Affinity Credit Union v. United Food and Commercial Workers, Local 1400 et al., 2015 SKCA 22

• Judge: Jackson, Ottenbreit and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 24, 2014
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 22;(2015), 451 Sask.R. 303 (CA)

Affinity Credit v. UFCW (2015), 451 Sask.R. 303 (CA);

    628 W.A.C. 303

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MR.058

Affinity Credit Union (appellant/applicant) v. United Food and Commercial Workers Local 1400 (respondent/respondent) and An Arbitration Board Chaired by Kenneth A. Stevenson, Q.C. (respondent/respondent)

(CACV2523; 2015 SKCA 22)

Indexed As: Affinity Credit Union v. United Food and Commercial Workers, Local 1400 et al.

Saskatchewan Court of Appeal

Jackson, Ottenbreit and Caldwell, JJ.A.

March 20, 2015.

Summary:

Wasylenko was employed as a relationship banking officer with Affinity Credit Union for six years. The position was covered by a collective bargaining agreement (CBA). In August 2011, Wasylenko began a temporary one year position as a mobile mortgage specialist (MMS) which was not covered by the CBA. In September 2012, after Wasylenko advised Affinity that she did not want to remain as an MMS, Affinity terminated her employment on the grounds that she had falsified information on a customer's loan application in order to receive commission compensation. Wasylenko filed a grievance under the CBA alleging unjust termination. Her union filed a policy grievance alleging that Affinity had terminated Wasylenko as a union member in violation of the CBA. In a preliminary decision, the Board of Arbitration held that it had jurisdiction to arbitrate the two grievances. Affinity applied for judicial review.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 437 Sask.R. 198, dismissed the application. Affinity appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See first and second Labour Law - Topic 7041 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See first and second Labour Law - Topic 7041 ].

Labour Law - Topic 7041

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - General - Wasylenko was employed by Affinity Credit Union in a position covered by a collective bargaining agreement (CBA) - In August 2011, Wasylenko began working in a temporary one year position that was not covered by the CBA - The offer for the temporary position stated "If ... you do not wish to continue in this position after the one year period, you will return to your previous or a similar position ..." - In September 2012, Wasylenko advised Affinity that she did not want to remain in the new position - One week later, Affinity terminated her employment for cause - Wasylenko and her union filed grievances - Affinity argued that the Board of Arbitration did not have jurisdiction under the CBA to decide the grievances because Wasylenko was terminated from a position that was not covered by the CBA - The Board held that it did have jurisdiction based on the seniority provision in the CBA which stated "[W]hen an employee occupies a position outside the scope of this Agreement on a temporary basis (not to exceed [14] months), seniority shall not be forfeited ..." - The chambers judge dismissed Affinity's application for judicial review, holding that the Board's conclusion that Wasylenko was entitled to the protection of the CBA for all aspects of the CBA, not only seniority, was a possible, acceptable outcome of interpreting the CBA - The Saskatchewan Court of Appeal dismissed Affinity's appeal - The court rejected Affinity's assertion that the Board was required to draw a jurisdictional line between two competing tribunals and that the chambers judge was therefore required to apply a correctness standard of review - Only a Board of Arbitration appointed pursuant to the CBA had the authority to determine whether Wasylenko had rights under the CBA - See paragraphs 33 to 39.

Labour Law - Topic 7041

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - General - Wasylenko was employed by Affinity Credit Union in a position covered by a collective bargaining agreement (CBA) - In August 2011, Wasylenko began working in a temporary one year position that was not covered by the CBA - The offer for the temporary position stated "If ... you do not wish to continue in this position after the one year period, you will return to your previous or a similar position ..." - In September 2012, Wasylenko advised Affinity that she did not want to remain in the new position - One week later, Affinity terminated her employment for cause - Wasylenko and her union filed grievances - Affinity argued that the Board of Arbitration did not have jurisdiction under the CBA to decide the grievances because Wasylenko was terminated from a position that was not covered by the CBA - The Board held that it did have jurisdiction based on the seniority provision in the CBA which stated "[W]hen an employee occupies a position outside the scope of this Agreement on a temporary basis (not to exceed [14] months), seniority shall not be forfeited ..." - The chambers judge dismissed Affinity's application for judicial review, holding that the Board's conclusion that Wasylenko was entitled to the protection of the CBA for all aspects of the CBA, not only seniority, was a possible, acceptable outcome of interpreting the CBA - The Saskatchewan Court of Appeal dismissed Affinity's appeal - The court rejected Affinity's assertion it had raised a true question of jurisdiction for which the chambers judge was required to apply a correctness standard of review - Given the nature of the dispute, the issue before the Board, the privative clauses in the Trade Union Act and the CBA, and the Supreme Court of Canada's recent jurisprudence respecting arbitral decisions, the standard of review was reasonableness - See paragraphs 40 to 46.

Labour Law - Topic 7041

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - General - Wasylenko was employed by Affinity Credit Union in a position covered by a collective bargaining agreement (CBA) - In August 2011, Wasylenko began working in a temporary one year position that was not covered by the CBA - The offer for the temporary position stated "If ... you do not wish to continue in this position after the one year period, you will return to your previous or a similar position ..." - In September 2012, Wasylenko advised Affinity that she did not want to remain in the new position - One week later, Affinity terminated her employment for cause - Wasylenko and her union filed grievances - Affinity argued that the Board of Arbitration did not have jurisdiction under the CBA to decide the grievances because Wasylenko was terminated from a position that was not covered by the CBA - The Board held that it did have jurisdiction based on the seniority provision in the CBA which stated "[W]hen an employee occupies a position outside the scope of this Agreement on a temporary basis (not to exceed [14] months), seniority shall not be forfeited ..." - The Board decided that the retained seniority was intended to be of use in maintaining job security, including the right to grieve a dismissal - The chambers judge dismissed Affinity's application for judicial review, holding that the Board's conclusion that Wasylenko was entitled to the protection of the CBA for all aspects of the CBA, not only seniority, was a possible, acceptable outcome of interpreting the CBA - The Saskatchewan Court of Appeal dismissed Affinity's appeal - The chambers judge properly applied the reasonableness standard of review to the Board's decision - See paragraphs 47 to 59.

