Alberta Union of Provincial Employees v. Alberta et al., 2013 ABQB 83

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 18, 2012
• Citations: 2013 ABQB 83;(2013), 555 A.R. 314 (QB)

AUPE v. Alta. (2013), 555 A.R. 314 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MR.009

Alberta Union of Provincial Employees (applicant) v. The Government of Alberta and the Attorney General for the Province of Alberta (respondents)

(1103-15524; 2013 ABQB 83)

Indexed As: Alberta Union of Provincial Employees v. Alberta et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

February 4, 2013.

Summary:

The Alberta Union of Provincial Employees (AUPE) filed a policy grievance alleging that the employer had excluded 6,774 employees from the AUPE bargaining unit and that such exclusion was a breach of s. 2(d) of the Canadian Charter of Rights and Freedoms (freedom of association) . The employer raised preliminary objections to the Arbitration Board's jurisdiction to hear the grievance and argued that the decision in Ontario (Attorney General) v. Fraser (2011 SCC) definitively settled the constitutional issues and that the grievance should be dismissed on a preliminary basis. The Arbitration Board concluded that there was no breach and that therefore AUPE's grievance could not succeed. The Arbitration Board dismissed the grievance without an evidentiary hearing. AUPE applied for judicial review.

The Alberta Court of Queen's Bench dismissed the application.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - The Alberta Union of Provincial Employees (AUPE) filed a policy grievance alleging that the employer had excluded 6,774 employees from the AUPE bargaining unit pursuant to s. 12 of the Public Service Employee Relations Act (PSERA) and that such exclusion was a breach of s. 2(d) of the Charter (freedom of association) - The employer raised preliminary objections to the Arbitration Board's jurisdiction to hear the grievance and argued that the decision in Ontario (Attorney General) v. Fraser (2011 SCC) definitively settled the constitutional issues and the grievance should be dismissed on a preliminary basis - The Arbitration Board concluded that there was no breach and that AUPE's grievance could not succeed - The Arbitration Board dismissed the grievance without an evidentiary hearing - AUPE applied for judicial review - At issue was whether the Board breached procedural fairness in deciding the issue on a preliminary basis, rather than going to a full hearing on the merits - The Alberta Court of Queen's Bench dismissed the application - AUPE was fully aware that the employer was taking the position that the grievance should be summarily dismissed because AUPE could not establish that s. 12 of the PSERA breached s. 2(d) of the Charter, given the decision in Fraser - Before the Board, AUPE argued its interpretation of PSERA and the legal implications of the decision in Fraser - The issue before the Board did not require evidence and could be decided purely on the questions of law - There was no breach of the duty to be fair - See paragraphs 29 and 30.

Labour Law - Topic 9125

Public service labour relations - Adjudication of grievances by adjudicators or boards - General - The Alberta Union of Provincial Employees (AUPE) filed a policy grievance alleging that the employer had excluded 6,774 employees from the AUPE bargaining unit pursuant to s. 12 of the Public Service Employee Relations Act (PSERA) and that such exclusion was a breach of s. 2(d) of the Charter (freedom of association) - The employer raised preliminary objections to the Arbitration Board's jurisdiction to hear the grievance and argued that the decision in Ontario (Attorney General) v. Fraser (2011 SCC) definitively settled the constitutional issues and the grievance should be dismissed on a preliminary basis - The Arbitration Board concluded that there was no breach and that AUPE's grievance could not succeed - The Arbitration Board dismissed the grievance without an evidentiary hearing - AUPE applied for judicial review - At issue was whether the Board erred in deciding the preliminary issue in an analogous manner to a motion to strike or summary dismissal and whether the Board applied the correct test - The Alberta Court of Queen's Bench dismissed the application - The Board did not fail to apply the appropriate test - It was clear that the Board was applying a standard similar to the "plain and obvious" test at common law - See paragraphs 31 to 40.

