Hamilton Street Railway Co. v. Amalgamated Transit Union, Local ...

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Cited as:
Hamilton Street Railway Co. v. Amalgamated Transit
Union, Local 107 (Davidson Grievance)
Appearances:
IN THE MATTER OF an arbitration
AND IN THE MATTER OF the Grievance of John Davidson
Between
The Hamilton Street Railway Company
(the "employer/company") and
The Amalgamated Transit Union, Local 107 (the "union")
[2000] O.L.A.A. No. 921
File No. MPA Y-002584
Ontario
Labour Arbitration
P. Knopf, Arbitrator
Heard: Hamilton, Ontario, December 2 & 3 1999, March
7 & 8, September 14, and October 6, 12 & 25, 2000
Award: November 16, 2000
(83 paras.)
Richard J. Nixon, counsel, Troy Lehman, Student-at-Law and Honorie Pasika, for the company.
J. Ivan Marini, counsel and Kim Cheeseman, President, for the union.
AWARD
1 This is a discharge case. The Hamilton Street Railway (hereinafter referred to as the HSR) operates
the transit service for the City of Hamilton. The grievor had 23 1/2 years' seniority as a bus
operator at the time of his discharge. The Union alleges that the discharge is unjust. The Employer
justifies the discharge on the basis of the grievor's disciplinary record and an alleged breach of a
Last Chance Agreement that had been signed 16 months before the discharge.
2 On one level this is a simple case. There is a Last Chance Agreement that gives this arbitrator
jurisdiction only to determine whether a breach of the Last Chance Agreement has occurred. If it
has, the terms of the Last Chance Agreement prescribe discharge. However, complexities arose in
the presentation of the case by both sides because they disagree about the interpretation and applica-

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tion of the Last Chance Agreement to the facts of the case. Extensive evidence was called by both
parties. Only the relevant evidence will be referred to in this award.
3 The grievor is 51 years old. He has a Grade 10 education. He has worked since he was 14, doing
various jobs until he was hired as a bus operator by the HSR in 1975. He has an extensive history
of discipline dating back to 1984:
DATE DISCIPLINE CONDUCT
January 13, Written Failure to make transfer
1984 warning connections and failure to
listen to an inspector.
March 23, Written Misuse of radio equipment.
1984 warning
March 30, Written Misuse of radio, derogatory
1984 warning remarks to controller.
November 27, Written Accident.
1984 warning
August 13, Written Misuse of radio.
1985 warning
August 28, 1-day Customer complaints.
1985 retraining
course at
half-pay
August 20, Written Failure to adhere to
1986 warning schedule.
August 21, Written Complaint from other bus
1986 warning driver about conduct.
December 4, Written Complaint from pedestrian
1986 warning re erratic driving.
December 4, Written Accidents.

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1986 warning
December 4, Written Failure to adhere to
1986 warning schedule.
December 4, Written Misuse of radio.
1986 warning
January 27, Written Conduct in dealing with
1987 warning inspector.
March 26, One-day Failure to pick up
1987 suspension passengers.
June 18, Written Complaints.
1987 warning
September 14, Written Accidents.
1987 warning
September 14, Written Misuse of radio.
1987 warning
November 9, Written Walking through restricted
1987 warning area without proper safety
attire and being rude to
foreman.
March 16, Two-day Accident. Filling in
1988 suspension accident report when he was
the "pick-up" bus
responsible for bring other
drivers to work. Rude
comments to dispatcher
[sic].
August 22, One-day Verbal abuse of dispatcher.
1989 suspension
November 27, One-day Failure to report accident.
1989 suspension

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May 14, One-day Complaints.
1993 suspension
June 26, Written Complaints.
1995 warning
August 8, One-day Complaints.
1995 suspension
September 9, Written Complaints.
1996 warning
April 11, Three-day Complaints.
1997 suspension
May 27, Six-day Complaints.
1997 suspension
(Last Chance
Agreement
signed)
November 19, Six-day Accident and failure
1997 suspension to report.
By May 1997, the Company was seriously contemplating the discharge of the grievor because of
the accumulative effect of his record. Don Hull was the Director of Operations at the time, responsible
for operations and the bus operators. Mr. Hull testified, "We felt that there were grounds to
terminate employment." However, after discussions with the Union and the grievor, the HSR agreed
to keep the grievor employed if he and the Union would sign a Last Chance Agreement. The Company
took some comfort in the letter Mr. Davidson provided to them at the time because Mr. Hull
accepted it an indication of Mr. Davidson's willingness to accept responsibility and "mend his
ways." The letter reads:
To whom it may concern May 27, 1997
I will pay strict attention to my driving habits and bus schedules from here on in.
As far as the customer complaints are concerned, at no time did I engage in inappropriate
discussion with any customer on my bus.

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I will take the proper steps necessary to avoid any further problems.
Thank you.
John E. Davidson
Upon receipt of this letter, the Company was willing to enter into a Last Chance Agreement with
the grievor and the Union.
4 The parties engaged in intense debate over the admissibility of extrinsic evidence concerning
the negotiations leading up to the signing of the Last Chance Agreement. The Employer took the
position that the document is clear and that any extrinsic evidence is inadmissible. The Union took
the position that a latent ambiguity exists that makes the extrinsic evidence necessary and admissible.
Over the objection of the Employer, it was ruled that the evidence must be heard to resolve the
question of the latent ambiguity and to allow full explanation of some of the evidence that had been
given by the Employer's principal witness-in-chief. Given the analysis and the conclusions that form
the basis of the decision that follows, it is appropriate to review the evidence surrounding the negotiations
of the Last Chance Agreement.
5 The HSR presented a draft agreement to the Union. The terms of the draft were then discussed
between Mr. Hull and the Union's President, Kim Cheeseman. The original draft included a 10-day
suspension that Mr. Cheeseman successfully persuaded the Employer to reduce to a six-day suspension.
There were also discussions about the wording of the provision that would trigger the grievor's
discharge if he received more than the average number of "complaints" regarding his conduct as a
bus operator in the next 24 months. Mr. Cheeseman and Mr. Hull both testified that they discussed
the question of the meaning of the word "complaint" in the draft. They agree that Mr. Cheeseman
wanted to add the word "serious" to the document so that only serious or "legitimate" complaints
could trigger a discharge. Mr. Cheeseman made it clear to Mr. Hull that the Union did not want the
Employer to act upon or consider what Mr. Cheeseman called "garbage" or illegitimate complaints
against the grievor. Mr. Cheeseman acknowledges that Mr. Hull refused to alter the wording of this
provision or agree to any adjective being added to modify the word "complaint." Mr. Hull was
aware of the fact that the Union only wanted the HSR to act on "legitimate complaints". But Mr.
Hull would not add the desired adjective because past experience had taught him that the Employer
and the Union could never agree on what was a "legitimate" complaint. Mr. Hull testified that management
assured Mr. Cheeseman that the HSR would not act on any "frivolous" complaints, meaning
that it would only take action on complaints that were "attributable." "Attributable" meant a
complaint could be matched with the complainant's name and telephone number, as well as an address
if necessary. Further, Mr. Hull assured the Union that the Employer would conduct normal
investigations of all the complaints to ensure that no one was "out to get the grievor."
6 Mr. Hull explained that he had no intention of signing an agreement that would require the Employer
to prove the merits of individual complaints against the grievor. The Employer was not prepared
to engage itself in an exercise that required calling members of the public to testify at an arbitration
in order to prove its case. The HSR was only willing to enter into a Last Chance Agreement
that considered the number of attributable complaints against the average of the grievor's peer
group. Mr. Hull was adamant that he would not have signed the Last Chance Agreement if he had
any idea that the language would or could be interpreted to mean that the Employer would have to
prove the merits of each complaint in order to justify a discharge. Mr. Hull went so far as to say that

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if this Last Chance Agreement were interpreted as the Union asked, the HSR would never enter into
a similar Last Chance Agreement in the future.
7 Returning to the Last Chance Agreement with this grievor, Mr. Cheeseman testified that he was
left with the impression from Mr. Hull that the Company would only act on "legitimate" complaints.
Mr. Cheeseman recalled that Mr. Hull assured him that the HSR would conduct normal investigations
of all complaints and that it would ensure that no customer had targeted the grievor. Mr.
Cheeseman testified that he took Mr. Hull "at his word" in terms of the understanding that only legitimate
complaints would be considered. Because of this, Mr. Cheeseman did not insist on adding
the word "legitimate" to the draft. Mr. Cheeseman also testified that although he was not happy with
the proposed wording of the document, he was willing to sign it on behalf of the Union to comply
with the grievor's wishes. The grievor wanted the document signed because he felt that this was the
only way he could keep his job. Accordingly, the following Last Chance Agreement was signed by
the HSR, the Union and the grievor on May 27, 1997:
BETWEEN:
MINUTES OF AGREEMENT
* The Hamilton Street Railway Company, hereinafter referred to as the
"Company.
* The Amalgamated Transit Union, Local 107, hereinafter referred to as the
"Union", and
* John Davidson, hereinafter referred to as "Mr. Davidson".
The parties listed above have agreed to the following:
1. Mr. Davidson has not maintained an acceptable level of performance or
conduct in his capacity of a Bus Operator.
Mr. Davidson has maintained an unacceptable level of customer complaints.
Mr. Davidson has maintained an unacceptable level of
schedule adherence.
2. Mr. Davidson will attend and must successfully complete an Operator
Training Program before returning to work.
In the event that Mr. Davidson does not participate in the Operator Training
Program or withdraws from the training, it is agreed that Mr. Davidson
shall be discharged from employment with the Company for cause.
3. Effective immediately upon signing this Agreement and completion of the
Driver Training Program, Mr. Davidson shall resume his normal duties as

