Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees, (1998) 162 Nfld. & P.E.I.R. 1 (NFTD)

• Judge: Mercer, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: February 10, 1998
• Jurisdiction: Newfoundland and Labrador
• Citations: (1998), 162 Nfld. & P.E.I.R. 1 (NFTD)

Nfld. v. NAPE (1998), 162 Nfld. & P.E.I.R. 1 (NFTD);

    500 A.P.R. 1

MLB headnote and full text

Temp. Cite: [1998] Nfld. & P.E.I.R. TBEd. MR.029

Her Majesty The Queen in Right of the Province of Newfoundland as represented by Treasury Board and the Minister of Justice (applicant/cross-respondent) v. Newfoundland Association of Public Employees (respondent/cross-applicant)

(1997 St. J. No. 1687; 1997 St. J. No. 1717)

Indexed As: Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees

Newfoundland Supreme Court

Trial Division

Mercer, J.

March 20, 1998.

Summary:

In 1988, the Province and the Newfound­land Association of Public Employees (NAPE) negotiated a Pay Equity Agreement, which was incorporated into collective agreements. Adjustments in pay were to be made over five fiscal years, beginning in 1988. The amount of the adjustments were not agreed to until 1991, when the Province enacted wage restraint legislation (Public Sector Restraint Act). The Province sub­mitted that s. 9 of the Act precluded pay­ment of pay equity adjustments for prior fiscal years (i.e., 1988 to 1991). Several NAPE bargaining units filed a grievance, claiming, inter alia, that s. 9 violated s. 15(1) of the Charter of Rights and Freedoms. A three person arbitration board was appointed. The Chairman's wife was a nurse employed in the Public Health Care Sector. The Prov­ince requested that the Chairman disqualify himself on the grounds of a reasonable apprehension of bias because of his wife's pecuniary interest in the outcome of the arbitration. The arbitration board held that there was no reasonable apprehension of bias on the part of the Chairman and that it had jurisdiction to determine the constitutionality of s. 9. A majority of the board ruled that s. 9 violated s. 15(1) of the Charter and was not a reasonable limit prescribed by law under s. 1. The Province sought judicial review, claiming that (1) the board lacked jurisdiction to rule on the constitutionality of s. 9; (2) the board erred in failing to find a reasonable apprehension of bias on the part of the Chairman; (3) the board erred in finding s. 9 violated s. 15(1) of the Charter; and (4) erred in finding s. 9 was not saved by s. 1. NAPE also sought judicial review by way of cross-application. NAPE challenged the board's ruling to limit adjustment pay­ments to 1991 and beyond, and submitted that the board erred in relying on Hansard to interpret s. 9.

The Newfoundland Supreme Court, Trial Division, allowed the Province's application and dismissed NAPE's cross-application. The board lacked jurisdiction to determine the constitutional validity of s. 9 of the Act. Alternatively, the board erred in finding the violation of s. 15(1) of the Charter was not saved as a reasonable limit prescribed by law under s. 1 of the Charter.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - [See Arbitration - Topic 3544 ].

Administrative Law - Topic 9013

Boards and tribunals - Jurisdiction - Gen­eral - Constitutional questions - In 1988, the Province and public employees reached a pay equity agreement aimed at achieving equal pay for equal work by female employees - The agreement was incorpor­ated into collective agreements and required incremental adjustments in pay over five years, starting in 1988 - The amount of the adjustments were not agreed to until 1991, when the Province enacted wage restraint legislation (Public Sector Restraint Act), s. 9 of which froze wages and precluded the government from mak­ing adjustment payments for the years 1988 to 1990 - The employees filed a grievance, claiming s. 9 violated s. 15(1) of the Charter - The Newfoundland Supreme Court, Trial Division, held that the ad hoc arbitration board lacked juris­diction to determine the constitutionality of s. 9 - The dispute did not arise expressly or inferentially from the collective agree­ment - Although the board had jurisdiction over the parties, it did not have jurisdiction over the subject matter and the remedy sought - See paragraphs 18 to 39.

