ARBITRATION  
In the matter of the LABOUR RELATIONS CODE, RSA 2000, C. L-1, s. 143  
And in the matter of a grievance arbitration related to a difference with respect to the  
interpretation, application or operation of, and contravention or alleged contravention of  
the Collective Agreement  
Between:  
THE CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 709  
(the “Union”)  
- and –  
THE MUNICIPAL CORPORATION OF THE CITY OF CALGARY  
(the “Employer” or the “City”)  
(Barrell Grievance)  
_______________________________________________________  
Award  
_______________________________________________________  
BEFORE:  
Andrew R. Robertson, Q.C. ……………………… Arbitrator  
REPRESENTATIVES FOR CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 709:  
E. Wayne Benedict, McGown Cook ……..……… Counsel  
Tony Miotti ……………………………………… National Representative  
Vanessa Barrell ………………………………….. Grievor  
Frank Donegan…………………………………… President, CUPE Local 709  
Carl Engman …………………………………….. Treasurer, CUPE Local 709  
REPRESENTATIVES FOR THE MUNICIPAL CORPORATION OF THE CITY OF  
CALGARY:  
Vamsi Suresh-Mills and Avril Fisher……………. Counsel  
Alexandra Montanaro …………………………… Leader, Labour Relations, City of Calgary  
Nanette Nell ……………………………………… Labour Relations Consultant,  
City of Calgary  
Nico Bernard ……………………………………. Manager, Parks, City of Calgary  
Heard on September 13, 14, and 15 and December 15 and 16, 2021  
AWARD ISSUED January 17, 2022  
Classification: Protected A  
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Introduction  
[1] Vanessa Barrell worked for the City of Calgary as a Foreman 4 (Permanent) in the  
Cemeteries Division of the Parks Business Unit (or “Department”). However, she worked for 18  
months in a relief position as Foreman 5 (Relief).  
[2]  
Ms. Barrell then applied for a promotion to “Cemeteries Operations Foreman 5  
(Permanent)” position in 2020. Her application was unsuccessful. Another employee was  
appointed, and she returned to her Foreman 4 position, at a lower rate of pay.  
[3]  
Shortly afterwards, a second employee was promoted to a newly-created Foreman 5  
(Permanent) position, without any competition and without notification to the Union or notice to  
Ms. Barrell.  
[4]  
She filed two grievances through her union, CUPE, Local 709. The first is the subject of  
this arbitration. (Her second grievance, relating to the appointment without a competition, was  
resolved. The Union also grieved the second appointment because it was made without  
notification to it, and that grievance was also resolved. Those other grievances and their  
resolutions are discussed below.)  
[5]  
The Union asserts, on her behalf, that the competition process was unfair, it was not in  
compliance with the Collective Agreement, that her supervisor was biased against her, or  
alternatively that there was a reasonable apprehension of bias, and that the process did not follow  
the City’s own policies and procedures.  
[6]  
There are unusual facts that have led to the grievance and this arbitration, but  
notwithstanding the unusual facts it appears that the resolution of this grievance is important to  
the parties in respect of how further competitions are conducted.  
[7]  
I was provided with a “Statement of Agreed Facts and Joint Exhibit Book” at the  
commencement of the hearing.  
[8]  
In addition, the following witnesses gave evidence:  
(a) Vanessa Barrell, the grievor;  
(b) Frank Donegan, President CUPE, Local 709;  
(c) Jordan Blake, Human Resources Partner, City of Calgary;  
(d) Nico Bernard, Manager, Parks, City of Calgary;  
(e) Mary Jane Kenny, Zone 4/5 Superintendent, Parks, City of Calgary;  
(f) Maria Forte, Human Resources Business Partner, City of Calgary; and  
(g) Joe Blunden, Cemeteries Operations Superintendent, Parks, City of Calgary.  
The Statement of Agreed Facts and Joint Exhibit Book was marked as “Exhibit 1”, and in  
[9]  
addition three more exhibits were marked: a “Worker Report of Injury or Occupational Disease”  
from the Workers’ Compensation Board as Exhibit 2; an email dated January 3, 2019, attaching  
a job posting for “Cemeteries Relief Foreman 5” as Exhibit 3; and a print-out of a page from Mr.  
Bernard’s computer schedule as Exhibit 4.  
[10] The City argues that the process was fair and the decision reasonable, and that arbitrators  
have been reluctant to interfere with managerial decisions of this kind. As long as the judgment  
of the employer was honest, unbiased, and not actuated by any malice or ill will directed at the  
Classification: Protected A  
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particular employee, and it was reasonable, the arbitration board should not take over the  
function of management.  
[11] In light of some conflicts in the evidence, some of the practices followed by the City, and  
these competing submissions, this arbitration requires consideration of the Court of Appeal of  
Alberta’s decision in United Food and Commercial Workers Canada Union, Local 401 v  
Sobey’s-Safeways Operations (Provincial), 2019 CLLC para 220-043, 2019 ABCA 175, which  
has been followed by the Alberta Labour Relations Board in United Nurses of Alberta (Re),  
[2021] ALRBD No 12, [2021] Alta. L.R.B.R. LD-010, and by a labour arbitrator in Calgary  
(City) v CUPE, Local 709 (Mercer), 2021 134634 (Casey). The Court of Appeal’s  
decision follows the Supreme Court of Canada’s lead in Association of Justice Counsel v  
Canada (Attorney General), 2017 SCC 55, [2017] 2 SCR 456.  
[12] In this regard, the issue that arises from this decision might be described as follows:  
Should an arbitrator defer to the employer’s determination of whether a policy or  
procedure that it has introduced unilaterally (that is, within its purported exercise  
of its management rights outside of express provisions in the collective  
agreement) is “reasonable”, if the policy or procedure is within the range of  
possible choices and has a supportable relationship to the business? Or is the  
decision of whether the procedure is “reasonable” a decision to be made by the  
arbitrator, without any deference to the employer’s decision?  
[13] For the reasons discussed below, I conclude that the decision as to whether a unilaterally-  
introduced management policy or procedure is “reasonable” is to be made by the arbitrator  
independently, without deference to the employer. That is the approach that I follow in this case,  
although what I find to have been unreasonable is not actually part of the City’s formal policy  
package, but rather the way by which the policies have been carried out.  
[14] That analysis involves a careful review of the Collective Agreement, the formal policy  
documents, the City’s written directions on how they are to be followed, and the evidence as to  
what was actually done.  
[15] As one of the Union’s arguments is that the process to determine the appropriate  
candidate was biased, or at least there was a reasonable apprehension of bias that made the  
process unfair, a careful review of all of the relevant facts was required.  
[16] In the result, the grievance is allowed. The parties have agreed to bifurcate the arbitration  
and address remedy later, because Ms. Barrell does not seek re-instatement.  
The Evidence  
The “Rule Book”  
[17] As is typical, the Collective Agreement sets out the relevant terms of agreement broadly,  
and the Employer has created several policies that relate to employment and provided directions,  
using its management rights entitlement.  
[18] The Collective Agreement has several relevant passages, which I will discuss below. In  
addition, the City has promulgated the following relevant Administration Policies:  
(a) Code of Conduct,  
(b) Employment Policy,  
Classification: Protected A  
- 4 -  
(c) Labour Relations Policy, and  
(d) Respectful Workplace Policy.  
[19] As well, the City has created a “Human Resources Governance Statement”.  
[20] Furthermore, the City also provides information to leaders and employees who are in  
charge of competitions detailing the process of Recruitment and Selection, Screening Applicants,  
Interviewing, and creating Interview Guides. These are not “policies”, but they reflect an  
intention to clarify and instruct on how the applicable policies are to be followed.  
[21] The Code of Conduct states that,  
The City of Calgary is committed to creating and sustaining a vibrant, healthy,  
safe and caring work environment for its employees. The Respectful Workplace  
Policy … consists of a series of guidelines and responsibilities that outline  
appropriate and inappropriate behaviours and actions for employees to exercise on  
their normal course of duties and in situations where disagreement or conflict has  
occurred.  
[22] One of the “Key Requirements” in this regard is, “Treat others equitably and fairly”.  
[23] The Employment Policy states:  
Merit – Selections, appointments and promotions are to be based on  
considerations of merit and the ability to perform effectively in a position, or as  
stipulated in the relevant collective agreement.  
Objectivity – Selection criteria are to be developed in an objective and non-  
discriminatory fashion, and must be job-related.  
Consistency – Selection systems and approaches will ensure that all candidates  
are treated in a fair and consistent manner, and will not provide any special  
privilege or consideration to a specific group or individual.  
[24] And later:  
When a position is posted, it can be filled within a three-month period from the  
date the posting closes, unless otherwise provided for in an applicable collective  
agreement.  
The current competition can be used to fill identical, new vacancies during this  
time period provided that the original posting indicates that the competition is for  
more than one position.  
(My emphasis.)  
[25] And later:  
The applicant screening and selection process, including interviews is used to  
obtain relevant job-related information about prospective candidates.  
Management is responsible for ensuring that selection interviews are conducted  
in a professional and ethical manner and focus only on those aspects of an  
individual’s background and experience that are relevant to the position  
requirements.  
Classification: Protected A  
- 5 -  
Interviews with applicants need to focus attention only on those aspects of an  
individual’s background and experience that are relevant to the position  
requirements.  
[26] The Labour Relations states that “Specific provisions concerning promotions are  
contained in the various collective agreements.”  
[27] I discuss relevant provisions of the Respectful Workplace Policy below.  
[28] The City’s Human Resources Governance Statement States that “Business Units and/or  
Departments must comply with ALT [Administrative Leadership Team] approved  
Corporate Human Resources Policies unless an exception has been authorized.” (Emphasis in  
the original.)  
[29] No exceptions apply here. All of the Administrative Policies were ALT approved.  
The “STAR Targeted Selection” Process  
[30] The City uses the “STAR Targeted Selection” interview technique in considering  
applications for promotion or appointment to positions. The STAR acronym refers to “Situation,  
Task, Action and Result”, in an effort to ask interview questions that focus on a “Situation”  
(what was going on at the time), the “Task” (what needed to be done), “Action” (what steps the  
interviewee took), and “Result” (how it turned out).  
[31] The questions involved in this matter were taken from a book that the City used. That  
book was not available for the hearing. Counsel advised that the book is proprietary and the City  
no longer uses it. I gather it was provided digitally, because the City no longer has access to it,  
and so could not produce it.  
[32] A form document that the interviewers use to carry out the process instructs the  
interviewers to conduct some preliminary discussions about the job and answer the applicant’s  
questions, and then several questions are listed. Detailed additional questions are determined in  
advance of the interview. Each applicant who is able to reach the interview stage of the  
competition is asked the same questions, by the same interview committee, in an effort to be  
consistent from interview to interview.  
[33] The City has used the Targeted Selection approach for many years, and its use has been  
addressed in previous arbitration decisions.  
[34] Interviewed candidates are read, just before the interview begins, a document (Exhibit 1,  
Tab 20) that says, “Your interviewers may interrupt you from time to time in order to refocus  
you, or point you in a different direction.”  
[35] The suggested preliminary questions are about (a) how the applicant’s training and  
education relate to the position, (b) whether there are training courses that the applicant has taken  
that are not indicated on their resume, and (c) how the applicant’s work experience relates to the  
position. From the notes taken at the interviews here, it appears that the interviewers asked these  
suggested general questions.  
[36] The remaining detailed questions all presume that the applicant has seen a particular  
problematic circumstance, and then found a way to resolve it. They are asked to provide details  
of that problem, and to explain what they did.  
Classification: Protected A  
- 6 -  
[37] One of the City’s witnesses stated that if the individual is unable to identify the sort of  
circumstance that the detailed question sets out, the question is considered not to have been  
answered successfully.  
[38] Some of the detailed questions have been identified as “critical”. Normally, if a question  
has been designated as “critical”, the individual is automatically excluded from further  
consideration. However, in the case of the competition we are dealing with, due to the special  
circumstances that I will discuss below, two questions were prepared for each targeted “critical”  
topic, and the applicant could continue in the competition if they answered at least one of those  
two questions satisfactorily. However, if both of those questions on the same targeted topic were  
considered not to have been answered appropriately, the applicant was then excluded from the  
competition.  
[39] This approach – the elimination of a candidate whose answer to a “critical” question (or  
in this case, two questions on the same “critical” topic) – was stated by all of the City’s witnesses  
to be how the process is to be followed.  
[40] However, I note that there is no “rule” in the policies or directions that require  
elimination. The City’s on-line document titled “Recruitment and Selection” (Exhibit 1, tab 10),  
in the section titled “Interview Guide”, on page 2/4, instructs as follows:  
Once the required targets/competencies have been identified some should be noted  
as critical. Critical target/competencies are those that a candidate absolutely must  
have an Acceptable rating in order to be successful in a position. Note: if a  
candidate receives below an Acceptable rating in one critical target/competency,  
they do not need to be further considered in a competition. In these cases. Consult  
with the Sr. Recruitment Specialist.  
[41] I discuss this in detail, below.  
Ms. Barrell’s Background  
[42] Ms. Barrell was hired by the City of Calgary in 2008 as a seasonal labourer, working with  
a different local of the Union, Local 37. She held three positions, initially as Seasonal Labourer,  
then Seasonal Gardener, and then a Permanent Gardener, all within the Parks Department.  
[43] In 2014 Ms. Barrell moved from Local 37 to Local 709 and became Foreman 4 (Relief)  
in 2014. However, in the winter she continued to work as a Gardener (her previous position) but  
in the summer she worked in the Foreman 4 role in the relief position.  
[44] At the City of Calgary, it appears that although a “relief” position is intended to designate  
that the employee is only temporarily employed in that position while holding another  
“permanent” position, the “relief” designation is often used for seasonal positions. That is, in the  
Parks Department many of the workers work only seasonally. They often work in a position  
with a “relief” designation, although in practice they work the entire season in that position. For  
the off-season they return to their “permanent” designation. However, Ms. Barrell’s  
appointment in 2019 to a Foreman 5 (Relief) position was not seasonal; she worked in that  
position for about 18 months continuously.  
Some Previous Competitions in Which Ms. Barrell had Participated  
[45] In 2018, Ms. Barrell had applied for the Foreman 4 (Permanent) position. She was  
interviewed and was successful.  
Classification: Protected A  
- 7 -  
[46] In 2019 Ms. Barrell applied for the Foreman 5 (Relief) position, and she was successful.  
During the following 18 months she never went back to her Foreman 4 position.  
[47] She was interviewed for that “Relief” position by Mary Jane Kenny and Gary Daublin.  
Ms. Kenny had previously worked with the Parks Department in the Foreman 5 position, and Mr.  
Daublin was in management in the Cemeteries Division of Parks.  
[48] Both of them knew her already. Mr. Daublin was one step above Ms. Barrell’s  
supervisor, Joe Blunden. When Ms. Kenny worked as a Foreman 5, Ms. Barrell had been one of  
her Foreman 4 reports, although they did not always work together.  
[49] In 2019, Ms. Barrell also applied for a Foreman 5 (Relief) position in the City’s  
Maintenance Department, and she was successful on that application. However, she never  
actually worked in Maintenance.  
Ms. Barrell’s Preparation for the Interviews  
[50] Ms. Barrell was not a stranger to the City’s interview process. The City offers training  
about the recruitment process (taken on the employee’s own time) and in that training they are  
told about resumes, cover letters, the interview process, and generally how to apply for  
promotions and perform in the interviews. Ms. Barrell attended at that training.  