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a Bus Operator with the Company and shall be subject to all Company
policies and procedures.
4. Mr. Davidson accepts the 6 day suspension assessed May 14 through May
21 as justified.
5. IT IS UNDERSTOOD THAT IF MR. DAVIDSON RECEIVES FUR-
THER COMPLAINTS REGARDING HIS CONDUCT AS A BUS OP-
ERATOR AND/OR IS NOT MAINTAINING PROPER SCHEDULE
ADHERENCE DURING THE NEXT 24 MONTH PERIOD, CONSIS-
TENT WITH THE AVERAGE FOR BUS OPERATORS, MR. DAVID-
SON WILL BE DISCHARGED FROM EMPLOYMENT WITH THE
COMPANY.
[emphasis added]
6. It is agreed by all parties that termination of Mr. Davidson's employment
under Clause 2 (i.e. withdrawal from Operator Training Program) or under
Clause 5 (i.e. failure to meet performance and/or conduct standards) may
be subject of a grievance, but any arbitrator appointed to adjudicate on the
matter shall have jurisdiction solely to make a determination with respect
to the fact of any such breach. The arbitrator will not have jurisdiction to
vary the penalty of discharge in the event the fact of any such breach is
made out.
7. The parties and Mr. Davidson agree that any termination as outlined in this
Agreement will not be the subject of a complaint to the Ontario Human
Rights Commission.
8. It is also agreed that the signing of this Agreement in no way represents a
guarantee of employment during the term of this Agreement.
9. Mr. Davidson, by his signature affixed below, acknowledges that he has
read and understood the terms of this Agreement and agrees to be bound
by them.
10. The Union acknowledges by the signature of its authorized representative
below that it agrees to the terms of this agreement.
8 It is clear from all the evidence that a failure to sign the Last Chance Agreement would have
resulted in the grievor being discharged in May 1997. However, the parties did agree to enter into
this arrangement and they now agree that the grievor and the HSR fulfilled the terms of paragraph
2. They also agree that the grievor improved his schedule adherence in compliance with paragraph
1. The events that gave rise to the discharge concern paragraph 5 and the level of customer complaints
that was received. In a nutshell, it is alleged that the grievor received significantly more than
the average number of complaints and thereby violated paragraph 5. That is the basis of the termination.
Therefore, the events following the discharge must be reviewed.
9 The Employer has a Customer Service Representative whose responsibilities include receiving
both complaints and commendations from the public. At all material times, the person with these
responsibilities was Julie Brower. She received most communications over the phone. When receiving
a complaint, she would ask for the bus number, the route number or description, the location
where the caller boarded, the time, the direction, the caller's name and telephone number and the

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details of the complaint. She does not question the details given by the person making the complaint.
She simply summarizes what she is told and records this on a piece of paper. Many of these
complaints involve running times and are easily deemed unfounded by checking the automated vehicle
location system (AVLS). They are not documented further. The other half of the calls are
logged on a computerized system designed for the purpose of keeping track of complaints. This
generates a printed form that is forwarded to the Supervisor of Customer Relations. His responsibilities
included taking the recorded information, discovering who the bus operator was by coordinating
the route, bus number, schedule and location with the drivers' assignments. He also either
investigates the complaints himself or assigns them to another inspector. The evidence of Ms.
Brower, corroborated by Mr. Hull, is that the information she received was insufficient for her to be
able to identify any of the bus operators from the initial complaint. Further, if the investigator
needed any more information than was contained in Ms. Brower's summary, it was the responsibility
of the Superintendent of Customer Relations to investigate further. Ms. Brower's last connection
with the complaint is to receive the inspector's report and log the file as closed. It is up to the Superintendent
of Customer Relations to decide whether the complaint was of sufficient gravity or concern
to be included in a bus operator's file.
10 Ms. Brower was the Employer's sole witness about the complaints received against the
grievor. The Union raised a formal objection to this evidence on the basis that it was hearsay and
that the HSR was obliged to prove the complaints with direct evidence from the passengers. The
Union asserted that proceeding otherwise would prevent a fair hearing because there would be no
opportunity to cross-examine the complainants. The Employer submitted that the evidence is properly
admissible because it is consistent with the terms of the Last Chance Agreement, it is within the
scope of an arbitrator's discretion to admit hearsay and it would be impractical to call all the passengers
and all the inspectors involved in the investigation. It was ruled that this evidence was admissible
through Ms. Brower. It was concluded that if the evidence was being tendered only to prove the
receipt of the complaint, it was not hearsay because it was not being tendered for the truth of its
contents. Even if it was being tendered to prove its contents, hearsay is admissible in an arbitration.
The Employer was warned that if it chose to prove its case in this way, it risked an ultimate finding
that there may be insufficient evidence to justify the discharge. It was also recognized that the Union
may be frustrated by an inability to cross-examine the passengers. However, if the evidence was
excluded, the Employer would be unable to establish the very basis of its decision to discharge the
grievor because it acted on the basis of the receipt of these complaints. Finally, it was concluded
that the Employer's approach was consistent with the terms of the Last Chance Agreement.
11 Having decided that the information about the complaints was admissible through Ms.
Brower, she then proceeded to give evidence about her receipt of each of the 16 complaints. The
grievor also testified and addressed each of the complaints. There was some evidence that was
common to all the complaints. Each computer printout records the complainant's name, telephone
number, date and time that it was logged into the computer, the bus number, the route number if
available, the direction of the bus, the street location and the date/time of the incident. The details
given by the complainant are also summarized. Each of the documented complaints was then investigated
by a series of investigators. The investigators all recorded their discussions with the grievor
about the complaints. Notes of the investigators' comments are recorded, included on the final computer
print out and were filed in evidence. In all 16 complaints, the grievor was operating a bus on
the routes and the days specified in the complaints. In 14 of the 16 complaints, he admits involvement
with the alleged situation. The evidence which follows about each of the complaints is taken

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from the computer printouts, the evidence of Julie Brower and the grievor. Ms. Brower's evidence
gave a context for the documentation. Her recollection of receiving the calls was interesting, but
was not relied upon for purposes of the Award. For the purposes of the decision and analysis which
follow in the award, the documented complaints and investigators' reports, taken together with the
grievor's testimony, are what was taken into consideration for determining the merits of the case.
The relevant portions of the computer printouts, recording the complaints and the investigations, are
transcribed verbatim below in the indented columns.
COMPLAINT #1
Category Driving Habits
Date/Time Created
1997/06/16 11:00:00
Date/Time of Incident Employee: 0264
1997/06/13 09:50:00
Details
Caller states the above bus cut him off proceeding S/B on James Street at Rebecca.
Caller would like this oper. to "watch out" before making the turn onto
James Street!
Results
Investigated By: C. Garrish
Operator has no knowledge of this incident. He was reminded of the Company
Policy that we cannot turn left on a red light. Operator interviewed.
12 The grievor admits driving that day, and being on that route and on that bus. He recalls telling
the investigating inspector that he was not involved in such an incident. He thought this explanation
would be accepted and that the complaint would be "thrown away."
COMPLAINT #2
Category Passing Stop Date/Time Created
without Pickup
1997/08/26 08:34:00
Date/Time of Incident Employee: 0264

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1997/08/26 06:54:00
Details
Complainant states she catches the 17A every Monday at the above location on
Mohawk in front of #30. Today, when the operator turned the corner from James
he was in the middle lane heading for west 5th. The compl. waved frantically for
the driver to stop. The oper. did stop in the middle of the road and opened the
door. The cmpl. ran across and boarded the bus. She advised the oper. that he
should be stopping at that stop. The oper. replied "No. That stop is just for the
Mohawk Bus". Then the oper. was talking to a woman in the front and said
"some people are so lazy, they won't even walk to the corner to get to the proper
stop". Compl. did not appreciate the comments. Male
Results
Investigated By: K. Andrews
Op [Operator] says he wasn't sure that the stop in question was a common stop.
Now he is sure. Op says he does not recall making any comments to any other
passengers.
13 The grievor admits involvement in such an incident but alleges that it happened differently
than is documented. He alleged in cross-examination that a passenger, not he, made a comment
about people being too lazy to go to the proper bus stop. He asserted, "I do not talk like that." He
was challenged about his claim that a passenger made the comment because of the fact that he had
not raised this allegation with the inspector or in his examination-in-chief. He explained that he had
"forgotten" about this earlier. When pressed in cross-examination, he recited details of the height,
weight, and description of the offending passenger. He described her voice as "normal".
14 He does admit the allegation that he did almost pass the bus stop in question. His explanation
was that the route was new to him. He admits some wrongdoing with regard to this complaint. He
now feels he should have declined to let the passenger on the bus because he was not at a proper bus
stop. Further, he acknowledges that he should have pulled closer to the curb. He expected that this
complaint would be filed in his record after the investigation.
COMPLAINT #3
Category No Show
Date/Time Created
1998/01/20 15:17:00

