Newfoundland Association of Public Employees v. Parsons et al., (1999) 172 Nfld. & P.E.I.R. 261 (NFTD)

• Judge: Puddester, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: September 22, 1998
• Jurisdiction: Newfoundland and Labrador
• Citations: (1999), 172 Nfld. & P.E.I.R. 261 (NFTD)

NAPE v. Parsons (1999), 172 Nfld. & P.E.I.R. 261 (NFTD);

    528 A.P.R. 261

MLB headnote and full text

Temp. Cite: [1999] Nfld. & P.E.I.R. TBEd. MR.035

Newfoundland Association of Public Employees (appellant) v. Kelvin L. Parsons, a Board of Inquiry appointed pursuant to the Newfoundland Human Rights Code (first respondent) and Human Rights Commission (second respondent) and Stella Williams, Catherine Parrell, Elizabeth Power and Ruby Murphy (third respondents) and Her Majesty the Queen in Right of Newfoundland as represented by the Minister of Justice (fourth respondent) and Leo Puddister (fifth respondent)

(1998 St. J. No. 0861)

Indexed As: Newfoundland Association of Public Employees v. Parsons et al.

Newfoundland Supreme Court

Trial Division

Puddester, J.

March 18, 1999.

Summary:

Employees complained to the Human Rights Commission of pay discrimination by the employer, the Union and a Union's employee relations officer. The Commission, employees and the employer requested a consent order. The Union and its officer refused to consent to the portion of the order that advanced the employees to another salary level. The Board of Inquiry issued the disputed part of the consent order by way of disposition of remedy. The Union appealed.

The Newfoundland Supreme Court, Trial Division, allowed the appeal.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - Employees complained to the Human Rights Commission of pay discrimination - The Board confirmed a consent order between the Commission, employer and employees - The Union disagreed with a portion of the consent order - The Union appealed, arguing, inter alia, that the employer, represented by the Minister of Justice, appointed the adjudica­tion panel's members and directly con­trolled the removal and pay rates of panel members, which created a reasonable apprehension of bias - The Newfoundland Supreme Court, Trial Division, held that there was an apprehension of bias arising out of the institutional relationship between the Board, the Commission and Her Maj­esty - Given the bias, no further proceed­ing was possible before the Board - See paragraphs 176 to 227.

Administrative Law - Topic 2093

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Institutional or systemic bias - [See Ad­ministrative Law - Topic 2088 ].

Administrative Law - Topic 2143

Natural justice - Administrative decisions or findings - Duty of administrative bodies to act fairly and observe rules of natural justice - [See Administrative Law - Topic 8932 ].

Administrative Law - Topic 2413

Natural justice - Procedure - General - Preliminary issues - [See both Administra­tive Law - Topic 8929 ].

Administrative Law - Topic 2494

Natural justice - Procedure - At hearing - Opportunity to present evidence - [See Administrative Law - Topic 8932 ].

Administrative Law - Topic 2610

Natural justice - Evidence and proof - Witnesses - Calling of - [See Administra­tive Law - Topic 8932 ].

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evi­dence - [See Administrative Law - Topic 8932 ].

Administrative Law - Topic 8929

Boards and tribunals - Powers - Deciding preliminary issues - Employees complained to the Human Rights Commission that their employer discriminated in not reclassifying them to a higher paying position - The Union, an interested party, requested the Board to hear preliminary matters - The Board, in its written reasons, held that it was not necessary to deal with the preliminary issues at this time because the matter was being referred back to be scheduled for a hearing - The Union appealed, arguing, inter alia, that the Board erred in failing to give reasons for declin­ing to hear the preliminary issues - The Newfoundland Supreme Court, Trial Divi­sion, dismissed this ground of appeal - The Board's decision set out reasons for declin­ing to deal with these preliminary issues at that time - The content of the reasons were not legally inadequate - See paragraphs 140 to 156.

Administrative Law - Topic 8929

Boards and tribunals - Powers - Deciding preliminary issues - Employees complained to the Human Rights Commission that their employer discriminated in not reclassifying them to a higher paying position - The Union, an interested party, requested the Board to address preliminary issues before making its decision - The Board, in its written reasons, referred the preliminary issues back for rehearing, stating that it was not necessary to deal with the issues at that time - The Union appealed, arguing, inter alia, that the Board erred by not addressing the preliminary issues in its written decision - The New­foundland Supreme Court, Trial Division, dismissed this ground of appeal, stating that there was no reversible error in the Board's exercise of its discretion to deal with these issues at a later date - See paragraphs 157 to 173.

Administrative Law - Topic 8932

Boards and tribunals - Powers - Respecting evidence - Employees complained to the Human Rights Commission that their employer discriminated in not reclassifying them to a higher paying position - A con­sent order stated that the employer had discriminated, the employer would com­pensate them for past discrimination and they would be reclassified - The Union, an interested party, disagreed with the reclassification portion of the consent order - The Board confirmed the consent order without giving the Union a hearing - The Union appealed, arguing, inter alia, that the Board exceeded its jurisdiction by not granting a hearing and not allowing evi­dence to be called - The Newfoundland Supreme Court, Trial Division, allowed the appeal, stating that the Union had the right to present evidence and there was a breach of natural justice in the Board issuing the order without a "true" hearing - See para­graphs 33 to 72.

