Agrium Vanscoy Potash Operations v. United Steel Workers, Local 7552 et al., 2014 SKCA 79

• Judge: Richards, C.J.S., Whitmore and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 26, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKCA 79;(2014), 442 Sask.R. 42 (CA)

Agrium Vanscoy Potash v. USW (2014), 442 Sask.R. 42 (CA);

    616 W.A.C. 42

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AU.002

Agrium Vanscoy Potash Operations (appellant/applicant) v. United Steel Workers Local 7552 (respondent/respondent) and An Arbitration Board comprised of Francine Chad Smith (Sole Arbitrator) (respondent/respondent)

(CACV2506; 2014 SKCA 79)

Indexed As: Agrium Vanscoy Potash Operations v. United Steel Workers, Local 7552 et al.

Saskatchewan Court of Appeal

Richards, C.J.S., Whitmore and Ryan-Froslie, JJ.A.

July 24, 2014.

Summary:

The union representing a number of employees at Agrium (a potash mine) filed a grievance respecting Agrium's ability to employ an independent contractor (TMCC). TMCC applied for intervener status in the grievance. The arbitrator dismissed the application. The union and Agrium agreed to bifurcate the issues of liability and remedy. On the substantive issues, the arbitrator ruled in favour of the union and directed that TMCC be removed from the work site. The parties had not yet led evidence or made arguments respecting the appropriate remedy. Agrium applied for judicial review, arguing that the arbitrator breached the principles of natural justice and procedural fairness and/or committed a jurisdictional error by (1) refusing to grant standing to TMCC, and (2) breaching the audi alteram partem rule when she ordered a remedy against Agrium without Agrium having made representations in relation to the remedy.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2013), 435 Sask.R. 178, found that the arbitrator breached the duty of procedural fairness by ordering a remedy before the parties were given an opportunity to address the matter. The order was quashed and returned to the arbitrator for the purpose of completing the arbitration process by hearing representations on remedy and coming to a final conclusion on that issue. The application respecting TMCC's standing was dismissed because Agrium did not have standing to bring such an application and also because it was premature as the arbitrator had not come to a final conclusion on the grievance. Agrium appealed, submitting that the court should have quashed the arbitrator's decision in its entirety and referred the grievance to a new arbitrator to be dealt with afresh.

The Saskatchewan Court of Appeal dismissed the appeal.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - The appellant in a labour dispute asserted that an arbitrator's decision had created a reasonable apprehension of bias - The Saskatchewan Court of Appeal stated that "the test for reasonable apprehension of bias in this appeal is whether reasonable and right-minded people, apprised of the relevant information and viewing the matter realistically and practically, would think it more likely than not that the arbitrator would not fairly decide the remedies issue remitted to her. In making that assessment, it is necessary to bear in mind three other points ... The first point is that, as is typical in the administrative law field, the question of bias is contextual and will depend, among other things, on the nature of the decision-maker. ... Second, a mere suspicion of bias, or a mere concern about bias, is not enough to satisfy the test. Bias must be 'more likely than not' ... There must be 'a real likelihood or probability of bias' ... Third, the 'reasonable person' contemplated by the test is an informed person, with knowledge of all of the relevant circumstances, including relevant traditions of integrity and impartiality." - See paragraphs 39 to 42.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - The union representing employees at Agrium (a potash mine) filed a grievance respecting Agrium's ability to employ an independent contractor (TMCC) - The union and Agrium agreed to bifurcate the issues of liability and remedy - On the substantive issues, the arbitrator ruled in favour of the union and directed that TMCC be removed from the work site - The parties had not yet led evidence or made arguments respecting the appropriate remedy - A chambers judge allowed Agrium's judicial review application, finding that the arbitrator erred by dealing with remedies in the absence of submissions from the parties - The judge quashed the remedies portion of the arbitrator's decision and remitted the issue back to her - Agrium appealed, arguing that the arbitrator should not have been allowed to deal further with the remedies issue because her decision to order TMCC off the work site created a reasonable apprehension of bias - The Saskatchewan Court of Appeal dismissed the appeal - The arbitrator might have lost track of the limits of her mandate, but this did not mean that reasonable people, viewing the situation reasonably and practically, would conclude it was more likely than not that she would not decide the remedies issue fairly - A key factor was the union's position that it would not ask for TMCC's removal, which meant that the arbitrator would not be in the position of deciding an issue on which she had already given an opinion - Where the arbitrator had already found a violation of the collective agreement, a general mindset which favoured the granting of some sort of remedy did not itself engage concerns about fairness - See paragraphs 47 to 51.