Labour Law - Topic 9128

Public service labour relations - Adjudication of grievances - Jurisdiction of adjudicators or boards - The Alberta Union of Provincial Employees (AUPE) filed a policy grievance alleging that the employer had excluded 6,774 employees from the AUPE bargaining unit pursuant to s. 12 of the Public Service Employee Relations Act (PSERA) and that such exclusion was a breach of s. 2(d) of the Charter (freedom of association) - The employer raised preliminary objections to the Arbitration Board's jurisdiction to hear the grievance and argued that the decision in Ontario (Attorney General) v. Fraser (2011 SCC) definitively settled the constitutional issues and the grievance should be dismissed on a preliminary basis - The Arbitration Board concluded that there was no breach and that AUPE's grievance could not succeed - The Arbitration Board dismissed the grievance without an evidentiary hearing - AUPE applied for judicial review - At issue was whether the Board exceeded its jurisdiction in choosing to consider the preliminary objections - The Alberta Court of Queen's Bench dismissed the application - The Board's decision to consider whether the Notice of Question of Constitutional Law should be dismissed and that as a result the grievance had to inevitably fail, was not an exceptional situation - It involved an experienced arbitration board exercising its discretion to address a preliminary issue raised and argued before it - This was not a question of jurisdiction - The Board did not commit a jurisdictional error in deciding to dismiss the grievance summarily on the basis that the constitutional question disposed of the grievance - See paragraphs 25 to 28.

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Scope of review (incl. standard) - The Alberta Union of Provincial Employees (AUPE) filed a policy grievance alleging that the employer had excluded 6,774 employees from the AUPE bargaining unit pursuant to s. 12 of the Public Service Employee Relations Act (PSERA) and that such exclusion was a breach of s. 2(d) of the Charter (freedom of association) - The employer raised preliminary objections to the Arbitration Board's jurisdiction to hear the grievance and argued that the decision in Ontario (Attorney General) v. Fraser (2011 SCC) definitively settled the constitutional issues and the grievance should be dismissed on a preliminary basis - The Arbitration Board concluded that there was no breach and that AUPE's grievance could not succeed - The Arbitration Board dismissed the grievance without an evidentiary hearing - AUPE applied for judicial review - The Alberta Court of Queen's Bench held that the standard of review of the Board's decision to dismiss the claim was reasonableness - The Board could apply the concepts of summary dismissal and applications to strike in a manner that was reasonable given the arbitration context - Constitutional questions were subject to the correctness standard - Questions of procedural fairness were not subject to a standard of review, but required an assessment of the procedures and safeguards required in a particular situation - Finally, the Board's interpretation of s. 12 of the Public Service Employee Relations Act was subject to the reasonableness standard - See paragraphs 19 to 24.

Labour Law - Topic 9454

Public service labour relations - Certification - Appropriate bargaining unit - Determination of persons included - The Alberta Union of Provincial Employees (AUPE) filed a policy grievance alleging that the employer had excluded 6,774 employees from the AUPE bargaining unit pursuant to s. 12 of the Public Service Employee Relations Act (PSERA) and that such exclusion was a breach of s. 2(d) of the Charter (freedom of association) - The employer raised preliminary objections to the Arbitration Board's jurisdiction to hear the grievance and argued that the decision in Ontario (Attorney General) v. Fraser (2011 SCC) definitively settled the constitutional issues and the grievance should be dismissed on a preliminary basis - The Arbitration Board concluded that there was no breach and that AUPE's grievance could not succeed - The Arbitration Board dismissed the grievance without an evidentiary hearing - AUPE applied for judicial review - At issue was whether the Board erred in its application of the decision in Fraser - The Alberta Court of Queen's Bench dismissed the application - AUPE's claim was seeking a particular statutory scheme, and the remedies it sought, inclusion of the excluded employees in its bargaining unit and the remittance of union dues, made that apparent - AUPE's claim did not allege that these employees were deprived of their associational rights under s. 2(d), only that their exclusion from the PSERA constituted a breach of the collective agreement and the Charter - Even if AUPE had attempted to grieve specific instances in which excluded employees were unable to pursue collective action, such a grievance would fail as it would not be a dispute under the collective agreement - Under the reasoning in Fraser, the excluded employees' s. 2(d) rights existed outside of the PSERA legislative framework; the excluded employees did fall within the single bargaining unit under s. 10 of PSERA; and AUPE was not their bargaining agent - These employees would have to invoke the Charter directly if they alleged their rights to organize and engage in good faith discussions with their employer were breached - The Board correctly interpreted and applied Fraser when it concluded that s. 12 of the Act did not breach s. 2(d) of the Charter - See paragraphs 45 to 53.

