigating disputes arising in unionized workplaces. Some courts have shown a great willingness to infer or imply a connection to a collective agreement, hence declining jurisdiction and leaving the dispute to be resolved by arbitration or by the Ontario Labour Relations Board (the "Board"). As illustrated by three recent decisions, uncertainty about the proper forum exists even where a collective agreement is not in force at the time of the dispute.

In Duncan and Cadillac Fairview Corporation (1999), 178 D.L.R. (4^th) 530 (Ont. S.C.), Duncan was a Union member and a security guard at the Eaton Centre for Cadillac Fairview ("CF"). Before the Union could negotiate its first collective agreement, but after it had notified CF that Duncan would be a steward, CF discharged him as a result of complaints of sexual harassment and assault made by two co-workers. The Union responded by complaining to the Board that CF was bargaining in bad faith and had violated Duncan’s protections under the Labour Relations Act, 1995. Subsequently, the Union and CF settled the complaint on terms which included Duncan’s resignation, with damages. Duncan refused to sign the settlement and issued a Statement of Claim against CF seeking special and punitive damages for abuse of process, conspiracy to injure, and negligence. CF then brought a motion to dismiss the claim, asserting that the Court was without jurisdiction.

On the jurisdictional issue, the Court acknowledged that Weber means that, in most cases, all differences between employees and employers arising from a collective agreement must be dealt with by arbitration; the Courts have no power to entertain actions in respect of such disputes. However, the Court found that here, at the times relevant to Duncan’s employment, no collective agreement had yet been negotiated. Accordingly, no grievance and arbitration provision applied. Because Duncan’s Statement of Claim pre-dated the collective agreement, his action in tort against CF was permitted to continue and CF’s motion for summary dismissal was dismissed.

Duncan and Cadillac Fairview was followed in Armitage v. ZCL Composites Inc., [1999] O.J. No. 3789 (Ont. S.C.). Here, the plaintiffs were employees who were permanently laid off due to a plant shutdown in Belleville. They sued ZCL for wrongful dismissal and requested a preliminary determination on the Court’s jurisdiction. ZCL argued that, as members of a bargaining unit, their rights could be determined only under the Act.

The Union at ZCL was certified in August, 1997. Subsequently, one negotiating meeting occurred and a Conciliation Officer was appointed. By the time of the lay-offs in 1998, further negotiations had occurred. At that time however, a "no board" report had not been issued and no employee had applied to de-certify the Union. Following Weber, the Court found that, had a collective agreement existed, the Court would have been without jurisdiction to deal with a wrongful dismissal claim. However, the critical factor was the existence of a collective agreement and its remedial provisions. Without one, the employees were without a remedy. The Court determined that the plaintiffs, although represented by a Union, could proceed in a civil suit since no collective agreement yet existed with their employer.

In Dagher v. McDonnell-Ronald Limousine Service Ltd., (1999) 46 O.R. (3d) 97 the Ontario Court of Appeal took a broader approach to the Weber principles than did the courts in Duncan and Armitage. Here, a limousine company had Service Agreements with its brokers, allowing them to operate an airport limousine for a monthly fee. In 1995, for the first time, the company entered into a collective agreement covering some of its brokers. The collective agreement acknowledged the company’s right to have Service Agreements and impose a maximum monthly fee on the bargaining unit members. The collective agreement expired in November, 1997. Six weeks later, the company increased the brokerage fee by 20%. The Union complained to the Board that the company was bargaining in bad faith and sought interim relief. At the hearing of the interim relief application, the company argued that the Board was without jurisdiction since the collective agreement had expired. The Board dismissed the interim relief application.

Following the preliminary Board appearance, the Union applied to the Ontario Court (General Division) claiming a breach of contract under the Service Agreement. The Court assumed jurisdiction over the matter by distinguishing Weber. It held that the Service Agreements were commercial contracts which pre-dated the collective agreement; the terms of the Service Agreements were untouched by the collective agreement and involved persons outside of the bargaining unit. The limousine company appealed the Court’s assumption of jurisdiction.

The Court of Appeal disagreed with the lower court and allowed the company’s appeal. It held that Weber could not be distinguished. Rather, it extended Weber’s principle of deference, which applied to the statutorily-imposed arbitration process, to the decision-making structures created by the Labour Relations Act. The Court reasoned that since the Board has the jurisdiction to remedy violations of the Act which occurr after a collective agreement has expired, then in effect, the dispute arises under a collective agreement and the courts are without jurisdiction.

