Charlottetown (City) v. Charlottetown Police Association, (1996) 143 Nfld. & P.E.I.R. 145 (PEITD)

• Judge: Jenkins, J.
• Case Date: February 12, 1996
• Jurisdiction: Prince Edward Island
• Citations: (1996), 143 Nfld. & P.E.I.R. 145 (PEITD)

Charlottetown v. Police Assoc. (1996), 143 Nfld. & P.E.I.R. 145 (PEITD);

    448 A.P.R. 145

MLB headnote and full text

City of Charlottetown (applicant) v. The Board of Arbitration, constituted pursuant to Collective Agreement between the City of Charlottetown and the Charlottetown Police Association, Local 301, and the Police Association of Nova Scotia (respondent) and the Charlottetown Police Association, Local 301 of the Police Association of Nova Scotia (respondents)

(GSC-12657)

Indexed As: Charlottetown (City) v. Charlottetown Police Association

Prince Edward Island Supreme Court

Trial Division

Jenkins, J.

August 15, 1996.

Summary:

The City of Charlottetown unilaterally implemented a policy requiring its employees to become residents of the City. The Charlottetown Police Association grieved the policy as an unreasonable exercise of management rights and as a contravention of the collective agreement. An Arbitration Board found that the City showed no substantial connection between its legitimate interest and the residency requirement. The Board concluded that the residency requirement was a continuing condition of employment which had the effect of changing the terms of employment, it was in conflict with or repugnant to the collective agreement, and thereby inoperative against employees covered by the collective agreement. The City applied for judicial review on the grounds that: 1) the grievance was not arbitrable, 2) by assuming jurisdiction and making an award, the Board added a term and thereby amended the collective agreement, 3) the Board developed and applied too narrow a standard for consideration of the City's legitimate interest, and 4) the Board failed to consider essential evidence.

The Prince Edward Island Supreme Court, Trial Division, held that the Board did not err on the first issue; did not err on the second issue per se; made errors in law respecting the third and fourth issues which caused it to lose jurisdiction. The court quashed the award.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See Administrative Law - Topic 5016 ].

Administrative Law - Topic 5008

Judicial review - Certiorari - General principles - Scope of review - The City of Charlottetown unilaterally implemented a policy requiring its employees to become City residents - The Charlottetown Police Association grieved the policy - The Arbitration Board applied a "legitimate interest" test to the City's action - The Prince Edward Island Supreme Court, Trial Division, stated that "[d]etermination of the appropriate standard of the City's legitimate interest in this case involves a general question of law with wide social implications in which the Board had no particular expertise. The Board was dealing with policy ... It was a rule made within the prerogative of management. The Board had to consider whether it violated the collective agreement. In order to do that, it had to determine the correct standard for measurement." - See paragraph 40.

Administrative Law - Topic 5008

Judicial review - Certiorari - General principles - Scope of review - The Prince Edward Island Supreme Court, Trial Division, noted that a labour arbitration board was not protected by a full privative clause - Thus, the Board's jurisdiction did not extend to questions involving determination of matters beyond the collective agreement - The Board adopted and then defined a "legitimate interest" test to apply to management rights - The court held that this involved a concept of general legal reasoning - Thus, the tribunal's determination was subject to review on the basis of correctness, not reasonability - The court quashed the Board's decision where it erred in adopting too narrow a test - See paragraphs 34 to 56.

Administrative Law - Topic 5008

Judicial review - Certiorari - General principles - Scope of review - The Prince Edward Island Supreme Court, Trial Division, discussed the scope of review applicable to various types of administrative decisions and where a tribunal is and is not protected by a full privative clause - See paragraphs 34 to 56.

Administrative Law - Topic 5016

Judicial review - Certiorari - Grounds for granting certiorari - Failure to consider or take something into account - The City of Charlottetown unilaterally implemented a policy requiring its employees to become residents of the City - The Charlottetown Police Association grieved the policy - An Arbitration Board made an award - The City applied for judicial review - The Prince Edward Island Supreme Court, Trial Division, quashed the award where the dissenting award and counsel's submissions made it clear that the Board ignored extensive pertinent evidence - The court discussed the effect of the Board's lack of reasons in allowing the judicial review application - See paragraphs 57 to 61.

Administrative Law - Topic 5060

Judicial review - Certiorari - The record - What constitutes the record - [See Arbitration - Topic 7998 ].

