Alberta Union of Provincial Employees v. Health Sciences Association of Alberta et al., 2008 ABQB 279

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 22, 2008
• Citations: 2008 ABQB 279;(2008), 449 A.R. 338 (QB)

AUPE v. Health Sciences Assoc. (2008), 449 A.R. 338 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. MY.122

In The Matter Of the Labour Relations Code, R.S.A. 2000, c. L-1;

And In The Matter Of a decision of the Alberta Labour Relations Board, dated April 24, 2006, pertaining to a determination application.

Alberta Union of Provincial Employees (applicant) v. Health Sciences Association of Alberta and Capital Health Authority and Alberta Labour Relations Board (respondents)

(0603 06314)

In The Matter Of the Labour Relations Code, R.S.A. 2000, c. L-1;

And In The Matter Of a decision of the Alberta Labour Relations Board, dated November 6, 2006, pertaining to a determination application.

Alberta Union of Provincial Employees (applicant) v. Health Sciences Association of Alberta and Capital Health Authority And Alberta Labour Relations Board (respondents)

(0603 15203; 2008 ABQB 279)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

May 15, 2008.

Summary:

At issue was the determination of the appropriate bargaining units for three classifications of employees: dental and registered dental assistants; physical therapy and rehabilitation assistants; and speech language pathology assistants. The Alberta Union of Provincial Employees (AUPE) represented bargaining units specified as "auxiliary nursing care" and "general support services" (GSS). The Health Sciences Association of Alberta represented "paramedical professional or technical services" (PPT). The Labour Relations Board assigned the dental assistants, registered dental assistants, physical therapy assistants and rehabilitation assistants to the PPT unit and the speech language pathology assistants to the GSS unit. AUPE's application for a reconsideration was dismissed summarily. AUPE applied for judicial review.

The Alberta Court of Queen's Bench allowed the application. The board's original decision and the reconsideration were quashed and the matter was remitted for a new hearing.

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - [See Labour Law - Topic 626 ].

Estoppel - Topic 396

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In labour relations proceedings - [See Labour Law - Topic 626 ].

Labour Law - Topic 406

Labour relations boards and judicial review - Boards - General - Whether board bound by its prior decisions - [See first Labour Law - Topic 580 ].

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - General - Standard of review - In the context of a union's application for judicial review of a labour relations board's determination of the appropriate bargaining units for three classifications of employees, the Alberta Court of Queen's Bench discussed the reasonableness standard of review following Dunsmuir (S.C.C. 2008) - The new reasonableness standard was more akin to "reasonableness simpliciter" than to the "patently unreasonable" standard - However, due to the deference customarily afforded to labour relations boards, there were few decisions where board decisions had been reviewed on the basis of reasonableness simpliciter - A number of decisions had been set aside on the basis of patent unreasonableness - Those cases stood for the proposition that a board decision was patently unreasonable and, therefore, necessarily also unreasonable where the board had (a) failed to adopt the standard analytical approach that required a broad, expansive and purposive interpretation of the legislation; (b) failed to apply an analysis consistent with prior board decisions or case law, or otherwise to apply the proper legal test so as to destroy an element of certainty; (c) failed to weigh and consider relevant evidence; or (d) based its decision on faulty conclusions or principles - See paragraphs 20 to 45.

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - General - Standard of review - In the context of a union's application for judicial review of a labour relations board's determination of the appropriate bargaining units for three classifications of employees, the Alberta Court of Queen's Bench held that the reasonableness standard of review following Dunsmuir (S.C.C. 2008) was concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process and with whether the decision fell within a range of possible acceptable outcomes that were defensible in respect of the facts and the law - Therefore, the reviewing court had to first determine whether the decision in question was justified, transparent and intelligible - If so, the court had to then consider whether the decision fell within the range of possible outcomes, given the facts and law - See paragraph 83.