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Date/Time of Incident Employee: 0264
1998/01/20 06:02:00
Details
Complainant states that yesterday, this bus was late getting to the stop. Today,
the bus didn't show up at all. Compl. works at the Hospital and needs to get there
on time. Compl. is concerned that this is turning into a daily problem.
Results
Investigated By: Steinhoff
Operator used the wrong pull out from the garage.
15 The grievor admits that the incident occurred as documented. He agrees with the accuracy of
the details and agrees that the complaint was "legitimate."
COMPLAINT #4
Category Not pulling Date/Time Created
up to curb/stop
1998/01/22 09:27:00
Date/Time of Incident Employee 0264
1998/01/22 08:20:00
Details
Complainant who is an 80 year old senior was standing at the stop in front of
Chedoke Hospital waiting for the bus heading W/B. The bus pulled up and drove
by the stop approx. 2 bus lengths to let off 15 students and the driver started closing
the door. The compl. yelled and went up to the bus. When boarding she asked
the driver why he bypassed the stop. Oper. said that he goes by the stop in order
to drop the students off closer to the school. Comp. then asked if you're at the
stop you get bypassed for the student's convenience. When she rang the bell to
get off at Magnolia and Mohawk, the driver was in the middle of the road and
stopped the bus there. Compl. again who is elderly had to try and climb down the
stairs onto the road. Compl. feels this operator should be concerned and obliging
to all passengers not just the students.
Results

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Operator stated he did stop away from curb both times as it was safer to do so
than have people climb over snow banks as bus areas were snowed in that day.
Addressed by letter Feb. 10/98
16 The grievor admits that this occurred. He does not quibble with any of the recorded details,
but he offered an explanation for the events. He testified that he saw a lady standing three to four
feet from the far side of the bus stop. This led him to believe that she did not want his bus. He recalled
that it was snowing heavily and snow had been piled up around the bus stop. So he decided to
drive past the bus stop and let his passengers off at a driveway further along where the snow had
been ploughed. He says he then noticed the lady yelling for the bus, so he waited to let her on. He
recalls her expressing her displeasure upon boarding. He also explained that he let passengers off
later some distance from another bus stop because of banked up snow. In cross-examination he admitted
that the HSR's rules prescribe that drivers should stop for people within 150 feet of a bus
stop. He further admitted that there may be merit to the passenger's complaint. But he insisted that
he had not known that she wanted the bus at the time. The grievor believed that once he gave this
explanation to the inspector, the HSR would "toss out" the complaint "like they did with so many
others." He did not believe that this complaint would be placed on his file because, in his opinion,
he had done "everything the right way."
COMPLAINT #5
Category Driving Habits
Date/Time Created
1998/01/23 13:13:00
Date/Time of Incident Employee: 0264
1997/01/22 09:30:00
Details
Compl. along with her husband and other passengers were on the bus. She states
the operator was driving like a maniac. Her husband went up to the driver and
said "I hope we're not going to go down the mountain like this". Oper. replied "I
hope not." Passengers were quite nervous at the back of the bus. The Oper. was
making comments at the younger students who were boarding regarding getting
married. Women just "F..K" your life up". Compl, then went up to the driver to
tell him to slow down and Oper. mentioned that he should have called the cops
on the previous guy who told him to slow down. The driver said the guy was
smoking dope just to justify his actions. That was the compl. husband. When
compl. told the driver he was speaking of her husband the driver then said well
then someone around her husband was smoking dope. Compl. feels this driver
should operate the vehicle in a much safer manner. Male/Salt & pepper hair. [sic]

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Results
Investigated By J. Dorey
Operator stated he did not drive like a maniac, he did swear or make comments
as alleged and also operator stated he was concerned that both complainants were
the ones who were smoking dope. Addressed by letter dated Feb. 10/98
17 The grievor admits an incident occurred, but says he did nothing wrong. He explained that the
bus was going sideways because of icy conditions. He admits making a comment about hoping it
would not continue to slide. He testified that he was just "joking" in an attempt to "alleviate passengers'
concerns and nervousness." He was asked whether, in retrospect, he thought he might have
been "unwise and possibly stupid" to have said such a thing. He answered, "No."
18 He adamantly denies the allegation that he made derogatory comments about marriage and
women. He said, "I like women;" and added that he has been married for 31 years.
19 He agreed that he was asked to slow down by a woman. He testified that he told her that she
should call the police about the male passenger who he thought had been smoking marijuana. He
says he made the suggestion after the woman threatened to complain to the HSR about his driving.
He justifies his conduct by saying that he smelled the scent of marijuana when the man boarded. He
did not know at the time that the man he was referring to was the lady's husband. He accused the
complainant of lying. He accepts no responsibility for any wrongdoing with regard to this complaint.
However, he acknowledges that he knew that this incident would be considered by the HSR
as a complaint that would remain on his file.
COMPLAINT #6
Category Driving Habits
Date/Time Created
1998/01/26 11:34:00
Date/Time of Incident Employee: 0264
1998/01/26 10:00:00
Details
Complainant states this operator was "driving like a maniac". She states that
while pulling into Mohawk College the driver was honking at vehicles to get out
of his way. He also hit a snow bank because of pouring himself a cup of coffee
and also hit another snow bank due to loosing control and swerving. Compl.
states she was extremely frightened. The driver was "flying." Compl. states if she

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had enough change on her she would have got off this bus and waited for the
next one. Male/dark hair/mustache/bear. [sic]
Results
Investigated By: J. Dorey
Operator stated he did not drive like a maniac. Yes he
did take down ridges of snow in curb lane but does not
carry thermos as alleged. He cannot remember specific
incident as outlined. Addressed in letter of Feb. 10/98
20 The grievor admits working on that bus on that route on that day. However, he denies that the
allegations involve him. The grievor does admit that it was his practice to get as close as he could in
order to take down ridges of snow. He admits that the operation manual does not recommend this
practice. The grievor believed that this complaint would be "thrown out" because it did not involve
him.
COMPLAINT #7
Category Driving habits
Date/Time Created
1998/03/31 10:41:00
Date/Time of Incident
Employee
1998/03/31 08:30:00 0264
Details
Complainant was in the Tim Hortons on Main at Proctor and was edging out into
traffic to get across the street. The compl. states that the bus was two blocks
away originally. He states the bus came barrelling up and pulled up 6 inches from
his vehicle. The bus continued to edge forward with every move the compl.
made. Compl. feels that this driver appeared like he owned the lane he was in and
was extremely aggressive. Compl. felt there was no reason for him to do this.
Male/beard.
Results
The operator said this incident did not happen. He said he has been accused of
many silly things but does not put peoples lives at stake.

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21 The grievor admits working on that bus on that route on that day. He also denies any involvement
in the incident. He says: "It wasn't me." He agrees that the alleged facts would mean that the
bus operator made a left turn on a red light. He agrees that the description of the driver fits him accurately.
He did not believe that this complaint would be held on his file as a result of his denial of
involvement.
COMPLAINT #8
Category Lack of Date/Time Created
Professionalism
1998/06/16 11:14:00
Date/Time of Incident Employee: 0264
1998/06/15 09:20:00
Details
Bus ahead was involved in an accident. When everyone boarded 9620 the driver
was rude in tone and words. He berated passengers to "hurry up" and chided
them for delaying him.
Results
Investigated By: Shea
Operator admits that he was somewhat impatient. He had received a change off
and had to wait out 4 lights while the passengers boarded.
22 The grievor admits an incident occurred, but he alleges that the facts happened differently. He
explained that there had been an accident and people had to board his bus from another. He asserted
he used a voice expressing "concern for the passengers who had to get to work." He recalls saying,
"Please move back." He also recalls saying, "Please hurry up" to a passenger who was finishing a
cigarette before boarding and thereby holding up the bus. He asserts that he admitted to the investigator
that he was "somewhat impatient" only after being coaxed into making such an admission.
The grievor feels he did nothing wrong in this situation. He does concede that the passenger voicing
the complaint was "probably right from his point of view" but suggested "he was probably late for
work and had to blame me." However, the grievor did admit that he could have been more polite,
patient and could have used a friendlier tone. On the other hand, he asserts there was "no merit" to
the complaint. He asserted that he was acting "professionally and in accordance with HSR rules at
all times." When asked how he would handle a similar situation in the future, he responded, "If I
have learned anything, I'm not going to say anything. I'll let them [the passengers] do anything they
want." Then he added, "I'd ask people politely to move back. I would do it no differently."