These decisions illustrate some of the confusion which exists post-Weber. In light of the Court of Appeal’s ruling in McDonnell-Ronald Limousine, was the Court in Duncan mistaken to have assumed jurisdiction since, under the Act, the Board could, and possibly already did, deal with Duncan’s statutory protections from discrimination even though no collective agreement yet existed? Was the Court mistaken to have assumed jurisdiction over wrongful dismissal cases at ZCL since the Union could have claimed a breach of the statutory freeze under the Act? Was the lower court really wrong to have decided that the unionized brokers at McDonnell-Ronald had independent, commercial contracts with their employer, separate from their collectively bargained rights? At one level, decisions such as Duncan and Cadillac Fairview, appear to provide more options for seeking relief in some situations (e.g., proceeding before both the Board and the courts.) However, does that conclusion impose corresponding duties on unions to act for their members in more than one forum? Will extreme judicial deference to the labour relations’ dispute resolution mechanism make an expeditious, informal system as legalistic and slow-moving as the courts have become? In the wake of Weber, the courts appear eager to defer to arbitrations and to the Board. However, in the long run, such deference may limit the rights of individuals in unionized workplaces and expand the obligations of unions, bringing commercial and tort disputes for resolution into the labour relations field.

The Ontario Labour Relations Board has issued a decision giving strong and effective remedies to a newly-certified trade union after an employer avoided dealing with a union, discriminated against union supporters for two years, and transferred bargaining unit work to another facility. In Rapid Transformers Ltd., Marcus Transformer of Canada Ltd., (unreported, OLRB, July 21, 1999), the Board considered several complaints filed by the CEP under the Labour Relations Act, 1995, and the Occupational Health and Safety Act. The CEP alleged that, since its certification in 1997, the employer had transferred work out of the unionized location in Cornwall to its Quebec facility in order to avoid dealing with the union, thus reducing the bargaining unit from 27 to 15 employees. The CEP also alleged that the employer had discriminated against union supporters by selecting them for lay-offs, refusing them normal wage increases, transferring them to less lucrative work, cutting their hours, disciplining them without just cause, and committing reprisals against them for participating in health and safety issues.

The Board heard extensive evidence and assessed the employer’s credibility and motivations. The Board stated that, while an employer is free to expand or contract its business, contract out its work, or change its methods of production, it may do so only for genuine and legitimate business considerations. An employer will breach the Act if its motivations, even in part, are to avoid its obligation to bargain collectively or to otherwise defeat or impede employees’ statutory rights under the Act, the Board ruled. The Board concluded that the Employer’s reasons for dismantling the Cornwall plant included a desire to avoid dealing with the union. Similarly, the Board held that the employer had laid off employees, transferred some to less lucrative jobs, imposed discipline, and awarded wage increases based on the employees’ support for, or opposition to, the Union. The employer had also refused to deal with the union’s selected representatives, instead of its own favourites. The Board ruled that the employer’s conduct seriously breached the Act and sent a message to the Cornwall employees that their jobs were in jeopardy because they had chosen to bargain collectively. According to the Board, this was a particularly significant message, since it was conveyed when the parties should have been negotiating a first collective agreement.

The Board commented on its long history of providing practical remedies where an employer shuts down a location or otherwise removes work to avoid dealing with a newly-certified trade union After identifying several breaches of the Act and the OHSA the Board ordered the employer to:

return to the Cornwall plant all production and pre-fabrication work removed since the CEP’s application for certification on September 11, 1997;

reinstate and reimburse, with interest, all employees laid off as a result of the removal of work from Cornwall;

pay a wage increase retroactively to all employees who had been denied one;

restore certain employees to their previous bonus-generating positions, with compensation for lost bonuses;

remove unjustified discipline;

post and mail to employees a Board notice describing their rights under the Act.

The Board concluded by remaining seized to deal with any matters arising out of these remedies. Clearly, in this decision, the Board sent its own message: that the Act guarantees a right to bargain collectively and that the Board will do its utmost to protect this right in a meaningful way.