[51] She testified that altogether she had participated in five targeted interviews (I believe that  
she meant these were before the interviews that are the subject of this arbitration), and in all but  
one case (an Urban Forestry position) she was successful and was selected for the job.  
[52] Ms. Barrell took the interview part of the application extremely seriously. She prepared,  
on her own, sample questions that might be asked in an interview and then typed out what she  
thought were appropriate responses. She explained that she took those notes with her to  
interviews and when asked questions, she would look at her pre-prepared answers before giving  
her answer, although she did not actually read from her notes.  
[53] The document that she prepared had this list of preliminary questions:  
- Anything that [you] would like to talk about regarding your certificates and courses?  
- Can you tell me how your education and training relate to this position?  
- Can you tell me how your work experience relates to this position?  
- Do you have any questions about the job and what it entails?  
- Is there any other information you would like to bring to our attention at this time?  
- What strengths do you have that we have not talked about?  
[54] Her preparation document then listed a number of point-form topics, with point-form  
responses.  
[55] It then went on to list questions that presumed the existence of some kind of problem she  
had experienced, and then asked how she resolved the problem. The first one, as an example,  
was phrased as follows:  
The position you have applied for demands an extremely high level of attention to  
detail and accuracy. Describe a time when you had discovered an error that had  
been overlooked by a colleague. What was the error? What actions did you take?  
What was the outcome?  
Classification: Protected A  
- 8 -  
[56] This sort of question (actually a bundle of questions) resembles, conceptually, the sorts of  
questions that she was asked in the interviews that are the subject of this grievance.  
Education and Training  
[57] Ms. Barrell has appropriate education for the work she was doing and the work she was  
applying for. In addition to a high school diploma, she obtained a certificate as a journeyman in  
Landscape Gardening from Olds College. As well, she had taken considerable in-house training  
with the City of Calgary. She had considerable work experience with the City, having started  
initially as a seasonal labourer in 2008.  
Work Experience as Foreman 5 (Relief)  
[58] As I have mentioned, after being promoted to the Foreman 5 (Relief) position in 2019,  
Ms. Barrell worked in that role for approximately a year and a half. She gave evidence that she  
had been provided with no feedback from her superiors on her performance prior to April 2020,  
when the competition took place. Of significance are both the fact that she received no feedback  
(this is an important part of the discussion below) in the Foreman 5 (Relief) position, and that  
there were no negative reports on her work. According to her evidence, she worked well with  
the many staff members who reported to her.  
Skills  
[59] She received several accolades and awards during her employment with the City.  
[60] One of the documents that she provided in support of her 2020 application was a card that  
said,  
In Appreciation. Your efforts in supporting Cemeteries with your leadership and  
exceptional skills does not go unnoticed. Thanks for a great season. Sincerely, Joe,  
Gary + the Cemetery Team.  
[61] “Joe” was her supervisor, Joe Blunden, and “Gary” was Gary Daudlin, Mr. Blunden’s  
supervisor.  
Events Leading Up to the First Interview  
An Issue About Pay and Contacting the Union  
[62] In November 2019, she was relieving for Joe Blunden, who was her immediate  
supervisor. He held the position of Cemeteries Operation Superintendent in the Parks  
Department. Mr. Blunden was on vacation. Mr. Blunden had previously been a Foreman 5, but  
had been promoted sometime earlier to this exempt position.  
[63] Until November, 2019, her relationship with Mr. Blunden and with his superior, Gary  
Daudlin (the Cemeteries Leader), had been good. She noted that Mr. Blunden is generally very  
quiet. Mr. Daudlin is more outspoken.  
[64] According to prior evaluations, she understood that Mr. Blunden had thought highly of  
her, at least according to the performance evaluations he had done on her in her Foreman 4  
(Permanent) position. (I asked about the card, quoted above, during argument, and Ms. Barrell  
said that it had been provided to her when she was working as a Foreman 4.)  
[65] In her Foreman 5 (Relief) position, she had to speak to Mr. Daudlin every morning as  
part of the normal routine.  
Classification: Protected A  
- 9 -  
[66] Before Mr. Blunden left on vacation, she found a piece of paper that indicated that the  
previous person who had filled in for him on vacation had received his rate of pay for the period  
that he was gone. She approached him and asked him if she was going to receive his rate of pay  
during his absence, and he said that she was not. She then spoke to Mr. Daudlin. He told her to  
speak to Mr. Blunden.  
[67] She showed Mr. Blunden the paper, and he said that that was a “mistake”.  
[68] Ms. Barrell called the Union to inquire about her entitlement and she was told that her  
Union was going to contact the Human Resources Department. She asked the Union to let her  
know what the outcome was so that she could speak to Mr. Daudlin.  
[69] However, the Union spoke to Mr. Daudlin first. His response was to tell her, “It is  
inappropriate for you to call the Union”, and that she was never to do it again. He questioned  
why she thought she was “covering” for Joe Blunden. She explained that she was getting all of  
the emails and questions that would normally go to him.  
[70] Mr. Daudlin then acknowledged, “You are technically covering for him and you will get  
the pay”.  
[71] However, on Mr. Blunden’s return in early December, she says that Mr. Blunden yelled  
at her and said, “I spoke to you before”, and told her that she was not going to receive his rate of  
pay.  
[72] She apologized to both Mr. Blunden and Mr. Daudlin in order to try to repair what had  
then become an awkward relationship. She made a point of shaking Mr. Daudlin's hand, which  
he seemed to appreciate.  
[73] However, she testified that after that incident they both (Mr. Blunden and Mr. Daudlin)  
seemed to be “cautious”.  
[74] Mr. Blunden does not recall this incident, other than telling her she would not receive his  
level of pay during his absence. He further says that he did not yell at her; he would remember  
doing that because it is not in his nature.  
May, 2020 COVID-19 Incident  
[75] The COVID pandemic resulted in a significant work interruption in Canada in mid-  
March, 2020.  
[76] In early April, 2020, a job posting was advertised for the Foreman 5 position that she was  
doing, although this was for the permanent position, not the relief position that she held. She  
submitted her application on April 21, 2020.  
[77] On Friday, May 15, 2020, a staff member came to her office and told her that his wife  
had tested positive for COVID. She sent him home immediately to be tested, and told him to  
keep her advised.  
[78] She then realized that Mr. Daudlin was not at work that day, and she emailed both Mr.  
Blunden and Mr. Daudlin and, she believed, Mr. Daudlin’s superior Nico Bernard, the Manager  
of Parks, about the incident. That email was not put in evidence. There appears to have been no  
response to it; at least there was no evidence tendered to that effect.  
[79] She herself self-isolated from May 16th for the following two weeks once the employee  
advised that he himself had tested positive, because she had had direct contact with him.  
Classification: Protected A  
- 10 -  
[80] In making decisions, she testified that she was speaking directly with Paul Shields, who  
was the Director of Health and Safety in the Parks Department.  
[81] She returned to work on June 2nd. During the time that she was away, she states that  
work was always on her mind. She worked the whole weekend (May 16 and 17) although she  
did not have to, and she worked (presumably remotely) during those 14 days.  
[82] On her first day back in the workplace she went to the Administration Office, and when  
she was leaving, Mr. Daudlin was coming out of the office. He said, “How was your 14 days  
off?” She explained to him that there was not one day that went by where should not did not  
think about the work. He then said, “Well just so you know, I got my ass reamed out over this,  
and we are now going to do things correctly and follow proper procedure.”  
[83] Ms. Barrell apologized.  
[84] When Mr. Blunden came to work, he was upset.  
[85] Ms. Barrell says that she assumed that since she had been away for 14 days, Mr. Blunden  
and Mr. Daudlin would want to talk to her. She went to Mr. Blunden to discuss how she had  
handled the problem, and he replied that he did not want to talk.  
[86] By this time, Ms. Barrell had already applied for the Foreman 5 (Permanent) position –  
the deadline for applying had been in April – and the competition was approaching the interview  
stage of the process. Mr. Blunden stated that Mr. Daudlin instructed him not to discuss the  
COVID incident and her supposed error with Ms. Barrell, although she was asking for feedback.  
[87] In a later formal workplace investigation done by the Human Resources Department,  
discussed below, it was determined that both Mr. Daudlin and Mr. Blunden had decided not to  
talk to her about it until the recruitment process for the Foreman 5 (Permanent) position  
concluded.  
[88] No evidence was tendered in the hearing before me as to how she had not followed  
proper procedure in respect of the COVID incident that led to Mr. Daudlin’s statement about  
how he was dealt with. Mr. Blunden testified that although he was “unhappy with the situation”  
he did not know exactly what had happened because he was not there at the time. He had been  
instructed by Mr. Daudlin not to investigate the incident, and he did not.  
[89] The Investigation Report, discussed below, states that Ms. Barrell had “dealt with [the]  
case with the support of the Safety Advisor, EOC lead and the manager – N. Bernard and J.  
Sieben (F5 relief).” Accordingly, the only information that I have is that Ms. Barrell did not act  
alone, and in fact she was working with Mr. Bernard – who was Mr. Daudlin’s supervisor and  
later an interviewer for the competition.  
[90] Ms. Barrell testified that both Mr. Daudlin and Mr. Blunden ignored her from then on,  
until she left the Cemeteries Division months later.  
Respectful Workplace Complaint  
[91] On June 2nd, 2020, she was made aware of negative comments that Mr. Daudlin and Mr.  
Blunden had made about her to others. On June 2nd or 3rd she made a respectful workplace  
complaint against them pursuant to the Respectful Workplace Policy.  
[92] Her complaint was referred to Maria Forte, a Business Partner in the Human Resources  
Department. Ms. Barrell sent to Ms. Forte a detailed summary of the May 15th incident by  
email, setting out how she had dealt with it. That email was sent to Ms. Forte June 5, 2020.  
Classification: Protected A  
- 11 -  
[93] In that email she detailed her return to work on June 2nd, as well as a discussion she had  
on June 3rd with Mr. Blunden when he questioned why she had performed a specific task. That  
led to her pointing out that he would not talk to her, and she asked how she was supposed to  
know what she was doing if no one was going to talk to her. She explained that Mr. Blunden  
told her he was going to run the issues past Mr. Daudlin but that he did not think it would be an  
issue, and to continue with the steps she had been taking.  
[94] Ms. Barrell’s email detailed that she told Mr. Blunden that if there was anything else she  
needed to know, to please share as she was being left in the dark. She stated that Mr. Blunden  
did not respond, and he went back into his office.  
[95] Ms. Barrell explained in that email that she had called the Respectful Workplace group  
when it was brought to her attention that Mr. Blunden had been having inappropriate  
conversations with the administrative staff in regards to her, and that he was still continuing to  
have open door conversations with her “Superintendent” (she meant the Cemetery Lead, Mr.  
Daudlin) and continuing to speak poorly of her. She reported that those conversations were  
being heard by all of the administrative staff, and she had been told by a couple of people that  
they were starting to feel extremely uncomfortable in the office.  
[96] Ms. Barrell attached two witness statements to her email. The first witness noted that,  
[Ms. Barrell] has always had a positive attitude and is always asking questions  
about how we do things and why we do things in regards to the administration  
office. She wants things to run efficiently between both the admin office and the  
outside operations. She was instrumental in getting us and ensuring we have  
adequate face masks, hand sanitizer and disinfecting wipes for our office. In my  
opinion Vanessa has done her best with the resources that were provided to her to  
make sure everyone is working in a safe environment and she has had little  
support from her overseers.  
[97] The second witness’ report stated that when the witness returned to work after the  
Victoria Day long weekend (which immediately followed the May 19th incident), she was  
informed about the incident, and the Cemetery Lead (i.e., Mr. Daudlin) implied that the sole  
responsibility for the COVID-19 outbreak was “on” Ms. Barrell. The Lead stated that “her lack  
of leadership, direction and following procedure” was the reason that they were in “this  
situation” and she could have wiped out the entire operation. Specifically, the Lead mentioned  
that it was Ms. Barrell’s decision to put the operational staffs’ two teams together in the same  
building, and that upper management were unaware that this had occurred.  
[98] This witness went on to state that the same or similar conversation took place between  
the Cemeteries Lead and the Cemeteries Operations Superintendent (i.e., Mr. Daudlin and Mr.  
Blunden) both on the phone and in person in the administration office. He stated that there was  
no effort made to keep the conversations confidential, and the entire office was subject to hearing  
them.  
[99] The general tone of these conversations was very demeaning and bullying in nature.  
Blame for the “situation” was placed solely on Ms. Barrell. The witness quoted some specific  
wording:  
- “This doesn't bode well for her future here.”  
- “I got my ass reamed out because of her.”  
Classification: Protected A  
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- “This is all her fault”.  
- “I blame Vanessa for this. She could have taken the whole cemetery down.”  
[100] This witness statement went on to provide other examples of treatment she had observed  
of Ms. Barrell,  
- When she called in sick on February 25, 2020: “Oh, I didn't know that we got  
to use sick days as days off.”  
- When a safety assessment was completed on January 8th and several items in  
the office were repaired for safety purposes, a conversation was held between  
the Cemeteries Lead and the Cemeteries Operations Superintendent, heard by  
the staff, in regards to Ms. Barrell. The tone was demeaning and  
unprofessional in nature, stating that the safety repairs were unnecessary and  
frivolous in cost. Safety inspections and repairs had actually been requested  
by another foreman, but Ms. Barrell was blamed.  
[101] Those were the nature of the allegations that were initially given to Ms. Forte to deal  
with.  
The First Interview  
[102] When Ms. Barrell made the Complaint, she knew that she had an interview coming up for  
the Foreman 5 (Permanent) position and that Joe Blunden would be on the panel. He had told  
her that.  
[103] She felt scared and intimidated. She states that she did not know how she was going to  
do the interview because of how he felt about her. She felt that she had already failed.  
[104] On June 10, 2020, Ms. Barrell was interviewed by Mr. Blunden and Mary Jane Kenny.  
(As I will discuss below, she was later re-interviewed in September.)  
[105] At that time, she did not know if Mr. Blunden was aware that she had filed her complaint,  
which she had done only days earlier. In fact, he was not aware.  
[106] Ms. Kenny had previously held the position of Foreman 5 (Permanent), the position that  
Ms. Barrell was applying for. She had held that position for almost two years. In 2016,  
however, she had been appointed to a Superintendent position, being an exempt position, within  
Parks.  
[107] Ms. Kenny has conducted, over the course of her career with the City of Calgary, over  
100 sets of interviews. That is, she has sat on more than 100 interview panels, and at least five  
of them have been in the Cemeteries Department.  
[108] She testified that the position of Foreman 5 has 37 employees who report to the  
incumbent. The job involves delegating, supervising, meeting timelines, organization, and  
dealing with the public.  
[109] Ms. Kenny was not involved in creating the questions that had been prepared for the  
interviews. Neither had she been involved in determining which questions were deemed  
“critical”. Her job was simply to ask the questions and provide her input.  
[110] She knew Ms. Barrell, because Ms. Barrell had been one of her permanent employees  
when she (Ms. Kenny) had held the Foreman 5 position, although she had not always been  
working with her.  
Classification: Protected A  
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[111] She expected Ms. Barrell to do well on the interview. She had previously, in her  
experience, found Ms. Barrell to be very competent, organized, and capable, and she knew that  
she had held the Foreman 5 (Relief) position for over a year on a full-time basis.  
[112] Ms. Kenny acknowledged that she had interviewed Ms. Barrell before, for the Foreman 5  
(Relief) position, in which she had been successful. Obviously, Ms. Barrell must have  
performed satisfactorily in that interview.  
[113] However, she did not do well in the interview in June 2020 for the Foreman 5  
(Permanent) position, which Ms. Kenny found surprising.  