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23 The grievor felt that the HSR was satisfied with the explanation he gave of the incident to the
inspector and that this complaint would not be held against him.
COMPLAINT #9
Category Destination Sign Date/Time Created
Problems
1998/06/30 12:50:01
Date/Time of Incident Employee 0264
1998/06/30 07:50:00
Details
Complainant boarded the bus which had the sign displaying 23-Upper Gage. After
she boarded the driver said to her "Upper Ottawa". She replied "But your sign
says Upper Gage". Operator then said "oh well". Compl. then asked when the
next Upper Gage bus was coming. Operator replied "Oh I don't know, sometime
this year." Compl. just didn't appreciate this operator's attitude and his lack of assistance.
Results
Oper pulled in on upper ottawa trip with upper gage showing exactly as stated
oper informed to change signs at w/c downbound
24 The grievor agrees he worked this route on the specified day and that his bus had improperly
displayed the "Upper Gage" sign. However, he maintains that this conversation did not occur with
him. He does agree that the alleged incident would be "totally inappropriate, disrespectful, rude and
a tackless way to speak to a passenger."
COMPLAINT #10
Category Lack of Date/Time Created
Professionalism
1998/09/02 14:50:44
Date/Time Incident Employee 0264
1998/09/02 12:01:00
Details

Page 17
Complainant boarded the bus and sat in the front seat. He suffers from an anxiety
disorder. The driver told him to move back. When he asked why, the driver informed
him that he was taking on some elderly passengers. When the passengers
boarded no one sat in the front seat. He went to sit back there and the driver told
him to go to the back of the bus. Compl. questioned the driver and he again said
to go to the back. Another driver boarded and the compl. asked the driver if it
was necessary for him to be forced to the back and the other driver told the
compl. that he could sit in any seat that he wants. Compl. feels operator should
be spoken to. Male/beard/glasses/heavy set.
Results
Operator said that the person was sitting in the front seat. Some elderly passengers
boarded, he asked the person to move so that they could sit down, which he
did. The man came back and asked him why he had to move, operator told him
that the seats were for the infirm and elderly. This was the extent of the conversation
no other driver boarded the bus.
25 The grievor agrees with the accuracy of the reported details with the exception that he testified
that he said only "Please move back." Further, he alleges that no other bus operator got on the bus.
He explains his conduct by saying that he did not know that the complainant suffered from an anxiety
disorder. The grievor testified that he asked the complainant to move back because the grievor
saw that some older people were about to board the bus. He explained that he had been taught that
the seats at the front were to be used by the disabled and the elderly. He agrees that when those elderly
people did not use the seats, the complaining passenger moved forward to sit in the seats again.
The grievor told the man to move back again because he anticipated more elderly people would be
boarding later on.
26 The grievor agreed that anyone is free to use the first seats. He also admitted that he does not
prevent all able-bodied or younger people from using the seats at the front. He cannot recall whether
the bus was full or seated to capacity at the time.
27 The grievor felt that he was following the rules with regard to this incident and that the complainant
was "wrong". He maintained in cross-examination that he would not handle the situation
differently if it were to present itself again.
COMPLAINT #11
Category Not assisting Date/Time Created
passengers 1998/09/29 17:04:55
Date/Time Incident Employee: 0264
1998/09/29 12:42:00
Details

Page 18
Complainant boarded the bus and asked the operator politely if he could let her
know when they reach Young St. because she did not know where it was. The
operator rudely replied "No, I don't know where it is!" Comp. states that she
knew it was somewhere near the hospital. She asked if he could watch for it but
the driver said that he couldn't read the street names. Compl. felt the operator
made no effort to assist her. She is an 80 year old woman who needed a little bit
of assistance from a driver who job it is to know where he was going. Felt that
this operator should be reminded of customer service [sic]
Results
Operator told the woman he doesn't look at things that don't move. He let the
woman know when they got to Young St. Didn't think he was rude as he was
talking to someone else. Could have been handled differently.
28 The grievor explained that he was in the midst of a conversation with another passenger when
the complaining passenger asked him about Young Street. The grievor said that he did not know
where the street was. He asserts that he told this to the passenger but then added that he would look
for it for her. He also testified that he told her, "I can't look at street signs. I don't look at anything
that doesn't move. I only watch traffic." He could not explain the discrepancy between a promise to
look for the sign and at the same time telling her that he could not watch for anything that did not
move. He does assert that he was "trying to be polite." The grievor emphasized that he did in fact
call out Young Street two times as they approached the street. The grievor admits that it was unwise
to have said that he didn't look at anything that didn't move. However, he also testified "I thought I
did the right thing according to company policies and procedures and that this paper [the complaint]
would be tossed aside according to my explanation."
COMPLAINT #12
Category Driving Habits
Date/Time Created
1998/10/01 12:36:37
Date/Time Incident Employee: 0264
1998/10/01 12:02:00
Details
Complainant states that this operator drove the bus very roughly. He did not anticipate
stops and would go beyond them, he was jerking the bus, when they
reached Up. James/Fennell he bypassed the white lines and his nose was beyond

Page 19
where he should have stopped. A woman boarded and stopped to look at her
schedule and the driver rude said "Sit down - I'm going!" Compl. rang to get off
at the stop at Up. James/Hesler. The stop is located on the other side of the lights.
The light was red so the driver opened the doors and some passengers got off the
bus but the compl. wanted off at the stop. The light turned green and the operator
drove past her stop. She told the driver who could not care and then he started to
speed up to the next stop with her still on the bus. She asked the driver "Can I
have your bus # please (the # is not posted on the inside) and he replied "yes"
but did not give it. She asked him again which again he said yes but did not give
it. She finally said "Can't I have your bus number" and he finally told her that
she could get it outside of the bus. Compl. states that "his attitude is deplorable!"
[sic]
Results
Opp stopped at red light, people got off. He proceeded to go, woman came up
and said I wanted off at the previous stop. Almost at the next stop so he went to
the next stop. Asked for bus # 4/5 times and finally he told her it was on the outside
of the bus. Could have been handled differently.
29 The grievor denied driving inappropriately. He disagrees with many of the allegations in this
complaint. Essentially he asserts that he was concerned about adhering to schedules. He claims he
was simply unaware that the complainant wanted to get off at the stop. He also stressed that the
rules do not allow him to stop in between bus stops so he could not stop for the passenger when he
became aware of her desire to get off after the stop had been passed. The grievor admits that this
complaint was not fabricated and agrees that the passenger was upset. But he asserts "the circumstances
were bogus." The grievor felt that he handled the situation "correctly" and he believed that
after the investigation it was "finished and dealt with" according to HSR's satisfaction.
COMPLAINT #13
Category Lack of Date/Time Created
Professionalism
1998/10/02 11:06:37
Date/Time Incident Employee: 0264
1998/10/01 12:00:00
Details
Complainant boarded the bus and was looking at the schedules in the take one
slot to see if there was one she did not have. She states that the driver rudely said
"Sit down, I'm going to move on". Compl. felt this to be extremely rude behaviour
and uncalled for. Male/middle-aged/slender.

Page 20
Results
Told the complainant that it was garbage in there so have a seat. Could have been
handled differently.
30 This complaint deals with the same time and day as complaint #12. The grievor recalls this
complainant as well and says that the only fabrication in the report concerns the allegation of rudeness.
He alleges that Ms. Brower "changed the words" to make the complaint look "legitimate." The
only motive he could attribute for this is that "she [Miss Brower] is out to get every driver in order
to move up with the company."
31 In terms of the incident itself, the grievor testified that he asked the passenger to "please sit
down" because he was concerned about her safety. He stressed, "It's beyond me to know how you
can be more polite than to say 'please'." Yet he also agreed that he could not be certain that he used
the word "please".
COMPLAINT # 14
Category Passing stop Date/Time Created
without pickup
1998/10/05 16:17:08
Date/Time Incident Employee: 0264
1998/10/05 10:34:00
Details
Complainant states that this operator would bypass stops where passengers were
standing then he would go further down the road and sit there and wait. Then he
would bypass more stops where passengers were standing and waving and waiting
and then he would sit and wait in between for a couple of minutes. Compl.
could not understand what the driver was doing. Male, greyish hair/beard [sic].
Results
Operator claims it wasn't him. People do wave him by as they want the college
bus, he is not in the habit of stopping between stops unless he is ahead of schedule.
32 Despite his denial during the initial investigation, the grievor admitted that he was the driver
involved in this complaint. He admits that he passed by passengers waiting at stops. But he asserts
that they had waved him on or shaken their heads. He said this made his presume that they wanted
the other bus which was following behind him. He also explains that he waited between or at other

Page 21
stops because he was ahead of his schedule and wanted to maintain adherence to his route schedule
in accordance with the Last Chance Agreement.
33 He rejected the suggestion that he should have stopped to ensure that people did not want his
bus. He said that this would be a waste of breaks and gas.
34 The grievor believed he was not at fault with this complaint and that it should not be held
against him.
COMPLAINT #15
Category: Lack of Date/Time Created
professionalism
1998/10/06 15:06:51
Date/Time of Incident Employee: 0264
1998/10/06 09:15:00
Details
Complainant states that the driver pulled to the curb before Fennell and sat there.
She went up to the driver and asked how long they would be waiting. He told her
a few minutes. The operator was waving traffic to go around the bus. As she
started to walk back to her seat he began mumbling and the compl. asked if he
was speaking to her. He said Yes. She then said that she couldn't hear him because
of the noise around her. He then shouted "Then you must be deaf!" Compl.
did not appreciate this type of behaviour from the driver. He was rude and abrupt
with her and she told him that she would be reporting him. She would like him
spoken to regarding his attitude towards customers. Male/dark hair/glasses/beard.
Results
Operator waited at this location as he was early woman asked why he was waiting.
Opp. said I am 3 mins early. Woman yelled what time are you leaving, operator
gave her the time he was going to leave. Operator asked why she wanted
to know she didn't hear him, operator said do you read lips. Operator said out
loudly you must be deaf [sic].
35 The grievor denies ever shouting at passengers. However, he does admit asking this passenger
if she was deaf and if she could read lips. His explanation is that she told him that she could not
hear him and she was yelling.
36 The grievor admits that he received training on how to deal with disabled and deaf passengers.
He agrees that shouting and asking a person if s/he is deaf would be contrary to his training. But he
stressed that he did not shout. He also asserted that he was concerned about her safety.