The Supreme Court of Canada has issued its decision in Ajax (Town) v. National Automobile, Aerospace and Agricultural Workers (CAW-Canada), Local 222, upholding the ruling initially made by the Ontario Labour Relations Board that a sale of business had occurred when the Town began operating its bus service with the same employees formerly employed by a service contractor. (See [2000] S.C.J. No. 23)

The bus service, although owned by the Town of Ajax, was operated by Charterways Transportation. In 1992, the Town decided to operate the service directly and cancelled its contract with Charterways. The drivers employed by Charterways, and represented by the CAW, were laid off. Subsequently, the Town hired a significant number of them back as drivers, and the service then ran without regard to the Union’s bargaining rights.

The Union successfully argued before the OLRB that there had been a sale of a business from Charterways to the Town; the Town acquired an essential element of the business when it hired the drivers, who made up the substantial part of its workforce. (See [1994] OLRB Rep. Oct. 1296.) The Town then successfully applied to the Divisional Court for a review of the Board’s decision ((1995), 84 O.A.C. 281 and 95 C.L.L.C. para 210-040.). On the Union’s appeal to the Court of Appeal, the Court found that the Board’s conclusions were not "patently unreasonable", reversed the Divisional Court’s decision and restored the Board’s order ((1998), 41 O.R. (3d) 426).

The judges of the SCC were not unanimous in agreeing with the Court of Appeal and the Board. Three of the nine judges supported a dissenting opinion which emphasized that there was no nexus between the operations of the Town and those of Charterways. The dissenting judges held that it was "patently unreasonable" for the Board to find that the hiring of Charterways’ former employees was an "essential element" of the business so that the sale of the business provision could apply.

The majority issued only brief reasons, relying for the facts and arguments on the decision of Goudge, J.A. in the Court of Appeal’s decision. The majority reiterated that the test on judicial review is whether the decision at issue was "patently unreasonable", not "correct", and determined that it was not patently unreasonable for the Board to decide as it had.

Report submitted by Elizabeth Mitchell and Ursula Boylan of the law firm Koskie Minsky in Toronto, Ontario.

The Supreme Court of Canada has granted leave to appeal in Dunmore v. Ontario (Attorney General), [1999] S.C.C.A. No. 196 (S.C.C.). The case began in 1995 when the provisions giving agricultural workers the right to unionize was removed from Labour Relations Act. The applicant employees were bargaining for a first collective agreement when their right to bargain collectively was repealed. They challenged the repeal in court, claiming violations of their Charter rights to freedom of association (ss.2(d)) and freedom from discrimination (s. 15).

The application was dismissed at the Ontario Court, General Division ((1998), 155 D.L.R. (4^th) 193). Justice Sharpe held that the Charter did not require positive government action to facilitate either the formation of associations or collective bargaining. He ruled that the repeal did not deny agricultural workers the right to form associations and that the disadvantage they may be suffering resulted from their employer’s exercise of a private power, which was not reviewable under the Charter. Finally, the Court held that agricultural workers are not a historically disadvantaged group deserving of s.15 protection. The Court of Appeal agreed with the lower court (1999), 182 D.L.R. (4th) 471 (Ont. C.A.).

The issues in Dunmore are similar to those raised in Delisle v. Canada (Deputy Attorney General, [1999] 2 S.C.R. 989. where the majority of the SCC held that the Charter’s guarantee of freedom of association does not guarantee a right to establish a particular type of association. In Delisle, the majority determined that, although under the Public Service Staff Relations Act and the Canada Labour Code the RCMP are prohibited from joining or forming trade unions, that legislation does not offend the Charter since the PSSRA expressly permitted the RCMP to form employee associations. In considering Dunmore, one obvious question will be whether the repeal of the agricultural workers’ right to unionize under the LRA, 1995 is balanced by any alternative rights in other legislation respecting their freedom to associate. The fact that the SCC granted leave to Dunmore at all clearly indicates that the Court has more to say on the meaning of freedom of association vis-a-vis trade union representation.

Report submitted by Elizabeth Mitchell and Ursula Boylan of the law firm Koskie Minsky in Toronto, Ontario.