Administrative Law - Topic 2668

Natural justice - Denial - Remedies - Remittal of award or decision - The union representing employees at Agrium (a potash mine) filed a grievance respecting Agrium's ability to employ an independent contractor (TMCC) - The union and Agrium agreed to bifurcate the issues of liability and remedy - On the substantive issues, the arbitrator ruled in favour of the union and directed that TMCC be removed from the work site - The parties had not yet led evidence or made arguments respecting the appropriate remedy - A chambers judge allowed Agrium's judicial review application, finding that the arbitrator offended the audi alteram partem rule by dealing with remedies in the absence of submissions from the parties - The judge quashed the remedies portion of the arbitrator's decision and remitted the issue back to her - Agrium appealed, arguing that the arbitrator's error caused her to permanently lose jurisdiction over the entire grievance - The Saskatchewan Court of Appeal dismissed the appeal - Agrium's argument ran counter to a body of law that held that a court could refer a matter back to an administrative decision-maker for reconsideration after an original decision had been quashed - See paragraph 29.

Arbitration - Topic 7915

Judicial review (incl. appeals) - Jurisdiction of the courts - Power to review and remit an award - [See Administrative Law - Topic 2668 ].

Arbitration - Topic 8406

Judicial review (incl. appeals) - Grounds - Misconduct - Bias - Lack of impartiality - [See second Administrative Law - Topic 2088 ].

Arbitration - Topic 8570

Judicial review (incl. appeals) - Practice - Remittal of award - General principles - [See Administrative Law - Topic 2668 ].

Arbitration - Topic 8573

Judicial review (incl. appeals) - Practice - Remittal of reward - Circumstances when remittal appropriate - [See Administrative Law - Topic 2668 ].

Arbitration - Topic 8596

Judicial review (incl. appeals) - Practice - Setting aside ruling or award - General principles - The union representing employees at Agrium (a potash mine) filed a grievance respecting Agrium's ability to employ an independent contractor (TMCC) - The union and Agrium agreed to bifurcate the issues of liability and remedy - On the substantive issues, the arbitrator ruled in favour of the union and directed that TMCC be removed from the work site - The parties had not yet led evidence or made arguments respecting the appropriate remedy - A chambers judge allowed Agrium's judicial review application, finding that the arbitrator erred by dealing with remedies in the absence of submissions from the parties - The judge quashed the remedies portion of the arbitrator's decision and remitted the issue back to her - Agrium appealed, arguing that the chambers judge erred by assuming that he could quash only a part of the arbitrator's decision - The Saskatchewan Court of Appeal dismissed the appeal - It was possible to quash only one aspect of a decision if that aspect was clearly excisable from the rest of the decision - Agrium itself effectively acknowledged that the question of a breach of the collective agreement and the question of remedy were independent issues when it agreed that the grievance should proceed in two separate stages - See paragraphs 19 to 28.

Labour Law - Topic 646

Labour relations boards and judicial review - Natural justice - Denial of - Bias - What constitutes - [See second Administrative Law - Topic 2088 ].

Cases Noticed:

Wal-Mart Canada Corp. v. United Food and Commercial Workers, Local 1400 et al. (2010), 359 Sask.R. 131; 494 W.A.C. 131; 321 D.L.R.(4th) 397; 2010 SKCA 89, refd to. [para. 13].

Re Libby, McNeill & Libby of Canada et al. (1978), 91 D.L.R.(3d) 281 (Ont. C.A.), refd to. [para. 19].

Hoogendoorn v. Greening Metal Products and Screening Equipment Co. Ltd. (1967), 62 D.L.R.(2d) 167 (Ont. C.A.), refd to. [para. 24].

