Canadian Union of Public Employees, Local 59 v. Saskatoon (City)

• Jurisdiction: Saskatchewan
• Court: Court of Appeal (Saskatchewan)
• Judge: Richards, C.J.S., Lane and Caldwell, JJ.A.
• Citation: 2014 SKCA 14,(2014), 433 Sask.R. 134 (CA)
• Date: 11 February 2014

CUPE v. Saskatoon (2014), 433 Sask.R. 134 (CA);

    602 W.A.C. 134

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. FE.035

Canadian Union of Public Employees, Local 59 (applicant/appellant) v. City of Saskatoon (respondent/respondent)

(CACV2385; 2014 SKCA 14)

Indexed As: Canadian Union of Public Employees, Local 59 v. Saskatoon (City)

Saskatchewan Court of Appeal

Richards, C.J.S., Lane and Caldwell, JJ.A.

February 11, 2014.

Summary:

The union and the city employer created and implemented a new job evaluation plan (NJEP). This entailed incorporating new terms into the existing collective bargaining agreement and involved a new retroactivity list. The NJEP was implemented and various payments of retroactive wage increases were made to certain employees. The union filed a grievance, asserting that the retroactive wage payments that were made on implementation of the NJEP should have been made in accordance with the previous classification review system. The union sought to have the matter proceed through arbitration. The city disagreed with the union's entitlement to launch a grievance dealing with this subject matter and filed an unfair labour practice application with the Labour Relations Board (SLRB). The SLRB found that the union had breached the duty to bargain in good faith in that, subsequent to the process and agreements that the city and the union had made concerning how and to whom retroactive payments were to be made, the union had recanted its position, refused to sign a memorandum of agreement and, through the grievance process, had suggested an alternate interpretation. The union sought judicial review.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2010), 353 Sask.R. 73, dismissed the application. The union appealed.

The Saskatchewan Court of Appeal, Smith, J.A., dissenting, in a judgment reported (2011), 385 Sask.R. 103; 536 W.A.C. 103, dismissed the appeal. The arbitration board commenced its hearing. A majority of the arbitration board allowed the city's summary dismissal application on the ground that hearing the grievance would constitute an abuse of process. The union was estopped from pursuing the grievance because the SLRB had already determined that there was an agreement between the parties whereby the collective bargaining agreement had been modified by the memorandum of agreement. The union sought judicial review, seeking to have the arbitration board's order set aside and an order remitting the grievance to arbitration.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2013), 413 Sask.R. 165, dismissed the application. The court held that "the [arbitration board's] determination that it would be an abuse of process to allow [the union] to pursue an alternate interpretation by way of the Grievance in an attempt to circumvent the SLRB's decision is one of a number of possible reasonable conclusions which the [arbitration board] could have made. I also find that the [arbitration board's] decision to summarily dismiss the Grievance so as to avoid such an abuse of process was reasonable". The union appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Administrative Law - Topic 24

Abuse of process - What constitutes - [See Administrative Law - Topic 7000 ].

Administrative Law - Topic 7000

Judicial review - Bars - Estoppel - General - The union and the city created and implemented a new job evaluation plan (NJEP) - This entailed incorporating new terms into the existing collective bargaining agreement and involved a new retroactivity list - The NJEP was implemented and various payments of retroactive wage increases were made to certain employees - The union filed a grievance, asserting that the retroactive wage payments that were made on implementation of the NJEP should have been made in accordance with the previous classification review system - The union sought arbitration - The city disagreed with the union's entitlement to launch the grievance and filed an unfair labour practice application with the Labour Relations Board (SLRB) - The SLRB ruled that the union breached the duty to bargain in good faith where, subsequent to the process and agreements that the city and the union had made concerning how and to whom retroactive payments were to be made, the union had recanted its position, refused to sign a memorandum of agreement and, through the grievance process, had suggested an alternate interpretation - The SLRB's decision was upheld on judicial review and affirmed on appeal - The arbitration hearing commenced - A majority of the arbitration board allowed the city's summary dismissal application on the ground that the union was estopped from pursuing the grievance as framed (existence of an amended agreement rather than the interpretation of such amended agreement) because the subject matter of the grievance had already been finally determined by the SLRB in the unfair labour practice proceeding - The trial judge dismissed the union's judicial review application on the ground that estoppel precluded the grievance - The court also found that "the [arbitration board's] determination that it would be an abuse of process to allow [the union] to pursue an alternate interpretation by way of the Grievance in an attempt to circumvent the SLRB's decision is one of a number of possible reasonable conclusions which the [arbitration board] could have made. I also find that the [arbitration board's] decision to summarily dismiss the Grievance so as to avoid such an abuse of process was reasonable" - The Saskatchewan Court of Appeal dismissed the union's appeal - The trial judge correctly found that the board's reasons were justifiable, transparent, intelligible and that the decision was within the range of possible and acceptable outcomes available to the board - See paragraphs 28 to 56.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Administrative Law - Topic 7000 ].

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - [See Administrative Law - Topic 7000 ].

Cases Noticed:

Saskatoon (City) v. Canadian Union of Public Employees, Local 59 (2009), 173 C.L.R.B.R.(2d) 297, refd to. [para. 12].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 21].

Newton v. Criminal Trial Lawyers' Association (Alta.) et al., [2011] 4 W.W.R. 232; 493 A.R. 89; 502 W.A.C. 89; 2010 ABCA 399, refd to. [para. 21].

Westfair Foods Ltd. v. United Food and Commercial Workers, Local 1400 et al. (2006), 285 Sask.R. 67; 378 W.A.C. 67; 263 D.L.R.(4th) 397; 2006 SKCA 8, refd to. [para. 22].

First Nations University of Canada v. University of Regina Faculty Association, [2009] 2 W.W.R. 193; 320 Sask.R. 46; 444 W.A.C. 46; 2008 SKCA 162, refd to. [para. 22].

Domtar Inc. v. ABB Inc. et al., [2007] 3 S.C.R. 461; 369 N.R. 152; 2007 SCC 50, refd to. [para. 22].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310; 2002 SCC 15, refd to. [para. 22].

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) 161; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 24].

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].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 25].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 25].

Vancouver International Airport Authority et al. v. Public Service Alliance of Canada (2010), 403 N.R. 363; 320 D.L.R.(4th) 733; 2010 FCA 158, refd to. [para. 36].

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. 36].

Toronto (City) 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. 43].

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

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. 44].

Viterra Inc. v. Grain Services Union et al. (2013), 423 Sask.R. 97; 588 W.A.C. 97; 2013 SKCA 93, refd to. [para. 49].

Counsel:

Adam R. Touet, for the appellant;

Patricia J. Warwick, for the respondent.

This appeal was heard on October 9, 2013, before Richards, C.J.S., Lane and Caldwell, JJ.A., of the Saskatchewan Court of Appeal.

On February 11, 2014, Caldwell, J.A., delivered the following judgment for the Court of Appeal.