Labour Law - Topic 9454

Public service labour relations - Certification - Appropriate bargaining unit - Determination of persons included - The Alberta Union of Provincial Employees (AUPE) filed a policy grievance alleging that the employer had excluded 6,774 employees from the AUPE bargaining unit pursuant to s. 12 of the Public Service Employee Relations Act (PSERA) and that such exclusion was a breach of s. 2(d) of the Charter (freedom of association) - The employer raised preliminary objections to the Arbitration Board's jurisdiction to hear the grievance and argued that the decision in Ontario (Attorney General) v. Fraser (2011 SCC) definitively settled the constitutional issues and the grievance should be dismissed on a preliminary basis - The Arbitration Board concluded that there was no breach and that AUPE's grievance could not succeed - The Arbitration Board dismissed the grievance without an evidentiary hearing - AUPE applied for judicial review - At issue was whether the Board erred in its interpretation of s. 12(1) of the PSERA - The Alberta Court of Queen's Bench dismissed the application - AUPE's argument ignored an important principle of statutory interpretation, the presumption of constitutionality - If it was possible to interpret legislation in a manner that was constitutional, that approach should be adopted - The Board interpreted s. 12's prohibition against including certain employees in any bargaining unit for collective bargaining as referring only to bargaining units and collective bargaining for the purposes of the Act - This interpretation suggested that the employees excluded under s. 12 would be free to take collective action by making representations to the employer outside of the established labour relations scheme - That interpretation was both reasonable and respected the presumption of constitutional validity - See paragraphs 41 to 44.

Statutes - Topic 2267

Interpretation - Presumption and rules in aid - In favour of validity - [See second Labour Law - Topic 9454 ].

Cases Noticed:

Fraser et al. v. Ontario (Attorney General) (2011), 415 N.R. 200; 275 O.A.C. 205; 2011 SCC 20, refd to. [para. 5].

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [para. 9].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 9].

Capital Estate Planning Corp. v. Lynch et al. (2011), 510 A.R. 244; 527 W.A.C. 244; 2011 ABCA 224, refd to. [para. 19].

Mallet v. Administrator, Motor Vehicle Accident Claims Act (Alta.) - see Foley v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al.

Foley v. Administrator, Motor Vehicle Accident Claims Act (Alta.) et al. (2002), 330 A.R. 1; 299 W.A.C. 1; 2002 ABCA 297, refd to. [para. 19].

International Union of Operating Engineers, Local 955 v. North American Mining Inc., [2011] A.R. Uned. 53; 2011 ABQB 24, refd to. [para. 19].

783783 Alberta Ltd. v. Canada (Attorney General) et al. (2010), 482 A.R. 136; 490 W.A.C. 136; 2010 ABCA 226, refd to. [para. 19].

Mitten v. College of Alberta Psychologists et al. (2010), 487 A.R. 198; 495 W.A.C. 198; 2010 ABCA 159, refd to. [para. 19].

Heikkila v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2007), 404 A.R. 33; 394 W.A.C. 33; 2007 ABCA 92, refd to. [para. 19].

Walton International Group Inc. v. Rocky View No. 44 (Municipal District) et al., [2007] A.R. Uned. 6; 2007 ABCA 21, refd to. [para. 19].

Calgary Co-operative Association Ltd. v. Calco Club (1992), 24 L.A.C.(4th) 308 (Alta. Arb. Bd.), refd to. [para. 21].

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, refd to. [para. 22].

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. 22].

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, refd to. [para. 24].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 24].

Moreau-Bérubé v. New Brunswick (Judicial Council) - see Conseil de la magistrature (N.-B.) v. Moreau-Bérubé.

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 24].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 25].

Syndicat des professeurs du College de Lévis Lauzon et al. v. College d'enseignement general et professional de Lévis-Lauzon, [1985] 1 S.C.R. 596; 59 N.R. 194, refd to. [para. 25].

Wong v. Leung - see V.W.W. v. Leung.

V.W.W. v. Leung (2011), 530 A.R. 82; 2011 ABQB 688 (Master), refd to. [para. 32].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 41].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, refd to. [para. 42].

Alberta Union of Provincial Employees v. Provincial Health Authorities (Alta.) et al. (2006), 412 A.R. 148; 404 W.A.C. 148; 2006 ABCA 356, refd to. [para. 47].

Delisle v. Canada (Attorney General) et al., [1999] 2 S.C.R. 989; 244 N.R. 33, refd to. [para. 50].

Statutes Noticed:

Public Service Employee Relations Act, R.S.A. 2000, c. P-43, sect. 12 [para. 2].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), pp. 184, 185 [para. 21].

Dyzenhaus, David, The Politics of Deference: Judicial Review and Democracy, in Taggart, Michael, The Province of Administrative Law (1997), p. 304 [para. 39].

Taggart, Michael, The Province of Administrative Law (1997), p. 304 [para. 39].

Counsel:

William J. Johnson, Q.C. (McGown Johnson), for the applicant;

Rod Wiltshire (Alberta Department of Justice), for the respondent, Attorney General for the Province of Alberta;

Hugh McPhail, Q.C. (McLennan Ross), for the respondent, Government of Alberta.

This application was heard on October 18, 2012, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on February 4, 2013.