Melia v. Moose Jaw Roman Catholic Separate School District No. 22 (1978), 91 D.L.R.(3d) 681 (Sask. Q.B.), varied (1979), 1 Sask.R. 244; 108 D.L.R.(3d) 113 (C.A.), refd to. [para. 26].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 27].

Northern Taxi Ltd. v. Manitoba Labour Board (1958), 18 D.L.R.(2d) 122 (Man. Q.B.), refd to. [para. 27].

R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256, refd to. [para. 31].

Sask. U.F.C.W., Loc. 1400-F6 v. Shelly Western - see Westfair Foods Ltd. v. Saskatchewan United Food and Commercial Workers, Local 1400-F6 and Williams.

Westfair Foods Ltd. v. Saskatchewan United Food and Commercial Workers, Local 1400-F6 and Williams, [1986] 4 W.W.R. 84; 47 Sask.R. 315 (C.A.), refd to. [para. 33].

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon et al., [1968] 3 All E.R. 304 (C.A.), refd to. [para. 33].

Spence v. Spencer and Prince Albert Board of Police Commissioners (1987), 53 Sask.R. 35 (C.A.), refd to. [para. 34].

Committee for Justice & Liberty et al. v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, appld. [para. 34].

Kruczko v. North Canadian Oils Ltd. (1989), 74 Sask.R. 39 (C.A.), refd to. [para. 34].

Milne v. Joint Chiropractic Professional Review Committee (1992), 97 Sask.R. 299; 12 W.A.C. 299; 90 D.L.R.(4th) 634 (C.A.), refd to. [para. 35].

Pasiechnyk et al. v. Procrane Inc. et al. (1992), 97 Sask.R. 286; 12 W.A.C. 286; 90 D.L.R.(4th) 344 (C.A.), refd to. [para. 36].

Grabowski et al. v. Joint Chiropractic Professional Review Committee (Sask.) et al. (2000), 199 Sask.R. 10; 232 W.A.C. 10; 2000 SKCA 61, refd to. [para. 37].

Wal-Mart Canada Corp. v. Labour Relations Board (Sask.) et al. (2006), 289 Sask.R. 20; 382 W.A.C. 20; 2006 SKCA 142, refd to. [para. 37].

Yorkton (City) v. Yorkton Professional Firefighters Association, Local 1527 et al. (2001), 213 Sask.R. 161; 260 W.A.C. 161; 207 D.L.R.(4th) 651; 2001 SKCA 128, refd to. [para. 37].

Howard Johnson Inn et al. v. Human Rights Tribunal (Sask.) et al. (2011), 375 Sask.R. 288; 525 W.A.C. 288; 2011 SKCA 110, refd to. [para. 37].

Elite Swine Inc. et al. v. Moosomin No. 121 (Rural Municipality) (2007), 293 Sask.R. 167; 397 W.A.C. 167; 2007 SKCA 38, refd to. [para. 37].

Merchant v. Law Society of Saskatchewan (2014), 438 Sask.R. 110; 608 W.A.C. 110; 2014 SKCA 56, refd to. [para. 37].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [para. 40].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 40].

Miglin v. Miglin, [2003] 1 S.C.R. 303; 302 N.R. 201; 171 O.A.C. 201; 2003 SCC 24, refd to. [para. 40].

R. v. Burke (H.P.), [2002] 2 S.C.R. 857; 290 N.R. 71; 160 O.A.C. 271; 2002 SCC 55, refd to. [para. 40].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 40].

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241, refd to. [para. 40].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 42].

Judges v. Saskatchewan (Attorney General) (1937), 2 D.L.R. 209 (P.C.), refd to. [para. 46].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2013) (Looseleaf), vol. 2, paras. 5:2251 [para. 23]; 12:6310 [para. 43].

Mullan, David J., Administrative Law (2001), p. 321 [para. 31].

Counsel:

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

Gary Bainbridge, for the respondent.

This appeal was heard on May 26, 2014, before Richards, C.J.S., Whitmore and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. Richards, C.J.S., delivered the following written reasons for the court on July 24, 2014.