Page 22
37 The grievor feels that there is no merit in this complaint. He suggests that if a similar situation
happened in the future, he would call the passenger up closer to answer her question and speak to
her. He maintains he would still ask her if she was deaf "to try to get the situation resolved." He
says he does not know how he could handle the situation better than he did.
COMPLAINT #16
Category Lack of Date/Time Created
Professionalism
1998/10/15 15:53:18
Date/Time of Incident Employee 0264
1998/10/15 07:35:00
Details
Complainant states that as the College bus was heading up the mountain to the
College the driver spoke over the p/a system announcing that the driver would be
on strike in 10 days. Compl. did not feel this to be appropriate. Male/tatoo on
arm/brown hair/beard/mustache
Results
Operator admitted the complaint stating that he wanted the public to call and put
pressure on city hall.
38 The grievor wavered about whether he said that there "would be" or "might be" or "will be" a
strike in ten days. But he does admit addressing the passengers about the impending strike. He conceded
that he had no permission to do this from the HSR and that the Union had not counseled such
conduct. He admits that it was his own idea to do this. He said, "I took it upon myself to inform the
people so that they could be at work in a timely manner." He explains that he was concerned about
the public being left out in the cold in the event of a strike. He said that he hoped his words would
inspire passengers to phone City Hall to exert pressure on management to accede to the Union's
demands. He denies he was trying to cause trouble for the HSR.
39 He says he would not do anything like this in the future because he does not "want or need
complaints." He feels the complaint has no merit. He asserts he was following the HSR "policy" of
keeping the public informed. However, he also acknowledges that he knew that this complaint
would be kept on his file by the HSR.
40 Having reviewed all of the alleged complaints, it should be noted that the Union launched a
concerted attack against the testimony of Ms. Brower. This was based on the evidence of Brian
Liaty. Mr. Liaty is a bus operator. He and Ms. Brower had been colleagues and friends who had
contemplated going into business together at one point. But they both testified that their friendship
ended as a result of a heated dispute that they had in the HSR's Operations lounge in 1998. The dis-

Page 23
pute was over the rights of bus operators. It was loud, public and intense. The argument ended when
someone told Mr. Liaty to stop. Since that day, they have not spoken to each other. Mr. Liaty came
to this arbitration and gave testimony alleging that prior to this dispute, he heard Ms. Brower say
words to the effect that she was "out to get" the grievor. The Union tendered this evidence to support
its allegation that Ms. Brower's evidence is tainted with bad faith.
41 Mr. Liaty testified that he went into Ms. Brower's cubicle one day to pick up some promotional
key chains that he wanted to give to some students. He said that Ms. Brower was on the telephone
at the time. He waited for her. He says that she seemed upset from the conversation and, as
she hang up, he overheard her say to herself either "that jerk Davidson" or "that asshole Davidson".
He says that a few seconds later she said "I'm going to get him." He says that she then got up to get
him the key chains, they had an unrelated and cordial conversation and he left. Ms. Brower adamantly
denies saying any such things. She also denies that she would say such things against anyone,
including Mr. Davidson. She described the accusation as "ludicrous," saying;
"I can't 'get' Mr. Davidson. That's not my job. I can't even attribute complaints to
operators. The [supervisor of Operations] determines that. For me to get Mr.
Davidson is ludicrous. I have no way of doing that."
That assertion was corroborated by Mr. Hull who explained that Ms. Brower was essentially a
"holder of the data" and has no power to target, identify, discipline or control the records of any bus
operator on the basis of public complaints. Further, it is up to the supervisor of Operations to decide
whether a complaint will be filed against a bus operator's record.
42 Mr. Liaty was vigorously cross-examined about his allegations. Cross-examination revealed
that he was very uncertain as to when the incident occurred. His evidence regarding the timing of
the incident varied so much that the possible time period spans January through to September 1998.
Cross-examination also revealed that this took place in Ms. Brower's cubicle, within a busy, noisy
office area. Mr. Liaty and Ms. Brower were seven feet away from each other across a desk. Mr.
Liaty agrees that Ms. Brower was speaking softly and essentially to herself when he overheard the
alleged words. He also admits that he does not know the exact words she used. He also recalls a few
seconds' break before she got up saying, "I'm going to get him" and leaving to get the keys. In crossexamination
it was suggested to Mr. Liaty that he may have misheard Ms. Brower and that she
might have been saying, "I'm going to get them", meaning the keys, instead of "him," meaning Mr.
Davidson. Mr. Liaty would not agree with the possibility that he may have misheard or misunderstood
Ms. Brower. However, he did volunteer that he has never heard Ms. Brower swear. When he
was asked if he had queried what she was talking about or what she meant, he responded "No. It
was none of my business and she would have told me it was none of my business; no question about
it."
43 Returning to the complaints themselves, it is to be noted that they were all discussed with the
grievor around the time they were received as part of the promised investigation. Some of these
were also discussed in a counseling context with Mr. Davidson during the 16 months leading up to
his termination. After the first two complaints were received and investigated, a "follow-up" interview
was held with the grievor. When further complaints were received, Jim Dorey, Manager of
Operations, met with the grievor on January 11, 1998. This meeting was confirmed by way of a letter
which concluded:

Page 24
As stated before your level of unacceptable performance has placed you on the
brink of termination. Any further incidents of unacceptable performance such as
an adverse customer complaint or accident which after investigation is determined
to be culpable in nature will in all likelihood lead to a decision to terminate
your employment.
44 After more complaints were received the HSR decided in October of 1998 to review the
grievor's record and to terminate the grievor's employment. Don Hull explained that the termination
was based on the number of complaints in light of the Last Chance Agreement. Mr. Hull analyzed
the number of complaints against the grievor compared with those against other bus operators. He
made his calculation on the basis of 15 complaints being received since the Last Chance Agreement
was signed. There were actually 16 received but the last one came in after the calculations were
made. He did his calculations on two bases. The first was on the basis of the 16-month period between
May 1997 and October 16, 1998. This was the time between the Last Chance Agreement and
the time of the calculations. He later did a calculation based on the 24-month period running to May
1998 so that the grievor could be compared over a 24-month period to give full effect to paragraph
5 of the Last Chance Agreement. The calculations revealed the following:
Period May 27, 1997 to October 16, 1998 (16 months)
1,519 complaints 345 bus operators 1 4.4 average number of complaints per bus
operator
Period May 27, 1997 to May 27, 1998 (24 months)
1,941 complaints 338 bus operators 5.54 average number of complaints per bus
operator
45 The HSR's termination letter to the grievor cites the reason for his termination as being the
total of his 15 complaints received in comparison to an average of 6 for bus operators "in the same
period." Mr. Hull explained that they used the average of 6 because the Last Chance Agreement referred
to the average number over a two-year period. The grievor was already far over the trigger
after 16 months, but he was being given the benefit of the longer period. Nothing could possibly
change that would bring him back within the average. Mr. Hull offered several reasons for the termination.
Mr. Hull was concerned there was "a reluctance" on the grievor's part to do anything
about his behaviour. Mr. Hull also testified:
We concluded that to have John back would only be doing a gross disservice to
the customers because the frequency of complaints was so high. It was also a
gross disservice to his co-workers because the image of one operator affects all.
That coupled with the math, together with his refusal to change, meant that termination
seemed the right thing to do.
46 Mr. Hull was cross-examined vigorously about his use or reliance on all the complaints. He
was asked if it was possible that not all the complaints were "valid." He responded by confirming
that all the complaints were investigated and conceded that further investigation may have led to the
conclusion that some of the complaints were invalid. He also agreed that members of the public can
sometimes be "unfair" about what they expect from bus operators. However, he explained that those

Page 25
factors or concerns were the very reason why the Employer used the average number of complaints
for assessing the grievor's situation. He explained that the standard is not set arbitrarily, instead "the
standard is set by the peer group." Mr. Hull also explained the factors that are used by the HSR in
deciding whether to record a complaint on a bus operator's file:
1. The passenger must provide sufficient information concerning date, time,
location, bus number and physical description if possible so that the bus
operator can be identified "with certainty."
2. An internal investigation must be conducted by checking schedules, the database
and the vehicle location system.
3. There has to be a discussion with the bus operator about the details of the
complaint.
Mr. Hull said as many as 50% of the complaints are not even taken to the point of investigation with
a bus operator because schedule checks reveal that the complaint has no merit. No such complaints
are recorded against this grievor. Mr. Hull also insisted that he wanted to "deliver on his promise" to
Mr. Cheeseman and the Union that all the complaints that were used against the grievor would be
ones with some merit. That is why all the complaints that were used to justify the termination were
attributable, investigated and discussed with the grievor.
47 There was some confusion in Mr. Hull's evidence about the final meeting leading up to the
grievor's termination. This was clarified in evidence on September 14, 2000 and nothing materially
turns on the confusion. The evidence does establish that management met with the grievor and his
union representative on October 20, 1998. Mr. Hull admits that the decision to terminate had been
made "for all intents and purposes" before that meeting. He said this was based on the grievor's history
of discipline, consideration of the Last Chance Agreement and his conduct since that time.
Management felt that the grievor did not change after the Last Chance Agreement. Mr. Hull added:
So we all concluded that there was no reasonable expectation that it would
change in future because there was nothing we could do to get him to accept responsibility.
He did not respond to discipline, or coaching. He demonstrated in
training that he was capable. We could not get recognition from him to sustain a
level of performance.
The grievor was not actually terminated on October 20. Rather he was "stood down" for a few days.
Mr. Hull explained, "It was a pretty serious decision. We don't make them often. John was a long
service employee. We felt with another few days nothing would be lost. I guess we had hope that
something would materialize." However, on October 28, management met with the grievor again
and simply terminated him in a very brief meeting. The grievor had been under the impression that
he would be able to have an opportunity at this second meeting to plead for his job and to express a
commitment to improve. It appears that this was not given to him at this time.
48 However, the grievor's testimony gave him an opportunity to explain how he responded to the
disciplinary action that had been taken against him over the years. When he was asked what he understood
to be the significance of the Last Chance Agreement he replied:
If I would get more complaints of a severe nature or not run on time, I would be
terminated. I tried to do my best not to be terminated.