Arbitration - Topic 3544

The arbitrator - Appointment - Disqualifi­cation for bias - In 1988, the Province and public employees reached a pay equity agreement aimed at achieving equal pay for equal work by female employees - The agreement was incorporated into collective agreements and required incremental ad­justments in pay over five years, starting in 1988 - The amount of the adjustments were not agreed to until 1991, when the Province enacted wage restraint legislation (Public Sector Restraint Act), s. 9 of which froze wages and precluded the government from making adjustment payments for the years 1988 to 1990 - The employees filed a grievance, claiming s. 9 violated s. 15(1) of the Charter - The Chairman of the three man arbitration board was asked to dis­qualify himself on the grounds of a reason­able apprehension of bias, where his wife was a nurse in the public sector and might receive a pecuniary benefit from the board's decision - The Newfoundland Supreme Court, Trial Division, held that there was no reasonable apprehension of bias where the board's decision pertained to adjustments payable for 1988 to 1990 and the wife's bargaining unit's entitlement to adjustments began only in 1995 (i.e., board's decision would not affect the Chairman's wife) - See paragraphs 40 to 48.

Arbitration - Topic 7950

Judicial review - Jurisdiction of arbitrator - General - [See Administrative Law - Topic 9013 ].

Civil Rights - Topic 999.6

Discrimination - Employment - Equal pay for equal work - A 1988 agreement between the Province and public employees (incorporated into collective agreements) sought to achieve equal pay for equal work by incremental adjustments payable over a five year period commenc­ing in 1988 - The adjustment amounts were not agreed on until 1991 - In 1991, the Province was in dire financial circum­stances and passed wage restraint legisla­tion (Public Sector Restraint Act), s. 9 of which froze wages and precluded payment of equal pay adjustments for the 1988 to 1990 fiscal years - Equal pay was, effec­tively, deferred to later years - The New­foundland Supreme Court, Trial Division, held that s. 9 of the Act (which precluded the adjustment payments) violated s. 15(1) of the Charter, because it constituted a statutory basis for continuing gender dis­crimination past the date when the Prov­ince was obligated to eliminate it - How­ever, the emergency financial restraint legislation was a reasonable limit pre­scribed by law under s. 1 of the Charter - The objective of reducing expenditures was sufficiently important to override the s. 15(1) Charter right and s. 9 was rationally connected to its objective, minimally impaired Charter rights and did not have a disproportionately severe effect on the affected group - See paragraphs 56 to 105.

Civil Rights - Topic 5668

Equality and protection of the law - Labour legislation - [See Civil Rights - Topic 999.6 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 999.6 ].

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction - Court of competent jurisdiction - [See Administra­tive Law - Topic 9013 ].

Cases Noticed:

Royal Oak Mines Ltd. v. Canada Labour Relations Board et al., [1996] 1 S.C.R. 369; 193 N.R. 81, refd to. [para. 19].

Douglas/Kwantein Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 20].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al., [1991] 2 S.C.R. 5; 122 N.R. 361; 47 O.A.C. 271, refd to. [para. 20].

Tetreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1, refd to. [para. 20].

St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; 68 N.R. 112; 73 N.B.R.(2d) 236; 184 A.P.R. 236, refd to. [para. 23].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 24].

New Brunswick v. O'Leary, [1995] 2 S.C.R. 967; 183 N.R. 229; 163 N.B.R.(2d) 97; 419 A.P.R. 97, refd to. [para. 27].

Cooper v. Canadian Human Rights Com­mission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 34].

Central Newfoundland Health Care Board v. Newfoundland Association of Public Employees et al. (1994), 121 Nfld. & P.E.I.R. 61; 377 A.P.R. 61 (Nfld. C.A.), refd to. [para. 37].

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, refd to. [para. 41].

Szilard v. Szasz, [1955] S.C.R. 3, refd to. [para. 42].