The Nature of the Questions  
[114] The first interview in June followed the City’s usual practice in conducting interviews.  
As mentioned, some general questions are asked first. Then the interview moves on to specific  
detailed questions.  
[115] The topic that each detailed question (each of which is actually a bundle of questions)  
addresses is stated (such as “Delegating Responsibility”), and then the bundle of questions on  
that topic are asked at once.  
[116] Ms. Kenny was questioned in the arbitration hearing about the nature of the detailed  
questions, and how many of the detailed questions presuppose a scenario that the candidate is  
assumed to have experienced. I found her answers to be surprising.  
[117] Firstly, she denied that the questions presuppose a scenario – when they clearly do – and  
secondly, she said that if the person has not had the experience that was required to answer the  
question, therefore they would have no answer, and they would fail that part of the interview.  
Since the questions assume that the candidate had experienced a major error and then dealt with  
it, then unless the candidate could actually recall dealing with a major error the interview would  
effectively be over if one of those questions had been deemed “critical”.  
[118] Although the interviewees are told just before the interview begins (Exhibit 1, Tab 20)  
that, “Your interviewers may interrupt you from time to time in order to refocus you, or point  
you in a different direction”, there was no indication that this happened in the June interview.  
Despite hearing from Ms. Barrell in the interview what they viewed as inadequate answers and  
the interviewers’ suggestion that Ms. Barrell may have misunderstood the point of the question,  
there was apparently no attempt by Mr. Blunden or by Ms. Kenny to focus Ms. Barrell on the  
topic they wanted discussed. (This is also true in the case of the later re-interview, although in a  
couple of instances in the second interview the questions were read again.)  
[119] In cross-examination, Ms. Kenny acknowledged that someone could have demonstrated  
competence in the workplace, but then “blown” the interview, and would therefore be out of the  
competition, by failing to give an acceptable answer to a “critical” question.  
[120] Each member of an interview panel arrives at a score for the candidate on each of the  
questions, on a scale of 1 to 5. If the candidate’s answer is scored either 1 or 2, the answer is  
deemed to have been insufficient. If that question was previously identified as dealing with a  
“critical” topic, the individual is no longer entitled to be considered for the competition.  
[121] There is no clear scoring rubric that allows a clear understanding of why an applicant has  
been scored with a particular number, and that is one of the Union’s concerns expressed in this  
arbitration. In light of my reasons overall, I have not focussed on this part of the dispute. The  
book that was used for these interviews is no longer used.  
Classification: Protected A  
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[122] The scoring is not done in the moment, but rather after all of the interviews have been  
completed, when the members of the panel convene and discuss how well the interviewee did.  
Ms. Kenny stated that she sometimes came up with a score in her head during the interview, but  
she generally did not circle the number in advance of the subsequent meeting.  
[123] Accordingly, when all of the interviews were completed, she and Mr. Blunden met and  
discussed Ms. Barrell’s performance. There might have been some disagreement, but a  
consensus was reached.  
[124] She testified that she saw no bias in Mr. Blunden's behavior, and her observation was that  
he was “very objective” in the process.  
[125] Mr. Blunden recorded concerns with Ms. Barrell’s answers, and in particular he noted,  
“She did not answer the questions 1, 3, 6 & 7”, but there is no indication that she was refocussed,  
as the instruction sheet (Exhibit 1, Tab 20) says might happen.  
“Relief” Foreman vs. “Permanent” Foreman  
[126] Evidence from several of the City’s witnesses was presented to explain why Ms. Barrell  
might have done well on the interview for the Foreman 5 (Relief) position (in 2019) and done  
poorly later for the Foreman 5 (Permanent) position (in 2020).  
[127] Ms. Kenny explained that when interviewing for a “relief” position the panel generally  
generates multiple successful candidates, because any of the successful candidates may be called  
upon to fill the position temporarily. Ms. Kenny asserted that the technical job requirements are  
not quite the same for the “relief” position and the “permanent” position. She said that there is a  
higher expectation for long-term planning for the “permanent” position that might be asked for in  
a “relief” position.  
[128] This belief was repeated by both Mr. Bernard and by Mr. Blunden.  
[129] However, what they said about this distinction is not what the requirement in the  
Collective Agreement (clause 4.08 (A)) indicates. Neither did either of the Relief job postings  
make this distinction, either for the first attempt in this competition, or when it was re-posted in  
the second attempt.  
[130] What they said also does not align with clause 4.04(A) of the Collective Agreement. It  
sets out that selections are to be made on the basis of education necessary for the position,  
experience, skill, training, ability, knowledge and other relevant attributes, and section 4.08  
states that “‘Relief Foreman’ eligibility lists are to be established and maintained in accordance  
with the principles outlined in clause 4.04(A).” (My emphasis.)  
[131] As well, despite what Ms. Kenny said about the distinction and the “long-term planning”  
distinction, the competition in 2019 for the Cemeteries Foreman 5 (Relief) position specifically  
included, under the list of “responsibilities”, these two bullet points:  
– Develops annual work plans related to maintenance activities  
– Identifies and prioritizes capital projects to meet long-term goals and  
development needs.  
(Emphasis added.)  
[132] Furthermore, the witnesses’ understanding seems to conflict with Ms. Barrell’s actual  
experience in the Relief position. Mr. Blunden gave, as an example of what a Permanent  
Classification: Protected A  
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Foreman 5 might do but a Relief Foreman 5 would not, the fact that a permanent foreman might  
have interaction with independent contractors, issuing Requests for Proposals (“RFPs”), Bids,  
and following up with them, whereas a relief foreman would not.  
[133] However, he was referred in cross-examination to one of Ms. Barrell’s typed answers to  
practice questions, where she related an incident where Mr. Blunden asked her to review an RFP  
to determine whether a contractor was charging appropriately, she did, and she saved the City  
considerable money. He acknowledged that her description of the events was correct.  
[134] And there was no evidence given that in the earlier 2019 interview with Ms. Kenny and  
Mr. Daudlin for the Foreman 5 (Relief) position she was unable to answer all of the questions  
satisfactorily – just that the job expectations were said to be different, despite the requirement in  
the Collective Agreement and the posting requirements.  
Ms. Maria Forte’s Involvement  
[135] After the first interviews were completed, Ms. Maria Forte became involved because Ms.  
Barrell’s Respectful Workplace Complaint had been referred to her.  
[136] Ms. Forte is the Human Resources VP Business Partner with the City. She currently is  
involved with Community and Neighbourhoods, but previously she was with Parks, where she  
spent approximately 15 months. She has worked for the City for 13 years.  
[137] She holds a degree in psychology and a post degree one-year diploma in Human  
Resource Management that she obtained at George Brown College in Toronto.  
[138] She had a variety of human resources positions before joining the City, both in Canada  
and in Venezuela.  
[139] Currently, 60% of her role relates to recruitment. This involves receiving requests,  
looking at the written submissions, advising the hiring supervisor, reviewing interview questions,  
and preparing the panel. She reviews any applicable union policies, and employment law.  
[140] She reports to the Human Resources lead, who is Fareen Chartrand. Neither Mr.  
Bernard, Mr. Daudlin nor Mr. Blunden have authority over Ms. Forte.  
[141] She first met Ms. Barrell when the respectful workplace office received the complaint  
and it was assigned to her.  
[142] She had previously been unaware that there was a competition going on. She realized  
that she had to do an investigation.  
[143] Ms. Forte did not initially tell Mr. Blunden or Mr. Daudlin that Ms. Barrell had made a  
Respectful Workplace complaint against them.  
[144] She approached Ms. Kenny and Mr. Blunden sometime in mid-July to go over the results  
of the interviews, having noticed that Ms. Barrell’s scoring was low, and Ms. Kenny testified  
that Ms. Forte asked her and Mr. Blunden to reconsider their scores of Ms. Barrell with a view to  
increasing them. Ms. Kenny says that they changed “one or two” scores, but it had no effect on  
the outcome. Ms. Barrell had demonstrated that she was unsatisfactory in the interview.  
[145] (As mentioned below, Ms. Forte denies that she asked them to re-consider and perhaps  
increase Ms. Barrell’s scores.)  
[146] The respondents to the complaint were, of course, Ms. Barrell’s immediate supervisor  
Mr. Blunden and his supervisor Mr. Daudlin. Ms. Forte held the view that most of the  
Classification: Protected A  
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complaints were more seriously against Mr. Daudlin, not so much as against Mr. Blunden. In  
particular, she felt that the accusation of harassment was primarily focussed on Mr. Daudlin.  
[147] She drew this conclusion about the distinction between their respective involvement in  
the behaviour early on, based on her reading of the complaint (presumably Ms. Barrell’s email  
and the attached witness statements), not based on the later actual investigation or its results.  
Her later investigation confirmed this view.  
[148] She concluded that the entire first interview process in which Ms. Kenny was involved  
should be discarded. She advised Mr. Nico Bernard (Mr. Daudlin’s supervisor in the workplace)  
accordingly. He agreed.  
[149] When Ms. Forte contacted Mr. Daudlin and Ms. Kenny and met with them (in person,  
before meetings became virtual), she did not inform them of the existence of the complaint. Mr.  
Bernard made up a story he told to Mr. Daudlin – to the effect that senior management was re-  
considering whether the permanent position would be filled. Therefore, Mr. Blunden and Ms.  
Kenny were told that the competition was to be halted.  
[150] Ms. Forte then met with Mr. Blunden and Ms. Kenny, but she denied that she had asked  
them to consider increasing their scores for Ms. Barrell.  
[151] Ms. Forte recommended re-running the competition, with her and Mr. Bernard in  
attendance – i.e., a panel of three (Blunden, Forte and Bernard) instead of two. She believed that  
having Mr. Blunden, the hiring supervisor, on the panel was “paramount”. She further testified  
that even if Mr. Blunden had not been the hiring supervisor, but had the expertise, she would still  
have put him on the panel, even when the investigation had not been complete. She did not  
believe there was any reason for him not to be on the interview panel.  
[152] Mr. Bernard acknowledged that he was told by Ms. Forte that “one of the applicants  
might be uncomfortable”, and that “the candidate felt intimidated”, and that was the reason for  
re-running the position.  
[153] Although Mr. Bernard was given a copy of the Investigation Report (discussed below)  
done by Ms. Forte, before the second interview, Mr. Bernard testified that he did not have  
concerns about Mr. Blunden being on the panel. His experience is that Mr. Blunden is very  
level-headed, has good judgment, and is fair. He did not believe Mr. Blunden would influence  
the process in any way.  
[154] Ms. Forte thought that having this interview panel would create a safeguard. She  
recommended that for each critical element there be two questions, and if the candidate could  
answer one of those questions the candidate would not be eliminated from the competition. It  
was Mr. Blunden’s decision to make, and he agreed with this approach.  
[155] This led to an expansion of the number of questions from those asked in the first  
interview.  
[156] In the meantime, Ms. Forte wanted to get the investigation “cleared” first, and then they  
would do the second round of interviews.  
[157] Before the second round of interviews was done, she first interviewed the witnesses to  
the complaint, and then interviewed Mr. Daudlin and Mr. Blunden at the end of the investigation.  
[158] She noted that in colloquial speech, the word “bullying” is normally used to refer to  
harming with intention, whereas the word is defined in the Respectful Workplace Policy and can  
Classification: Protected A  
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involve keeping information from another when it should not be, and avoiding communication –  
effectively giving someone the “silent treatment”.  
[159] The Respectful Workplace Policy (Tab 7) defines “Bullying” as follows:  
“Bullying” is a form of harassment that is defined as using strength or power to coerce or  
intimidate and causes a negative effect to an individual’s health and safety.  
The Investigation Report  
[160] Ms. Forte completed her report on September 23, 2020, and she gave it to Mr. Bernard.  
However, she did not tell Mr. Blunden at that time that she had completed her investigation. She  
waited to tell him until after the interviews were complete.  
[161] Her conclusion was that Mr. Blunden was guilty of workplace bullying, but not  
harassment, mostly because he was only listening to the negative comments made somewhat  
publicly by Mr. Daudlin, as Ms. Forte testified before me. (I note that her Investigation Report  
actually implicates Mr. Blunden more directly, and that the definition of “bullying” is that it is a  
form of harassment.)  
[162] However, she told Ms. Barrell before the second competition interview that her  
complaints had been substantiated. Initially she testified in this hearing that she had not told Ms.  
Barrell before the interview that her complaint had been substantiated, but after a lunch break  
when she thought about it, she explained that she had. She is not sure, however, precisely what  
she told Ms. Barrell in respect of the partial upholding of the complaints against Mr. Blunden.  
[163] One of the details of the complaint was that Mr. Daudlin had told Mr. Blunden that Ms.  
Barrell’s supposed poor handling of the May COVID incident “does not bode well for her future  
here”. This was after she had applied for the Foreman 5 (Permanent) position, and, as I discuss  
below, it was assumed that Mr. Blunden would be in charge of that competition and conducting  
the interviews with one or two other interviewers.  
[164] Part of Ms. Forte’s findings in her Investigation Report was that Mr. Daudlin and Mr.  
Blunden had consciously decided not to discuss their concerns with Ms. Barrell, until the  
recruitment process for the Foreman 5 position was complete. That is, Mr. Blunden was found  
not to have been just “listening”.  
[165] She noted that Mr. Blunden stated that he had avoided speaking to her “to avoid  
unnecessary stress to her”. Ms. Forte testified she did not believe that it had that effect, and she  
believed that his behaviour was not the appropriate approach.  
[166] Ms. Forte concluded as follows:  
The behaviors displayed during this event by G. Daudlin and J. Blunden created  
uncertainty, anxiety, stress to V. Barrell during and after isolation without being  
able to understand what went wrong during this incident. V. Barrell was distressed  
and went to the interview process [referring to the first interview] doubting the  
integrity of a process. On this note, HR adviced [sic] to rerun the competition  
including different panel members and re-evaluating the selection process  
interview questions.  
[167] She acknowledged in cross-examination that Mr. Blunden had been marginalizing,  
isolating Ms. Barrell, and having discussions about her effectively in public.  
Mr. Blunden on the Second Interview Panel  
Classification: Protected A  
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[168] In cross-examination, Ms. Forte was asked why Mr. Blunden was going to be part of the  
second interview panel in the face of complaints that he had bullied and harassed Ms. Barrell.  
She replied, as had Ms. Kenny on the same topic, that Mr. Blunden's involvement was necessary  
because he was the reporting supervisor. He would be supervising Ms. Barrell’s work.  
[169] Both Ms. Kenny and Ms. Forte were referred to a digital publication made available to  
City employees doing recruiting and interviewing (Exhibit 1, Tab 10) entitled “Interviewing”.  
Under the heading “Consider Prior to Interviewing”, this document states:  
– Decide on the interview panel. The interview panel should consist of two to three  
members and must be the same people for all of the interviews. Between two to three  
members on the interview panel:  
– One panel member must be certified to the City’s standard and behavioral  
interviewing, currently the Targeted Selection process;  
– the immediate Supervisor; and  
– one panel member who should be exempt (in order to avoid a conflict of interest  
between union members in the event that a non-selection grievance results).  
[170] Both Ms. Forte and Ms. Kenny expressed the view that this statement of policy (which is  
not actually a policy but merely an on-line educational document to assist interviewers) required  
that the immediate supervisor be on the panel, despite the fact that the first bullet point uses the  
word “must” and the third bullet point uses the word “should”, whereas the reference to the  
“immediate supervisor” uses neither modifier.  