Page 26
In cross-examination he admitted that he signed the Last Chance Agreement even though he did not
feel he had done anything wrong at the time. He felt that he had been a good driver up to that point.
He repeatedly described himself as a "professional". He feels that the complaints against him leading
up to the Last Chance Agreement were fabricated. He asserted that he signed the Last Chance
Agreement simply "to get my job back." He explained:
I had to agree to it to get my job back. I agreed to disagree. Not that I agree I was
unacceptable. They said sign this or you are out of here. So I signed it to get my
job back.
He offered in his testimony-in-chief that he would have "said anything" to save his job at that point.
The grievor was then asked about his position on October 20, 1998 when the further 16 complaints
had been reviewed with him. His evidence in this respect is very important:
Mr. Hull stated the facts of my case - that I had numerous chances at training and
that they had spent a lot of time on me. They wanted to know if I was going to
change and conform with HSR policy. Yes I said I was going to change, but they
didn't want to hear it. I felt they wanted me to change for the better so I said I
would do it.
When asked whether he felt there was a need to change at that point he responded: "No sir. I felt I
was doing everything by the book - according to HSR procedure ... I would have said anything to
save my job ..."
49 The grievor was asked to explain why he is contesting his termination. He responded:
Being a professional, I thought I was acting in a professional manner at all times.
Since my meeting with the Last Chance Agreement, I thought I was trying my
best to adhere to all rules and regulations of the Company. I was on my best behaviour
at the time and I had done everything by the rules. I thought I had been
unjustly stepped down.
Since the grievor's termination, he has been unemployed for all but a brief period of two or three
months. He apparently tried to do some work in the travel agency business, but he claims he has
generated no income from that.
50 In cross-examination the grievor was grilled about some of his post-discharge conduct relating
to the HSR. He reluctantly admitted sending a letter to the Chair of the City of Hamilton alleging
that Mr. Hull lied at this hearing. It was also revealed that he sent an e-mail to HSR with an attachment
that contained a computer virus. He denied doing this deliberately. He says the purpose of the
e-mail was to let the HSR know that he was "still around - still kicking." The e-mail appears to be a
forwarded message from another sender. The original subject matter is indicated to be 'Marguerita
Island'. There is no contest over the fact that the e-mail contained a virus. The grievor claims that he
found this out over a month later and that he had unwittingly sent it to many other addressees. He
asserts that he notified many of the people on his computer's address list about the problem. However,
he admits that he never alerted the HSR about the virus. He did file some other e-mail messages
to try to support his explanation about attempts to contact other addressees about the virus.
The Submissions of the Parties

Page 27
The Employer's Position
51 Counsel for the Employer started his submissions by emphasizing the grievor's long disciplinary
record leading up to the Last Chance Agreement. By May 1997, it was said that the Company
was leaning strongly towards termination but agreed to enter into the Last Chance Agreement after
negotiating the terms with the Union. It was emphasized that the Employer was "strongly influenced"
by the grievor's preparedness to tender a letter indicating a willingness to change.
52 Counsel for the Employer urged that the Last Chance Agreement be given full force and effect.
It was emphasized that if this agreement is not honored, this particular employer would not be
willing to enter into one in the future. Further, it was said that arbitrators in general have given respect
to Last Chance Agreements. It was urged that this approach be followed. Reliance was placed
on the following cases: Frost Wire Products Ltd., unreported decision of Paula Knopf dated June 1,
1998, O-Pee-Chee Company Limited and Glass, Molders, Pottery, Plastics and Allied Workers International
Union, Local 49, unreported decision of W.B. Rayner dated July 13, 1995 and Toronto
District School Board and Canadian Union of Public Employees (1999), 79 L.A.C. (4th) 365
(Knopf).
53 In terms of the Last Chance Agreement itself, it was submitted that the document was not ambiguous.
It was said that the word "complaint" was adopted without modification and is understood
by these parties because it is used in the collective agreement. It was also emphasized that the parties
know how to modify the word when they choose as they have done in Article 34.01 where the
phrase "serious complaint" is used. It was submitted that the extrinsic evidence regarding negotiation
of the Last Chance Agreement is irrelevant and inadmissible because the language is clear.
However, if the language is considered ambiguous, it was argued that weight should be given to Mr.
Hull's testimony about the parties agreeing to disagree about the nature of complaints which would
be considered, as they had done in the past. It was emphasized that the terms of the agreement are
clear that it is the number of complaints that would be received which would trigger a discharge. It
was argued that this is the only explanation that is consistent with the HSR's intent of avoiding a
situation where the Company would have to call members of the public to support this grievor's
termination.
54 It was admitted there is a possibility that a passenger's complaint could have no merit. However,
it was emphasized that that is why protection was built into the Last Chance Agreement by
having the grievor measured against the level of complaints received by his peers in the similar period.
Further, it was suggested that it is impossible that all 16 complainants were wrong or without
validity.
55 Further, it was emphasized that after the grievor entered into the Last Chance Agreement,
there was a hope and expectation that he would improve the level of complaints against him. However,
it was stressed that even after the Last Chance Agreement, he was "amongst the leaders of the
pack" in terms of the number of complaints received.
56 It was submitted that it would be "irresponsible" to have allowed the grievor to drive for the
full two years after the Last Chance Agreement was signed. It was also emphasized that paragraph 8
of that agreement indicates that there is no guarantee of employment for 24 months. Therefore, it
was argued that according to the terms of the Last Chance Agreement, discharge was justified.
57 Counsel for the Employer made alternative submissions in the event that there is a finding that
the Last Chance Agreement is ambiguous. It was stressed that the grievor admits to being on the

Page 28
scene in 14 of the 16 complaints. It was said that in only two of the incidents does he deny any
knowledge of the situation. It was said that the evidence makes it clear that at least 14 of the 16
complaints could not have been fabricated because they involve events the grievor recalls.
58 Counsel for the Employer asked that the evidence of Mr. Liaty be discounted as establishing
bad faith against the HSR or Ms. Brower in particular. It was argued that Mr. Liaty had a motive for
trying to embarrass Ms. Brower. His evidence was said to be unreliable because of his poor recollection.
Further, it was said that there was a contradiction in his evidence when he said that she
would never utter a profanity and yet he attributes words to her which amount to profanity. Finally,
it was emphasized that he is attributing words to her which he admits he heard across a desk in a
busy and noisy office. It is suggested that he could possibly have been confused or mistaken. Finally,
it was said that there would be no reason for her to say that she was "out to get the grievor"
when she in fact had no ability to affect his employment.
59 It was argued that the grievor's own evidence shows that he creates a negative impression for
the HSR. The most glaring examples of his behaviour were said to be his treatment of the woman
who he thought was deaf, his passing of the 80 year old woman in the snow storm and his derogatory
comments about women. The grievor was described as "despicable and displaying the ultimate
in discourtesy and rudeness." The grievor was also described as "vindictive, combative, abusive,
insensitive, rude, impolite, brusque, arrogant, un-cooperative, unprofessional, mocking, completely
lacking in remorse, unwilling to accept responsibility without any commitment whatsoever to
change his ways with no concept of service and a troublemaker." It was said that it would be
"frightening" if it were true when the grievor asserted, "I was on my best behaviour at all times."
60 Further, it was said that the grievor should be given no credibility because he admitted to his
willingness to say what he thinks people want to hear.
61 Finally, the HSR stressed the negative impact of the e-mails that were sent by the grievor after
his discharge. It was said to be an "attempt at sabotage." It was argued that this behaviour has made
it impossible to re-establish a relationship between the grievor and this employer. It was stressed
that the grievor has been given "every chance to change, without success."
Submissions by the Union
62 It was submitted that the Employer has failed to establish just cause for the discharge. Starting
with paragraph 5 of the Last Chance Agreement, it was argued that it would be "a travesty of justice"
if a mathematical exercise of adding up complaints resulted in the grievor's discharge. Instead,
it was suggested that a latent ambiguity should be recognized in the document so that it is interpreted
to require the Employer to prove that the complaints were "valid." Further, it was suggested
that paragraph 5 of the Last Chance Agreement makes "no sense, if it is taken literally." It was conceded
that the parties chose not to use any adjectives to modify the word "complaint." However, the
evidence of Mr. Hull was emphasized wherein he agreed that he would only act on complaints that
were investigated and found to be of some merit. The Union agrees with the approaches to Last
Chance Agreements that were cited in the Toronto District School Board case, supra. But it was
emphasized that where bad faith is found, Last Chance Agreements have been set aside. It was said
that there was bad faith in this case in the way it has been applied. Mr. Liaty's evidence was said to
establish that there was bad faith on the part of Ms. Brower. It was stressed that he has nothing to
gain from his evidence and that he was frank about many aspects of Ms. Brower's personality. Further
it was said that he stood up well against vigorous cross-examination. It is not alleged that Ms.