Newfoundland Association of Public Employees v. Newfoundland et al., [1996] 2 S.C.R. 3; 196 N.R. 212; 140 Nfld. & P.E.I.R. 63; 438 A.P.R. 63, refd to. [para. 50].

Ferrell et al. v. Ontario (Attorney General) (1997), 36 O.T.C. 384; 149 D.L.R.(4th) 335 (Gen. Div.), refd to. [para. 51].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 57].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545; 2 C.R.R.(2d) 1, refd to. [para. 61].

Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1; 14 C.R.R. 13; 12 Admin. L.R. 137; 17 D.L.R.(4th) 422, refd to. [para. 63].

R. v. Lee, [1989] 2 S.C.R. 1384; 104 N.R. 1, refd to. [para. 65].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1, refd to. [para. 67].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161; 124 D.L.R.(4th) 609, refd to. [para. 68].

Adler et al. v. Ontario et al., [1996] 3 S.C.R. 609; 204 N.R. 81; 95 O.A.C. 1; 140 D.L.R.(4th) 385, refd to. [para. 68].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1; 28 C.R.R. 1, refd to. [para. 81].

Irwin Toy Ltd. v. Québec (Procureur géné­ral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577; 25 C.P.R.(3d) 417, refd to. [para. 83].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. c. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 83].

Manitoba Council of Health Care Unions et al. v. Bethesda Hospital et al. (1992), 79 Man.R.(2d) 31; 88 D.L.R.(4th) 60 (Q.B.), refd to. [para. 95].

R. v. Lewis (A.J.) et al., [1996] 1 S.C.R. 921; 196 N.R. 165; 75 B.C.A.C. 1; 123 W.A.C. 1; 133 D.L.R.(4th) 700, refd to. [para. 112].

A.G. v. Prince Augustus of Hanover, [1957] A.C. 436, refd to. [para. 121].

Escoigne Properties Ltd. v. Inland Revenue Commissioners, [1958] 1 All E.R. 406 (H.L.), refd to. [para. 122].

Service Employees International Union, Local 204 v. Broadway Manor Nursing Home et al. (1984), 5 O.A.C. 371; 13 D.L.R.(4th) 220 (C.A.), refd to. [para. 128].

R. v. Monney (I.) (1997), 105 O.A.C. 1; 120 C.C.C.(3d) 97 (C.A.), refd to. [para. 128].

Nishimura and Ontario Human Rights Commission, Re (1989), 62 D.L.R.(4th) 552 (Ont. H.C.), refd to. [para. 132].

International Union of Electrical, Radio and Machine Workers v. Westinghouse Electric Corp. (1980), 631 F.2d 1094 (U.S.C.A. 3rd Cir.), refd to. [para. 132].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 56]; sect. 15(1) [para. 10].

Public Sector Collective Bargaining Act, R.S.N. 1990, c. P-42, sect. 39(1) [para. 22].

Public Sector Restraint Act, S.N. 1991, c. 3, sect. 5, sect. 9 [para. 17].

Authors and Works Noticed:

Côté, P.-A., The Interpretation of Legisla­tion in Canada (2nd Ed.), generally [para. 112].

Driedger, Elmer A., The Construction of Statutes (3rd Ed. 1994), pp. 131 [para. 112]; 157 to 162 [para. 115]; 186 [para. 136]; 193 [para. 121]; 418, 419 [para. 122].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992), pp. 35-17 [para. 57]; 35-26 [para. 70]; 35-28.1 [para. 82]; 35-31 [para. 81]; 35-33 [para. 100].

Ontario, Royal Commission on Equality in Employment (1984), p. 234 [para. 101].

Counsel:

B. Gale Welsh, Q.C., for the appli­cant/cross-respondent;

Sheila H. Greene, for the respondent/cross-applicant.

These applications were heard on February 10, 1998, before Mercer, J., of the New­foundland Supreme Court, Trial Division, whose following judgment was filed on March 20, 1998.