Canadian Union of Public Employees, Local 2434 et al. v. Port Hawkesbury (Town) et al., (2011) 301 N.S.R.(2d) 123 (CA)

• Judge: Hamilton, Fichaud and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: February 01, 2011
• Jurisdiction: Nova Scotia
• Citations: (2011), 301 N.S.R.(2d) 123 (CA);2011 NSCA 28

CUPE v. Port Hawkesbury (2011), 301 N.S.R.(2d) 123 (CA);

    953 A.P.R. 123

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. MR.031

Canadian Union of Public Employees, Local 2434 on behalf of Stephen Reynolds (appellant) v. Town of Port Hawkesbury (respondent) and Mr. Jim LeBlanc, Occupational Health and Safety Division, Department of Labour and Workforce Development (respondent) and Occupational Health and Safety Appeal Panel of Nova Scotia (respondent) and Attorney General of Nova Scotia (respondent)

(CA 335584; 2011 NSCA 28)

Indexed As: Canadian Union of Public Employees, Local 2434 et al. v. Port Hawkesbury (Town) et al.

Nova Scotia Court of Appeal

Hamilton, Fichaud and Bryson, JJ.A.

March 18, 2011.

Summary:

Reynolds worked for the Town of Port Hawkesbury. At a meeting with his supervisor and the Town's Occupational Health and Safety Co-ordinator, he questioned the qualifications of workers who administered chemicals to the Town's water supply. As a result, the Town suspended him. Reynolds grieved under his collective agreement. He also filed a complaint with the Department of Labour that the Town had violated the Occupational Health and Safety Act (OHS Act) by disciplining him for raising a safety concern. The OHS Act said that if a labour arbitrator had "seized jurisdiction over the matter" then "the matter shall be dealt with by the arbitrator", but otherwise the OHS complaint "shall" be determined by the OHS Officer. The labour arbitrator determined that Reynolds' grievance was not arbitrable, because the Union had missed a time limit in the collective agreement's grievance procedure. The OHS Officer then notified the parties that she would proceed with her investigation under the OHS Act. On successive appeals, first the OHS Director and next the OHS Panel held that the labour arbitrator had "seized jurisdiction", meaning the OHS Officer had no statutory authority to proceed. The OHS investigation was halted. The Union applied for leave to review.

The Nova Scotia Court of Appeal granted leave to review, allowed the review, set aside the Panel's decision, and reinstated the OHS Officer's decision to proceed with her investigation.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Nova Scotia Court of Appeal considered the judgment in Dunsmuir v. New Brunswick (SCC 2008) and drew the following principles on jurisdictional review: "(a) A 'true question of jurisdiction' means 'whether or not the tribunal had the authority to make the inquiry', and 'whether its statutory grant of power gives it the authority to decide a particular matter' [...]. (b) The concept of decisional jurisdiction that preceded C.U.P.E. v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227, is rejected. That former notion could stretch any error along the tribunal's reasoning path into a jurisdictional impediment to the next analytical step. Then jurisdictional review would elasticize into full appellate scrutiny. Dunsmuir forbids that approach. (c) So a truly jurisdictional question means - Is the door of legal authority open or shut to the tribunal's inquiry on the matter? The decisional reasoning by a tribunal with that authority is not jurisdictional. (d) A jurisdictional issue may arise by either an excess of legal authority or an erroneous refusal to exercise that authority: [...] (e) Plotting the jurisdictional line between two or more competing specialized tribunals is similarly reviewed for correctness. (f) The court's correctness standard for a true jurisdictional issue stems from the superior court's constitutionally protected function to uphold the application of the rule of law by statutory tribunals [...] (g) Correctness applies to a true jurisdictional question without a standard of review analysis. But if the matter is not truly jurisdictional (and is not otherwise excepted from standard of review analysis as explained in Dunsmuir - e.g. constitutional issues), then the reviewing court must proceed to the factor-based standard of review analysis." - See paragraphs 25 to 28.

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - [See Administrative Law - Topic 3202 ].