Labour Law - Topic 580

Labour relations boards and judicial review - Judicial review - General - Of board's inclusion of employees in the bargaining unit - At issue was the determination of the appropriate bargaining units for three classifications of employees: dental and registered dental assistants; physical therapy and rehabilitation assistants; and speech language pathology assistants - The Alberta Union of Provincial Employees (AUPE) represented bargaining units specified as "auxiliary nursing care" (ANC) and "general support services" (GSS) - The Health Sciences Association of Alberta (HSAA) represented "paramedical professional or technical services" (PPT) - The Labour Relations Board assigned the dental assistants, registered dental assistants, physical therapy assistants and rehabilitation assistants to the PPT unit and the speech language pathology assistants to the GSS unit - AUPE's application for a reconsideration was dismissed summarily - AUPE applied for judicial review - The Alberta Court of Queen's Bench indicated that key to the determination of the application was whether the board's decision was so out of keeping with previous decisions as to render it unacceptable - This required an overview of the previous relevant decisions and a consideration of the extent to which they were binding on the board - After summarizing a number of points that flowed from the ratios of those cases, the court noted that the employees in question did not clearly fall within one of the three units, ANC, GSS or PPT, and no decisions had been put before the court where the contest was between these units - The board adopted a contextual approach to the problem and where its conclusions reasonably flowed from previous decisions, those conclusions were reasonable - Such boards were not strictly bound by the principle of stare decisis, but had to be free to make decisions that they felt were appropriate to changing circumstances, provided that they acted reasonably and within their jurisdiction - See paragraphs 83 to 107.

Labour Law - Topic 580

Labour relations boards and judicial review - Judicial review - General - Of board's inclusion of employees in the bargaining unit - At issue was the determination of the appropriate bargaining units for three classifications of employees: dental and registered dental assistants; physical therapy and rehabilitation assistants; and speech language pathology assistants - The Alberta Union of Provincial Employees (AUPE) represented bargaining units specified as "auxiliary nursing care" (ANC) and "general support services" (GSS) - The Health Sciences Association of Alberta (HSAA) represented "paramedical professional or technical services" (PPT) - The Labour Relations Board found that the speech language pathology assistants did not have sufficient formal training or professional regulations to be considered technical employees - They were assigned to the GSS unit - As the education and professional regulation of the dental and registered dental assistants and the physical therapy and rehabilitation assistants was such as to make them technical employees, they were assigned to the PPT unit - AUPE's application for a reconsideration was dismissed summarily - AUPE applied for judicial review, asserting, inter alia, that the board's decision placed too much emphasis on the educational qualifications of the employees and not on their prime function - The Alberta Court of Queen's Bench rejected this ground of review - These were factual decisions that were within the board's jurisdiction and expertise - The reasoning was transparent, logical and supported by the evidence - There was no basis on which to interfere with the board's characterization of any of the employees as technical or non-technical - See paragraphs 108 to 115.

Labour Law - Topic 580

Labour relations boards and judicial review - Judicial review - General - Of board's inclusion of employees in the bargaining unit - At issue was the determination of the appropriate bargaining units for three classifications of employees: dental and registered dental assistants; physical therapy and rehabilitation assistants; and speech language pathology assistants - The Alberta Union of Provincial Employees (AUPE) represented bargaining units specified as "auxiliary nursing care" (ANC) and "general support services" (GSS) - The Health Sciences Association of Alberta (HSAA) represented "paramedical professional or technical services" (PPT) - The Labour Relations Board assigned the dental assistants, registered dental assistants, physical therapy assistants and rehabilitation assistants to the PPT unit and the speech language pathology assistants to the GSS unit - AUPE's application for a reconsideration was dismissed summarily - AUPE applied for judicial review - The Alberta Court of Queen's Bench allowed the application - The board defined the ANC bargaining unit as encompassing those employees whose primary function was to support nurses - "Nursing care" was restricted to the work that nurses did, instead of the broader patient care context - The effect was to preclude ANC from representing any employee who did not perform nursing support functions under the supervision of a registered nurse - As well, the decision defined the GSS unit as including some employees who provided "hands-on" patient care and had the effect of placing assistants in the same bargaining unit as the employees they supported - The speech language pathology assistants were only placed in the GSS unit because non-nursing assistants were precluded from the ANC unit - The board failed to provide a clear and rational explanation for narrowing the scope of ANC, expanding the scope of PPT to include its assistants and expanding GSS to include more "hands-on" employees - There might have been valid policy reasons and changing circumstances that justified these significant policy changes - However, those reasons were not articulated - In failing to identify the wrong being remedied or providing meaningful reasons for the changes being made, the board's decision was unreasonable - While the board had the power to set and to change its policies, those actions should generally be explained or justified - Pointing to the need for flexibility was not sufficient, particularly where the decision resulted in less flexibility - The board's original decision and the reconsideration were quashed and the matter was remitted for a new hearing - See paragraphs 116 to 151.

Labour Law - Topic 626

Labour relations boards and judicial review - Judicial review - Bars - General - At issue was the determination of the appropriate bargaining units for three classifications of health care employees - The Alberta Union of Provincial Employees (AUPE) represented bargaining units specified as "auxiliary nursing care" (ANC) and "general support services" (GSS) - The Health Sciences Association of Alberta (HSAA) represented "paramedical professional or technical services" (PPT) - The Labour Relations Board assigned two classifications to the PPT unit and the third to the GSS unit - AUPE's application for a reconsideration was dismissed summarily - AUPE applied for judicial review - HSAA asserted that the application was barred by res judicata and was an abuse of process and that, once the original decision had been reconsidered, judicial review was restricted to the reconsideration decision - The Alberta Court of Queen's Bench rejected HSAA's argument - The reconsideration panel dismissed the application without a hearing, summarily deciding that it was without merit - This left the initial decision intact - Where the reconsideration arrived at a different conclusion from the original panel, then the reconsideration would be the subject of review - Here, judicial review of the original decision was not barred - See paragraphs 152 to 157.

Labour Law - Topic 9311

Public service labour relations - Judicial review - General - Bars - General - [See Labour Law - Topic 626 ].

Labour Law - Topic 9323

Public service labour relations - Judicial review - Decisions of board or commission - Standard of review - [See both Labour Law - Topic 576 ].

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. [para. 20].

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, refd to. [para. 21].

International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432; 198 N.R. 99, refd to. [para. 27].

International Brotherhood of Electrical Workers, Local 424 v. Labour Relations Board (Alta.) et al. (2002), 317 A.R. 185; 284 W.A.C. 185; 2002 ABCA 249, refd to. [para. 27].

Dezentje v. Warchow - see International Brotherhood of Electrical Workers, Local 424 v. Labour Relations Board (Alta.) et al.

Alberta v. Labour Relations Board (Alta.) et al. (2002), 293 A.R. 251; 257 W.A.C. 251; 2001 ABCA 299, refd to. [para. 27].

Thompson v. Burnco Rock Products Ltd. et al., [2003] A.R. Uned. 642; 2003 ABQB 863, affd. [2005] A.R. Uned. 7; 2005 ABCA 38, refd to. [para. 27].

International Association of Machinists and Aerospace Workers, Local Lodge No. 99 v. Finning International Inc. et al. (2007), 422 A.R. 301; 415 W.A.C. 301; 80 Alta. L.R.(4th) 205; 2007 ABCA 319, leave to appeal dismissed (2008), 387 N.R.  393 (S.C.C.), refd to. [para. 27].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 31].

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. 32].

Zenner v. College of Optometrists (P.E.I.), [2005] 3 S.C.R. 645; 342 N.R. 176; 254 Nfld. & P.E.I.R. 1; 764 A.P.R. 1; 2005 SCC 77, refd to. [para. 33].

United Brotherhood of Carpenters and Joiners of America, Local 1325 v. J.V. Driver Installations Ltd. et al. (2004), 378 A.R. 1; 2004 ABQB 915, refd to. [para. 41].