Labour Law - Topic 7112

Industrial relations - Collective agreement - Enforcement - Arbitration - Judicial review - Scope of review - [See first and second Labour Law - Topic 7041 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [paras. 7, 61].

Regina Qu'Appelle Regional Health Authority v. Dewar (2013), 405 Sask.R. 248; 563 W.A.C. 248; 2013 SKCA 3, leave to appeal refused (2013), 460 N.R. 399 (S.C.C.), refd to. [para. 7].

National Trust Co. v. Bouckhuyt (1987), 23 O.A.C. 40; 61 O.R.(2d) 640 (C.A.), refd to. [para. 8].

Eagle Resources Ltd. v. MacDonald, [2002] A.R. Uned. 5; 96 Alta. L.R.(3d) 9; 2002 ABCA 1, refd to. [para. 8].

Sinclair Estate v. Hlady (2014), 438 Sask.R. 103; 608 W.A.C. 103; 2014 SKCA 53, refd to. [para. 8].

Frank v. Linn (2014), 442 Sask.R. 126; 616 W.A.C. 126; 2014 SKCA 87, refd to. [para. 8].

Saskatchewan Union of Nurses v. Sherbrooke Community Centre (1996), 144 Sask.R. 15; 124 W.A.C. 15 (C.A.), refd to. [para. 8].

Halifax (Regional Municipality) v. Human Rights Commission (N.S.) et al., [2012] 1 S.C.R. 364; 428 N.R. 107; 316 N.S.R.(2d) 1; 1002 A.P.R. 1; 2012 SCC 10, refd to. [para. 8].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 25].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 26].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 29].

British Columbia Public School Employers' Association et al. v. British Columbia Teachers' Federation et al. (2014), 464 N.R. 316; 362 B.C.A.C. 1; 622 W.A.C. 1; 380 D.L.R.(4th) 191; 2014 SCC 70, refd to. [para. 31].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 33].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 35].

Woloshen v. Manitoba Baptist Home Society Inc. (2013), 295 Man.R.(2d) 314; 2013 MBQB 191, refd to. [para. 35].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23; 2000 SCC 14, refd to. [para. 36].

Commission des droits de la personne et des droits de la jeunesse (Que.) v. Quebec (Attorney General) et al., [2004] 2 S.C.R. 185; 321 N.R. 290; 2004 SCC 39, refd to. [para. 36].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 40].

Nolan v. Kerry (Canada) Inc. - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 40].

Rogers Communications Inc. et al. v. Society of Composers, Authors and Music Publishers of Canada et al., [2012] 2 S.C.R. 283; 432 N.R. 1; 2012 SCC 35, refd to. [para. 40].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 40].

McCormick v. Fasken Martineau DuMoulin LLP - see Fasken Martineau DuMoulin LLP v. Human Rights Tribunal (B.C.) et al.

Fasken Martineau DuMoulin LLP v. Human Rights Tribunal (B.C.) et al., [2014] 2 S.C.R. 108; 458 N.R. 38; 2014 SCC 39, refd to. [para. 41].

Tervita Corp. et al. v. Commissioner of Competition et al. (2015), 467 N.R. 97; 2015 SCC 3, refd to. [para. 41].

Jarvis v. Associated Medical Services Inc., [1964] S.C.R. 497, refd to. [para. 43].

Saint John Shipbuilding Ltd. v. Saint John Marine Craft Union (1990), 12 L.A.C.(4th) 322, refd to. [para. 43].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, appld. [para. 48].

Trenton & District Association for Community Living v. Ontario Public Service Employees Union, Local 403 (1995), 49 L.A.C.(4th) 129, refd to. [para. 54].

Atomic Energy of Canada Ltd., Engineering Company v. Public Service Alliance of Canada, Local 358 (1983), 12 L.A.C.(3d) 252, refd to. [para. 54].

Windsor Machine Co. Ltd. v. United Steelworkers, Local 7816 (1982), 4 L.A.C.(3d) 331, refd to. [para. 54].

Orillia Soldiers Memorial Hospital v. Ontario Nurses' Association (1992), 31 L.A.C.(4th) 116, refd to. [para. 54].

ICN Strong Cobb Arner Ltd. v. International Association of Machinists, Lodge 877 (1974), 5 L.A.C.(2d) 105, refd to. [para. 55].

Authors and Works Noticed:

Gall, Peter, "Problems with a Faith-Based Approach to Judicial Review" in Judicial Deference to Administrative Tribunals in Canada: Its History and Future (2014), p. 231 [para. 61].

Robertson, Joseph, Gall, Peter, and Daly, Paul, Judicial Deference to Administrative Tribunals in Canada: Its History and Future (2014), p. 44 [para. 45].

Wihak, Lauren J., Wither the Correctness Standard of Review? Dunsmuir, Six Years Later (2014), 27 C.J.A.L.P. 173, generally [para. 40].

Counsel:

Lawrence Seiferling, Q.C., for the appellant;

Dawn McBride, for the respondent, Union.

This appeal was heard on September 24, 2014, before Jackson, Ottenbreit and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the court was delivered on March 20, 2015, including the following opinions:

Jackson, J.A. (Ottenbreit, J.A., concurring) - see paragraphs 1 to 60;

Caldwell, J.A., concurring - see paragraph 61.