Canadian Union of Public Employees, Local 18 et al. v. Saint John (City), 2015 NBCA 35

• Judge: Deschênes, Green and Baird, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 18, 2015
• Jurisdiction: New Brunswick
• Citations: 2015 NBCA 35;(2015), 437 N.B.R.(2d) 198 (CA)

CUPE v. Saint John (2015), 437 N.B.R.(2d) 198 (CA);

    437 R.N.-B.(2e) 198; 1140 A.P.R. 198

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: [2015] N.B.R.(2d) TBEd. JN.022

Renvoi temp.: [2015] N.B.R.(2d) TBEd. JN.022

The City of Saint John (appellant) v. Canadian Union of Public Employees, Local 18 and M.B. (respondents)

(106-14-CA; 2015 NBCA 35)

Indexed As: Canadian Union of Public Employees, Local 18 et al. v. Saint John (City)

Répertorié: Canadian Union of Public Employees, Local 18 et al. v. Saint John (City)

New Brunswick Court of Appeal

Deschênes, Green and Baird, JJ.A.

June 18, 2015.

Summary:

Résumé:

A grievance was filed on behalf of a city employee who was dismissed. The arbitration board determined that the grievance should not proceed because the substantive issues had already been dealt with by the Human Rights Commission and the Employment Insurance Board of Referees. The union sought judicial review.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2014), 424 N.B.R.(2d) 314; 1104 A.P.R. 314, dismissed the application regarding the human rights and discrimination issues in the grievance. Those issues had been adequately considered and determined by the Human Rights Commission. However, the portion of the arbitration board's decision regarding the remaining issues was quashed. Those issues were to continue before a newly constituted arbitration board. The city appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Arbitration - Topic 7803

Judicial review - General principles - Nature of review proceeding - Standard of review - A grievance was filed on behalf of a city employee who was dismissed - The arbitration board determined that the grievance should not proceed because the substantive issues had already been dealt with by the Human Rights Commission and the Employment Insurance Board of Referees - The union's application for judicial review was allowed in part on a reasonableness standard of review - On the city's appeal, the New Brunswick Court of Appeal held that the reviewing judge was correct in using a reasonableness standard - In applying that standard, the "reasons must be read together with the outcome for the purpose of determining whether the result falls within the range of possible outcomes" - See paragraphs 18 to 23.

Estoppel - Topic 396

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In labour relations proceedings - M.B. was fired from his employment with the defendant city - The union filed a grievance - M.B. was denied employment insurance benefits by the Employment Insurance Board of Referees on the basis that his dismissal was due to his own misconduct - An arbitration board determined that the grievance should not proceed as the substantive issues had already been dealt with by the Board of Referees - Christie, J., allowed the union's application for judicial review, remitting the issues to a newly constituted arbitration board - On the city's appeal, the New Brunswick Court of Appeal discussed the test for issue estoppel, the impact of Penner v. Niagara Regional Police Services Board et al. (2013 S.C.C.) on the test and overlapping arbitral jurisdiction, concluding that a denial of benefits under the Employment Insurance Act did not preclude a hearing before an arbitration board constituted to hear a grievance - See paragraphs 24 to 40.

Estoppel - Topic 396

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In labour relations proceedings - M.B. was fired from his employment with the defendant city - The union filed a grievance - M.B. was denied employment insurance benefits by the Employment Insurance Board of Referees on the basis that his dismissal was due to his own misconduct - An arbitration board determined that the grievance should not proceed as the substantive issues had already been dealt with by the Board of Referees - Christie, J., allowed the union's application for judicial review, remitting the issues to a newly constituted arbitration board - The New Brunswick Court of Appeal dismissed the city's appeal - A finding of termination for misconduct by the Board of Referees did not necessarily mean that there was just cause for M.B.'s dismissal - The narrow issue could not estop consideration of the broader one - While there was a potential for overlap, this did not preclude the arbitration board from determining the grievance on its merits - See paragraphs 41 to 44.