[171] (The grammar is not correct, perhaps creating uncertainty. The applicable words are,  
“Between two to three members on this interview panel … the immediate supervisor …”. There  
is no direction as to the involvement of the immediate supervisor. It simply assumes their  
involvement.)  
[172] All of the City’s witnesses in HR and Administration (Mr. Jordan, Ms. Kenny, Mr.  
Bernard, and Ms. Forte) hold the view that it was necessary for Mr. Blunden to be involved in  
the interview process. They hold the view that that is what the policy requires.  
[173] (When asked about possible other circumstances when a supervisor might not take part,  
such as during the supervisor’s extended absence, Mr. Blake allowed that there might be a  
substitution – by the acting supervisor. Mr. Blake also stated that it could be an indirect  
reporting person who could be on the panel. Ms. Forte dismissed the suggestion that Mr.  
Daudlin might be on the interview panel because, given the complaints against him, that would  
be inappropriate.)  
[174] Ms. Forte was asked in cross-examination if it was appropriate and fair to Ms. Barrell to  
have Mr. Blunden on the interview panel. Ms. Forte was clearly uncomfortable with this  
question and her answer was, in my view, evasive. She asserted that the whole process was fair,  
but she did not answer the question about whether it was fair to Ms. Barrell. Then she repeated  
her view that the allegations were more against Mr. Daudlin than Mr. Blunden.  
[175] Ms. Barrell was unaware of the apparent outcome from the first round of interviews.  
That is, she was unaware that she had been eliminated by the scoring of her answers given to Ms.  
Blunden and Ms. Kenny.  
Classification: Protected A  
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[176] When the second interview (conducted September 29, 2021) was set up, Ms. Barrell was  
not initially told that Mr. Blunden would be on the interview panel.  
[177] Ms. Barrell did not see the Investigation Report before the September 29th interview. She  
was only informed that Mr. Blunden would be on the second interview panel sometime after the  
interview was set up. She cannot recall how she was advised of that; it may have been in a  
phone call with Ms. Forte.  
The Union Expresses a Concern  
[178] Ms. Barrell testified that when she knew that Mr. Blunden was going to be on the  
interview panel, she felt more intimidated. She expressed that to Ms. Forte. She stated at the  
hearing before me that she did not want to be in the interview.  
[179] Regardless of how or when she learned that Mr. Blunden would be one of the  
interviewers, what is clear that is that she raised the issue with the president of her Union, Frank  
Donegan, and on August 18, 2020 he wrote an email to Ms. Forte, copying Ms. Barrell and  
Nanette Nell, Labour Relations Consultant with the City, and Alexandra Montenaro, Leader,  
Labour Relations (Exhibit 1, Tab 32), saying this:  
Did speak to Vanessa and she is ok with the Sept 29, 2020, interview date ,  
However I have concerns about the panels constitution, Joe [Blunden], Mico  
[Bernard], Maria [Forte].  
We feel that Joe may have a conflict of interest due to the complaints brought  
forward surrounding his derogatory comments about Vanessa that were shared  
with the staff at cemetery’s [sic].  
Please call to discuss.  
[180] Ms. Forte apparently did not call to discuss. At least, there is no record that she did. Mr.  
Donegan testified that there were some subsequent discussions, but he did not indicate that they  
were with Ms. Forte.  
[181] Ms. Forte simply replied by email 34 minutes later saying that Mr. Blunden is the hiring  
supervisor for the position, he is the supervisor of the successful candidate, and he is the expert  
of the operational area. Her email was not copied to Ms. Nell or Ms. Montenaro (the Labour  
Relations people copied with Mr. Donegan’s email), or to Ms. Barrell.  
[182] She expressed the view that,  
Joe Blunden is an integral part of the committee. Joe would not be the  
deciding factor but is required as he knows the intricacies of the job therefor  
[sic] it is appropriate for him to attend and address questions specific to the job.  
[183] She said he would not have “any unilateral ability to decide the scores.”  
[184] That was the view that she continued to express in her evidence at the hearing.  
Ms. Barrell’s Second Interview  
[185] Ms. Barrell was not required to submit a new application for the competition. The  
posting specifically said that the previous applicants would be considered and need not re-apply.  
Classification: Protected A  
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[186] There were many more new applicants, but none of the new applicants made the short  
list. Mr. Blunden reduced the short list of applicants to be interviewed to four. An “external”  
applicant who had been interviewed in June was excluded.  
[187] On the morning of the interview, Ms. Barrell submitted (by email) character references,  
certificates, recognitions and awards, and kudos that she had received (Exhibit 1, Tab 34).  
Normally these would have been handed out in the interview, but the interview was being  
conducted virtually.  
[188] Many of the emails, letters and notes were spontaneous thanks, either to her superiors or  
directly to her, for work well done. The letters of reference are very glowing.  
[189] One is a handwritten note that I quoted above, saying,  
Your efforts in supporting Cemeteries with your leadership and exceptional skills  
does not go unnoticed. Thanks for a great season.  
Joe, Gary + the Cemetery Team.  
[190] “Joe” was Joe Blunden, and “Gary” was Gary Daudlin.  
[191] No evidence was given about this card. When I raised it during argument, Ms. Barrell  
volunteered the information that it had been given to her when she was only a Foreman 4.  
[192] All of the witnesses for the City agree that the ultimate decision as to what the questions  
would be for the second interview and the determination of which were “critical”, was a decision  
made by Mr. Blunden. Mr. Bernard and Ms. Forte reviewed the questions and Mr. Blunden’s  
determination of which questions were “critical”. Ms. Forte’s only input seems to have been to  
propose that two separate questions on the same area be asked, and that answering one of them  
satisfactorily would allow the candidate to stay in the competition.  
Unsatisfactory Answers  
[193] In her first interview in June, Ms. Kenny had been surprised by Ms. Barrell’s poor  
performance. She knew that she was competent and she knew her organizational skills.  
[194] We were provided with a typed version of Mr. Blunden’s notes made during the second  
interview, but they were slightly edited. They do not reflect his handwritten notes word-for-  
word.  
[195] Mr. Bernard did not make any notes at the end of his copy of the question sheet. Neither  
did Ms. Forte. Both of them took notes of the answers using their computers, so they were  
“typed” in the first instance.  
[196] Mr. Blunden’s notes indicate (Question 3) “long pause” “Needed prompting”; and  
(Question 4 (“need prompting”, “re-read question”; (Question 6) “read again”, and (Question 7)  
“Long pause before starting, very awkward” [as per the typed version], and as a general  
comment, “Very rushed and panicked throughout”.  
Classification: Protected A  
- 21 -  
[197] That last question, number 7, was about “Dealing effectively with others in an  
antagonistic position” and the specific question asked her to discuss a situation where she did not  
agree with a decision made by her immediate supervisor. That is, the question focussed on an  
antagonistic position she had found herself in with Mr. Blunden himself (or perhaps some earlier  
conflict when in another position). Mr. Blunden notes that her face became red, and there was a  
long pause before answering. He says that he interpreted this as indicating that she was  
frustrated.  
[198] Ms. Forte and Mr. Bernard had reviewed this question and found no issue with it.  
[199] All of Mr. Blunden, Mr. Bernard and Ms. Forte are clear that their determination as to  
whether Ms. Barrell had failed to answer any of the critical questions satisfactorily was decided  
after they discussed her question and response with Mr. Blunden. They then reached a  
“consensus”.  
[200] This raises the concern that Mr. Blunden may have had influence on their decision as to  
whether the questions had been answered appropriately, although Mr. Bernard and Ms. Forte  
were both clear that they did not see him do anything inappropriate or demonstrate any bias.  
[201] They reached the consensus that Ms. Barrell had not answered 5 questions adequately.  
She had given “acceptable” answers to the first two questions, and then her answers went  
downhill.  
[202] These were the questions on which she was rated “2” (unsatisfactory):  
Problem Solving. 3. Tell us about a time when it was discovered that you had  
made a serious error in you [sic] work. What was the error? How was the error  
discovered? What actions did you take to correct the error? What was the final  
outcome?  
Delegating Responsibility. 4. Selecting the appropriate person to delegate a task  
to can be difficult. Tell me [sic] about a time when you delegated an important  
project/task/assignment to a person who performed ineffectively. What  
happened? How did you deal with the situation?  
Problem Solving. 5. Tell us about a time when you had a problem that you were  
unable to find a solution for. What was the problem? What alternatives did you  
consider? What was the final outcome?  
Delegating Responsibility. 2. [sic, but corrected in pen to “6” on Mr. Blunden’s  
copy] Sometimes it’s difficult to know how much direction to provide when  
delegating. Tell me [sic] about a time when you didn’t provide enough instruction  
or guidance for an assignment or task you delegated. How and when did you find  
out that things weren’t going well?  
Managing Conflict. 7. Dealing with authority figures can at times prove  
challenging. Describe a situation where you did not agree with a decision made  
by your immediate supervisor. What approach did you take? How did you  
resolve the issue in your favour?  
[203] It is clear that all of these questions start with the premise that the candidate has, in their  
work history, experienced the problem described, and that they are expected to be able to  
summon recollection of it, in detail, on command.  
Classification: Protected A  
- 22 -  
[204] Mr. Blunden’s handwritten notes say, “Very rushed and panicked. Disorganized. Relied  
on notes. Critical thinking was poor. This is very important in our work. I don’t see her  
excelling in this position. Fast critical thinking is very ____ ”.  
(The emphasis is mine.)  
[205] Although Mr. Blunden had noted that she appeared, “Very rushed and panicked”, and  
although the questions presume some error that the candidate had to deal with, Ms. Barrell was  
not asked any questions about her actual performance, or any specific problems she had actually  
encountered, over the previous 18 months, even though Mr. Blunden had been her supervisor.  
[206] What we know about her actual performance on the job as Foreman 5 (Relief) is that until  
the May 20th COVID incident there is really no indication of any error in her work. The kudos  
expressed by co-workers as well as people involved with groups that they were providing  
services to were quite glowing.  
[207] When asked about the “Delegating Responsibility” question, she said that she thought her  
answer was appropriate. She was telling her tractor operator that it was important to wear a hard  
hat for his own sake, and also for anyone under him. (That is, she was making sure he was going  
to enforce the requirement for others - delegating.) She said that was the answer that she had at  
the time.  
[208] In an answer where she discussed her response to the COVID issue, she explained that  
she had done a lot of delegating, and then realized at the end of the incident that she had not  
thought about people who had to stand outside. She felt that she had done a lot of delegating, but  
then didn’t complete the task in that regard.  
The Result  
[209] In the result, Ms. Barrell was eliminated from the competition and the position was  
awarded to Jeff Sieben. Jeff Sieben had apparently previously relieved for Ms. Barrell.  
[210] Mr. Blunden was told of the results of the Respectful Workplace complaint, and given a  
Letter of Expectation, on October 6, 2020, although it was dated September 30, 2020.  
[211] The next day after receiving his Letter of Expectation, Mr. Blunden came to see her with  
Mr. Jordan Blake to tell her that she was unsuccessful. That occurred in an unscheduled  
encounter that took place outside, by her work truck. He told her that she had done poorly on  
both interviews and that the successful candidate did well. He told her that was why she was  
unsuccessful “and other things”. He offered Mr. Blake to provide support. Mr. Blake is another  
Human Resources Business Partner in Parks, embedded in the Parks Department and assists and  
advises members there on human resource matters.  
[212] I am surprised that, given that Mr. Blunden had been found guilty of bullying her by  
isolating her and giving her the “silent treatment”, the communication to her that she had been  
unsuccessful was done by Mr. Blunden, even in the presence of Mr. Blake.  
[213] As disclosed in a detailed chronology set out below, Mr. Blunden was given the Letter of  
Expectation the day before he told Ms. Barrell that she was unsuccessful. One of the  
expectations set out in that letter was that he was to “Comply with and model the Respectful  
Workplace Policy”. Sub-paragraph 2.4.2 I of that Policy states that examples of appropriate  
workplace behaviour includes, “Sincerely apologizing to people when something you said or did  
may have offended them.” But there is no evidence that Mr. Blunden apologized at all. His next  
communication with her seems to have been to tell her that she was unsuccessful.  
Classification: Protected A  
- 23 -  
[214] As well, his statements that she had done poorly on both interviews and that there were  
“other things” that led to the decision are concerning. The first interview should not have been  
part of the consideration, but apparently it was. The “other things” are left to our imagination.  
[215] She was then left to communicate the result to her staff, and she said that the decision  
was hard on both her and her staff. She testified that her staff loved her, and that she loved  
working there, but the result was that she had to accept that she would no longer be working  
there anymore.  
[216] Mr. Blunden followed up (Exhibit 1, Tab 39) with an email on October 8 responding to  
an email from Ms. Barrell in which she had asked some questions, and in which she said that she  
had been taken off guard with the meeting with Mr. Blake when she was told that she had done  
poorly on both interviews and that she was unsuccessful.  
[217] She had pointed out that he had told her that the successful candidate had done well on  
his interviews, and she questioned whether her interview feedback was kept confidential from  
the other candidates.  
[218] He said that he was sorry if she felt off guard, that the meeting was intended to be in  
person and done privately, and he assured her that, “No mention has been made of your or any  
other candidates interview results. Jeff was only mentioned as he was the successful candidate  
and no details were provided on his responses or scores.”  
[219] He told her that she would return to her Foreman 4 position Tuesday, October 13, and  
will provide relief for the Foreman 5 position on Fridays, beginning October 16, 2020.  
Ms. Barrell’s Perspective on the Interviews and Result  
[220] Ms. Barrell gave evidence about her emotional state during both interviews, and how she  
felt that it affected her performance. She said that it greatly affected her performance. She felt  
intimidated, nervous, and scared, and she was thinking about the outcome even before there was  
an outcome.  
[221] However, when asked in cross-examination whether she agreed that she did poorly, she  
said that she did not agree. She thought that under the circumstances she believed that she  
performed well, and that she gave good answers.  
[222] She was asked if she recalled acknowledging to Ms. Forte that she had had a bad  
interview. She does not recall saying that to her. (Ms. Forte did not testify on this point.)  
[223] On October 13, 2021, the Union filed a grievance on behalf of Ms. Barrell, which has led  
to this arbitration.  
A Subsequent Error  
[224] There was an unhappy circumstance that occurred after Mr. Sieben was promoted to the  
Foreman 5 (Permanent) position.  
[225] The month after the second interviews, another Foreman 5 (Permanent) position was  
created as a result of a new cemetery being planned for south Calgary, and the position was filled  
simply by selecting the first runner-up in the first competition, without posting, and without  
advising the Union.  
[226] Neither Ms. Kenny nor Ms. Forte were involved in this next step in filling the Foreman 5  
position. Mr. Blake was directly involved.  
Classification: Protected A  
- 24 -  
[227] That decision was clearly not in compliance with the rules. As I have set out above, the  
City’s Administration Policy: Employment Policy (Exhibit 1, Tab 5) specifically states as  
follows in section 6.4:  
When a position is posted, it can be utilized within a three-month period from  
the date the posting closes, unless otherwise provided for in an applicable  
collective agreement.  
The current competition can be used to fill identical, new vacancies during this  
time period provided that the original posting indicates that the competition is  
for more than one position.  
(Emphasis added.)  
[228] This requirement is also set out in the “Recruitment and Selection” instructions for  
interviewers found on-line (Exhibit 1, Tab 10).  
[229] Ms. Barrell only found out about the appointment of another Foreman 5 (Permanent)  
indirectly through a co-worker.  
[230] In the fall of 2020, Mr. Blake had only recently taken over working with Cemeteries as  
Human Resources partner. By the time of the first days of the arbitration hearing (September  
2021), he had been in the position for just over two years, meaning that he had taken the position  
not long before the COVID pandemic. He had not been personally involved with the  
competition and the first promotion discussed here.  
[231] Although there were extensive internal discussions about whether the position could be  
filled simply by using the previous competition results, no one noticed this proviso in the  
Employment Policy (or in the instructions for interviewers on-line), quoted above. No one  
thought to have any consultation with the Union about this selection, or to let Ms. Barrell know  
that yet another Foreman 5 (Permanent) was going to be appointed, and that she was not going to  
be considered.  
[232] Mr. Blake was surprised to read the proviso, which he did for the first time during his  
evidence before me. It seems very clear that he, and others involved in the decision, were simply  
unaware of the rule.  
[233] However, Mr. Blunden had earlier planned to appoint a second Foreman 5 (Permanent),  
and he was aware of the requirement, but he did not raise it. He requested the second Foreman 5  
(Permanent) position in October, and then he left on a month’s vacation in November. When he  
returned, the non-posted appointment process had been approved.  
[234] The Union filed a Policy Grievance over this incident on February 11, 2021 regarding the  
City’s failure to notify the Union. It was responded to by the City (Mr. Bernard’s letter of March  
3, 2021 (Exhibit 1, Tab 42)), stating that the grievance was upheld because the Union was to be  
notified of any position being filled in their jurisdiction, and this was not done.  
[235] On March 8, 2021 (Exhibit 1, Tab 43) the Union filed a grievance on behalf of Ms.  
Barrell in relation to the second appointment being made without a competition.  
Classification: Protected A  
- 25 -  
[236] Both the February 11 and March 8 grievances were resolved on July 21, 2021 (Exhibit 1,  
Tab 44), although a term of the resolution was that my remedial authority as the arbitrator  
dealing with the first (October 13, 2020) grievance “is not limited to the first Cemeteries  
Operations Foreman position filled from the competition … and may encompass the Second  
Position filled from the same job competition.”  
[237] This incident, the other two grievances, and their resolution are part of the res gestae  
relating to this matter. They are included in the evidence here to understand the whole sequence  
of events and for the purposes of arguing for the relief that is being sought. In addition, the  
Union argues that the second posting, without a competition, is evidence of bias against Ms.  
Barrell.  
Psychological Counselling Obtained Through the WCB  
[238] In October 2020, Ms. Barrell applied to the Workers’ Compensation Board for financial  
support for a psychological injury that had occurred on June 2, and that application was approved  
on November 20 to the extent of covering psychological counseling that she then received.  
[239] She was afraid of making a filing through the City’s program, because it would go  
directly to Mr. Blunden and Mr. Daudlin. Mike Ford, Safety Advisor for Parks, had suggested  
she approach the WCB.  
[240] So far, she has taken nine counseling sessions. She has been approved for a total of 15.  
She stopped when she learned that she was pregnant. (She gave birth two months before the  
hearing.)  
[241] She said that the therapy that was offered was not good for pregnant women. She told us  
that the WCB had required a CPA (Comprehensive Psychological Assessment) if she wanted to  
get paid for the days off taking the sessions. Her psychologist advised her not to go through this  
9-hour assessment.  
Issues  
The Union’s Position  
[242] The Union submits that the requirements of the Collective Agreement were not followed.  
Clause 4.04.(A) of the Collective Agreement requires as follows:  
In staffing positions, selections shall be made on the basis of education necessary  
for the position, experience, skill, training, ability, knowledge and other relevant  
attributes. Where these factors are judged to be relatively equal by the City,  
seniority … shall be the determining factor.  
[243] The second sentence does not come into play here. The Union submits that the  
elimination of an applicant based on interviewing skills, when the City has clear knowledge of  
the actual experience and ability of the applicant, ignores the mandatory words of Clause 4.04.A,  
“selections shall be made on the basis of …”.  
[244] Although an employer may impose workplace rules, the right to do so is constrained by  
express and implied terms of the specific collective agreement: Association of Justice Counsel v  
Canada (Attorney General), 2017 SCC 55, [2017] S.C.J. No. 55 at paragraph 21.  
[245] Furthermore, even where a collective agreement does not expressly state that the  
employer is to “act reasonably, fairly, and in good faith in administering [the] agreement” (as  
was the case in Association of Justice Counsel), the Supreme Court of Canada has recognized  
Classification: Protected A  
- 26 -  
that there is now “a general duty of honest contractual performance” of contracts: Bhasin v  
Hrynew, 2014 SCC 71, [2014] S.C.J. No. 71. Although a collective agreement is a form of  
contract that has special attributes, it is nonetheless a contract.  
[246] The Supreme Court applied its own decision in Bhasin to an employment contract,  
although not a collective agreement, in Potter v New Brunswick Legal Aid Services  
Commission, 2015 SCC 10, [2015] S.C.J. No. 10. At paragraph 99, the Court said, “At a  
minimum, acting in good faith in relation to contractual dealings means being honest, reasonable,  
candid, and forthright”, citing Bhasin.  
[247] The approach was followed in respect of the administration of a collective agreement in  
Global Edmonton v Unifor Local M-1 (Meal Periods Grievance), [2015] A.G.A.A. No. 51, 263  
L.A.C. (4th) 363 (Sims) at paragraphs 93, 94 and 104.  
[248] Arbitrator Sims’ approach was endorsed in Unimin Canada Ltd v Communications,  
Energy and Paperworkers Union of Canada, Local 306-0 (Journeyman Bonus Grievance),  
[2016] O.L.A.A. No. 308, 271 L.A.C. (4th) 225 (Steinberg).  
[249] The point was squarely made in Toronto Western Hospital v Canadian Union of Public  
Employees, Local 5001 (Policy Grievance), [2017] O.L.A.A. No. 391 (Knopf). At paragraph  
45, the Arbitrator said this:  
While this Collective Agreement does not contain any explicit reference to  
reasonableness, arbitrators have to infer that the parties negotiated the concept of  
reasonableness into the terms of their collective agreement: see International  
Nickel Co of Canada and USWA, Local 6500, supra, at para. 12. To interpret a  
collective agreement any other way would be to infer that management has  
retained a right to be unreasonable. That does not make labour relations sense  
anymore. Therefore, it must be concluded that the exercise of management's right  
in this Collective Agreement to “select” an employee is subject to both the  
Collective Agreement’s job posting provisions and the requirement that this  
function will be exercised reasonably. Any questions of whether these  
requirements are met involves determinations concerning the application,  
administration, interpretation and potential violation of the job posting and  
management's obligation to act reasonably under the Collective Agreement. Given  
the unique context and allegations in this case, these questions all fall within the  
jurisdiction of an arbitrator.  
[250] Although the selection of an employee involves some discretion, an Alberta arbitrator  
recently stated this (United Nurses of Alberta v Alberta Health Services (Shaver Grievance),  
[2021] A.G.A.A. No. 52 (Yingst Bartel), at paragraph 49:  
[I]t is implicit in the requirement of good faith … that a discretionary decision  
taken by the Employer must be based on relevant factor and – conversely – must  
not consider irrelevant factors.  
[251] The approach to considering grievances challenging a promotion was set out in Northern  
Telecom Ltd v UAW, Local 1839, 25 L.A.C. (2d) 379, summarized in Lethbridge (City) v  
CUPE, Local 70, A.G.A.A. 2000-082, 2000 CarswellAlta 1819 (Moreau), and that was recently  
quoted in McKesson Canada Corp v United Food and Commercial Workers Canada Union,  
Local No. 401 (Tamon Grievance), [2021] A.G.A.A. No. 50 (Casey). This is the approach:  
Classification: Protected A  
- 27 -  
The format for review of a promotion in a case involving a competition clause was set out  
succinctly 20 years ago in the Northern Telecom case at p. 384 as follows:  
1. Was there compliance with the collective agreement?  
i.e., Were the relevant standards in the collective agreement, and only those  
standards, applied?  
2. Was the procedure by which these standards were applied, a fair, appropriate and  
unbiased procedure?  
i.e., Were the specific job requirements, and any methods of evaluation or testing,  
appropriate for the competition and not subjectively biased in favor of one applicant,  
or discriminatory against another?  
3. Was the decision a reasonable one?  
i.e., Given the compliance and fair procedure, was the result, objectively viewed, one  
which falls within a range [of] reasonable decisions?  
… As has been stated in numerous awards, it is not our job in reviewing whether the  
employer breached the collective agreement to second guess the employer.  
[252] In this case the Union takes some exception to the reference to whether the employer’s  
decision, objectively viewed, “was one that falls within a range of reasonable decisions”. This  
language must now be read in light of the Court of Appeal of Alberta’s decision in United Food  
and Commercial Workers, because it invokes the language of judicial review. Union counsel  
notes that the United Food and Commercial Workers decision appears not to have been brought  
to the attention of the arbitrator in McKesson Canada. However, that arbitrator discussed it in a  
very recent decision, Calgary (City) v CUPE, Local 709 (Mercer), 2021 134634  
(Casey), at paragraph s 47 and 48.  
[253] The Union argues that when an employer fails to follow its own policy, that failure may  
be some evidence of bias, in this case against Ms. Barrell. That is why the second appointment,  
without a competition and without notice to the Union, is relevant.  
[254] Furthermore, in this case there was a reasonable apprehension of bias because of the  
participation of Mr. Blunden on the second interview committee. That concern had been brought  
to management’s attention and dismissed without any discussion. This is central to the Union’s  
arguments, because the bias that the Union asserts revolves around Mr. Blunden’s actions.  
[255] Bias, at least intentional bias, would be an example of bad faith. Some older cases say  
that a finding of bad faith “requires proof to a high degree of probability”: See, for example,  
Surrey School District No. 35 v CUPE, Local 728, 2002 CarswellBC 3404, 109 L.A.C. (4th) 345  
(Jackson), at paragraph 47. However, the Supreme Court of Canada has made it clear that there  
is only one standard of proof at common law, and that is on a balance of probabilities: FH v  
McDougall, [2008] S.C.J. No. 54, 2008 SCC 3, at paragraph 40.  
[256] Union counsel refers to Vancouver Community College v Vancouver Municipal and  
Regional Employees’ Union (Bennett Grievance), [1992] B.C.A.A.A. No. 276 (McPhillips). In  
that case the arbitrator concluded that there was at least a reasonable apprehension of bias  
concerning the participation of one of the interviewers, and “based on the preponderance of  
evidence” there was actual bias shown. Either way, the interviewer’s participation was  
Classification: Protected A  
- 28 -  
unjustifiable and “completely unfair to the grievor” and the interviewer should have been  
removed from the interview committee: (see para. 60).  
[257] Counsel submits that further evidence of bias is demonstrated by the refusal by the  
interviewers to account for Ms. Barrell’s extensive experience when they considered her  
“ability”. In addition to the refusal to consider her experience and proven ability as a Foreman 5,  
she had previously been a Foreman 4. None of that proven ability was considered. In the first  
interview Ms. Kenny knew of her abilities – she thought highly of her – but she did not take  
them into account. That approach was followed as well in the second interview; the panel was of  
the view that the determination of “ability” had to be determined by considering her answers in  
the interview, and only by that consideration.  
[258] This approach (heavy reliance on interviews) has been criticized before in several  
decisions. In a recent arbitration decision, Sunnybrook Health Sciences Centre v Service  
Employees International Union, Local 1 Canada (Braham Grievance), [2020] O.L.A.A. No.  
274 (Slotnick), the arbitrator expressed concerns with the make-up of the interview panel, but he  
based his decision on the fact that the employer based “almost total reliance on the interview”  
(see para. 65). The Arbitrator concluded that all of the factors expressed in the collective  
agreement (ability, experience and qualifications) had to be considered. At paragraph 72, he  
concluded that the interview could only provide a partial assessment of the factors listed. He  
found that the candidates were judged on their style in the interview, rather than the factors listed  
in the collective agreement”: paragraph 73.  
[259] He concluded that there were significant flaws in the process, including excessive  
reliance on style and performance in the interview, unfairness in the scoring, and failure to  
account for the grievor’s long experience, and that amounted to a violation of the collective  
agreement, which required the employer to make its selection based on ability, experience and  
qualifications: paragraphs 80 and 81.  
[260] The City has relied upon its Targeted Selection process before in grievance arbitrations.  
Calgary (City) and A.T.U., Local 583, [1988] A.G.A.A. No. 9, 34 L.A.C. (3d) 114 (Rooke,  
chair) was one such case. The Targeted Selection method was the only method by which  
“ability” was tested. The panel was clearly troubled by the fact that “ability” was only measured  
by the ability to respond to questions in the interview. At paragraph 72, the panel concluded that  
“in normal circumstances it would be prudent to look at actual job performance to aid in the  
determination if ability, beyond just the interview.”  
[261] At paragraph 82, the panel concluded as follows:  
With respect to “ability”…, it is not clear that the Targeted Selection (without a  
job performance review) is as good an indication of “ability” to perform the task  
in question as opposed to ability to answer questions. However, all applicants  
were treated equally in this regard. While it is troubling that management did not  
attempt in any fashion to look at the past work performance of the applicants with  
the City and to interview their supervisors with respect to the assessment of ability  
(it would seem, as a matter of common sense, to be a good measure of ability even  
if subject to different supervisors doing the evaluation, and the excuses of  
management for not doing so are less than adequate in the circumstances), there is  
no evidence that in not doing so the Grievor was prejudiced.  
[262] However, the panel was clear that their decision was to be limited to the specific  
circumstances of the case before them. Later in paragraph 82, they said:  
Classification: Protected A  
- 29 -  
Although assessing ability based on past job performance (either through job  
evaluations prepared in the ordinary course (if current and available), or  
interviewing direct supervisors (in “appropriate circumstances”), if not) would be  
desirable in most promotion cases and would be highly recommended in “normal  
cases” in the future, I cannot conclude that management's failure to do so in all the  
circumstances of this case was unreasonable in the arbitral sense ….  
(Emphasis appears in the original.)  
[263] An arbitrator was very clear about the potential consequence of an over-reliance on  
interviews, in Oak Bay (District) v CUPE, Local 374 (Jurista), [2021] B.C.A.A.A No .66  
(Noonan), at paragraph 119:  
I agree with a line of arbitral authority that over-reliance on interviews is  
inappropriate and can be fatal to an employer’s position in selection cases. The  
possibility that an interview is a greater test of interview skills for the job in  
question is real. Care must be taken by employers to avoid that and one of the  
ways it can be avoided is by ensuring that the employer fully considers other  
relevant factors besides the interview.  
(My emphasis.)  
[264] At paragraph 120, the arbitrator noted the difference between interviewing internal and  
external candidates, and at paragraph 121 he stated:  
In relation to internal applicants, however, an employer should not turn a blind  
eye to what it knows about such an applicant from their work history and focus  
only on the interview as a point of comparison. That is particularly so if the  
applicant has performed the work of the disputed position in the past and, more  
particularly, if they have performed it in a satisfactory manner…. Past history of  
performing well in a position is a predictive factor that cannot be overlooked.  
(My emphasis.)  
[265] Union counsel refers to a very recent decision: FortisAlberta Inc v United Utility  
Workers Association of Canada, 2021 121157 (Francis). The union had grieved two  
selection decisions made after competitions, based on the way the employer had considered the  
factors “qualifications, ability, job performance and seniority” as required by the collective  
agreement. The employer used the STAR Targeted Approach to interviewing.  