The Labour Relations Amendment Act (Construction Industry), 2000 ("Bill 69") was tabled in the legislature on April 25, 2000, and has received second reading. Just before the Bill was scheduled to go back to the Legislature for final reading, the unions withdrew their support. As a result, Bill 69 has been shelved and Labour Minister Chris Stockwell plans to come back after the summer recess with a different Bill. Bill 69, was to affect collective agreements in the construction industry only, and proposed to amend the Labour Relations Act in five major areas:

Changes to ss. 1(4) (single employer) and s. 69 (successor employer) (s. 126): Bill 69 proposes 2 changes: first, the Board is required to disregard family relationships. Secondly, in cases involving "key persons", the Board is required to consider the following factors:

the length of any hiatus between the activities of the key individual with the entities in question;

whether the key individual occupied a "formal management role" in the first entity; and,

whether the first entity was able to carry on business "without substantial disruption or loss when he or she ceased to be involved" with that entity.

Changes to the residential sector of the construction industry: Bill 69 (ss. 150.1 and .2) will limit strikes and lock-outs in the residential sector of the construction industry in the Greater Toronto Area for the 2001 round of bargaining. There will only be a limited "window" (May 1, 2001 to June 15, 2001) in which to conduct a strike or lock-out. Once the window closes, if no agreement has been reached, either party may request interest arbitration. These new residential provisions are automatically repealed on April 30, 2002.

wages, including overtime pay and shift differentials and benefits;

restrictions on the hiring of employees who are members of another affiliated bargaining agent that is in the same employee bargaining agency as that in which the affiliated bargaining agent is a member but who are not members of the EBA;

restrictions on an employer’s ability to select employees who are members of the affiliated bargaining agent;

accommodation and travel allowances;

the ratio of apprentices to journeymen employed by an employer.

The Bill anticipates that, if the parties agree, the amendments must be approved by the provincial bargaining agencies. However, if the parties cannot agree, the employer bargaining agency or DREO may request arbitration by final offer selection. The test at FOS arbitration is whether the provisions of the provincial agreement render the employers who are bound by it at a "competitive disadvantage" with respect to the kind of work, the market and the location indicated in the application.

Changes to mobility rights and name-hires (s. 163.5): Certain "default provisions" for hiring are deemed to be included in provincial agreements in the ICI sector, allowing an employer to transfer up to 40% of the total number of required employees to a project located in a distant geographic area and, in addition, to name hire up to 60% of its workforce from the local union in the area where the project is located.

The Minister of Labour is required to conduct a review of the effectiveness of the provisions of the Bill by no later than December 31, 2001.

Bill 69 proposes extensive amendments to the Act and should be reviewed for its full details. It gives substantial control to employers to force local modifications in province-wide agreements, makes substantial intrusions into union hiring hall provisions, and imposes new limits and interest arbitration in the residential sector.

Report submitted by Alan Minsky of the law firm Koskie Minsky in Toronto, Ontario.

In the previous CALL Newsletter, reference was made to a decision of Arbitrator Doug Stanley rendered in December 1998 which allowed the discharge grievance of a member of CUPE 79 at the City of Toronto who had been convicted of sexually assaulting a client. The arbitrator ruled that the conviction in and of itself did not constitute just cause for discharge and that the Union had called sufficient evidence to rebut the prima facie evidence of misconduct arising from the conviction.

In similar decisions by the Crown Employees Grievance Settlement Board, arbitrators concluded that criminal convictions did not constitute absolute or conclusive evidence of misconduct and that neither the grievor nor the Ontario Public Service Employees Union were barred by the doctrines of issue estoppel or abuse of process from contesting the prima facie evidence arising from the convictions. In one case, Arbitrator Nimal Dissanayake heard the merits of the grievance, concluded that the presumed fact of misconduct arising from the conviction had been rebutted, and allowed the grivance in its entirety. In the other case, Arbitrator Owen Gray, in two interim decisions, indicated that he was prepared to hear the evidence which the union and the grievor sought to

The employers in all three cases sought judicial review. In a decision released on May 5, 2000, a unanimous panel of the Divisional Court allowed the applications and quashed the arbitrators’ decisions in their entirety. The Divisional Court’s decision is of obvious interest to anyone interested in the relationship between criminal and arbitral proceedings. Both CUPE 79 and OPSEU are now seeking leave of the Court of Appeal to appeal the decision of the Divisional Court.

This area of the law will be reviewed, together with other topics of interest, in the workshop entitled "Crime and Punishment" scheduled to be held at the upcoming CALL Conference in Halifax.

Report submitted by Craig Flood of the law firm Koskie Minsky in Toronto, Ontario.