Arbitration - Topic 118

Right to arbitration - Enforcement - Defences - Laches - A union grieved a new policy - The time between the grievance and arbitration award was 22 months - A further three years passed between the application for judicial review and the hearing - By the time of the hearing the policy had been in effect for 6.5 years and the union's grievance had been in issue almost five years - The Prince Edward Island Supreme Court, Trial Division, discussed the importance of speedy resolution within prescribed time limits - The court opined that the result here was neither intended nor appropriate - See paragraphs 8 to 11.

Arbitration - Topic 7807

Judicial review - General principles - Effect of privative clause - [See Labour Law - Topic 9707 ].

Arbitration - Topic 7910

Judicial review - Jurisdiction of the courts - Privative clause - [See Labour Law - Topic 9707 ].

Arbitration - Topic 7953

Judicial review - Jurisdiction of arbitrator - General - Right to be wrong - [See first and second Administrative Law - Topic 5008 and Labour Law - Topic 9707 ].

Arbitration - Topic 7953

Judicial review - Jurisdiction of arbitrator - General - Right to be wrong - An employer applied for judicial review of an arbitration board award under a collective agreement - The Prince Edward Island Supreme Court, Trial Division, stated that the collective agreement was the foundation of the arbitrator's jurisdiction and in determining that it existed or subsisted, the arbitrator had to be correct - See paragraphs 14 to 16.

Arbitration - Topic 7998

Judicial review - Jurisdiction of arbitrator - Error of law on the face of the record - What constitutes record - The City of Charlottetown unilaterally implemented a policy requiring its employees to become residents of the City - The Charlottetown Police Association grieved the policy - An Arbitration Board made an award - The City applied for judicial review and filed material which it submitted as the record - The Prince Edward Island Supreme Court, Trial Division, stated that the Board should have filed the record because it was the appropriate party to certify the document filed as a true copy of the record - The court stated that counsel briefs on the hearing and the dissenting award of the Board did not properly form part of the record - See paragraphs 12, 13.

Arbitration - Topic 8015

Judicial review - Jurisdiction of arbitrator - Error of law on the face of the record - Failure to give adequate reasons - [See Administrative Law - Topic 5016 ].

Labour Law - Topic 9622.1

Public service labour relations - Collective agreement - Management rights - Duty of reasonableness - The Prince Edward Island Supreme Court, Trial Division, stated that "[r]easonableness of management actions may be required by agreement between the parties, or may on the facts sometimes be inherent to considerations of substance and legitimacy; but it is not to be presumed an implied prerequisite to management action." - See paragraph 32.

Labour Law - Topic 9705

Public service labour relations - Collective agreement - Arbitration - Awards - Grounds for quashing - [See second Administrative Law - Topic 5008 and Administrative Law - Topic 5016 ].

Labour Law - Topic 9707

Public service labour relations - Collective agreement - Arbitration - Matters not arbitrable - The City of Charlottetown unilaterally implemented a policy requiring its employees to become City residents - The Charlottetown Police Association grieved the policy - The matter went through arbitration - The City applied for judicial review, alleging, inter alia, that the policy was not arbitrable because it was within the City's management rights to make rules over matters not covered by the collective agreement - The Prince Edward Island Supreme Court, Trial Division, noted that the Arbitration Board was not protected by a full privative clause - The court held that here arbitrability was a decision regarding the Board's jurisdiction, the Board had to be correct and the Board did not err on this ground - See paragraphs 20 to 24.

Labour Law - Topic 9710

Public service labour relations - Collective agreement - Arbitration - Judicial review - [See Arbitration - Topic 7953 and Labour Law - Topic 9707 ].

Cases Noticed:

Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), [1993] 2 S.C.R. 230; 152 N.R. 1; 63 O.A.C. 1, folld. [para. 9 et seq.].

Metropolitan Toronto Board of Commissioners of Police v. Metropolitan Toronto Police Association et al. (1981), 124 D.L.R.(3d) 684 (Ont. C.A.), refd to. [para. 29].

Council of Printing Industries of Canada v. Toronto Printing Pressmen & Assistants' Union No. 10 et al. (1983), 42 O.R.(2d) 404 (C.A.), refd to. [para. 30].

Wardair Canada Inc. v. Canadian Air Line Flight Attendants Association (1988), 25 O.A.C. 52; 63 O.R.(2d) 471 (Div. Ct.), affing. (1987), 28 L.A.C.(3d) 142 (Arb.), refd to. [paras. 30, 56].

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. 35 et seq.]

Syndicat des employés de production du Québec et de l'Acadie v. Commission canadienne des droits de la personne et al., [1984] 2 S.C.R. 412; 100 N.R. 241, refd to. [paras. 35, 39, 47].

Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 35 et seq.].

Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Union des employés de service, local 298 v. Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

U.E.S., Local 298 v. Bibeault - see Union des employés de service.

Royal Oak Mines Inc. v. Canada Labour Relations Board et al., [1996] 1 S.C.R. 369; 193 N.R. 81, refd to. [paras. 35, 48].

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses' Association et al. (1973), 41 D.L.R.(3d) 6 (S.C.C.), refd to. [para. 35 et seq.].

Danson v. Labour Relations Board (Alta.), Alberta Union of Provincial Employees, Booth and Palmateer (1983), 47 A.R. 274; 27 Alta. L.R.(2d) 338 (Q.B.), refd to. [paras. 36, 40, 56].

R. v. Labour Relations Board (Alta.) - see Danson v. Labour Relations Board (Alta.), Alberta Union of Provincial Employees, Booth and Palmateer.

Cabot Institute of Applied Arts and Technology v. Tripp et al. (1989), 75 Nfld. & P.E.I.R. 231; 234 A.P.R. 231 (Nfld. T.D.), refd to. [paras. 37, 40, 61].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 39 et seq.].

McDermott v. Nackawic (Town) (1988), 84 N.B.R.(2d) 329; 214 A.P.R. 329 (T.D.), affd. (1988), 89 N.B.R.(2d) 333; 226 A.P.R. 333; 53 D.L.R.(4th) 150 (C.A.), refd to. [para. 42].

Wright v. Jackson (City), Mississippi (1975), 506 F.2d 900 (U.S.C.A. 5th Cir.), refd to. [para. 43].

Wardwell v. Board of Education of City School District, etc. (1976), 529 F.2d 625 (U.S.C.A. 6th Cir.), refd to. [para. 43].

Wardair Canada Inc. v. Canadian Air Line Flight Attendants Association (1987), 28 L.A.C.(3d) 142 (Arb.), refd to. [para. 44].

University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241, refd to. [para. 46].

Maritime Electric Co. v. International Brotherhood of Electrical Workers, Local 1432 and Murgnaghan, [1993] 2 P.E.I.R. 45; 112 Nfld. & P.E.I.R. 119; 350 A.P.R. 119 (P.E.I.C.A.), not folld. [para. 51].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 53].

McInnes v. Simon Fraser University et al. (1982), 140 D.L.R.(3d) 694 (B.C.S.C.), refd to. [para. 59].

Irving Oil Ltd. v. Public Utilities Commission (P.E.I.) (1987), 64 Nfld. & P.E.I.R. 9; 197 A.P.R. 9; 34 D.L.R.(4th) 448 (P.E.I.C.A.), refd to. [para. 60].

Bennie v. Grievance Review Board (P.E.I.) (1978), 18 Nfld. & P.E.I.R. 18; 47 A.P.R. 18; 100 D.L.R.(3d) 591 (P.E.I.C.A.), refd to. [para. 61].

Prince Edward Island Housing Corp. v. Bennie - see Bennie v. Grievance Review Board (P.E.I.).

Northwestern Utilities Ltd. v. Edmonton (City) (1978), 23 N.R. 565; 12 A.R. 449 (S.C.C.), refd to. [para. 61].

Salem v. Metropolitan Toronto (Licensing Commission) (1993), 63 O.A.C. 198 (Div. Ct.), refd to. [para. 61].

Whitehouse v. Sun Oil Co. (1982), 40 A.R. 380 (C.A.), refd to. [para. 61].

McGuire v. Royal College of Dental Surgeons (Ont.) (1991), 44 O.A.C. 11; 77 D.L.R.(4th) 731 (Div. Ct.), refd to. [para. 61].

Authors and Works Noticed:

Blake, Administrative Law, pp. 55, 56 [para. 61].

Brown and Beatty, Canadian Labour Arbitration (3rd Ed. 1988), generally [para. 32]; pp. 4-14 [para. 29]; 7-25 [para. 41].

Kavanagh, John A., A Guide to Judicial Review (1st Ed. 1978), p. 47 [para. 13].

Palmer and Palmer, Collective Agreement Arbitration in Canada (3rd Ed. 1991), pp. 142 to 143 [para. 31].

Counsel:

David W. Hooley and Karen A. Campbell, for the applicant;

Mark L. Ledwell, for Charlottetown Police Association, Local 301, of Police Association of Nova Scotia.

This application was heard on February 12, 1996, by Jenkins, J., of the Prince Edward Island Supreme Court, Trial Division, who delivered the following decision on August 15, 1996.