Halifax Employers Association v. International Longshoremen's Association, Local 269, 2004 NSCA 101

• Judge: Bateman, Cromwell and Saunders, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 17, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSCA 101;(2004), 226 N.S.R.(2d) 159 (CA)

Halifax Employers Assoc. v. ILA (2004), 226 N.S.R.(2d) 159 (CA);

 714 A.P.R. 159

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. AU.029

International Longshoremen's Association, Local 269 (appellant) v. Halifax Employers Association (respondent)

(CA 212732; 2004 NSCA 101)

Indexed As: Halifax Employers Association v. International Longshoremen's Association, Local 269

Nova Scotia Court of Appeal

Bateman, Cromwell and Saunders, JJ.A.

August 17, 2004.

Summary:

Cleary had a physical confrontation with a supervisor while intoxicated and was dismissed. In June of 1999, Cleary, with his union's help, secured reinstatement under the strict terms of a "last chance" agreement. The terms included abstinence from alcohol and non-prescriptive drugs, voluntary blood and urine testing and a five year probationary period. In September of 1999, he tested positive for cocaine and was dismissed. The collective agreement provided that the union had four days to grieve the dismissal. Two years after the dismissal, the union filed a grievance. The arbitrator extended the time for filing the grievance, allowed the grievance and ordered that Cleary be reinstated on strict conditions that essentially amounted to a second "last chance agreement". The employer applied for judicial review.

The Nova Scotia Supreme Court, in a decision reported at 220 N.S.R.(2d) 218; 694 A.P.R. 218, concluded that the arbitrator erred in granting the extension of time. The court set aside the entire ruling and remitted it to a new arbitrator. The union appealed.

The Nova Scotia Court of Appeal, Bateman, J.A., dissenting, allowed the appeal and set aside the order quashing the arbitrator's award.

Administrative Law - Topic 3221

Judicial review - General - Unreasonableness of decision attacked - The Nova Scotia Court of Appeal discussed the patent unreasonableness standard of review - The court stated that not every element of the reasoning given by a tribunal was to be independently assessed on the standard - A decision was patently unreasonable only where there was no line of analysis within the given reasons that could rationally have led the tribunal from the evidence before it to the conclusion at which it arrived - See paragraphs 59 to 63.

Labour Law - Topic 7060.4

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - To extend limitation period - Cleary was dismissed for breaching a "last chance" agreement - The collective agreement prescribed four days to grieve - The union filed a grievance two years later - The arbitrator felt that the agreement offended human rights legislation and could not be used to dismiss Cleary - The arbitrator granted an extension of time to grieve (Canada Labour Code, s. 60(1.1)) - The employer sought judicial review - The Nova Scotia Court of Appeal applied the pragmatic and functional approach and determined that the appropriate standard of review was patent unreasonableness - See paragraphs 42 to 58.

Labour Law - Topic 7060.4

Industrial relations - Collective agreement - Enforcement - Arbitration - Jurisdiction or powers of arbitrator or board - To extend limitation period - Cleary was dismissed for breaching a "last chance" agreement - The collective agreement prescribed four days to grieve - The union filed a grievance two years later - The arbitrator felt that the agreement offended human rights legislation and could not be used to dismiss Cleary - The arbitrator granted an extension of time to grieve (Canada Labour Code, s. 60(1.1)) and ordered reinstatement - A chambers judge held that the s. 60(1.1) decision was patently unreasonable where the arbitrator essentially decided the grievance on its merits in granting an extension; the decision was contrary to decisions of other arbitrators; and the arbitrator did not properly weigh the competing prejudices - The Nova Scotia Court of Appeal allowed the union's appeal where (1) it was not invariably or necessarily patently unreasonable to consider the merits of a grievance in deciding whether to extend the time for hearing it; (2) in any event, the arbitrator only determined whether a prima facie case of discrimination existed; (3) the arbitrator was not obliged to follow the case law developed by other arbitrators and, in any event, did not depart from considerations thought relevant by other arbitrators; and (4) the arbitrator had performed the balancing of interests contemplated by s. 60(1.1) - See paragraphs 65 to 92.