Trade Regulation - Topic 7924

Industrial safety - Enforcement - Jurisdiction - Reynolds worked for the Town of Port Hawkesbury - At a meeting with his supervisor and the Town's Occupational Health and Safety Co-ordinator, he questioned the qualifications of workers who administered chemicals to the Town's water supply - As a result, the Town suspended him - Reynolds grieved under his collective agreement - He also filed a complaint with the Department of Labour that the Town had violated the Occupational Health and Safety Act (OHS Act) by disciplining him for raising a safety concern - The OHS Act said that if a labour arbitrator had "seized jurisdiction over the matter" then "the matter shall be dealt with by the arbitrator", but otherwise the OHS complaint "shall" be determined by the OHS Officer - The labour arbitrator determined that Reynolds' grievance was not arbitrable, because the Union had missed a time limit in the collective agreement's grievance procedure - The OHS Officer then notified the parties that she would proceed with her investigation under the OHS Act - On successive appeals, first the OHS Director and next the OHS Panel held that the arbitrator had "seized jurisdiction", meaning the OHS Officer had no statutory authority to proceed - The OHS investigation was halted - The Nova Scotia Court of Appeal reinstated the OHS Officer's decision to proceed with her investigation - The OHS Panel erred when it concluded that Reynolds "contravened" s. 46(1)(d)(ii) of the OHS Act "by filing a grievance ... and by lodging a discriminatory complaint with the Department" - Section 46(1)(d)(ii) provided that an employee, who was subject to a collective agreement, "may ... make a complaint in writing to an officer, if an arbitrator has not seized jurisdiction over the matter" - According to the Panel, the arbitrator "'seized jurisdiction' over the matter when he was duly appointed on July 8, 2008" - Reynolds' complaint of April 22, 2008 was received by the OHS Division on April 29, 2008, over two months before the date when, according to the Panel, the arbitrator "seized jurisdiction" - Nothing in s. 46 precluded someone who had grieved from filing an OHS complaint, before an arbitrator had seized jurisdiction - To the contrary, s. 46(1)(d) expressly entitled the employee to make a complaint before the arbitrator seized jurisdiction - The OHS and arbitral processes became mutually exclusive only once the arbitrator "seizes jurisdiction", not earlier when the employee filed a grievance - The Panel misinterpreted s. 46(1)(d)(ii) as if it read "An employee under a collective agreement may make a complaint to an officer if the employee has not filed a grievance", instead of the actual statutory words "if an arbitrator has not seized jurisdiction" - See paragraphs 53 and 54.

Trade Regulation - Topic 7924

Industrial safety - Enforcement - Jurisdiction - Reynolds worked for the Town of Port Hawkesbury - At a meeting with his supervisor and the Town's Occupational Health and Safety Co-ordinator, he questioned the qualifications of workers who administered chemicals to the Town's water supply - As a result, the Town suspended him - Reynolds grieved under his collective agreement - He also filed a complaint with the Department of Labour that the Town had violated the Occupational Health and Safety Act (OHS Act) by disciplining him for raising a safety concern - The OHS Act said that if a labour arbitrator had "seized jurisdiction over the matter" then "the matter shall be dealt with by the arbitrator", but otherwise the OHS complaint "shall" be determined by the OHS Officer - The labour arbitrator determined that Reynolds' grievance was not arbitrable, because the Union had missed a time limit in the collective agreement's grievance procedure - The OHS Officer then notified the parties that she would proceed with her investigation under the OHS Act - On successive appeals, first the OHS Director and next the OHS Panel held that the arbitrator had "seized jurisdiction", meaning the OHS Officer had no statutory authority to proceed - The OHS investigation was halted - The Nova Scotia Court of Appeal reinstated the OHS Officer's decision to proceed with her investigation - The OHS Panel erred in its conclusion that the arbitrator "'seized jurisdiction' over the matter when he was duly appointed on July 8, 2008", despite the fact that the arbitrator later refused to hear the inarbitrable grievance - The only thing the arbitrator's "decision" did was to disclaim any jurisdiction over the matter under the collective agreement - No logical somersault could turn this into an arbitrator's "seizure of jurisdiction over the matter under the collective agreement" - The Panel, despite its expertise, misinterpreted "an arbitrator has ... seized jurisdiction over the matter under the collective agreement" in s. 46(1)(d)(ii) - The clear words of s. 46(1)(d)(ii), its statutory context and the legislative scheme and objective of the OHS Act supported the conclusion that a rejection of arbitrability, because there was no submission to arbitration under the collective agreement, was not within the meaning of "an arbitrator has ... seized jurisdiction over the matter under the collective agreement" in s. 46(1)(d)(ii) - See paragraphs 55 to 70.