Administrative Law - Topic 9025

Boards and tribunals - Jurisdiction - Loss of - Breach of natural justice - [See Ad­ministrative Law - Topic 8932 ].

Administrative Law - Topic 9052

Boards and tribunals - Jurisdiction of particular boards and tribunals - Provincial Human Rights Commission - [See both Administrative Law - Topic 8929, Ad­ministrative Law - Topic 8932 and Civil Rights - Topic 7005].

Administrative Law - Topic 9122

Boards and tribunals - Administrative appeals - Scope of appeal or standard of review - Employees complained to the Human Rights Commission of discrimina­tion by the employer, the Union and a Union's employee relations officer - The Commission, employees and the employer requested a consent order - The Union and its officer refused to consent to the portion of the order that advanced the employees to another salary level - The Board of Inquiry issued the disputed part of the consent order by way of disposition of remedy - The Union appealed, arguing that the Board lacked jurisdiction - At issue, inter alia, was what standard of review applied - The Newfoundland Supreme Court, Trial Division, held that the correct standard for the jurisdictional issues of this appeal was "correctness" - See paragraphs 17 to 26.

Civil Rights - Topic 3177

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Requirement of a hearing - [See Administrative Law - Topic 8932 ].

Civil Rights - Topic 7005

Federal or provincial legislation - General -Effect of human rights legislation on con­flicting legislation - Employees com­plained of pay discrimination by their employer - The Commission, employer and employee agreed that the employer had discriminated and the employer would compensate the employees for past dis­crimination and reclassify the employees - The Union disagreed with the reclassification portion of the consent order - The Board of Inquiry sanctioned the consent order - The Union appealed, argu­ing, inter alia, that the Board lacked juris­diction under the Human Rights Code because its decision contra­vened the bar­gaining freeze and failure to bargain provi­sions of the Public Service Collective Bargaining Act - The New­foundland Supreme Court, Trial Division, held that given all parties acknowledged the employ­er's discrimination, the Board had jurisdic­tion under the order, notwith­standing the freeze under the Act - See paragraphs 73 to 137.

Civil Rights - Topic 7061

Federal or provincial legislation - Commis­sions or boards - Jurisdiction - General - [See Administrative Law - Topic 8932 ].

Civil Rights - Topic 7063

Federal or provincial legislation - Commis­sions or boards - Jurisdiction - Remedies - [See Civil Rights - Topic 7005 ].

Civil Rights - Topic 7082

Federal or provincial legislation - Boards of inquiry - Jurisdiction - [See Civil Rights - Topic 7005 ].

Civil Rights - Topic 7117

Federal or provincial legislation - Practice - Appeals - [See Administrative Law - Topic 9122 ].

Civil Rights - Topic 7183

Federal or provincial legislation - Rem­edies - Exclusion of evidence - [See Ad­ministrative Law - Topic 8932 ].

Labour Law - Topic 9804

Public service labour relations - Job classi­fication - Power to reclassify - [See Civil Rights - Topic 7005 ].

Cases Noticed:

Cooper v. Canadian Human Rights Com­mission, [1996] 3 S.C.R. 854; 204 N.R. 1; 27 C.H.R.R. D/173, refd to. [para. 21].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325; 122 D.L.R.(4th) 129, refd to. [para. 24].

Alberta (Attorney General) v. Gares et al. (1976), 76 C.L.L.C. 14,016 (Alta. T.D.), refd to. [para. 46].

Human Rights Commission (Nfld.) v. Newfoundland (Department of Health) et al. (1998), 164 Nfld. & P.E.I.R. 251; 507 A.P.R. 251 (Nfld. C.A.), refd to. [para. 52].

Greater Vancouver Regional District Em­ployees' Union v. British Columbia (Council of Human Rights) (1993), 21 C.H.R.R. D/171 (B.C.S.C.), refd to. [para. 60].

Renaud v. Board of Education of Central Okanagan No. 23 and Canadian Union of Public Employees, Local 523, [1992] 2 S.C.R. 970; 141 N.R. 185; 13 B.C.A.C. 245; 24 W.A.C. 245; [1992] 6 W.W.R. 193, refd to. [para. 63].

Service Employees' Union/Service Employees International Union, [1994] O.L.R.B. Rep. 1116 (Ont. L.R.B.), refd to. [para. 75].

Public Service Alliance of Canada v. For­intek Canada Corp. (1986), 14 C.L.R.B.R.(N.S.) 1 (Ont. L.R.B.), refd to. [para. 80].

United Electrical, Radio and Machine Workers of America v. DeVilbiss (Canada) Ltd. (1976), 76 C.L.L.C. 16,057 (Ont. L.R.B.), refd to. [para. 82].