[266] The arbitrator was critical of the way the interview committee had conducted the  
interviews. At page 11 of the award he stated this:  
In line with the general requirement that a job competition be conducted in a  
manner that is fair and reasonable, certain specific requirements follow when  
using interviews as an assessment tool. Toronto Civic Employees Union, Local  
416 (CUPE) (the “Union”), and The City of Toronto (the “City”) Re: Girimonte  
Grievance (Kanee) [2018] O.L.A.A. 103 provides an excellent discussion of such  
requirements, especially pages 10-15.  
I would frame such requirements for the purpose of analyzing the current  
grievances as follows (none of which is onerous):  
Classification: Protected A  
- 30 -  
Probing, follow up questions should occur to clarify an answer or to seek  
more information, especially where an applicant's resume, personnel file  
or application suggests relevant information has been left unmentioned.  
Applicants should be informed if information in their application package  
will not be considered, unless repeated in the interview. Otherwise, it is  
reasonable to assume that interviewers are familiar with the information  
provided by the applicant and will give credit for it.  
There must be a clear and understandable scoring rubric provided to  
interviewers for assessing the applicant’s answers provided during the  
interview.  
If challenged, the interviewers must be able to demonstrate with some  
coherence (though not exact precision) how their assessment corresponds  
to the guidance in the scoring rubric. Notes are not required, but would  
certainly assist in any explanation, especially with the passage of time.  
By following these requirements, the employer is able to demonstrate that the  
interview process has been fairly explained to the applicant and will not unduly  
prejudice the applicant who interviews poorly by failing to provide known  
information. In addition, it should be clear to all that the results obtained from the  
interviews are generated with reason according to known criteria in the rubric, not  
based on some subjective feeling that cannot be shown to be connected to the  
criteria for positions selection.  
[267] The Union submits that when it was apparent that Ms. Barrell had not understood some  
of the questions, the interviewers should have asked her “probing, follow-up questions”. They  
did not. They essentially simply re-read the questions.  
[268] Furthermore, the Union submits that none of the interviewers were able to articulate  
clearly how they arrived at the scores that they gave Ms. Barrell.  
[269] The Union also submits that the questions that were asked did not relate clearly to the  
requirements of the job as they were posted.  
[270] The Union also submits that the specific factors that the interviewers were looking for  
were not explained to the applicants, and that the process did not comply with the recent award  
(after this interview process was complete) in FortisAlberta Inc.  
[271] Accordingly, Union counsel submits that all of these factors indicate that the process was  
unfair and biased against Ms. Barrell.  
[272] The Union submits that the City’s practice of eliminating applicants who did not fare well  
in the interview, regardless of their demonstrated ability on the job, is a violation of the  
Collective Agreement.  
[273] In Calgary (City) v Calgary Police Assn, [2007] A.G.A.A. No. 29, 2007 CarswellAlta  
1454 (Tettensor, chair) addressed the circumstance where the collective agreement stated that  
“All promotions shall be made on the basis of ability to perform the work, merit and seniority.  
Where ability to perform the work and merit are relatively equal, seniority will be the  
determining factor.” The CPS had introduced a requirement that applicants must have completed  
certain training courses. One grievor had not taken an Interviewing Techniques course or its  
equivalent, and the other had failed to complete the Subject Control Techniques course.  
Classification: Protected A  
- 31 -  
[274] The issue before the arbitration panel was whether mandatory qualifications can be  
adopted to exclude applicants from the process. The panel concluded (para. 61) as follows:  
[T]he language of the Collective Agreement governs. It is accordingly declared  
that the addition of mandatory operational and education qualifications to exclude  
members from a promotion process is a violation of the collective agreement and  
must be removed for future competitions.  
[275] Here, the Union draws an analogy: the requirement that an applicant do well on an  
interview, as the sole determination of “ability” is not in compliance with the collective  
agreement. Firstly, it ignores demonstrated ability on the job, and secondly, the approach does  
not take into account the other factors that must be considered.  
[276] Credibility is a live issue in this case. The Union accepts that Ms. Forte was attempting  
to make appropriate decisions, but the assertion by Mr. Blunden that he was not biased cannot be  
accepted. Several factors indicate otherwise.  
[277] The assertion by Ms. Forte and Mr. Bernard (and by Ms. Kenny as well) that there is a  
substantial difference between the “relief” and the “permanent” position is simply incredible.  
The Union submits that this evidence is simply given to try to “bootstrap” the City’s argument  
that Ms. Barrell’s prior experience is not relevant to the consideration of ability.  
[278] This is particularly important because the consideration of ability is expressly required by  
the applicable provision in the Collective Agreement. Refusing to take her demonstrated ability  
into account, and preferring to consider interviewing skills instead, is a breach of the Collective  
Agreement.  
[279] As well, the Union submits that the decision by Mr. Blunden (said to have been directed  
by Mr. Daudlin, but a position that according to the Investigation Report Mr. Blunden agreed  
with) to marginalize Ms. Barrell by refusing to discuss with her their concerns about the COVID  
incident was for her own good – so as not to upset her before the interviews – is nonsense.  
[280] The Union further submits that the decision to appoint a second Foreman 5 only shortly  
after the process that is challenged here is further evidence of bias, or at least a reasonable  
apprehension of it. Mr. Blunden knew that Ms. Barrell had been eliminated and he knew who he  
wanted. That had been decided in the second interview process when the interviewers identified  
a first runner-up. A direct appointment would exclude Ms. Barrell.  
[281] The Union’s position is that the issue before me is not whether management made the  
decision reasonably. There is not to be any deference to management’s decision on these facts.  
The issue before me is whether the Employer has exercised its management rights unreasonably.  
If so, the grievance must be allowed.  
[282] No damages or other relief is sought at this time. The Union and the Employer have  
agreed to bifurcate the arbitration. If it is successful, the remedy will be determined later, either  
by agreement or, failing agreement, by a continuation of the arbitration.  
The Employer’s Position  
[283] In reply, the Employer argues that the process followed the Collective Agreement and the  
City’s policies.  
Classification: Protected A  
- 32 -  
[284] Reliance on interviews has been approved in many cases, including Lethbridge (City) v  
CUPE, Local 70, supra, where Arbitrator Moreau set out the format for review of promotion  
where there is a competition. In that case, the union had complained that the employer had  
placed too much emphasis on the interview itself. However, the employer was looking for  
leadership qualities, and the successful candidate had projected an image of someone who had  
experienced leadership roles in the past and demonstrated enthusiasm.  
[285] The City submits that if the policies here were not followed in some respects, it is clear  
by Ms. Barrell’s answers during the interview that she was nowhere close to being successful in  
the competition. Her answers in many cases simply were not responsive to the questions asked.  
In a case where the employer relied heavily on the interviews (apparently it was the only  
method) to determine the outcome, but there was a significant disparity in the performance of the  
applicants, such that the results would have been no different even if the three contract factors  
(merit, ability and fitness to perform the work satisfactorily) had been individually considered,  
the results would have been no different, the grievance was denied: Calgary Cooperative Assn  
Ltd v Union of Calgary Co-op Employees, 2001 CarswellAlta 967, 64 C.L.A.S. 174 (Ponak).  
[286] Even if the application of the Collective Agreement or process was imperfect the  
arbitrator should defer to an apparently objectively reasonable result, even if the arbitrator would  
have arrived at a different conclusion: Bruce Power LP and Society of Energy professionals  
(Winter), 2014 CarswellOnt 12278, 120 C.L.A.S. 157 (Surdykowski).  
[287] Counsel submitted that her seniority would only have come into play if she could  
demonstrate that her qualifications were relatively equal to the other candidates.  
[288] Citing Brown & Beatty, 6:3100, the City pointed out that,  
As a general rule, arbitrators have been reluctant to interfere with management  
decisions that involve an assessment of the abilities of employees, unless there is  
evidence of arbitrariness, discrimination, bias and/or bad faith, or an indication  
that the employer’s judgment was unreasonable in some basic and significant  
respect.  
[289] And later,  
In fact, a standard of reasonableness has been applied in virtually all cases in  
which an arbitrator must assess an employer’s judgment with respect to the skills  
and abilities of its employees.  
[290] The City cautioned against “dissecting the process too finely” and submitted that “it is  
not within the purview of [the arbitration board] to conduct a micro-examination of every feature  
of the selection process or attach some unrealistic or exacting standard of review to each of the  
selection criteria”, citing Grand [sic] Prairie (City) and CUPE, Local 787 (Paradis), 2005  
CarswellAlta 2740 (Smith, chair) at paragraphs 39 to 40. An employer is “free to use a variety  
of techniques for assessing qualifications, subject to any restriction that may be in a collective  
agreement and subject to certain standards of fairness, relevance and reliability”: ibid., paragraph  
41.  
[291] Where the Collective Agreement grants the discretion to management to make decisions  
based on its opinion, the scope of arbitral review is whether the employer’s decision was made in  
good faith, without discrimination, and was reasonable: Lennox Industries (Canada) Ltd v  
U.S.W., Local 7235, 1983 CarswellOnt 2460, 12 L.A.C. (3d) 241 (Kennedy).  
Classification: Protected A  
- 33 -  
[292] The City submits that every step of the process here was conducted in a reasonable  
manner. When the first interview process was found to be problematic because it was  
contemporaneous with an outstanding complaint against Mr. Blunden, Ms. Forte advised Mr.  
Bernard to halt the process and re-do the interviews, this time with her and Mr. Bernard on the  
interview panel to make sure that the process was not biased.  
[293] In response to my question as to whether the process, as modified with Ms. Forte’s  
advice, was fair to Ms. Barrell, counsel submitted that the entire process revision (a new panel  
with two different members, two questions on each “critical” topic”) was to take into account  
Ms. Barrell’s concerns.  
[294] “‘Reasonable’ in this context does not mean that the Arbitrator would necessarily have  
reached the same selection decision. Rather, “reasonable’ means whether the result, objectively  
viewed, is one of the reasonable results [taking] into account the established factual  
circumstances”: Calgary (City) and Calgary Police Assn (Oberg), 2019 CarswellAlta 1547, 305  
L.A.C. (4th) 423 (Casey), at para. 31.  
[295] The fact that Ms. Barrell performed the duties of a Foreman 5 (Relief) for 18 months is  
not necessarily evidence of ability to perform the job relatively equal to or greater than other  
applicants: Calgary (City) and Calgary Police Assn (Adria), 2005 CarswellAlta 2825, [2005]  
A.G.A.A. No. 28 (Jones, chair), at para. 62.  
[296] The City argues that Mr. Blunden was required to be on the interview panel because he  
was the hiring manager; Ms. Barrell would be reporting directly to him. He knew the job  
requirements. That is why the direction says that he would be on the interview committee.  
[297] Throughout the process, all decisions made by the City administrators were reasonable.  
All witnesses were credible.  
Union Response  
[298] Union counsel explained that the decision does not involve an inquiry as to whether Ms.  
Barrell can show that her qualifications are relatively equal to the other candidates. The analysis  
of clause 4.04 A of the Collective Agreement does not involve the second part of the provision.  
The Union’s argument is that the requirements of the first part were not met.  
[299] He further submitted that although the interview panel members all said that her answers  
were poor, that was the result of the errors made by the Employer. It is a flawed approach to say  
that the outcome justifies the process. The outcome of a flawed process (poor answers resulting  
from bias) cannot be used to bootstrap the process.  
Analysis  
Chronology  
[300] Before proceeding with the discussion of the events and analysing how the law should be  
applied, it is helpful to set out the chronology of what happened, both before the competition and  
following, because the timing of some of the steps is not intuitive, and the dates of some  
documents do not record when they were delivered.  
November, 2019:  
Vanessa Barrell asks about receiving Mr. Blunden’s pay in  
his absence, is told that she should not have contacted the Union.  
April 21, 2020: Ms. Barrell applies for Foreman 5 (Permanent) position.  
Classification: Protected A  
- 34 -  
April 24:  
position.  
The deadline for application for Foreman 5 (Permanent)  
An employee tells Ms. Barrell that his wife had tested  
Friday, May 15:  
positive for COVID-19, she sent him home. She attempts to get direction from  
Mr. Blunden or Mr, Daudlin, without success.  
Saturday, May 16:  
May 19:  
Ms. Barrell commences self-isolation.  
Mr. Blunden and Mr. Daudlin return to work.  
Ms. Barrell returns to work, and is told by Mr. Daudlin that  
June 2:  
he had gotten his “ass reamed out” because of “this”.  
June 2:  
Ms. Barrell asks Mr. Blunden if there is anything he would  
like to talk about in regards to the previous two weeks, and if there was anything  
she should know, and he says “No”.  
June 2:  
Ms. Barrell learns from a co-worker about the negative  
things that Mr, Blunden and Mr. Daudlin had been saying about her to all of the  
Cemeteries administrative staff, while she was away in isolation.  
June 5:  
Ms. Barrell files her Respectful Workplace complaint about  
Mr. Blunden and Mr. Daudlin.  
June 9:  
Ms. Forte conducts an “Intake Meeting” with Ms. Barrell,  
Frank Donegan (Union president) and Jocelyn Elias (I have no information on this  
person).  
June 10:  
Mr. Blunden and Ms. Kenny interview Ms. Barrell for the  
Foreman 5 (Permanent) position.  
June 17:  
June 17:  
June 22:  
Ms. Forte interviews witness Janine Roy.  
Ms. Forte interviews witness Angela Schmitt.  
Ms. Forte meets with Mr. Blunden and Ms. Kenny to  
review the interview result.  
July 2:  
July 2:  
Ms. Forte interviews Ms. Barrell.  
Ms. Forte interviews witness Jeffrey Sieben, Cemetery  
Worker (and ultimately the successful candidate in the competition).  
July 3:  
Coordinator.  
Ms. Forte interviews witness Janine Greenwood, Admin  
Ms. Forte interviews witness Maange Choebefu, Cemetery  
Ms. Forte interviews Mr. Blunden. This is when he first  
July 3:  
Worker.  
July 6:  
learns of the investigation.  
July 22:  
Ms. Forte interviews Mr. Daudlin.  
July 27:  
Ms. Forte interviews Mr. Daudlin again.  
August 18:  
Mr. Blunden knows by this date that he is going to be on  
the second interview panel.  
Classification: Protected A  
- 35 -  
September 22:  
The application deadline for the Foreman 5 (Permanent)  
position, as re-posted.  
September 23:  
Ms. Forte’s Investigation Report is completed and dated,  
and a copy is given to Mr. Bernard.  
September 29:  
Ms. Barrell’s second interview takes place, with Mr.  
Blunden, Mr. Bernard, and Ms. Forte.  
September 30:  
Mr. Blunden, Mr. Bernard and Ms. Forte meet to review  
the scores of the applicants.  
September 30:  
October 6:  
The date of Mr. Blunden’s Letter of Expectation.  
Mr. Blunden is presented with his Letter of Expectation.  
October 7:  
Mr. Blunden and Mr. Blake approach Ms. Barrell at her  
truck to tell her that she was not successful.  
October 13:  
CUPE Local 709 files a grievance on behalf of Ms. Barrell,  
leading to this arbitration.  
Application of the Law  
[301] The starting point in the analysis is that set out in Northern Telecom, Lethbridge, and  
McKesson, set out above:  
1. Was there compliance with the collective agreement?  
i.e., Were the relevant standards in the collective agreement, and only those  
standards, applied?  
2. Was the procedure by which these standards were applied, a fair, appropriate and  
unbiased procedure?  
i.e., Were the specific job requirements, and any methods of evaluation or testing,  
appropriate for the competition and not subjectively biased in favor of one applicant,  
or discriminatory against another?  
3. Was the decision a reasonable one?  
i.e., Given the compliance and fair procedure, was the result, objectively viewed, one  
which falls within a range [of] reasonable decisions?  