Page 29
Brower fabricated her reports. But it was said that the totality of the evidence should cast grave
doubt on whether she accurately recorded the contents of the complaints. It was argued that the
whole case should be considered as tainted because of Ms. Brower's statement that she was "out to
get" the grievor. It was also suggested that Ms. Brower has a great deal of power and control over a
bus operator's position.
63 In addition, it was argued that the grievor has fulfilled most of the aspects of the Last Chance
Agreement in that he has improved his driving habits and his schedule adherence. It was said that
his admission that he would say or sign anything in order to save his job should not be held against
him due to the fact they were the words of a "desperate man." It was argued that the complaints
should be given little weight in light of the fact that none of the passengers and none of the investigators
were called to testify. Further, it was emphasized that the grievor was "frank enough" to admit
when there was wrongdoing and when he could have handled the situation a little more sensitively.
It was conceded that he gave inconsistent and confusing evidence. However, it was stressed
that he is not an individual who can express himself clearly and was attempting to defend his position
against a very skilled counsel.
64 Insofar as the post-discharge evidence of the e-mails was concerned, it was stressed there was
no intention to sabotage the HSR. Further, it was said that the evidence he filed demonstrates that
there was no deliberate intent to sabotage. It was submitted that his e-mail about Mr. Hull should
simply be viewed as the action of a man who was upset and devastated about the loss of his job and
who then acted inappropriately.
65 It was argued that on an objective analysis of the complaints being held against the grievor,
the majority should be seen as "petty" in nature and tainted because of the animus of Ms. Brower. It
was argued that the Company has not been able to establish that the grievor failed to comply with
the Last Chance Agreement. Accordingly, it was said that the grievance should be upheld and that
the grievor should be reinstated with full compensation.
The Decision
66 The termination of the grievor is based on the alleged violation of the Last Chance Agreement.
That document gives limited scope of arbitral review. The parties and the grievor agreed that discharge
would be just and appropriate if the Last Chance Agreement was breached. If there was no
breach of the Last Chance Agreement, then the Employer's case will fail.
67 Therefore, the question is whether there has been a breach of the Last Chance Agreement.
There are two possible approaches to this case. The Employer wants the arbitrator to take a fairly
literal approach and to add up the number of "attributable and investigated" complaints to see if they
exceed the average of other bus operators. The Union wants to invoke the doctrine of latent ambiguity
and invites an objective analysis of the complaints to see if they are "valid" or serious enough to
be factored into a decision about discharge. Both approaches are rational and predictable. However,
the most persuasive approach is that of the Employer. I have come to that conclusion on the basis of
the evidence of Mr. Cheeseman and Mr. Hull about the drafting of paragraph 5 of the Last Chance
Agreement. Together, their evidence shows that the parties turned their minds to the question of the
kinds of complaints that should be factored against the grievor. While they could not agree about
describing the complaints as "valid," there was a meeting of minds over the undertaking that frivolous
and unattributable complaints would not be considered. Further, the Union relied on Mr. Hull's
promise to investigate all the complaints and solicit the grievor's side of the story. I am also con-

Page 30
vinced that the HSR would never have entered into this Last Chance Agreement if it had known that
the document could be interpreted in such a way that the Employer would have to subpoena all the
complainants and inspectors in order to justify a discharge. Mr. Hull specifically wanted to avoid
the impracticality and unpalatability of such a prospect. Finally, I agree that setting the standard of
the peer average as a trigger for discharge reflects a balancing of rights by the Union and the Company.
This is consistent with a reasonable approach being taken by the parties to a collective agreement
with an employee with a record such as the grievor's. The approach does not seem to contemplate
the necessity of objective proof of the validity of each complaint. Instead it suggests the need
to prove the receipt, investigation and attribution of each complaint. Therefore, I have concluded
that the intentions of the parties and the words of the document provided that if the grievor received
greater than the average number of attributable and investigated complaints, this would result in his
discharge. That is what happened and has been proven in this case. Therefore, this Award could end
at this point.
68 However, the grievor is a long-term employee and does not seem to understand what has happened
to him. Accordingly, for his sake, I am willing to engage in an analysis of the case adopting
the Union's approach. I am not doing this because I agree with the Union's argument. Under the
terms of this Last Chance Agreement, it is not necessary for the Employer to prove each of the
complaints directly. However, I am prepared to adopt the Union's approach in the hope that it will
help the grievor to understand the result of this case.
69 Unfortunately, even if the Union's approach is taken, it leads to the same result. If the complaints
are viewed objectively, in light of all the evidence offered, it still must be concluded that the
grievor has received more than the average number of "valid" complaints against him in the relevant
period. He has admitted to some involvement in 13 of the 16 complaints. Taking his case at its very
best, those 13 complaints far exceed the average. Further, his own evidence reveals that the complaints
were about actual events. In two of the complaints he absolutely denies he matches the
physical description given by the complainants (Complaints 6 and 7). He admits that none were fabricated.
He also admits that all the complaints involve buses, routes and times that were consistent
with his schedule. The very fact that the complaints were received is some evidence of passenger
dissatisfaction. Many of the situations reveal significant cause for such dissatisfaction. Seven complaints
involved the grievor's driving skills or habits. Ten complaints involve allegations of rudeness
or inappropriate conduct on the part of the grievor. In three of the complaints, the grievor has admitted
some impropriety in terms of his own conduct. Whether the grievor admits misconduct or simply
admitted to the material facts which gave rise to the complaint, it must be concluded that there
are a significant number of incidents that involved validated reasons for the complaint being lodged.
No matter how the complaints are added up, it still takes the grievor well beyond the average of four
or six complaints during the relevant period.
70 I am sympathetic with the Union's concern that the grievor's termination is being justified
without any direct or corroborated evidence of wrongdoing. In another situation, this might be an
issue that would require a detailed legal analysis. However, in the case of this grievor, the Union's
concern is academic. Given the evidence as a whole, it must be remembered that the grievor has
admitted some involvement in 13 of the 16 incidents. Therefore there is no danger of fabrication.
Further, there is no suggestion that any of the named complainants were unreal or fabricated. If only
13 of the complaints are counted, it still leaves the grievor well over the average of the number of
complaints. All the complaints are attributable to real people. All the complaints were investigated.
All the complaints were treated exactly the same way that other complaints are handled for other

Page 31
bus operators. The number of complaints counted against the grievor was counted in the same way
that complaints are counted against other bus operators. Therefore, even taking into consideration
the HSR's admission that some passengers have unrealistic expectations, the grievor is not being
judged against any arbitrary or unreasonable standard. It is the standard that he accepted in the Last
Chance Agreement. It is a standard of comparison against the average number of similar kinds of
complaints received by his peers. His peers could also have been unlucky enough to receive complaints
that may be unreasonable. However, given the grievor's own evidence and the evidence of
the kinds of complaints that were factored into the calculation of averages for his peers, it cannot be
concluded that the grievor has been denied natural justice because of the way this case was presented
by the Employer.
71 Further, an objective analysis of the totality of the evidence leads to the conclusion that the
Employer has succeeded in proving wrongdoing against the grievor. Several complaints reveal
gravely inappropriate conduct. Four examples stand out more than the others.
* The grievor admits he suggested to passengers that a strike was about to
occur in order to have them put pressure on City Hall to accede to the Union's
demands. He did this without being privy to any discussions at the
bargaining table and without any certain knowledge about the prospects of
job action. He admits that this conduct was not condoned by his union or
his employer.
* The grievor admits that he suggested to a passenger that she should call the
police instead of reporting him to the HSR because the grievor suspected
that the man, who turned out to be that passenger's husband, had been
smoking marijuana.
* The grievor admits to asking a passenger if she was deaf and could read
lips.
* The grievor admits that he drove past a woman standing three or four feet
away from a bus stop during a snow storm in the evening because he simply
assumed that she did not want the bus.
These are four glaring examples of inappropriate, rude and unwarranted behaviour. These occurred
after he had the benefit of a Last Chance Agreement and retraining arising out of earlier inappropriate
conduct. The grievor was also given counseling. He has driven for 23 1/2 years. In spite of all
this, he said in his evidence that he did not know how he could have handled these situations better
and that he believes he was acting in a "professional manner at all times." If the Union wants an objective
analysis of the complaints that were received and reliance is placed on the grievor's own evidence,
it must be concluded that the grievor's actions were objectively and demonstrably inappropriate
and wrong.
72 It is also important to address the Union's submissions regarding the allegation of bad faith.
Making an assertion of bad faith is a very serious matter. Arbitrators are not reluctant to find bad
faith if the evidence exists. However, the seriousness of the allegation demands that there be clear
evidence of bad faith. There is no such evidence in this case. The allegation of bad faith concerns
the recording of the complains by Ms. Brower. However, it must also be stressed that the grievor
disagreed with very few details in the recorded complaints. His evidence amounted to attempts to
explain his conduct, rather than challenge many of the significant details of the allegations.