Trade Regulation - Topic 7926

Industrial safety - Enforcement - Discrimination (incl. retaliation) - [See both Trade Regulation - Topic 7924 ].

Trade Regulation - Topic 7930

Industrial safety - Enforcement - Review (incl. standard of review) - Reynolds worked for the Town of Port Hawkesbury - At a meeting with his supervisor and the Town's Occupational Health and Safety Co-ordinator, he questioned the qualifications of workers who administered chemicals to the Town's water supply - As a result, the Town suspended him - Reynolds grieved under his collective agreement - He also filed a complaint with the Department of Labour that the Town had violated the Occupational Health and Safety Act (OHS Act) by disciplining him for raising a safety concern - The OHS Act said that if a labour arbitrator had "seized jurisdiction over the matter" then "the matter shall be dealt with by the arbitrator", but otherwise the OHS complaint "shall" be determined by the OHS Officer - The labour arbitrator determined that Reynolds' grievance was not arbitrable, because the Union had missed a time limit in the collective agreement's grievance procedure - The OHS Officer then notified the parties that she would proceed with her investigation under the OHS Act - On successive appeals, first the OHS Director and next the OHS Panel held that the arbitrator had "seized jurisdiction", meaning the OHS Officer had no statutory authority to proceed - The OHS investigation was halted - The Nova Scotia Court of Appeal held that the issue here was "truly jurisdictional" and it would apply the correctness standard of review - See paragraphs 29 to 45.

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. 25].

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, dist. [para. 27].

Crevier v. Quebec (Attorney General) and Aubry; Crevier v. Quebec (Attorney General), Cofsky and Alberta (Attorney General), [1981] 2 S.C.R. 220; 38 N.R. 541, refd to. [para. 27].

Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476; 55 N.R. 194, refd to. [para. 28].

Nanaimo (City) v. Rascal Trucking Ltd. et al., [2000] 1 S.C.R. 342; 251 N.R. 42; 132 B.C.A.C. 298; 215 W.A.C. 298; 2000 SCC 13, refd to. [para. 28].

Council of Canadians with Disabilities v. Via Rail Canada Inc. - see Via Rail Canada Inc. v. Canadian Transportation Agency et al.

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 28].

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 28].

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; 35 Admin. L.R. 153, refd to. [para. 28].

Union des employés de services, 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).

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

U.E.S. - see Union des employées de service.

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. 28].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2006] 1 S.C.R. 140; 344 N.R. 293; 380 A.R. 1; 363 W.A.C. 1, refd to. [para. 28].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 235 O.A.C. 256, refd to. [para. 28].

Nolan v. Kerry (Canada) Inc. - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 2011 SCC 7, refd to. [para. 28].

Nova Scotia (Minister of Transportation and Infrastructure Renewal) v. Nova Scotia Government and General Employees Union (2010), 296 N.S.R.(2d) 142; 940 A.P.R. 142; 2010 NSCA 85, refd to. [para. 28].

Homburg Canada Inc. v. Nova Scotia Utility and Review Board et al. (2010), 289 N.S.R.(2d) 250; 916 A.P.R. 250; 2010 NSCA 24, refd to. [para. 28].

Lienaux v. Nova Scotia Barristers' Society (2009), 274 N.S.R.(2d) 235; 874 A.P.R. 235; 2009 NSCA 11, refd to. [para. 28].