[302] The requirements in the Collective Agreement are those set out in clause 4.07 and clause  
4.04 (A). Section 4.07 states that “A vacancy shall be filled in accordance with the principle of  
clause 4.04(A) …”. Clause 4.04 (A) states this:  
Selections  
In staffing positions, selections shall be made on the basis of education necessary  
for the position, experience, skill, training, ability, knowledge and other relevant  
attributes. Where these factors are judged to be relatively equal by the City,  
seniority, as defined in clause 4.01(A), shall be the determining factor.  
[303] I agree with the Union that the second sentence of clause 4.04 (A) is not in play here.  
Therefore, the factors that shall be the basis of the decision are these:  
(a) experience,  
Classification: Protected A  
- 36 -  
(b) skill,  
(c) training,  
(d) ability,  
(e) knowledge, and  
(f) other relevant attributes.  
[304] No one has suggested that there are any “other relevant attributes” that were to be  
considered here.  
“Deference”  
[305] Overlaid on this analysis is the question whether there should be any deference to the  
final decision made by the City as to who was the successful candidate.  
[306] In my view, the Court of Appeal’s decision in United Food and Commercial Workers,  
supra, and the subsequent decision of the Alberta Labour Relations Board in United Nurses of  
Alberta, supra, and the decision of Arbitrator Casey in Calgary (City) v CUPE, Local 709  
(Mercer), supra, make it clear that the arbitrator’s role is to make the appropriate findings of fact  
before giving consideration to the discretionary decision that was made by the employer. That  
includes looking into how the discretionary decision was made.  
[307] In Calgary (City) v CUPE, Local 709, Arbitrator Casey made it clear than in a just cause  
dismissal case, where the arbitrator has the authority to substitute a lesser penalty, the arbitrator  
is not to “defer” to the decision that was made by the employer, although the arbitrator should  
pay careful attention to the reasons why the employer considered its choice of level of discipline  
to be appropriate.  
[308] With this in mind, the last question listed in the Northern Telecom must be looked at  
with a fresh approach in light of the recent decisions dealing with “deference”.  
[309] United Food and Commercial Workers dealt with a dismissal for cause for the alleged  
violation of a company policy. The Court of Appeal said, at paragraph 24,  
As set out above, while the analysis of just cause in these circumstances required  
the arbitrator to assess the grievers conduct (or misconduct) and the  
reasonableness of the policy, this does not mean that the arbitrator defers to the  
employer’s conclusions on these issues. To defer to the employer about whether  
just cause for dismissal existed would be to conflate judicial review with the role  
of an arbitrator: Association of Justice Counsel at para 27.  
(The emphasis is mine.)  
[310] At paragraph 27 of its decision, the Court of Appeal said this:  
As a result, the bulk of the arbitrator's work was determining whether the  
grievor engaged in misconduct period to answer this question, the arbitrator  
was required to assess the evidence and make her own findings about whether  
the policy was a reasonable exercise of management rights and whether the  
grievor breached the policy based on her own findings of fact.  
(Again, the emphasis is mine.)  
Classification: Protected A  
- 37 -  
[311] It is a question of fact, perhaps one of combined fact and law, whether the Collective  
Agreement has been followed, and whether (the policy or) the procedure that the Employer  
followed was a “fair, appropriate and unbiased procedure”. Those questions are to be decided by  
the arbitrator without any “deference” to the Employer.  
[312] This was also the conclusion in United Nurses of Alberta, but in a different context.  
That case involved two classification grievances, which were allowed by the majority of an  
arbitration panel. It came before the L.R.B. for review pursuant to section 145(2) of the Labour  
Relations Code.  
[313] Beginning at paragraph 57, the Labour Relations Board discussed the word  
“reasonableness” and the issue of deference as follows:  
[57] The issue appears to be the meaning applied to the term “reasonableness” and its  
application to the facts. The Majority [of the arbitration panel], in addressing the  
meaning of “reasonableness” stated at paragraph 80:  
… The decision may be rendered unreasonable for several causes.  
The employer may have failed to use its prescribed classification tool  
at all. … it may have been arbitrary by committing a major error in  
logic or by failing to proceed on a tenable factual basis. It is into this  
last category that most successful classification grievances in a case  
like this will probably fall: for, as computer specialists are known to  
say, “garbage in, garbage out”; the best classification tool may reach  
erroneous and unfair conclusions if it is based on facts that are  
established at arbitration to have been wrong or incomplete.  
[58]  
It is important to note that “reasonableness” as applied by an  
arbitration board to the exercise of managements rights is different than  
“reasonableness” as applied by a Court in a judicial review application.  
[314] The Labour Relations Board then quoted from United Food and Commercial Workers  
Canada Union, Local 401 v. Sobeys-Safeway Operations, supra, and continued as follows:  
[59]  
As a result, it was appropriate for the Majority to determine if the  
classification review conducted by Ms. Gertner [the factual findings of the  
employer’s Senior Advisor for In-Scope Classification and Compensation]  
revealed a “major error in logic or failed to proceed on a tenable factual basis”.  
This test required the Majority to undertake a significant factual analysis. In light  
of the extra information obtained by way of documents and witness testimony at  
the arbitration hearing, it is understandable that the Majority’s findings of fact  
may differ from Ms. Gertner.  
[60]  
The Board must determine if the Award is intelligible and transparent  
and whether it falls within a range of possible outcomes that is defensible in  
respect of the facts and the law.  
Classification: Protected A  
- 38 -  
[315] Both United Food Workers and the decision of Arbitrator Casey in the very recent  
Calgary (City) v CUPE, Local 709 (Mercer) arbitration decision were just cause dismissal  
disputes; the Association of Justice Counsel decision of the Supreme Court of Canada, on which  
United Food Workers relies, was a dispute about a unilateral direction of management and  
whether the directive was a reasonable or fair exercise of management rights; and as I have  
mentioned the United Food Workers case involved a classification dispute. These different  
kinds of disputes involved different analyses.  
[316] To apply correctly the “what is reasonable/should there be deference” approach to the  
facts of this selection dispute, in my view the questions listed in Northern Telecom are to be  
answered in the order set out in that case, with a slightly new approach to the last question.  
[317] Generally speaking, the last question – whether the decision was “reasonable” – comes  
up if the answer to the first two questions is “Yes”, as a kind of final check on the process.  
[318] If the answer to one of the first two questions is “No”, then the grievance should be  
allowed. (In this regard, I disagree with the “no harm, no foul” approach taken in Calgary  
Cooperative Assn Ltd v Union of Calgary Co-op Employees, supra, and I prefer the approach  
taken in Sunnybrook Health Sciences Centre v Service Employees, supra, in a similar  
circumstance. The outcome in Sunnybrook was a declaration that the collective agreement had  
been violated, although the arbitrator concluded that had the process not contained the flaws he  
found the result would have been the same.)  
[319] That is, if the collective agreement has been followed, and the policy, procedure or  
practice that is challenged (including whether the discretionary decision was based on proper  
principles) is found by the arbitrator to have been fair, then the final question (“Was the decision  
a reasonable one?”) will be considered. The arbitrator would normally “defer” to the employer’s  
decision by concluding that, although the arbitrator may have decided otherwise, the process was  
fair and the final determination on issues of merit was with the employer. It is not open to the  
Union to argue that the Employer simply made an error in judgment in selecting the successful  
candidate.  
[320] Nonetheless, when determining whether the process was fair, the arbitrator is entitled to  
look at how the discretionary decision was made, as discussed in FortisAlberta Inc, supra,  
including looking into whether the interviewers are able to demonstrate, with some coherence  
(though not exact precision), how their assessment corresponds to the guidance of the scoring  
rubric. But this is part of the analysis of whether the process was fair (the second question); it is  
part of the analysis of “any methods of evaluation or testing” mentioned in Northern Telecom.  
(See also CUPE, Local 38 v Calgary (City) (2013, unreported), (Smith, chair) at page 9.)  
[321] This approach is consistent with the approach to contract performance described in  
Bhasin v Hrynew, supra, and the subsequent decisions including Global Edmonton v Unifor,  
supra, and Unimin Canada Ltd, supra. In particular, the conclusion in point 5 of paragraph 101  
of the Unimin decision is relevant:  
It is clear from the evolution of the jurisprudence following Brampton Hydro  
Electric Commission and from the Bhasin decision, read together and in the  
context of the applicable legislation (in this case s. 57(1) of the Canada Labour  
Code) [in Alberta, this would be section 135 of the Labour Relations Code] and  
the Weber essential character test that:  
…
Classification: Protected A  
- 39 -  
5. As a matter fundamental to the operation and functioning of a collective  
agreement, any exercise of management rights discretion must be subject to  
challenge on the basis of reasonable, or perhaps more specifically on the  
basis that the management right was exercised in an arbitrary,  
discriminatory or bad faith manner (which I believe effectively covers the  
field [of] unreasonableness and good faith);  
Compliance with the Collective Agreement?  
[322] The first question in the Northern Telecom series of questions is whether there was  
compliance with the Collective Agreement. The requirements in this Collective Agreement are  
clear: in considering a candidate for promotion, the Employer is required to consider experience,  
skill, training, ability, and knowledge (and other relevant attributes). There is no provision  
allowing a variation of this approach. This was the approach in Sunnybrook Health Sciences  
Centre, (supra) at paragraphs 71 and 81, and Oak Bay (District), (supra), at paragraphs 199 to  
121. The heavy reliance on interviews did not lead to a conclusion that the grievance should be  
upheld in Calgary (City) v A.T.U., Local 583, (supra) because the Board concluded that the  
grievor was not discriminated against, and there was no evidence that had the City looked at  
ability based on job performance it would have been a determining factor: paragraph 82.  
[323] Nonetheless, all of the City employees in this arbitration were clear that in considering  
“ability” the applicant was required to provide at least one satisfactory answer for each “critical”  
topic, and if they did not, the City no longer gave any consideration to the remaining factors  
which are required to be considered.  
[324] That is not consistent with the Collective Agreement. Nor is it consistent with the City’s  
Administration Policy: Employment Policy (Exhibit 1, Tab 5) at section 2.0. It specifically  
states that “Selections, appointments and promotions are to be based on considerations of merit  
and the ability to perform effectively in a position, or as stipulated in the relevant collective  
agreement.” It goes on to say that “Selection criteria are to be developed in an objective and  
non-discriminatory fashion, and must be job-related.” Section 6.6 says that “The applicant  
screening and selection process, including interviews is used to obtain job-related information  
about prospective candidates”, as I discuss below.  
Not a New Complaint  
[325] The complaint raised here is not a new one. It has been raised before with this Employer,  
as we see in the Calgary (City) and A.T.U. decision, supra.  
[326] At paragraph 82, the arbitration decision is clear that, “With respect to ‘ability’ … it is  
not clear that the Targeted Selection (without a job performance review) is as good an indication  
of ‘ability’ to perform the task in question as opposed to ability to answer questions.”  
[327] In that decision, the majority of the arbitration panel did not allow the grievance because  
all of the applicants were treated equally, but they made it clear that this decision was reached  
with some hesitation. Later in the same paragraph the decision says this:  
Classification: Protected A  
- 40 -  
Although assessing ability based on past job performance (either through job  
evaluations prepared in the ordinary course (if current and available), or  
interviewing direct supervisors (in “appropriate circumstances”), if not) would be  
desirable in most promotion cases and would be highly recommended in “normal  
cases” in the future, I cannot conclude that management's failure to do so in all the  
circumstances of this case was unreasonable in the arbitral sense, in light of Art.  
100.01 - especially in the absence of some evidence that it would have (or even  
might have) shown that it could be a determining factor.  
[328] In that case, the Targeted Selection approach was the only method used to determine  
ability, but the other factors that were to be considered (education and training, and experience)  
were not ignored. That is, as the end of the passage quoted above indicates, there was no  
“automatic elimination” if the candidate did not interview well.  
[329] The City appears to have ignored the criticism in the A.T.U. decision. The only reason  
the panel in that case did not allow the grievance was because all interviewees were treated  
equally, not because the heavy reliance on the interviews was thought to be appropriate. The  
decision was based on the fact that they could not find that the grievor had been prejudiced by  
the heavy reliance on the interviews.  
[330] In addition to Calgary (City) and A.T.U., Oak Bay (District) and Sunnybrook Health  
Sciences Centre, cited by the Union and discussed above, the concern about undue reliance on  
interviews has been addressed in several other arbitration decisions, in Ontario. The topic is  
discussed at some length in Mitchnik and Etherington, Labour Arbitration in Canada (3d ed.),  
Lancaster House, beginning at page 577, under the heading “Undue Weight Assigned to  
Interview”, section 20.4.2. That discussion begins as follows:  
Many arbitrators have held that undue reliance on an employee’s interview  
performance created a fatal flaw in the selection process. In such cases, excessive  
emphasis on the interview has often come at the expense of a more balanced  
consideration of other relevant factors, including work history, past training,  
performance appraisals, comments of supervisors and coworkers, and test scores.  
The risk of placing too much reliance on an interview is especially acute where  
the grievor has had significant work experience in the employee’s establishment,  
since this is likely to offer a more dependable prognosis of future performance  
than the ability to communicate at an interview. A leading case which  
demonstrates these concepts is University of Toronto and C.U.P.E., Local 3261  
(1995), 52 L.A.C. (4th) 387 (Burkett).  
(My emphasis.)  
[331] We see here that Ms. Barrell had a very good work history, she taken appropriate  
training, she seems to have had good performance appraisals, and she enjoyed favourable  
comments of her supervisors and coworkers about her skills. But none of that was taken into  
account when evaluating either her “ability” or otherwise, once she had not performed well in the  
interview.  
Automatic Elimination: What Do the Collective Agreement and the Policy Say?  
Classification: Protected A  
- 41 -  
[332] The approach that a candidate is automatically excluded from the process by not doing  
well in the interview when considering “ability” is not authorized by the Collective Agreement  
because the approach eliminates consideration of the other factors that are mandated to be  
considered.  
[333] Furthermore, when we look at the City’s own documents, it is not clear to me that there is  
any basis for “eliminating” a candidate because of unsatisfactory answers to a “critical” question.  
[334] The Administration Policy: Employment Policy addresses the “Screening and Selection  
Process” in section 6.6. It states:  
The applicant screening and selection process, including interviews is used to  
obtain relevant job-related information about prospective candidates.  
Management is responsible for ensuring that selection interviews are conducted in  
a professional and ethical manner and focus attention only on those aspects of an  
individual's background and experience that are relevant to the position  
requirements.  
Interviews with applicants need to focus attention only on those aspects of an  
individual's background and experience that are relevant to the position  
requirements.  
(My emphasis.)  
[335] Apparently, the importance of focusing attention only on those aspects of an individual's  
background and experience that are relevant to the position requirements was so important that it  
had to be stated twice in the Employment Policy! However, the City’s approach, as we see here,  
is to evaluate “ability” by the interviews – and no longer consider known “background and  
experience”.  
[336] Also of significance is the fact that the Employment Policy states that the process  
includes interviews, but it does not make them preeminent in the process. According to this  
Policy, the interviews are apparently intended to be only one part in the decision-making  
process.  
[337] But all of the City’s witnesses – including both Ms. Forte and Mr. Blake from HR – take  
it as an inflexible rule that if an applicant does not provide a satisfactory answer to a “critical”  
question (or in the special circumstances of the second interview in September a satisfactory  
answer to at least one question addressing each of the “critical” topics), then the candidate was  
simply no longer to be considered. The candidate’s experience, skill, training, and knowledge  
(other factors required to be considered as per the Collective Agreement) would no longer  
matter, if her “ability” were not demonstrated in the interview, regardless of the interviewers’  
knowledge of her ability.  
