The union representing postal workers is planning a court challenge over the federal government's choice of the arbitrator mandated to settle the Canada Post labour dispute.

Canada Post and the Canadian Union of Postal Workers were advised by Labour Minister Lisa Raitt on July 22 that Justice Coulter Arthur Anthony Osborne had been appointed arbitrator, nearly a month after back-to-work legislation was passed by Parliament.

CUPW isn't satisfied with Raitt's choice for arbitrator and this week is making preparations to challenge it in Federal Court. The union's lawyers are working on an affidavit and plan to file it before Monday.

"We will go to the Federal Court and ask that Minister Raitt … appoint someone who is bilingual and has experience in labour relations," Denis Lemelin, CUPW president, told CBC News on Thursday. "It's not about the judge, I think he has his own experience … but he doesn't have experience in labour relations and he's not bilingual and that's something important for us."

Arbitrators appointed in the past to settle previous labour disputes between Canada Post and the union have all been bilingual, according to Lemelin, and almost all have had labour relations experience. An arbitrator used in 1997 did not have labour law experience and it caused problems, he said.

"You have to understand the issues if you want to be sure that when you talk about the issues, when you talk about new equipment, when you talk about the work methods, that the arbitrator understands these kinds of issues," said Lemelin.

Union representatives spoke by phone with Osborne on Aug. 11 and advised him that his appointment would be challenged.

"I think he understands what the union is doing and why we're doing it. We explained it really clearly to him and we'll see what the Federal Court will say," said Lemelin.

Contentious back-to-work legislation

Mail delivery came to a halt this spring when about 50,000 CUPW members in the urban operations unit were locked out by Canada Post, a Crown corporation, on June 14. The workers had started rotating strikes in various cities on June 3 after months of failed negotiations.  

Wage increases, pension benefits and the impact of new technology on work methods were among the issues in dispute.

The federal government said the work stoppage was hurting the economy and stepped in with back-to-work legislation on June 20. The NDP led a filibuster that prompted Parliament to sit around the clock for more than two days until it was eventually passed by the House of Commons on June 25 and by the Senate the following day.

The back-to-work legislation was particularly controversial because it stipulated wage increases and set them below what Canada Post had offered employees. The bill said an arbitrator would be appointed to settle the rest of the issues by final offer selection. That means Canada Post and the union present their offers and the arbitrator picks one or the other, without negotiation.

When Raitt spoke to the Senate about the back-to-work bill on June 26, she said that her department has a list of mediators and arbitrators but that she could also choose from outside that group of legal experts. Senator Lowell Murray said he hoped Raitt would choose someone who would not exacerbate any sense of unfairness felt by the unions, and the labour minister responded that she appreciated the point and would "definitely use my discretion."

Raitt defends appointment

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Labour Minister Lisa Raitt defended the government's back-to-work legislation Thursday and its choice of an arbitrator. (Sean Kilpatrick/Canadian Press)

Raitt's office said she was not available for an interview Thursday and provided a statement saying Osborne is a well-respected top provincial judge. "We are confident that he is in a position to hire whatever specialists or assistance he deems necessary," Raitt's press secretary Ashley Kelahear said in response to the union's complaints.

Osborne, who was a member of Canada's Olympic basketball team in 1956, has a high profile in Ontario. He is a former judge in the province's Supreme Court and in 1999, was appointed associate chief justice of Ontario.

After retiring from the bench, he was appointed integrity commissioner in 2001 by then premier Mike Harris and held the position until 2007. He then began doing mediation and arbitration and Raitt's office said he's been engaged in "a variety of alternate dispute resolution matters."

The union wrote Raitt's office following Osborne's appointment and received no response from her. CUPW has had no contact with the minister since the back-to-work legislation was passed.

A face-to-face meeting between Osborne and CUPW is scheduled for the week of Aug. 29, and Lemelin said the union will "argue more on the issue of his appointment."

Canada Post does not appear to take issue with the federal government's choice but would not comment beyond providing the following statement: "Canada Post respects and is committed to the arbitration process as laid out in the legislation. We are currently involved in that process and therefore it would be inappropriate to comment further.

Union plans constitutional court challenge

The Federal Court challenge over Osborne's appointment is not the only legal challenge being mounted by CUPW. It is also planning to challenge the back-to-work legislation itself, on constitutional grounds. That work is underway by a Toronto law firm and the union is hoping to get the court case going in the fall.

"Overall, this back-to-work legislation for us is really unjust, it's attacking the labour movement as a whole," said Lemelin. "It's not democratic, it's really attacking the right to strike of the workers."

The union particularly objects to the final offer selection process and says the legislation violates a number of Charter rights including the freedom to associate.

Raitt, however, said Thursday that the federal government acted appropriately.

"There was clear evidence that the strike was causing millions of dollars in losses to small businesses and consumers across the country," a statement from her office said. "We acted to protect the country's economy through our fair legislation that got Canadians their mail," Kelahear wrote.

Busy fall ahead for union

The union says workers were "upset and angry" when they went back to work and felt like their employer was taking a "punitive" approach to them once they were back on the job. Lemelin gave Canada Post's initial refusal to pay overtime to clear the backlog of mail as an example of how workers felt they were being punished. Canada Post backtracked and workers were paid overtime.

He said workers are anxious for the arbitration to get underway and to see how the outstanding issues are finally settled. The whole process could be delayed however by the court challenge over Osborne and if the union asks the court for a stay in the arbitration proceedings while that issue is settled. Once the union files its complaint in court, the federal government will have 30 days to respond to it.

The union has a busy fall ahead: two court challenges on its hands, and new contract negotiations for rural postal workers are set to begin in October. Their collective agreement expires in December and many of the same issues will be on the table as were being negotiated for the urban workers. Elections in several provinces will also add to the volume of mail to be processed and delivered by Canada Post.