Canadian Union of Public Employees, Local 60 v. Edmundston (City), (2016) 445 N.B.R.(2d) 180 (CA)

• Judge: Larlee, Deschênes and Quigg, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 25, 2015
• Jurisdiction: New Brunswick
• Citations: (2016), 445 N.B.R.(2d) 180 (CA);2016 NBCA 3

CUPE v. Edmundston (2016), 445 N.B.R.(2d) 180 (CA);

          445 R.N.-B.(2e) 180; 1166 A.P.R. 180

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. JA.022

Renvoi temp.: [2016] N.B.R.(2d) TBEd. JA.022

Canadian Union of Public Employees, Local 60 (appellant) v. City of Edmundston (respondent)

(65-15-CA; 2016 NBCA 3)

Indexed As: Canadian Union of Public Employees, Local 60 v. Edmundston (City)

Répertorié: Canadian Union of Public Employees, Local 60 v. Edmundston (City)

New Brunswick Court of Appeal

Larlee, Deschênes and Quigg, JJ.A.

January 21, 2016.

Summary:

Résumé:

The City of Edmundston oversaw the creation of "CAPÉ", a non-profit organization responsible for managing the City's cultural services. The CAPÉ created a non-unionized position in order to hire an operations manager. The union submitted that the position should be a unionized one, and that CAPÉ was actually an infrastructure of the City. The union and the City referred their dispute to an arbitrator. The arbitrator concluded that he had no jurisdiction to hear the grievance; i.e., that s. 51.01(1) of the Industrial Relations Act granted the New Brunswick Labour and Employment Board exclusive jurisdiction to declare that the City and the CAPÉ were one employer. The union applied for judicial review.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2015), 437 N.B.R.(2d) 186; 1140 A.P.R. 186, dismissed the application. "The arbitrator did not in fact have jurisdiction to deal with the single employer issue, not because this jurisdiction falls to the Labour and Employment Board [s. 51.01(1) applied only to the construction industry], but rather because the existing legislative scheme did not give this power to any administrative decision maker." The union appealed.

The New Brunswick Court of Appeal allowed the appeal. Section 51.01(1) of the Act was not applicable. Nothing suggested that the union was seeking a "declaration" from the arbitrator under s. 51.01(1). The arbitrator had jurisdiction to hear and determine the grievance. The Court referred the matter back to the same arbitrator to decide the grievance in light of the Court's decision.

Arbitration - Topic 944

The submission - Scope of submission - Jurisdiction of arbitrators - The application judge found that the reason given by the arbitrator for refusing to decide the grievance was based on an error of law, inasmuch as the arbitrator considered that he did not have jurisdiction to settle a dispute whose forum was the Labour and Employment Board, pursuant to s. 51.01(1) of the Industrial Relations Act - The New Brunswick Court of Appeal allowed the appeal - The arbitrator had jurisdiction to hear and determine the grievance - Section 51.01(1) of the Act was not applicable - Nothing suggested that the appellant union was seeking a "declaration" from the arbitrator under s. 51.01(1) - The actual nature of the grievance was a dispute concerning the interpretation, the application or an alleged violation of the collective agreement (ss. 55(1) and 55(2) of the Act) - The application judge committed a reversible error of law - "The fact that the legislature did not consider it advisable to allow the Board to consider making a 'declaration' pursuant to s. 51.01(1) in fields other than the construction industry does not restrict the powers vested in arbitrators by s. 55 of the Industrial Relations Act." - See paragraphs 13 to 18.

Arbitration - Topic 3593

The arbitrator - Powers - Deferring jurisdiction - [See Arbitration - Topic 944 ].

Arbitration - Topic 7959

Judicial review (incl. appeals) - Jurisdiction of arbitrator - General - Excess of jurisdiction - [See Arbitration - Topic 944 ].

Arbitration - Topic 8003.1

Judicial review (incl. appeals) - Jurisdiction of arbitrator - Error of law on the face of the record - Misconstruction or nonapplication of statute law - [See Arbitration - Topic 944 ].

Labour Law - Topic 7042

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - Powers - Preliminary matters - [See Arbitration - Topic 944 ].

Cases Noticed:

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 11].

Merck Frosst Canada Ltd. v. Canada (Minister of Health), [2012] 1 S.C.R. 23; 426 N.R. 200; 2012 SCC 3, refd to. [para. 11].

New Brunswick (Minister of Education) v. Kennedy et al., [2015] N.B.R.(2d) Uned. 72; 2015 NBCA 58, refd to. [para. 11].

Direct Energy Essential Home Services v. Communications, Energy and Paperworkers Union of Canada, Local 975 (Policy Grievance), [2013] O.L.A.A. No. 131, refd to. [para. 16].

Ottawa Hospital v. Canadian Union of Public Employees, Local 4000 (Contracting Out Grievance), [2006] O.L.A.A. No. 378, refd to. [para. 16].

Canadian Union of Operating Engineers and General Workers v. Heaton Sanitation Ltd. (Aussant Grievance), [2000] O.L.A.A. No. 212, refd to. [para. 16].

Counsel:

Avocats:

Glen S. Gallant, for the appellant;

James A. Connely, for the respondent.

This appeal was heard on November 25, 2015, before Larlee, Deschênes and Quigg, JJ.A., of the New Brunswick Court of Appeal. In reasons written by Deschênes, J.A., the Court delivered the following judgment, in both official languages, dated January 21, 2016.