Estoppel - Topic 396

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In labour relations proceedings - M.B. was fired from his employment with the defendant city - The union filed a grievance - M.B. was denied employment insurance benefits by the Employment Insurance Board of Referees on the basis that his dismissal was due to his own misconduct - An arbitration board determined that the grievance should not proceed as the substantive issues had already been dealt with by the Board of Referees - Christie, J., allowed the union's application for judicial review, remitting the issues to a newly constituted arbitration board - The New Brunswick Court of Appeal dismissed the city's appeal - Having found that issue estoppel did not apply, the court indicated that, even if the preconditions for issue estoppel had been met, the reviewing judge was correct when he found that the board should not have applied the doctrine to preclude a hearing of M.B.'s grievance - If unionized employees were barred from pursuing grievance relief before a board constituted under the Industrial Relations Act on the basis that their employment insurance claims had been previously adjudicated, there was a distinct risk that either or both the grievance process and the employment insurance program would be undermined - The question of entitlement to employment insurance benefits was not to be conflated with the issue of wrongful dismissal under the collective agreement where there was a different standard of adjudication, the ability to receive viva voce evidence and different possible outcomes - See paragraphs 45 to 48.

Estoppel - Topic 430

Estoppel by record (res judicata) - Matters precluding estoppel - Public policy - [See third Estoppel - Topic 396 ].

Labour Law - Topic 9114

Public service labour relations - Grievances - Bars - Res judicata - [See all Estoppel - Topic 396 ].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Scope of review (incl. standard) - [See Arbitration - Topic 7803 ].

Cases Noticed:

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, appld. [para. 8].

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. 18].

New Brunswick Liquor Corp. v. Small (2012), 390 N.B.R.(2d) 203; 1011 A.P.R. 203; 2012 NBCA 53, refd to. [para. 18].

Smith v. New Brunswick (Department of Public Safety) et al. (2012), 397 N.B.R.(2d) 1; 1028 A.P.R. 1; 2012 NBCA 41, refd to. [para. 18].

Maltais v. Port of Dalhousie Inc. (2011), 377 N.B.R.(2d) 312; 972 A.P.R. 312; 2011 NBCA 84, refd to. [para. 18].

Mourant v. Sackville (Town) (2014), 423 N.B.R.(2d) 330; 1103 A.P.R. 330; 2014 NBCA 56, refd to. [para. 18].

Bowater Maritimes Inc. v. Communications, Energy and Paperworkers Union, Locals 117, 146, 164 and 263 et al. (2011), 368 N.B.R.(2d) 348; 949 A.P.R. 348; 2011 NBCA 22, refd to. [para. 18].

Irving (J.D.) Ltd. v. North Shore Forest Products Marketing Board et al. (2014), 422 N.B.R.(2d) 233; 1096 A.P.R. 233; 2014 NBCA 42, refd to. [para. 18].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 20].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 22].

Creston Moly Corp. v. Sattva Capital Corp., [2014] 2 S.C.R. 633; 461 N.R. 335; 358 B.C.A.C. 1; 614 W.A.C. 1; 2014 SCC 53, refd to. [para. 23].

New Brunswick v. Pinder et al. (2012), 391 N.B.R.(2d) 110; 1013 A.P.R. 110; 2012 NBCA 60, refd to. [para. 23].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 27].

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. 27].

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. 27].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1 (C.A.), refd to. [para. 28].

Sackville (Town) v. Canadian Union of Public Employees, Local 1188 et al. (2007), 313 N.B.R.(2d) 147; 809 A.P.R. 147; 2007 NBCA 18, refd to. [para. 29].

Executive Director of Assessment (N.B.) v. Ganong Bros. Ltd. et al. (2004), 271 N.B.R.(2d) 43; 712 A.P.R. 43; 2004 NBCA 46, refd to. [para. 30].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 33].

British Columbia (Workers' Compensation Board) v. Figliola - see/voir Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al.

Commission des droits de la personne et des droits de la jeunesse (Que.) v. Quebec (Attorney General) et al., [2004] 2 S.C.R. 185; 321 N.R. 290; 2004 SCC 39, refd to. [para. 37].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 37].

Karelia v. Canada (Attorney General) (2012), 434 N.R. 37; 2012 FCA 140, refd to. [para. 44].

Counsel:

Avocats:

Scott Andrew Brittain, for the appellant;

Glen Serge Gallant, for the respondents.

This appeal was heard on February 17 and 18, 2015, by Deschênes, Green and Baird, JJ.A., of the New Brunswick Court of Appeal. On June 18, 2015, Baird, J.A., rendered the following judgment in both official languages for the court.