Gateway Casinos G.P. Inc. v. United Food and Commercial Workers, Local 401, 2009 ABCA 114

• Judge: Côté, McFadyen and Costigan, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 03, 2009
• Citations: 2009 ABCA 114;(2009), 457 A.R. 30 (CA)

Gateway Casinos v. UFCW (2009), 457 A.R. 30 (CA);

      457 W.A.C. 30

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AP.010

Gateway Casinos G.P. Inc. operating as Palace Casino (appellant/applicant) v. United Food and Commercial Workers, Local 401 (respondent/respondent)

(0703-0345-AC; 2009 ABCA 114)

Indexed As: Gateway Casinos G.P. Inc. v. United Food and Commercial Workers, Local 401

Alberta Court of Appeal

Côté, McFadyen and Costigan, JJ.A.

March 26, 2009.

Summary:

The United Food and Commercial Workers, Local 401 (Union) filed an unfair labour practice complaint with respect to Palace's refusal to allow its employees to wear union pins in the workplace. Other disputes arose. The parties entered into a consent order, whereby the Union agreed that its members would not wear union pins until the parties' disputes were resolved, in exchange for Palace's providing employee information and maintaining the status quo on the relocation of the union office. Palace served notice of its intention to terminate its voluntary recognition of the Union at the expiration of the collective agreement. The Union applied to become the certified bargaining agent of all Palace employees, succeeded in a certification vote, and proceeded with the union pin grievance.

The arbitrator concluded that Palace's refusal was discriminatory and in violation of the Labour Relations Code and the collective agreement. He awarded compensatory damages of $10,000 to the Union, $500 to each Palace employee who was a member of the bargaining unit, and an additional $1,000 to each employee who wore and had been asked to remove a pin. Palace applied for judicial review.

The Alberta Court of Queen's Bench found that the arbitrator's decision was reasonable. Palace appealed, challenging the award of damages as being punitive and not rationally connected to the breach, and therefore unreasonable, particularly in light of the arbitrator's focus on Palace's conduct during the time that the parties were subject to the consent order.

The Alberta Court of Appeal allowed the appeal, set aside the damages award and referred the matter back to the arbitrator to decide whether damages were warranted, and if so, to assess those damages, consistently with the court's reasons. An award of damages during the time the parties were subject to the consent order was not reasonable. Given the moratorium created by the consent order, the amounts of $500 and $1,000 were unreasonable for any breach that preceded the consent order.

Editor's Note: For a related case, see Bennett v. United Food and Commercial Workers, Local 401 et al., [2004] A.R. Uned. 709; 2004 ABQB 809.

Arbitration - Topic 3586

The arbitrator - Powers - Punitive damages - An arbitrator concluded that an employer's refusal to allow its employees to wear union pins in the workplace was discriminatory and in violation of the Labour Relations Code and the collective agreement - He awarded damages of $10,000 to the Union, $500 to each Palace employee who was a member of the bargaining unit, and an additional $1,000 to each employee who wore and had been asked to remove a pin - A chamber's judge found the decision was reasonable - On appeal, the employer submitted that the arbitrator made disapproving comments about the employer's strong opposition to the Union in the merger and certification process, thereby demonstrating that the arbitrator's damage award was punitive - The Alberta Court of Appeal disagreed - The arbitrator's reasons revealed that he acknowledged that damages were compensatory and not punitive; i.e., he concluded that the infringed rights had an intrinsic value, and assessed damages on that basis - See paragraphs 17 to 19.

Arbitration - Topic 7803

Judicial review - General principles - Nature of review proceeding (incl. standard of review) - A labour arbitrator awarded damages for the employer's denial of the employees' right to wear union related pins in the workplace - On a judicial review application, the chambers judge concluded that it was reasonable for the arbitrator to conclude that the breach related to rights having an intrinsic value and that damages were warranted - He concluded that the award was reasonable - On appeal, the Alberta Court of Appeal stated that its role was to determine whether the reviewing judge correctly chose and applied the appropriate standard of review and, if not, to assess the administrative tribunal's decision in light of the correct standard - The court agreed that a reasonableness standard applied to the labour arbitrator's determination as to the appropriate remedy - The issue was whether the chambers judge properly applied the reasonableness standard to the labour arbitrator's decision - See paragraphs 14 to 16.

Arbitration - Topic 8403

Judicial review (incl. appeals) - Grounds - Misconduct - Unreasonable or patently unreasonable interpretation - By consent order, a Union agreed that its members would not wear union pins until the parties' dispute was resolved, in exchange for the employer's agreement to provide employee information and maintain the status quo on the relocation of the union office - On the hearing of the union pin grievance, the employer argued that the Union was precluded from seeking damages for the period following the consent order - Dealing first with the period before the consent order, the Alberta Court of Appeal found no reversible error in the chambers judge's finding regarding the reasonableness of the arbitrator's decision that the breach of employees' rights to wear union pins as a demonstration of Union support had an intrinsic value, which permitted the award of damages - However, there was no factual foundation for the finding that the employer breached its employees' rights during the period following the consent order - Nothing in the consent order suggested that the Union retained the right to claim damages for something it had specifically agreed its members would not do - Accordingly, an award of damages for the employer's refusal to permit the wearing of union pins during this period was not reasonable - See paragraphs 19 to 25.

Arbitration - Topic 8403

Judicial review (incl. appeals) - Grounds - Misconduct - Unreasonable or patently unreasonable interpretation - By consent order, a Union agreed that its members would not wear union pins in the workplace until the parties' dispute was resolved - An arbitrator's decision to impose damages, and his assessment of damages, was primarily based on the employer's refusal to permit the wearing of the pins during an aggressive certification campaign, which occurred after the consent order - The Alberta Court of Appeal first determined that an award of damages for the employer's refusal to permit the wearing of union pins after the consent order was not reasonable - Further, given the moratorium created by the consent order, the amounts were unreasonable for any breach that preceded the consent order - The court did not have sufficient information to determine a sufficient remedy - In any event, remedial decisions were best left to arbitrators - Therefore the court set aside the damages award and referred the matter back to the arbitrator to decide whether damages were warranted, and if so, to assess those damages, consistently with the court's reasons - See paragraphs 26 to 30.

Arbitration - Topic 8705

Judicial review - Practice - Appeals - Standard of review - [See Arbitration - Topic 7803 ].

Cases Noticed:

Royal Oak Mines Inc. v. Canada Labour Relations Board et al., [1996] 1 S.C.R. 369; 193 N.R. 81; 133 D.L.R.(4th) 129, refd to. [para. 13].

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. 14].

United Nurses of Alberta, Local 115 v. Calgary Health Authority (Foothills Medical Centre) (2004), 339 A.R. 265; 312 W.A.C. 265; 2004 ABCA 7, refd to. [para. 14].

Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al. (2004), 348 A.R. 361; 321 W.A.C. 361; 2004 ABCA 185, refd to. [para. 14].

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. 16].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College, [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1; 2004 SCC 28, refd to. [para. 29].

Counsel:

T.W. Wakeling, Q.C., and A.C. Elmslie, for the appellant;

J.R. Carpenter and K. O'Halloran, for the respondent.

This appeal was heard on March 3, 2009, by Côté, McFadyen and Costigan, JJ.A., of the Alberta Court of Appeal. The court filed the following memorandum of decision at Edmonton, on March 26, 2009.