Labour Law - Topic 7112

Industrial relations - Collective agreement - Enforcement - Arbitration - Judicial review - Scope of review - [See first Labour Law - Topic 7060.4 ].

Cases Noticed:

Greater Niagara General Hospital v. Ontario Nurses' Association (1981), 1 L.A.C.(3d) 1 (Arb.), refd to. [paras. 23, 106].

Consolidated Fastfrate Inc. v. Teamsters, Local 938, [2001] C.L.A.D. No. 638, refd to. [para. 30].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92 (2004), 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 40].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College (2004), 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1; 2004 SCC 28, refd to. [para. 40].

Public Service Commission (N.S.) v. Nova Scotia Government and General Employees Union (2004), 223 N.S.R.(2d) 57; 705 A.P.R. 57; 2004 NSCA 55, refd to. [para. 44].

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. 45].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 46].

Board of Education of Toronto v. Ontario Secondary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, refd to. [para. 53].

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140, refd to. [para. 55].

Exco Corp. v. Nova Scotia Savings & Loan Co. et al. (1983), 59 N.S.R.(2d) 331; 125 A.P.R. 331 (C.A.), refd to. [para. 58].

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. [paras. 60, 122].

Huronview Home for the Aged v. Service Employees' Union (2000), 144 O.A.C. 308; 50 O.R.(3d) 766 (C.A.), refd to. [para. 61].

Queensway General Hospital v. Ontario Nurses' Association (1996), 57 L.A.C.(4th) 194 (Arb. Bd.), refd to. [para. 70].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321; 125 D.L.R.(4th) 583, refd to. [para. 82].

Nova Scotia Government Employees Union v. Civil Service Commission (N.S.) et al. (1992), 112 N.S.R.(2d) 444; 307 A.P.R. 444 (C.A.), refd to. [para. 82].

Calgary (City) v. International Association of Fire Fighters, Local 255 et al. (2003), 327 A.R. 201; 296 W.A.C. 201 (C.A.), leave to appeal dismissed [2003] S.C.C.A. No. 304, refd to. [para. 82].

Pacific Forest Products Ltd. (Sooke Logging Division) v. International Woodworkers of America, Local 1-118 (1984), 17 L.A.C.(3d) 435, refd to. [para. 83].

Pointe-Claire (Ville) v. Syndicat des employées et l'employés professionnels-les det de bureau, section locale 57 (S.E.P.B. - U.I.E.P.B. - C.T.C. - F.T.Q.), [1997] 1 S.C.R. 1015; 211 N.R. 1, refd to. [para. 114].

Canadian Broadcasting Corp. v. Canadian Wire Service Guild et al. (1999), 174 Nfld. & P.E.I.R. 24; 533 A.P.R. 24; 173 D.L.R.(4th) 385 (Nfld. C.A.), refd to. [para. 123].

Haché v. Board of Education of Lunenburg County District (2004), 222 N.S.R.(2d) 354; 701 A.P.R. 354 (C.A.), refd to. [para. 124].

Statutes Noticed:

Canada Labour Code, R.S.C. 1985, c. L-2, sect. 60(1.1) [para. 11].

Authors and Works Noticed:

Brown, Donald, J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998) (Looseleaf update), vol. 3, p. 15-2222 [para. 112].

Counsel:

Ronald A. Pink, Q.C., for the appellant;

Brian Johnston, Q.C. and Rebecca Saturley, for the respondent.

This appeal was heard on May 17, 2004, by Bateman, Cromwell and Saunders, JJ.A., of the Nova Scotia Court of Appeal. The judgment of the court was delivered on August 17, 2004, including the following opinions:

Cromwell, J.A. (Saunders, J.A., concurring) - see paragraphs 1 to 93;

Bateman, J.A., dissenting - see paragraphs 94 to 125.