Abitibi Consolidated Co. of Canada v. Communications, Energy and Paperworkers Union of Canada, Local 60N, (2008) 273 Nfld. & P.E.I.R. 17 (NLCA)

• Judge: Roberts, Welsh and Rowe, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: January 10, 2008
• Jurisdiction: Newfoundland and Labrador
• Citations: (2008), 273 Nfld. & P.E.I.R. 17 (NLCA);2008 NLCA 4

Abitibi v. CEPU (2008), 273 Nfld. & P.E.I.R. 17 (NLCA);

    833 A.P.R. 17

MLB headnote and full text

Temp. Cite: [2008] Nfld. & P.E.I.R. TBEd. JA.016

Communications, Energy and Paperworkers Union of Canada, Local 60N (appellant/respondent by cross-appeal) v. Abitibi Consolidated Company of Canada (respondent/appellant by cross-appeal)

(06/21; 06/26; 2008 NLCA 4)

Indexed As: Abitibi Consolidated Co. of Canada v. Communications, Energy and Paperworkers Union of Canada, Local 60N

Newfoundland and Labrador Supreme Court

Court of Appeal

Roberts, Welsh and Rowe, JJ.A.

January 10, 2008.

Summary:

A union's grievance was referred to a three person arbitration board. The union and employer each appointed a nominee, and those two nominees chose a third nominee. The union raised a preliminary objection that there existed a reasonable apprehension of bias on the part of the employer nominee. The majority of the board ruled that it had jurisdiction to rule on the objection. The objection was upheld. The majority ruled that the board was no longer properly constituted, requiring the parties to appoint a new board. The employer sought judicial review.

The Newfoundland and Labrador Supreme Court, Trial Division, in a judgment reported (2005), 246 Nfld. & P.E.I.R. 228; 731 A.P.R. 228, allowed the application. The arbitration board lacked jurisdiction to rule on a preliminary objection respecting a reasonable apprehension of bias on the part of one or more of its members. The union appealed.

The Newfoundland and Labrador Court of Appeal allowed the appeal and remitted the matter to the arbitration board. The arbitration board was correct in ruling that it had jurisdiction to rule on the objection based on bias.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - An applications judge held that an arbitration board had no jurisdiction to rule upon a challenge to its jurisdiction based upon a reasonable apprehension of bias on the part of one or more members - The Newfoundland and Labrador Court of Appeal disagreed, stating that "the question of bias, when raised, should be dealt with by the person against whom the allegation is made. The theoretical problems noted by the applications judge ... are outweighed ... particularly in the case of consensual labour arbitration boards, by the practical considerations of efficiency and speedy resolution of employee/employer grievances. The prompt resolution of grievances in the work place is what the arbitration procedure is designed to effect. Grievances which are allowed to fester do nothing for labour peace and good working conditions. Obliged recourse to the court as soon as an allegation of bias is raised would have the effect of causing long and unnecessary delays. There are also the advantages ... of respect for the tribunal and the prevention of unnecessary interference by the court, cost savings and the tempering effect of having to confront the board member with an allegation of bias, thereby also placing on the record the facts relevant to the bias application. Most allegations of bias or reasonable apprehension of bias will resolve themselves either by the party alleging bias being satisfied with the explanation given, or by the person challenged recusing himself or herself. If, however, the person challenged decides there is no good reason for recusal and the party alleging bias is not satisfied, the bias issue can be dealt with by the court by way of judicial review after the arbitration has been heard and a decision filed, together with, if relevant, a judicial review of the decision on its merits. Proceeding in this way fosters timeliness in the resolution of grievances while ensuring that the allegation of bias or reasonable apprehension of bias can, if necessary, be dealt with ultimately by an impartial judiciary." - See paragraphs 35, 36.

Arbitration - Topic 3544

The arbitrator - Appointment - Disqualification for bias - [See Administrative Law - Topic 2088 ].

Cases Noticed:

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201, refd to. [para. 11].

Newfoundland and Labrador (Treasury Board) et al. v. Newfoundland and Labrador Nurses' Union (2006), 258 Nfld. & P.E.I.R. 21; 779 A.P.R. 21 (N.L.C.A.), refd to. [para. 11].

Holwell, Re (1982), 37 Nfld. & P.E.I.R. 377; 104 A.P.R. 377; 139 D.L.R.(3d) 740 (T.D.), refd to. [para. 12].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 13].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 14].

MacDonalds Consolidated Ltd. v. Saskatchewan Joint Board, Retail Wholesale and Department Store Union and Dickinson (1988), 65 Sask.R. 224 (Q.B.), refd to. [para. 16].

Beno v. Letourneau et al. (1996), 207 N.R. 76 (F.C.A.), refd to. [para. 17].

Beno v. Létourneau et al., [1997] 1 F.C. 911; 126 F.T.R. 241 (T.D.), refd to. [para. 18].

Beno v. Létourneau et al., [1997] 2 F.C. 527; 212 N.R. 357 (F.C.A.), leave to appeal dismissed (1997), 224 N.R. 395 (S.C.C.), refd to. [para. 21].

Flamborough v. National Energy Board International Pipeline Ltd. and Canada (1984), 55 N.R. 95 (F.C.A.), refd to. [para. 22].

Eckervogt et al. v. British Columbia (Minister of Employment and Investment) (2004), 201 B.C.A.C. 302; 328 W.A.C. 302; 241 D.L.R.(4th) 685 (C.A.), refd to. [para. 23].

Robertson v. Edmonton Chief of Police et al., [2005] 11 W.W.R. 656; 362 A.R. 44 (Q.B.), refd to. [para. 24].

SOS-Save Our St. Clair Inc. v. Toronto (City) et al. (2005), 204 O.A.C. 63; 78 O.R.(3d) 331 (Div. Ct.), refd to. [para. 25].

Saint John (City) v. Canadian Union of Public Employees, Local 18 (1986), 24 L.A.C.(3d) 152 (Arb. Bd.), refd to. [para. 32].

Authors and Works Noticed:

Brown, Donald J.M., and Beatty, David M., Canadian Labour Arbitration (4th Ed. 2006) (2007 Looseleaf Update), para. 1:5210 [para. 26].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (4th Ed. 2004), pp. 412 to 414 [para. 34].

Lester, Geoffrey S., Bias, How and When to Raise the Objection (1997), 3 A.A.P. 49, p. 50 [para. 30].

Mullan, David, and Boyle, Martha, Raising and Dealing with Issues of Bias and Disclosure (2005), 18 C.J.A.L.P. 37, pp. 48 [para. 27]; 50, 51 [para. 28].

Palmer, Earl Edward, and Palmer, Bruce Murdoch, Collective Agreement Arbitration in Canada (3rd Ed. 1991), p. 12 [para. 31].

Yee, Gary, Procedures in Dealing with Bias - The Adjudicator's Perspective (1997), 3 A.A.P. 54, p. 59 [para. 29].

Counsel:

John Harris, Q.C., for the appellant;

Augustus Lilly, Q.C., for the respondent.

This appeal was heard on November 7, 2007, before Roberts, Welsh and Rowe, JJ.A., of the Newfoundland and Labrador Court of Appeal.

On January 10, 2008, Roberts, J.A., delivered the following judgment for the Court of Appeal.