Alberta Union of Provincial Employees v. Provincial Health Authorities (Alta.) et al., 2006 ABCA 356

• Judge: Fruman, Costigan and Watson, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 03, 2006
• Citations: 2006 ABCA 356;(2006), 412 A.R. 148 (CA)

AUPE v. Health Authorities (2006), 412 A.R. 148 (CA);

      404 W.A.C. 148

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JL.123

Alberta Union of Provincial Employees (respondent/appellant on cross-appeal/applicant) v. Provincial Health Authorities of Alberta, Continuing Care Employers' Bargaining Association, Alberta Mental Health Board and Capital Health Authority (appellants/respondents on cross-appeal/respondents) and The Attorney General of Alberta (appellant/respondent on cross-appeal/intervenor) and The Alberta Labour Relations Board, the Alberta Federation of Labour, Health Sciences Association of Alberta, United Nurses of Alberta, and Her Majesty the Queen in Right of Alberta (respondents/respondents - not parties to this action)

(0403-0385-AC; 2006 ABCA 356)

Indexed As: Alberta Union of Provincial Employees v. Provincial Health Authorities (Alta.) et al.

Alberta Court of Appeal

Fruman, Costigan and Watson, JJ.A.

November 28, 2006.

Summary:

Support staff at various Alberta hospitals began an unlawful strike on May 24, 2000. The employees were all members of bargaining units represented by the Alberta Union of Provincial Employees (AUPE). In response to applications by the employers, the Alberta Labour Relations Board, in a series of four decisions, directed under s. 114 of the Labour Relations Code that the employers suspend the deduction and remittance of union dues payable by the employees to AUPE. AUPE applied for judicial review.

The Alberta Court of Queen's Bench, in a decision reported at 368 A.R. 225, allowed the application for judicial review in part. The court quashed the Board's first decision. The court dismissed the application with respect to the three other decisions. The employers appealed. AUPE cross-appealed.

The Alberta Court of Appeal allowed the appeal and dismissed the cross-appeal.

Civil Rights - Topic 2204

Freedom of association - Denial of right of - What constitutes - Support staff at various Alberta hospitals began an unlawful strike on May 24, 2000 - The employees were all members of bargaining units represented by the Alberta Union of Provincial Employees (AUPE) - In response to applications by the employers, the Alberta Labour Relations Board directed under s. 114 of the Labour Relations Code that the employers suspend the deduction and remittance of union dues payable by the employees to AUPE - AUPE applied for judicial review - AUPE asserted that s. 114 breached their s. 2(d) Charter right to freedom of association - The reviewing judge allowed the application - The Alberta Court of Appeal allowed an appeal - The judge erred in his approach to the constitutional analysis by finding an infringement without first determining whether the infringement related to a right protected under s. 2(d) - The issue here was whether the union or its members had a constitutional right to the most favourable procedural mechanism to collect those dues, namely the mandatory dues check-off scheme - In order to determine whether there has been an infringement, it had to be demonstrated that the right to this particular collection regime was protected under s. 2(d) - The individual employees' right to have the employer deduct and remit dues was not a common law right, but a right the Legislature had chosen to confer in s. 27 of the Alberta Relations Code - It did not follow that the group analogue of the statutory right had to be constitutionally protected - See paragraphs 27 to 40.

Civil Rights - Topic 8581.2

Canadian Charter of Rights and Freedoms - Practice - Judicial review (incl. standard of review) - [See second Labour Law - Topic 576 ].

Labour Law - Topic 540

Labour relations boards and judicial review - Powers of board - Remedies - Support staff at various Alberta hospitals began an unlawful strike on May 24, 2000 - The employees were all members of bargaining units represented by the Alberta Union of Provincial Employees (AUPE) - The Alberta Relations Board, in a series of four decisions (AUPE 1, AUPE 2, AUPE 3 and AUPE 4), directed under s. 114 of the Labour Relations Code that the employers suspend the deduction and remittance of union dues payable by the employees to AUPE - AUPE applied for judicial review - AUPE argued that the Board erred in its interpretation of s. 114 by holding that the Board could only issue a directive in response to an application by an employer (the AUPE 1 decision) - The reviewing judge allowed the application and quashed the AUPE 1 decision - The plain wording of s. 114 suggested that it was the Board, on its own initiative, that had to direct the employer - The Alberta Court of Appeal allowed an appeal - Section 114 did not expressly outline how the suspension process was initiated and how it unfolded - The Board's concerns with maintaining its adjudicative role and procedural fairness were compelling and its interpretation was one the words of the section could reasonably bear - Accordingly, the board's interpretation should have withstood judicial review on either a patent unreasonableness or reasonableness standard - See paragraphs 18 to 26.