[338] The closest reference to this approach that appears in the documents is that set out in the  
“Interview Guide” that appears as part of Exhibit 1, Tab 10. This is, as I have mentioned, not  
actually a “policy”, but part of some directions to interviewers as to how they are to carry out the  
City's policies. But this does not require that an individual be eliminated.  
[339] It contains the advice: “Note: if a candidate receives below an acceptable rating and one  
critical target/competency, they do not need to be further considered in a competition. In these  
cases, consult with the Sr. Recruitment Specialist.”  
Classification: Protected A  
- 42 -  
[340] The fact that where an applicant has not provided an acceptable answer the interviewers  
are to consult with the Senior Recruitment Specialist suggests that there are circumstances where  
the candidate may carry on in the process. It seems not to be an automatic elimination.  
[341] In the result, the approach followed does not follow the requirements of the Collective  
Agreement, nor does it follow the City's own Employment Policy, nor does it respect the  
directions that are given to interviewers in the Interview Guide.  
[342] I accept that poor answers given in the interview process will normally adversely affect a  
candidate's chances of success. Poor answers may effectively end a candidate’s chances of  
success, particularly for a candidate who has no work history with a prospective employer. (For  
a discussion of the difference between an interview of an exterior candidate and an interior  
candidate with experience in the position, see Oak Bay (District), (supra), at paragraph 120).  
A Fair, Appropriate and Unbiased Procedure?  
[343] That takes us to the next question posed in the Northern Telecom series of questions:  
Was the procedure by which these standards were applied, a fair, appropriate and unbiased  
procedure? That is, were the specific job requirements, and any methods of evaluation or testing,  
appropriate for the competition and not subjectively biased in favor of one applicant, or  
discriminatory against another?  
The Questions Asked  
[344] The Union has asked that I look closely at the questions that were asked to determine  
whether they were proper. I have not done that because in my view it is not necessary given my  
analysis.  
Unfair Procedure  
[345] I have little doubt that Ms. Forte and Mr. Bernard were attempting to act properly.  
However, that is not the answer to the question. The fact that there was no overt, intentional  
“bad faith” does not answer the question whether the procedure was fair, appropriate and  
unbiased.  
[346] Particularly troubling is the fact that what occurred in May – after Ms. Barrell had  
applied for the promotion, before she was interviewed – included Mr. Blunden’s superior Mr.  
Daudlin making it clear that whatever mistake he thought she had made in May in respect of the  
COVID incident “Did not bode well for her future” with the City. Mr. Daudlin knew that she  
had applied for the promotion; he and Mr. Blunden specifically discussed not telling Ms. Barrell  
what their concerns were in the misguided view that somehow that would be in her own interest.  
They did not want to upset her before the interview, but the result was that she was not given an  
opportunity to explain her actions and the support she received from others, apparently including  
both Mr. Sieben and Mr. Bernard.  
[347] With that statement having been made by Mr. Daudlin to Mr. Blunden, with Mr. Blunden  
making no apparent response, that fact alone should have resulted in the exclusion of both Mr  
Daudlin and Mr. Blunden from the interview committee. Their statements created a reasonable  
apprehension of bias, resulting in an unfair interview process.  
[348] Mr. Daudlin’s statements, made not only to Mr. Blunden but to other staff, made it  
appear that the outcome was clear, at least in respect of Ms. Barrell’s chances of success.  
Classification: Protected A  
- 43 -  
[349] Ms. Barrell then made her complaint under the Respectful Workplace Policy about their  
behavior. The specific complaint was, in effect, that they had undermined her job in Cemeteries.  
[350] What effect would these circumstances have had on Ms. Barrell’s ability to attend an  
interview with Mr. Blunden? She knew what had been said about her to others, behind her back;  
she tried to get feedback and had been given the silent treatment; she knew that she had made her  
complaint (which she was clearly entitled to do) about the man who was running the selection  
process.  
[351] Her own evidence is clear: her ability to answer questions was undermined. She was  
very nervous, she felt scared and intimidated, and felt that she had already failed.  
[352] The fact that she felt this way is corroborated by Ms. Kenny's own evidence. She was  
surprised at how poorly Ms. Barrell had done in the June interview.  
[353] As well, this was a finding of fact that Ms. Forte made in her Investigation Report. She  
stated this:  
The behavior is displayed during this event by G. Daudlin and J. Blunden  
created uncertainty, anxiety, stress to V. Barrell during and after isolation  
without being able to understand what went wrong during this incident. V.  
Barrell was distressed and went to the interview process doubting the integrity  
of the process.  
[354] Ms. Forte’s approach to try to address Ms. Barrell’s distress was to have Ms. Barrell  
interviewed again by Mr. Blunden, only this time with her and Mr. Bernard.  
[355] She made that decision before she completed her investigation; she testified she thought  
that the complaints were more against Mr. Daudlin than Mr. Blunden. Although I have trouble  
understanding how she reached that conclusion based upon the witness statements and Ms.  
Barrell’s own complaint email, once Ms. Forte had completed the investigation it is clear that she  
knew of Ms. Barrell’s distress when she was interviewed by Mr. Blunden, and its causes.  
Bias and Reasonable Apprehension of Bias  
[356] At the time of the first interview, Mr. Blunden did not know that he was the subject of a  
complaint. It may fairly be said that he did not demonstrate any bias resulting from Ms. Barrell’s  
complaint, in part because he was unaware of it.  
[357] However, he was aware of what Mr. Daudlin had said about her future. That discussion  
raised a reasonable apprehension of bias but, to be fair to Mr. Blunden, the Human Resource  
department was not yet involved. He may not have appreciated the optics of what he was doing.  
From his perspective, he would simply have been trying to do what he understood was his job.  
[358] By the time of the second interview in September, the Union had raised the issue with  
Ms. Forte, which she had summarily dismissed as a concern – despite her recognition of Ms.  
Barrell’s distress arising from the fact that she had been interviewed by Mr. Blunden in June.  
[359] In my view, by September the facts were clear.  
[360] Ms. Forte was aware of the effect that the first interview with Mr. Blunden had on her.  
Her view was simply that if she and Mr. Bernard took part, they could make sure that Mr.  
Blunden was not acting in a biased manner.  
Classification: Protected A  
- 44 -  
[361] The fact that Mr. Blunden ultimately did not, in the interview with Ms. Barrell,  
demonstrate any actual bias, as observed by Ms. Forte and Mr. Bernard, misses the point. His  
presence was clearly intimidating to Ms. Barrell. (For a similar circumstance, see Vancouver  
Community College v Vancouver Municipal and Regional Employee’s Union, (supra) at  
paragraphs 56 to 60.)  
[362] By the second interview, Ms. Forte had concluded that Ms. Barrell had gone to the first  
interview doubting the integrity of the process, and Ms. Forte had concluded that the claim that  
Mr. Blunden had bullied Ms. Barrell was substantiated.  
[363] There had been no apology, so there would have been no reason to think that the anxiety  
and stress in June had been resolved by September. As I have mentioned, there is no indication  
of any apology by Mr. Blunden at all. By the time of the second interview, he was not yet aware  
that the claim against him had been substantiated, and therefore I conclude that prior to the  
interview in September he had not, by then, apologized to Ms. Barrell for the behaviour that had  
caused the uncertainty, anxiety and stress.  
[364] It is difficult to understand how the inclusion of the person who had conducted the  
investigation (Ms. Forte), and Mr. Daudlin’s supervisor (Mr. Bernard) would in any way  
alleviate the concerns that had led to the complaint and her anxiety at the first interview, with  
Mr. Blunden still (a) selecting the questions, (b) identifying what was “critical”, (c) taking part in  
the interviews, and then (d) making the final decision about who would be promoted.  
[365] Furthermore, the records of Ms. Barrell’s interview shows that the inclusion of others,  
while leaving Mr. Blunden in charge, in fact did not relieve her anxiety and stress.  
[366] Mr. Blunden’s own notes show that she needed prompting, that questions had to be re-  
read, that she paused for a long time before starting an answer, that she was very awkward, and  
that she was very rushed and panicked throughout.  
[367] The long pause and awkward answer was in response to a question about a circumstance  
where she did not agree with a decision made by her immediate supervisor – that is, by Mr.  
Blunden. He noted that her face became red.  
[368] In light of the fact that Ms. Barrell’s complaint had originated with a decision that had  
apparently been made by her direct supervisor and his supervisor (that she had made an error in  
the COVID incident), that she had asked for feedback, that the two supervisors had consciously  
decided not to discuss it with her but chose to discuss it openly with others, I have no doubt that  
this question, in particular, would have been challenging for Ms. Barrell to answer.  
[369] Ms. Barrell knew that at least part of her complaint against him had been upheld. Yet she  
found herself in an interview that would determine her future with the very person who had  
behaved badly, and that he was accompanied (virtually) by an HR representative who knew  
everything about his poor behaviour (Ms. Forte), along with her supervisor’s superior one step  
removed (Mr. Bernard).  
[370] Ms. Barrell’s behaviour in the interview makes it clear that it adversely affected her  
ability to answer the questions. She was not only having trouble focussing on the issues (that  
was Ms. Forte’s view, because she felt that answers were not responsive to the questions), and  
she was having a physiological response to the circumstances (her face grew red).  
[371] None of the other candidates were in this position. There is no indication that any of  
them had experienced this kind of confrontation with Mr. Blunden (or Mr. Daublin).  
Classification: Protected A  
- 45 -  
[372] According to the Investigation Report, both the successful candidate Mr. Sieben and Mr.  
Bernard had participated with Ms. Barrell in the handling of the COVID incident, in the absence  
of Mr. Daublin and Mr. Blunden, but apparently none of the blame fell to them. There is no  
indication that Mr. Daublin was openly critical of Mr. Sieben.  
[373] Bias can manifest itself in two directions in a selection process. One is in favour of one  
candidate. The other is against one candidate.  
No Requirement that Mr. Blunden be Involved  
[374] It is clear to me that Ms. Forte was trying to do “the right thing” in what clearly were  
unusual circumstances for her. Although she is very experienced in human resource is, it seems  
clear that she had never faced this problem before.  
[375] However, in my view, she made a critical error in concluding that it was an absolute  
requirement that Mr. Blunden be on the interview committee. Of course, there is no such  
requirement in the Collective Agreement, nor is it a part of the City's Employment Policy.  
[376] The particular wording that Ms. Forte relied upon for what she concluded was an  
absolute requirement appears in Exhibit 1, Tab 10, in the directions under the main heading  
“Interviewing” and the subheading “Consider Prior to Interviewing”. It begins with the question  
“What should a hiring supervisor consider prior to interviewing?” In answering that question,  
one of the statements is that quoted above, which is that one panel member must be certified in  
behavioral interviewing, but then it simply states, “the immediate supervisor” with no  
“requirement” mentioned, and then it states that “one panel member... should be exempt”.  
[377] The person who is expected to “consider” these factors is the immediate supervisor. That  
is, these considerations were to have been had by Mr. Blunden. It simply assumes that he would  
be on the interview panel. It does not require, as a matter of absolute policy, that he conduct the  
interviews.  
[378] Far more important than these directions is the statement in the Employment Policy that  
requires that “selection interviews are conducted in a professional and ethical manner”.  
[379] The City’s practice of ensuring that the hiring supervisor would be on the interview  
panel, and that he would make the ultimate decision, was misguided. Although it is the ordinary  
circumstance, in extraordinary circumstances the process must be modified to ensure a  
professional, ethical, and fair process.  
[380] Mr. Blunden should not have taken part, and it was not required that he do so.  
[381] We see in the facts here that there were other alternatives available to the City. Ms.  
Kenny had previously held the Foreman 5 position. She had a lot of relevant experience. She  
knew Ms. Barrell, she had interviewed her before (apparently without intimidation) for the  
Foreman 5 (Relief) position, and it appears she would have known, perhaps also supervised, at  
least some of the other candidates. She had Mr. Blunden’s confidence in helping make the  
selection in June. It appears that she may have been an appropriate substitute for him in  
September.  
Bias: Summary  
Classification: Protected A  
- 46 -  
[382] The process here was clearly biased against Ms. Barrell as a result of Mr. Blunden’s  
involvement in the process. She had a clear disadvantage in the interview process that others did  
not.  
[383] Both interviews disclosed the same problem. She had interviewed for other positions  
before and apparently had done well.  
[384] This reasonable apprehension of bias created an actual bias in the process, against Ms.  
Barrell. She had a disadvantage that other candidates did not.  
[385] In reaching the conclusion that the process was biased, I do not conclude that Mr.  
Blunden himself was consciously or even actually biased. Nonetheless, there is some evidence  
to conclude that he might have been affected by bias. For example:  
(a) His supervisor had told him how he felt about Ms. Barrell’s future with the  
City;  
(b) He had not investigated (on Mr. Daudlin’s direction) the COVID incident in  
May that led to the critical comments about Ms. Barrell, but had participated in  
open discussions critical of her, so he continued to hold the view that she had  
made some mistake without finding out exactly what happened;  
(c) One of the questions that he selected for the second interview was about a  
disagreement with a supervisor’s decision – a topic dangerously close to the  
COVID incident/silent treatment/workplace complaint – but then he saw her long  
pause, awkwardness, and red face as simply an indication that she was  
“struggling” with the answer as an indication that she did not have satisfactory  
ability to do the job;  
(d) He knew that he was the subject of a complaint by her for harassment and  
bullying, although he did not know the outcome; and  
(e) Shortly after he knew that part of the complaint had been substantiated, he  
initiated the process for the appointment of a second foreman 5 (Permanent),  
knowing that for the appointment of the second Foreman 5 (Permanent) position  
there should be another competition – but did not pursue that with HR.  
[386] However, regardless of whether there was actual bias, my conclusion is that there was a  
clear reasonable apprehension of bias that directly adversely affected Ms. Barrell’s performance  
on the interviews, not that bias necessarily affected Mr. Blunden’s actions when her interview  
answers were seen to be less than satisfactory.  
[387] In this regard, I agree with the approach in Vancouver Community College, supra. Mr.  
Blunden should not have taken part. His presence made the process unfair to Ms. Barrell.  
Conclusion  
[388] Returning to the Northern Telecom series of questions, the answers are these:  
1. Was there compliance with the collective agreement?  
No.  
2. Was the procedure by which these standards were applied, a fair, appropriate  
and unbiased procedure?  
No.  
Classification: Protected A  
- 47 -  
3. Was the decision a reasonable one?  
Given the answers to the first two questions, I need not answer this question to  
determine whether the grievance should be allowed.  
If Ms. Barrell were asking for re-instatement, then it might be appropriate to  
consider the answer in order to determine the remedy. The range of remedies is  
broad and the choice is to be determined on a case-by-case basis: see the  
discussion in Mitchnick and Etherington, Labour Arbitration in Canada (3rd ed.)  
in section 20.6, on pages 582-84.  
However, the Union is not asking for re-instatement because, given all of the  
circumstances, Ms. Barrell considers the workplace to be toxic.  
[389] Accordingly, I conclude that the grievance is allowed, and I reserve jurisdiction to hear  
further evidence on remedies and to determine remedy, if the parties are unable to agree.  
[390] I thank counsel and the other participants in the arbitration hearing for their professional  
and courteous behaviour throughout, and I thank both counsel for the Union and for the City for  
their excellent submissions.  
________________________  
Andrew R. Robertson, Q.C.  
Classification: Protected A  


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