Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees, (2002) 220 Nfld. & P.E.I.R. 1 (NFCA)

• Judge: Marshall, Steele and Roberts, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: December 06, 2002
• Jurisdiction: Newfoundland and Labrador
• Citations: (2002), 220 Nfld. & P.E.I.R. 1 (NFCA);2002 NLCA 72

Nfld. v. NAPE (2002), 220 Nfld. & P.E.I.R. 1 (NFCA);

    657 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2002] Nfld. & P.E.I.R. TBEd. DE.010

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

(98/42; 2002 NLCA 72)

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

Newfoundland and Labrador Supreme Court

Court of Appeal

Marshall, Steele and Roberts, JJ.A.

December 6, 2002.

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, in a judgment reported (1998), 162 Nfld. & P.E.I.R. 1; 500 A.P.R. 1, 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. NAPE appealed. The Prov­ince cross-appealed.

The Newfoundland and Labrador Court of Appeal dismissed the appeal and cross-appeal, with the exception of finding that the trial judge erred in holding that the board lacked jurisdiction to hear the grievances challenging the constitutionality of s. 9. Section 9 violated s. 15(1) of the Charter, but was a reasonable limit prescribed by law under s. 1. Section 9(3) of the restraint legislation clearly extinguished the Pro­vince's obligation to make pay equity adjust­ments for the 1988 to 1991 period. The board did not err in referring to Hansard to interpret s. 9 or in rejecting the reasonable apprehension of bias claim.

Administrative Law - Topic 2088

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

Administrative Law - Topic 3202

Judicial review - General - Scope or stan­dard of review - The Newfoundland and Labrador Court of Appeal discussed the scope of review of an arbitration board (not protected by a privative clause but subject to statutory provisions providing for finality) when the board interpreted legislation and determined the constitu­tionality of legislation - An arbitration board interpreting s. 9 of the Public Sector Restraint Act was entitled to deference and the standard of review was patent unreas­onable (i.e. right to be wrong) - However, in determining whether s. 9 of the Act violated s. 15(1) of the Charter, the stan­dard of review was correctness - No defer­ence was to be afforded - The court stated that the standard of review for the board's s. 1 analysis was more complex, with some deference, proceeding on the footing that the "context, deference and a flexible and realistic standard of proof are essential aspects of the s. 1 analysis" - See para­graphs 181 to 275.

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 and Labrador Court of Appeal held that the trial judge erred in finding that the ad hoc arbitration board lacked jurisdiction to determine the constitutionality of s. 9 - The board had jurisdiction over the parties, subject matter and the remedy - The "es­sential character" of the dispute arose from the "interpretation, application, administra­tion or violation" of the collective agree­ments - The "core dispute" was not the constitutional validity of s. 9, but the Province's failure to make the retroactive pay equity adjustments it undertook to pay - See paragraphs 109 to 175.

Administrative Law - Topic 9013

Boards and tribunals - Jurisdiction - Gen­eral - Constitutional questions - [See Ad­ministrative Law - Topic 3202 ].

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 trial judge 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) - The Newfoundland and Labrador Court of Appeal affirmed that there was no reasonable apprehension of bias - See paragraphs 620 to 628.

Arbitration - Topic 7950

Judicial review - Jurisdiction of arbitrator - General - [See Administrative Law - Topic 3202 and first 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 - The Newfoundland and Labrador Court of Appeal agreed that s. 9 violated s. 15(1) of the Charter - Once the Province committed itself to pay equity to redress conceded discrimination, it could not legislatively revoke that undertaking without violating s. 15(1) - 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, s. 9 was rationally connected to its objective, minimally impaired Charter rights, and did not have a disproportionate­ly severe effect on the affected group - Further, s. 9(3) extinguished the Province's obligation to make the payments for the 1988-1991 years - Payment was not merely deferred (i.e., did not merely extinguish the scheduled payment dates but not the obli­gation) - See paragraphs 276 to 602.

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 first Admin­istrative Law - Topic 9013 ].

Statutes - Topic 1658

Interpretation - Extrinsic aids - Legislative history - Ministerial comments - In inter­preting s. 9 of the Public Sector Restraint Act, an arbitration board relied on "the legislative record of the Finance Minister's 'extended budgetary explanation' of the circumstances which had led to the cabinet decision to introduce the restraint bill into the Assembly" - The Newfoundland and Labrador Court of Appeal held that the trial judge did not err in holding that the arbitration board did not err in referring to Hansard in interpreting s. 9 - See para­graphs 603 to 619.

Cases Noticed:

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 28].

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. 66].

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. 112].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 112].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340, refd to. [para. 132].

Cooper v. Canadian Human Rights Com­mission, [1996] 3 S.C.R. 854; 204 N.R. 1, dist. [para. 136].

Service Employees International Union, Local 204 v. Ontario (Attorney General) (1997), 35 O.R.(3d) 508 (Gen. Div.), dist. [para. 143].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 11, refd to. [para. 157].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 158].

Canadian Union of Public Employees, Local 204 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 182].

Canadian Broadcasting Corp. v. Syndicat des employés de production du Québec et de l'Acadie, [1984] 2 S.C.R. 412; 55 N.R. 321, refd to. [para. 183].

Paccar of Canada Ltd. v. Canadian Associ­ation of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1, refd to. [para. 188].