Page 32
73 In addition, the allegation of bad faith concerned the conduct and the motives of Julie Brower.
On one level, I can understand the Union's concerns because Ms. Brower recorded all the complaints
and could, potentially, have had the capacity to embellish the details to make the situations
look worse for the grievor than they actually were. However, the evidence established conclusively
that when Ms. Brower receives the complaints, she has no idea of who the bus operator is and no
access to the data that would identify the driver at that point. The identification of the bus driver is
made by another individual after the complaint is forwarded on for investigation by the inspectors.
Therefore, Ms. Brower has no knowledge of who the bus driver is and has no control over the investigation
once she records and forwards the details. She has no effective control over the complaint,
the investigation or the follow-up. She has no input about whether the complaint will be filed
on a bus operator's record. Therefore, even if there was bad faith by Ms. Brower against the grievor,
it is difficult to see how this could have had any relevant impact.
74 Further, I cannot conclude there was any bad faith on the part of Ms. Brower. The allegation
of bad faith is based on the evidence of Mr. Liaty. He has asserted that Ms. Brower said she was
"out to get" the grievor. She adamantly denies this. Therefore, it is necessary to decide whom the
evidence supports. While an arbitration hearing is designed to try to elicit the truth, it is impossible
to know what really happened. All that an arbitrator can do is to examine the evidence presented
and determine what it establishes. Some evidence is clear. There is no suggestion in the Union's
case that the specific complaints against the grievor were fabricated or fictitious. In fact, the
grievor's evidence gives substance to many of the complaints. Further, given that Ms. Brower could
not have known who the bus operator was before she passed the information on to the inspector,
there was no opportunity for her to embellish complaints or put forward more complaints against
the grievor than other drivers. Therefore, there is no evidence of motive or opportunity for Ms.
Brower to have acted in bad faith against the grievor.
75 On the other hand, it is clear that Mr. Liaty is convinced that he heard Ms. Brower make negative
comments against the grievor and threaten to "get him". It appears that Mr. Liaty has no real
motive to lie in this hearing. It is possible that Ms. Brower embarrassed him in 1998. But he did not
come across as someone who is easily embarrassed after voicing his opinions publicly. However, he
was very unsure of the details of his allegations even though he was sure of the allegations themselves.
76 When all the evidence is taken together and balanced, it cannot be concluded that Mr. Liaty's
evidence is sufficient to establish bad faith. I make this conclusion for several reasons. First, Mr.
Liaty was too far away from Ms. Brower in a busy and noisy office to have had the ability to hear
clearly while she was speaking in a soft voice. Mr. Liaty admits that she was essentially talking to
herself. Therefore, his capacity to hear her clearly was very diminished. Secondly, it is too easy to
confuse the word "him" with the word "them," especially in a busy noisy office. Ms. Brower could
have said, "I'm going to get him" or she could have said, "I'm going to get them." It would not be
difficult to confuse the two words. Third, Mr. Liaty's own evidence was that Ms. Brower never
swears and would not have discussed another bus operator with him. This evidence is completely
inconsistent with his allegation that she swore about the grievor and mentioned his conduct openly
with him. Essentially he is accusing her of something which is completely out of character. For all
these reasons, it has not been proven that Ms. Brower expressed or bore any malice against the
grievor. Therefore, it cannot be concluded that her evidence is tainted.

Page 33
77 However, even if I am wrong in this conclusion and even if her evidence is tainted, we are
taken back to the reality of the fact that the grievor has admitted to most of the essential details of
the complaints. If Ms. Brower's evidence is accepted simply for the point of showing how the complaints
were received and none of her evidence regarding the complaints themselves is factored into
the analysis, we are still left with objective evidence which gives validity to most of the complaints.
All the complaints involved allegations sufficient to compel independent people to take the time to
register their displeasure. Two complaints arose from the same time and place. The grievor admits
he could have behaved better on some occasions. But most importantly, the grievor's own admitted
conduct reveals insensitivity and inappropriate behaviour. The following are examples of behaviour
that the grievor admits and that display both a breach of HSR rules and a lack of propriety:
* Passing bus stops with people waiting within 150 feet of the stop.
* Not pulling the bus close to curbs for passengers to embark or disembark
* Not running according to schedule
* Stopping the bus between stops for no reason apparent to passengers
* Allowing passengers to disembark in non-designated areas
* Telling a passenger to phone the police about another passenger instead of
complaining to the HSR about the grievor
* Asking a passenger if she was deaf and could read lips
* Telling passengers that he would be on strike in 10 days so that they would
put pressure on City Hall
* Joking with passengers about the prospect of the bus sliding down the
mountain
* Plowing along banks of snow with passengers in the bus
* Running the bus with wrong signs
* Targeting one passenger by not allowing him to sit in the front seats when
no other passengers were sitting there
* Telling a passenger that he does not look at objects that do not move
While the grievor tried to explain and justify this behaviour, his explanations only succeeded in revealing
his complete lack of appreciation for the seriousness of his misconduct. Accordingly, it
must be concluded that the grievor's own evidence provides ample proof of the validity and merit of
most of the complaints that were recorded against him. Even if just these admissions were counted,
the grievor is still left with significantly more validated complaints than the average of his peers.
78 Where does all this analysis leave the grievor If the Last Chance Agreement is read literally,
it has been proven that the grievor received four to six times the average number of complaints in
the relevant period. These complaints are attributable to real people. All were investigated and he
was given an opportunity to explain his conduct. The grievor admits that he was involved in at least
13 of the incidents. Therefore, the Employer has met the onus of proving a breach of the Last
Chance Agreement.
79 Last Chance Agreements are valuable and important documents. They reflect the union's and
the employer's joint acceptance of terms of continued employment for an employee who would otherwise
face termination. The terms of a Last Chance Agreement must be honoured and respected in
order to encourage parties to continue to try to resolve problematic situations humanely and without
litigation. If Last Chance Agreements are ignored, unions and employees could attempt to enter into
them without concern for the consequences of a breach. Ignoring Last Chance Agreements would

Page 34
also result in an unwillingness for either side to rely upon the adherence to their terms. Employers,
unions and employees must all be held to the terms of their bargain if there is any hope for an improved
situation in the future.
80 In the case at hand, no reason has been shown why the Last Chance Agreement should be ignored
or superseded. This Last Chance Agreement itself was an appropriate response to a difficult
situation in May 1997. It was negotiated in good faith. It was followed by the Employer offering the
grievor remedial assistance through re-training and further counseling. I find no bad faith in the entering
into and the application of the Last Chance Agreement.
81 Finally, even if there were any discretion to consider reinstatement in this case (which would
be outside the jurisdiction of the Last Chance Agreement), I would not reinstate this grievor. His
evidence reveals a sad lack of appreciation about the impact of his attitudes and behaviours. He did
not respond to repeated counseling and discipline before the Last Chance Agreement. He signed the
Last Chance Agreement on the false pretence that he was acknowledging wrongdoing. His evidence
reveals that he did not feel then, nor does he feel now, that he has done anything wrong. While he
testified under oath that he recognized "some wrongdoing" since the signing of the Last Chance
Agreement, it is clear that he still feels that the Employer had no reason to be dissatisfied with his
work. To repeat the grievor's own words, "I was on my best behaviour and ... I'd done everything by
the rules." A transit authority should not and cannot continue to employ a bus operator whose "best
behaviour" involves driving past elderly members of the public in snow storms, embarrassing people
who are thought to be deaf, suggesting passengers call the police about other passengers and
telling riders that he does not look at stationary objects. To be blunt, he simply does not see how
inappropriate and wrong he has repeatedly been. This shows that he is not remediable.
82 His post discharge evidence is consistent with this attitude and behaviour. I appreciate he was
angry and desperate after his discharge. His attack against Mr. Hull was unfortunate and can almost
be overlooked in light of the fact that Mr. Hull's evidence was initially confusing and inaccurate.
This was later clarified, but not until after the e-mail had been sent. However, the e-mail with the
virus attached is very troubling. Frankly, the grievor's explanation that this was inadvertent is completely
unsatisfactory. If the purpose of the e-mail was truly to inform the HSR of his continued existence
and the nature of his travel business, the message he sent gives no hint of this. If he actually
did not intend to sabotage the HSR's computer system, why did he not alert the HSR to the problem
of the virus when he became aware of it He claims he did this for others, but admits he did not do
it for the HSR. His attempts to explain this conduct were completely lacking in credibility. All this
lends support to the Employer's position that it would not be viable to reinstate the employment relationship.
83 It must be emphasized that the grievor's case was vigorously and professionally presented by
the Union and its counsel. However, for all the reasons detailed above, the grievance is dismissed.
qp/s/qlahp
1 The Employer demonstrated that there are different ways of determining the number of operators
that could be used for this calculation. However, the different options do not materi-

Page 35
ally affect the calculations or the results. Further, the Union does not challenge the methodology
that has been used.
Hamilton Street Railway Co. v. Amalgamated Transit Union, Local 107 (Davidson
Grievance)
Court: 2000 Ontario Labour Arbitration
[2000] O.L.A.A. No. 921
Summary of Judicial Considerations
Annotation/Annotation
Number of References/Nombre de références
Cited 1
Citing Cases
Jurisdiction: All Jurisdictions Annotations: All Cases Court: All Canadian Courts
Sort by: Judgment Date (Latest First)
Annotations/Ann
otations
Cited
Case Name/Intitulé de la
cause
Algonquin College v.
Ontario Public Service
Employees Union, Local
415 (Sumitro Grievance)
Citations/Références
jurisprudentielles
[2006] O.L.A.A. No. 449
Locus Para 160; 86
C.L.A.S. 227; LAX/2006-
471
Court/Tr
ibunal
ONLab
Arb
Date/Date
2006/7/24
Signal/Code
signalétique