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - General - Standard of review - Support staff at various Alberta hospitals began an unlawful strike on May 24, 2000 - The employees were all members of bargaining units represented by the Alberta Union of Provincial Employees (AUPE) - In response to applications by the employers, the Alberta Labour Relations Board directed under s. 114 of the Labour Relations Code that the employers suspend the deduction and remittance of union dues payable by the employees to AUPE - The Board made interpretative determinations in regards to s. 114 - AUPE applied for judicial review - The Alberta Court of Appeal applied the pragmatic and functional approach and held that the appropriate standard of review of the Board's interpretation of s. 114 was patent unreasonableness - See paragraphs 6 to 17.

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - General - Standard of review - Support staff at various Alberta hospitals began an unlawful strike on May 24, 2000 - The employees were all members of bargaining units represented by the Alberta Union of Provincial Employees (AUPE) - In response to applications by the employers, the Alberta Labour Relations Board directed under s. 114 of the Labour Relations Code that the employers suspend the deduction and remittance of union dues payable by the employees to AUPE - AUPE applied for judicial review - AUPE argued that s. 114 breached their ss. 2(d), 11(b) and 11(h) Charter rights - The reviewing judge held that the standard of review for decisions of the Board on the interpretation and application of the Charter was the least deferential standard of correctness - The Alberta Court of Appeal agreed - See paragraph 28.

Cases Noticed:

Provincial Health Authorities (Alta.), Re, [2001] Alta. L.R.B.R. 187 (Lab. Rel. Bd.), refd to. [para. 3].

Provincial Health Authorities (Alta.), Re, [2002] Alta. L.R.B.R. 230 (Lab. Rel. Bd.), refd to. [para. 3].

Provincial Health Authorities (Alta.), Re, [2003] Alta. L.R.B.R. 448 (Lab. Rel. Bd.), refd to. [para. 3].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193; 11 Admin. L.R.(3d) 130; 1998 CarswellNat 2636, refd to. [para. 6].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; [2003] 5 W.W.R. 1; 223 D.L.R.(4th) 599; 11 B.C.L.R.(4th) 1; 48 Admin. L.R.(3d) 1; 2003 CarswellBC 713, 2003 SCC 19, refd to. [para. 6].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 218 D.L.R.(4th) 61; 2002 ABCA 199, refd to. [para. 6].

Alberta Union of Provincial Employees, Branch 63 v. Public Service Employee Relations Board (Alta.) and Board of Governors of Olds College, [1982] 1 S.C.R. 923; 42 N.R. 559; 37 A.R. 281, refd to. [para. 10].

Alberta v. Labour Relations Board (Alta.) et al. (2002), 293 A.R. 251; 257 W.A.C. 251; 2001 ABCA 299, refd to. [para. 11].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 11].

Alberta Union of Provincial Employees v. Continuing Care Employers' Bargaining Association et al. (2003), 327 A.R. 397; 296 W.A.C. 397; 123 A.C.W.S.(3d) 493; 2003 ABCA 157, refd to. [para. 14].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81; [1990] 3 W.W.R. 289, refd to. [para. 14].

Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 and Labour Relations Board (Ont.), [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321, refd to. [para. 14].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, refd to. [para. 15].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 28].

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. 30].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 31].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) et al., [1990] 2 S.C.R. 367; 112 N.R. 269, refd to. [para. 32].

Ford Motor Co. of Canada Ltd. v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W. - C.I.O.), (2006), 1 Can. Lab. L. Rep. 1250 (Arb.), refd to. [para. 34].

Delisle v. Canada (Attorney General) et al., [1999] 2 S.C.R. 989; 244 N.R. 33, refd to. [para. 37].

Statutes Noticed:

Labour Relations Code, R.S.A. 2000, c. L-1, sect. 114 [para. 19].

Counsel:

W.J. Armstrong, Q.C., for the Provincial Health Authorities of Alberta;

C.W. Neuman, for the Provincial Health Authorities of Alberta, Continuing Care Employers' Bargaining Association and Capital Health Authority;

L.S. Kanee, for Alberta Union of Public Employees;

R.S. Wiltshire, for the Attorney General of Alberta;

W.W. Shores, Q.C., for the Alberta Labour Relations Board.

This appeal and cross-appeal were heard on November 3, 2006, by Fruman, Costigan and Watson, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered on November 28, 2006.