Planet Development Corp. and Lester (W.W.) (1978) Ltd. v. United Associ­ation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry in the United States and Canada, Local 740, [1990] 3 S.C.R. 644; 123 N.R. 241; 88 Nfld. & P.E.I.R. 15; 274 A.P.R. 15, refd to. [para. 190].

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. 198].

Tétreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1, refd to. [para. 224].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 121 Man.R.(2d) 1; 156 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 233].

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

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 259].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 259].

Ferrell et al. v. Ontario (Attorney General) (1997), 36 O.T.C. 384; 149 D.L.R.(4th) 335 (Gen. Div.), affd. (1998), 116 O.A.C. 176; 168 D.L.R.(4th) 1 (C.A.), dist. [para. 277].

Symes v. Minister of National Revenue, [1993] 4 S.C.R. 695; 161 N.R. 243, refd to. [para. 326].

Native Women's Association of Canada et al. v. Canada et al., [1994] 3 S.C.R. 627; 173 N.R. 241, refd to. [para. 326].

Thibaudeau v. Minister of National Rev­enue, [1995] 2 S.C.R. 627; 182 N.R. 1, refd to. [para. 326].

Upper Churchill Water Rights Reversion Act, 1980, Re; Churchill Falls (Labrador Corp.) et al. v. Newfoundland (Attorney General) et al., [1984] 1 S.C.R. 297; 53 N.R. 268; 47 Nfld. & P.E.I.R. 125; 139 A.P.R. 125, refd to. [para. 330].

Dunmore v. Ontario (Attorney General) (1997), 47 O.T.C. 53; 37 O.R.(3d) 287 (Gen. Div.), refd to. [para. 333].

Newfoundland Association of Provincial Court Judges et al. v. Newfoundland (2000), 192 Nfld. & P.E.I.R. 183; 580 A.P.R. 183; 191 D.L.R.(4th) 255 (Nfld. C.A.), refd to. [para. 352].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 377].

Public Service Alliance of Canada v. Canada, [1987] 1 S.C.R. 424; 75 N.R. 161, refd to. [para. 378].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1, refd to. [para. 387].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321, refd to. [para. 400].

Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 400].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 400].

Anti-Inflation Act, Re, [1976] 2 S.C.R. 373; 9 N.R. 541, refd to. [para. 441].

Irwin Toy Ltd. v. Québec (Procureur géné­ral), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 463].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 500].

Escoigne Properties Ltd. v. Inland Revenue Commissioners, [1958] 1 All E.R. 406 (H.L.), refd to. [para. 562].

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, refd to. [para. 563].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 564].

Canada (Attorney General) v. Reader's Digest Association (Canada) Ltd., [1961] S.C.R. 775, refd to. [para. 606].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 607].

R. v. Dubois, [1935] S.C.R. 378, refd to. [para. 609].

R. v. Greenbaum (M.), [1993] 1 S.C.R. 674; 149 N.R. 161; 61 O.A.C. 241, refd to. [para. 610].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 612].

R. v. Boutcher (A.) (2001), 202 Nfld. & P.E.I.R. 243; 608 A.P.R. 243 (Nfld. C.A.), refd to. [para. 616].

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. 625].

Statutes Noticed:

Public Sector Restraint Act, S.N. 1991, c. 3, sect. 9 [para. 11].

Authors and Works Noticed:

Abella Report on Equality in Employment - see Canada, Royal Commission Report on Equality in Employment.

Atiyah, P.S., Pragmatism and Theory in English Law (1987), pp. 110, 111 [para. 349].

Bell, John, Policy Arguments in Judicial Decisions (1985), p. 5 [para. 349].

Canada, Royal Commission Report on Equality in Employment (1984), p. 235 [para. 486].

Côté, Pierre-André, The Interpretation of Legislation in Canada (3rd Ed. 2000), ch. 4 [para. 606].

Crane, M.C., Administrative Tribunals, Charter Challenges, and the Web of Institutional Relationships (1998), 61 Sask. L. Rev. 495, generally [para. 225].

Edinger, E., The Doctrine of Colourability and Extra-territoriality (1985), 46 Can. Bar Rev. 203, p. 221 [para. 337].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1991), p. 168 [para. 235].

Jennings, Ivor, The Law and the Constitu­tion (4th Ed. 1952), pp. 24, 25 [para. 231].

McMillan, J., Tribunals and the Charter: The Search for Implied Jurisdiction - A Case Comment on Cooper v. Canada (Human Rights Commission) (1998), 32 U.B.C.L. Rev. 365, generally [para. 225].

Moull, W.D., Newfoundland Resources: The Supreme Court Strikes Again (1985), 7 S.C. Law Rev. 419, pp. 429 to 440 [para. 337].

Sullivan, R.E., Interpreting the Territorial Limitations on the Provinces (1985), 7 S.C. Law Rev. 511, pp. 537 to 545 [para. 337].

Tabbakh, K., The Standard of Review of Grievance Arbitrators When Deciding on Human Rights Issues: The "Magnificent Goal" v. Industrial Peace (1998), 43 McGill L.J. 261, refd to. [para. 225].

Counsel:

Sheila Greene, for the appellant;

Donald Burrage, Q.C., for the respondent.

This appeal was heard on January 10-11, 2001, before Marshall, Steele and Roberts, JJ.A., of the Newfoundland and Labrador Court of Appeal.

On December 6, 2002, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Marshall, J.A. - see paragraphs 1 to 640;

Steele, J.A. - see paragraph 641;

Roberts, J.A. - see paragraph 642.