Alberta Union of Provincial Employees v. Canadian Union of Public Employees, Local 875 et al. (2003), 345 A.R. 7; 2003 ABQB 999, refd to. [para. 42].

Construction Labour Relations Association (Alta.) et al. v. Communications, Energy and Paperworkers Union of Canada, Local No. 501A et al. (2001), 313 A.R. 345; 2001 ABQB 950, refd to. [para. 43].

Canadian Healthcare Guild v. Pincher Creek General and Auxiliary Hospital and Nursing Home District No. 79, [1993] Alta. L.R.B.R. 38 (Lab. Rel. Bd.), refd to. [para. 51].

Health Sciences Association of Alberta v. Capital Health Authority and the Alberta Union of Provincial Employees, [2004] Alta. L.R.B.R. 264 (Lab. Rel. Bd.), refd to. [para. 52].

Health Sciences Association of Alberta v. Alberta Mental Health Board and Alberta Union of Provincial Employees, [2004] Alta. L.R.B.R. 437 (Lab. Rel. Bd.), refd to. [para. 52].

Health Sciences Association of Alberta v. Agecare Investments Ltd., [2005] Alta. L.R.B.R. LD-071 (Lab. Rel. Bd.), refd to. [para. 61].

Health Sciences Association of Alberta, Re, [2007] Alta. L.R.B.R. No. 60 (Lab. Rel. Bd.), refd to. [para. 72].

Edmonton (City) v. Civic Service Union, Local 52 et al., [1993] Alta. L.R.B.R. 362 (Lab. Rel. Bd.), refd to. [para. 77].

Therapy Assistants; Laboratory Assistants; Health Sciences Association of Alberta, Re, [2002] Alta. L.R.B.R. 365; [2002] A.L.R.B.D. No. 99 (Lab. Rel. Bd.), refd to. [para. 78].

Calgary Regional Health Authority, Re, [1999] Alta. L.R.B.R. 458 (Lab. Rel. Bd.), refd to. [para. 78].

United Nurses of Alberta et al., Re, [1986] Alta. L.R.B.R. 610 (Lab. Rel. Bd.), refd to. [para. 78].

Therapy Assistants; Health Sciences Association of Alberta, Re, [2004] A.L.R.B.D. No. 38 (Lab. Rel. Bd.), refd to. [para. 80].

Northern Lights Health Region v. Communications, Energy and Paperworkers Union, Local 707, [2005] Alta. L.R.B.R. 201 (Lab. Rel. Bd.), refd to. [para. 84].

Medicine Hat College v. Public Service Employee Relations Board (Alta.) and Alberta Union of Provincial Employees (1987), 80 A.R. 358 (Q.B.), refd to. [para. 105].

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Labour Relations Board (Nfld.) et al. (2002), 214 Nfld. & P.E.I.R. 1; 642 A.P.R. 1; 2002 NFCA 34, refd to. [para. 105].

Building Trades Council v. TNL Industrial Contractors Ltd., [1996] Alta. L.R.B.R. 497 (Lab. Rel. Bd.), refd to. [para. 138].

Provincial Health Authorities (Alta.), Re, [2001] Alta. L.R.B.R. 187 (Lab. Rel. Bd.), refd to. [para. 138].

Peace Regional Health Authority, Re, [2000] Alta. L.R.B.R. 213 (Lab. Rel. Bd.), refd to. [para. 138].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 153].

Toronto (City) et al. 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. 153].

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. 155].

Counsel:

Simon Renouf, Q.C., and Shasta Desbarats (Renouf Law), for the Alberta Union of Provincial Employees;

Shawn W. McLeod (Alberta Labour Relations Board), for the Labour Relations Board;

Roger Hofer (Neuman Thompson), for the Capital Health Authority;

William Johnson, Q.C. (McGown, Johnson), for the Health Sciences Association of Alberta.

This application was heard on January 22, 2008, by Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on May 15, 2008.