Amherst (Town) et al. v. Superintendent of Pensions (N.S.) (2008), 268 N.S.R.(2d) 339; 857 A.P.R. 339; 2008 NSCA 74, refd to. [para. 28].

Turkey Producers Marketing Board (N.S.) v. Nova Scotia (Attorney General) et al. (2009), 278 N.S.R.(2d) 227; 886 A.P.R. 227; 2009 NSCA 49, leave to appeal dismissed [2009] 3 S.C.R. ix; 403 N.R. 387; 294 N.S.R.(2d) 400; 933 A.P.R. 400 (S.C.C.), refd to. [para. 28].

Smyth v. Medical Advisory Committee of the Perth and Smiths Falls District Hospital et al. (2008), 242 O.A.C. 331; 2008 ONCA 794, refd to. [para. 28].

Toronto Hydro-Electric System Ltd. v. Ontario Energy Board (2010), 261 O.A.C. 306; 2010 ONCA 284, refd to. [para. 28].

Rolling River School Division v. Rolling River Teachers' Association of the Manitoba Teachers' Society et al. (2010), 251 Man.R.(2d) 231; 478 W.A.C. 231; 2010 MBCA 32, refd to. [para. 28].

Maxim Power Corp. v. Alberta Utilities Commission et al. (2010), 482 A.R. 233; 490 W.A.C. 233; 2010 ABCA 213, refd to. [para. 28].

Macdonald v. Mineral Springs Hospital (2008), 437 A.R. 7; 433 W.A.C. 7; 2008 ABCA 273, refd to. [para. 28].

Border Paving Ltd. v. Occupational Health and Safety Council (Alta.) et al. (2009), 446 A.R. 207; 442 W.A.C. 207; 2009 ABCA 37, refd to. [para. 30].

Western Forest Products Inc. v. Capital Regional District (2009), 274 B.C.A.C. 204; 463 W.A.C. 204; 2009 BCCA 356, refd to. [para. 28].

Farrah v. Quebec (Attorney General) and Transport Tribunal, [1978] 2 S.C.R. 638; 21 N.R. 595, refd to. [para. 40].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 40].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 47].

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. 47].

Centre hospitalier Régina Ltée v. Prud'homme (Juge), Tribunal du travail, Montigny et autres, [1990] 1 S.C.R. 1330; 111 N.R. 91; 31 Q.A.C. 269, refd to. [para. 58].

R. v. Cotton Felts Ltd., [1982] O.J. No. 178 (C.A.), refd to. [para. 67].

Director of Occupational Health and Safety Division (N.S.) v. Board of Education of Annapolis Valley Region (2001), 203 N.S.R.(2d) 201; 635 A.P.R. 201; 2001 NSCA 162, refd to. [para. 67].

R. v. Meridian Construction Inc. et al. (2005), 237 N.S.R.(2d) 58; 754 A.P.R. 58; 2005 NSPC 40, refd to. [para. 67].

Statutes Noticed:

Occupational Health and Safety Act, S.N.S. 1993, c. 7, sect. 46(1)(d)(ii) [para. 15].

Authors and Works Noticed:

Brown, Donald J.M., and Beatty, David M., Canadian Labour Arbitration (3rd Ed. 1988) (Looseleaf), para. 1:5600 [para. 57].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), generally [para. 47].

Keith, Norman A., Canadian Health and Safety Law: A Comprehensive Guide to the Statutes, Policies and Case Law (2010) (Looseleaf), vol. 2, para. 8:10 [para. 67].

Counsel:

Susan D. Coen, for the appellant;

Wayne J. MacMillan, for the respondent, Town of Port Hawkesbury;

Edward Gores, Q.C., and Ryan D. Brothers, for the respondent, Director of Occupational Health and Safety.

This application was heard on February 1, 2011, at Halifax, Nova Scotia, by Hamilton, Fichaud and Bryson, JJ.A., of the Nova Scotia Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by Fichaud, J.A., on March 18, 2011.