International Union of Operating Engin­eers, Local 793 v. Meaford (Town), [1981] O.L.R.B. Rep. 1202, refd to. [para. 84].

Ottawa-Carleton Regional Transit Commis­sion v. Amalgamated Transit Union, Local 279 et al. (1983), 83 C.L.L.C. 16,016 (Can. L.R.B.), affd. (1983) 1 O.A.C. 177; 84 C.L.L.C. 14,006 (C.A.), refd to. [para. 86].

Canadian Union of Public Employees v. Scarborough Centenary Hospital Associ­ation, [1978] O.L.R.B. Rep. 949, refd to. [para. 89].

London & District Service Workers Union, Local 220 v. Rest Haven Nursing Home of St. Williams 1974 Ltd., [1979] O.L.R.B. Rep. 554, refd to. [para. 94].

Axton v. British Columbia Transit (1996), 28 C.H.R.R. D/377, refd to. [para. 110].

British Columbia (Workers' Compensation Board) v. British Columbia (Council of Human Rights) (1990), 14 C.H.R.R. D/104 (B.C.C.A.), refd to. [para. 115].

Parcels v. Red Deer General & Auxiliary Hospital and Nursing Home District No. 15 (1992), 15 C.H.R.R. D/257 (Alta. Bd. of Inquiry), refd to. [para. 117].

Brooks, Allen and Dixon et al. v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; 94 N.R. 373; 58 Man.R.(2d) 161; 59 D.L.R.(4th) 321; 10 C.H.R.R. D/6183, refd to. [para. 117].

Kurvits v. Canada (Treasury Board) (1991), 14 C.H.R.R. D/469 (Cdn. H.R.T.), refd to. [para. 121].

Canadian Human Rights Commission v. Dalton et al. (1985), 6 C.H.R.R. D/2524 (F.C.T.D.), revsd. (1986), 63 N.R. 383; 7 C.H.R.R. D/3189 (F.C.A.), refd to. [para. 123].

Action Travail Des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161; 40 D.L.R.(4th) 193; 8 C.H.R.R. D/4210, refd to. [para. 132].

Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) - see Action Travail Des Femmes v. Cana­dian National Railway Co. et al.

Cabot Institute of Applied Arts and Tech­nology v. Tripp et al. (1989), 75 Nfld. & P.E.I.R. 231; 234 A.P.R. 231 (Nfld. T.D.), refd to. [para. 144].

Future Inns Canada Inc. v. Labour Rela­tions Board (N.S.) et al. (1997), 160 N.S.R.(2d) 241; 473 A.P.R. 241 (C.A.), refd to. [para. 147].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79; 23 C.C.C.(3d) 193; 24 D.L.R.(4th) 161, refd to. [para. 185].

MacBain v. Canadian Human Rights Commission et al., [1985] 1 F.C. 856; 62 N.R. 117; 22 D.L.R.(4th) 119 (F.C.A.), refd to. [para. 190].

MacBain v. Lederman - see MacBain v. Canadian Human Rights Commission et al.

Bell Canada v. Canadian Telephone Employees Association et al. (1998), 143 F.T.R. 241 (T.D.), refd to. [para. 198].

International Union of Operating Engin­eers, Local 904 v. Labour Relations Board (Nfld.) et al. (1995), 135 Nfld. & P.E.I.R. 350; 420 A.P.R. 350 (Nfld. T.D.), refd to. [para. 220].

Committee for Justice and Liberty Founda­tion et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, refd to. [para. 222].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271; 4 Admin. L.R.(2d) 121, refd to. [para. 223].

Statutes Noticed:

Human Rights Code, R.S.N. 1990, c. H-14, sect. 5 [para. 107]; sect. 25(1), sect. 25(5) [para. 226]; sect. 26(6) [para. 216]; sect. 27 [para. 204]; sect. 27(2) [para. 44]; sect. 28 [para. 204]; sect. 28(1) [para. 108]; sect. 28(4) [para. 140]; sect. 29 [para. 204]; sect. 30 [para. 17]; sect. 30(7) [para. 223].

Public Service Collective Bargaining Act, S.N. 1973, c. 123, sect. 15(a) [para. 74]; sect. 15(b) [para. 73].

Authors and Works Noticed:

Jones, David Phillip and de Villars, Anne S., Principles of Administrative Law (1985), pp. 233 to 234 [para. 143].

de Smith, S.A., Judicial Review of Admin­istrative Action (5th Ed. 1995), pp. 463 [para. 141]; 465 to 466 [para. 142].

Counsel:

Sheila Green, for the appellant;

The first respondent was not separately represented;

Barry Fleming, for the second respondent;

The third respondent was not separately represented;

Harold Porter, for the fourth respondent;

Dana Leneghan, for the fifth respondent.

This appeal was heard on September 22, 1998, before Puddester, J., of the Newfound­land Supreme Court, Trial Division, who delivered the following decision on March 18, 1999.