Saint John Policemen's Protective Association, Local 61, Canadian Union of Public Employees v. Saint John (City), (1983) 46 N.B.R.(2d) 194 (TD)

• Judge: Jones, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: February 22, 1983
• Jurisdiction: New Brunswick
• Citations: (1983), 46 N.B.R.(2d) 194 (TD)

CUPE v. Saint John (1983), 46 N.B.R.(2d) 194 (TD);

    46 R.N.-B.(2e) 194; 121 A.P.R. 194

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Saint John Policemen's Protective Association, Local 61, Canadian Union of Public Employees v. City of Saint John

(S/M/450/82)

Indexed As: Saint John Policemen's Protective Association, Local 61, Canadian Union of Public Employees v. Saint John (City)

Répertorié: Saint John Policemen's Protective Association, Local 61, Canadian Union of Public Employees v. Saint John (City)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Jones, J.

March 10, 1983.

Summary:

Résumé:

A collective agreement between a municipality and a policemen's union provided with regard to safety that "present conditions and number of two-man cars" existing as of a certain date should be maintained as a minimum. At the pertinent time patrols consisted of two two-man cars with a sergeant in a third car for back-up. Subsequently, the Chief of Police directed that one constable, who would have been in one of the two-man cars, patrol on foot and the sergeant ride in one of the two-man cars, resulting in the dropping of the back-up. The union grieved that the Chief's direction violated the requirement in the collective agreement that "present conditions be maintained". A tripartite arbitration board dismissed the grievance. The union applied to quash the arbitration board's decision on the grounds that the board erred in its interpretation of the collective agreement, asking itself the wrong question and making a decision unsupported by the evidence and that the municipality's nominee to the board was disqualified for bias and conflict of interest.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the application.

Arbitration - Topic 3544

The arbitrator - Appointment - Disqualification for bias - Party's nominee to tripartite board - A municipality nominated to a grievance arbitration board a consultant who was on the municipality's collective agreement negotiating team; although negotiations for new collective agreements had not begun - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the union's submission that the consultant was disqualified from acting on the arbitration board for bias, upholding the common practice of parties nominating closely connected people to tripartite arbitration boards - See paragraphs 43 to 60.

Arbitration - Topic 3545

The arbitrator - Appointment - Disqualification for conflict of interest - Party's nominee to tripartite board - A municipality nominated to a grievance arbitration board a consultant who was on the municipality's collective agreement negotiating team; although negotiations for new collective agreements had not begun - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the union's objection to the consultant's eligibility as an arbitrator on the ground that he was "directly affected by the matter in arbitration" within the meaning of s. 74(1) of the Industrial Relations Act - The court held that the consultant was not directly affected by the matter - See paragraphs 35 to 42.

Arbitration - Topic 8000

Judicial review - Jurisdiction of arbitrator - Error of law on face of record - Adjudication on question not specifically referred to arbitration - In considering an issue involving the interpretation of a specific provision of the collective agreement an arbitration board directed itself to other, subsidiary, questions in canvassing the whole of the collective agreement to answer the main question - The union attacked the board's decision on the ground that the board answered the wrong questions - The New Brunswick Court of Queen's Bench, Trial Division, referred to the "wrong question syndrome" respecting such attacks on arbitration board decisions and held that the board was entitled to consider other questions in answering the main one - See paragraphs 27 to 30.

Arbitration - Topic 8305

Judicial review - Grounds - Sufficiency of evidence - The New Brunswick Court of Queen's Bench, Trial Division, held that a court may not review the decision of an arbitration board on the ground of insufficiency of evidence, but only on an absence of evidence, noting that the weight of evidence is not reviewable - See paragraphs 31 to 34.

Arbitration - Topic 8403

Judicial review - Grounds - Misconduct - Unreasonable or patently unreasonable interpretation - The New Brunswick Court of Queen's Bench, Trial Division, refused to disturb a decision of an arbitration board, which interpreted a provision of a collective agreement in a way which the collective agreement would reasonably bear - The court rejected the union's submission that the board's decision effectively amended the collective agreement - See paragraphs 19 to 26, 34.

Cases Noticed:

Town of Chatham v. Canadian Union of Public Employees, Local 1235 (1976), 13 N.B.R.(2d) 702; 13 A.P.R. 702, appld. [para. 19].

International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), Local 720 v. Volvo Canada limited, [1980] 1 S.C.R. 178; 27 N.R. 502; 33 N.S.R.(2d) 22; 57 A.P.R. 22; 99 D.L.R.(3d) 193, appld. [paras. 20, 30].

Anisminic Ltd. v. The Foreign Compensation Commission, [1969] 1 All E.R. 208, consd. [para. 29].

McConnell et al. v. Douglas Aircraft Company of Canada Ltd., [1980] 1 S.C.R. 245; 29 N.R. 109, appld. [para. 31].

Acadia Forest Products v. C.P.W.U. (1981), 35 N.B.R.(2d) 116; 88 A.P.R. 116, consd. [paras. 40, 55].

Committee for Justice and Liberty Foundation et al. v. National Energy Board, [1978] 1 S.C.R. 369; 6 N.R. 115; 68 D.L.R.(3d) 716, appld. [para. 45].

Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannen et al., [1968] 3 All E.R. 304, appld. [para. 45].

Re Diamond Construction (1961) Ltd. v. Construction and General Labourers, Local 1079 (1973), 6 N.B.R.(2d) 557; 39 D.L.R.(3d) 318, appld. [para. 45].

Re Gainers Limited and Local 319, United Packinghouse Workers of America (1964), 47 W.W.R.(N.S.) 544, consd. [para. 49].

Calgary General Hospital v. United Nurses of Hospital Calgary, Local 1 et al., 82 C.L.L.C. 14,211, appld. [para. 49].

Gypsumville District Teachers Association No. 1612 of Manitoba Teachers Society v. Consolidated School District of Gypsumville No. 2461 et al., [1979] 6 W.W.R. 616; 1 Man.R.(2d) 93, affd. [1982] 1 W.W.R. 158; 5 Man.R.(2d) 179; 33 N.R. 441 (S.C.C.), appld. [para. 50].

Canadian Shipbuilding and Engineering Limited and United Steel Workers of Canada, 36 D.L.R.(3d) 374, not folld. [para. 53].

Statutes Noticed:

Industrial Relations Act, R.S.N.B. 1973, c. I-4, sect. 74(1) [para. 38]; sect. 76(3) [para. 21]; sect. 77(1) [para. 39].

Authors and Works Noticed:

Brown and Beatty, Canadian Labour Arbitration (1977), p. 162 [para. 24].

Reid and David, Administrative Law and Practice (2nd Ed. 1978), p. 230 [para. 46].

Counsel:

Robert D. Breen, for the applicant;

Ronald G. Lister, Q.C., and James LeMesurier, for the respondent.

This case was heard on February 22, 1983, at Saint John, N.B., before JONES, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on March 10, 1983: