Newfoundland and Labrador (Treasury Board) et al. v. Newfoundland and Labrador Association of Public and Private Employees, (2006) 254 Nfld. & P.E.I.R. 195 (NLTD)

• Judge: Barry, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: March 01, 2006
• Jurisdiction: Newfoundland and Labrador
• Citations: (2006), 254 Nfld. & P.E.I.R. 195 (NLTD)

Nfld. v. NLAPPE (2006), 254 Nfld. & P.E.I.R. 195 (NLTD);

    764 A.P.R. 195

MLB headnote and full text

Temp. Cite: [2006] Nfld. & P.E.I.R. TBEd. MR.004

Her Majesty the Queen in Right of Newfoundland and Labrador, represented by Treasury Board, and Newfoundland and Labrador Health Boards Association, on behalf of Labrador-Grenfell Regional Integrated Health Authority (applicants) v. Newfoundland and Labrador Association of Public and Private Employees (Re Tina Coombs) (respondent)

(200501T5715; 2006 NLTD 37)

Indexed As: Newfoundland and Labrador (Treasury Board) et al. v. Newfoundland and Labrador Association of Public and Private Employees

Newfoundland and Labrador Supreme Court

Trial Division

Barry, J.

March 1, 2006.

Summary:

Coombs was hired as an addictions counsellor in 1999. Her letter of appointment required her to work flexible hours, a practice that was not addressed in the collective agreement. In 2004, a new collective agreement was signed. The agreement included a clause that provided for flexible hours of work by mutual agreement between the employer and the employee. Coombs notified her employer that she did not want to enter into the flexible hours arrangement and would be seeking overtime compensation. The employer responded that Coombs could not revoke her agreement to work flexible hours. The union submitted a grievance on Coombs' behalf. The arbitrator denied the grievance as to the specifics of the claim for overtime, but allowed it in principle, finding that the mutual agreement to work flexible hours could be terminated unilaterally. The employer sought judicial review.

The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the application.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - The Newfoundland and Labrador Supreme Court, Trial Division, reviewed the jurisprudence regarding the standard of review of an arbitration award - There were now three possible standards: correctness, reasonableness simpliciter and patent unreasonableness - Different standards might apply to different rulings within the same award - While earlier case law might have signalled the application of a deferential standard of review to arbitration awards, those cases did not automatically indicate whether reasonableness or patent unreasonableness was the applicable deferential standard - This was only determined by a pragmatic and functional analysis based on four contextual factors: (i) presence or absence of a privative clause or right of appeal, (ii) the expertise of the tribunal, (iii) the legislation's purpose and (iv) the nature of the question - See paragraphs 1 to 45.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - The Newfoundland and Labrador Supreme Court, Trial Division, determined the standard of review of an arbitration award under the Public Service Collective Bargaining Act - The privative protection was, at most, partial and coexisted with a statutory right to judicial review in the Arbitration Act - This factor weighed in favour of some, but not considerable, deference - The expertise of labour arbitrators in the interpretation and application of a collective agreement also attracted some, but not considerable, deference - The legislative scheme of labour arbitration indicated a deferential standard of review, but not as deferential as that accorded to labour relations boards, which considered broad policy issues and resolved polycentric disputes - An arbitrator called on to resolve a two party dispute would be accorded some deference - Though the interpretation of a collective agreement might be a question of law, it was at the core of an arbitrator's expertise and deserved some deference - Thus, the standard of review was reasonableness on the question of the arbitrator's interpretation of the collective agreement and the implication of terms - See paragraphs 46 to 80.

Arbitration - Topic 7803

Judicial review - General principles - Nature of review proceedings - Standard of review - [See both Administrative Law - Topic 9102 ].

Arbitration - Topic 7807

Judicial review - General principles - Effect of privative clause - [See second Administrative Law - Topic 9102 ].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of arbitrators - Scope of review (incl. standard) - [See both Administrative Law - Topic 9102 ].

Labour Law - Topic 9517

Public service labour relations - Collective agreement - General and definitions - Interpretation - Past practice - Coombs, an addictions counsellor, was required to work flexible hours, a practice not addressed in the collective agreement - A new collective agreement was signed - It provided for flexible hours "by mutual agreement" - Coombs gave notice that she no longer wanted to work flexible hours and would be seeking overtime compensation - The employer responded that she could not revoke her agreement to work flexible hours - The union submitted a grievance - The arbitrator denied the claim for overtime but allowed the grievance in principle - With the new collective agreement, mutuality was necessary - Coombs could revoke her agreement with adequate notice - The employer sought judicial review - The Newfoundland and Labrador Supreme Court, Trial Division, dismissed the application - The conclusion that negotiation of the new collective agreement required further mutual agreement was not unreasonable - While the conclusion that prior agreements regarding normal hours could be revoked unilaterally was not unreasonable, a better interpretation was that the arrangements terminated automatically with the new collective agreement unless mutually confirmed within a reasonable time - The arbitrator was entitled to interpret "mutual agreement" as an express provision, adopted with the employer's consent, affecting the obligation to pay overtime and modifying management's right to direct the work force - See paragraphs 81 to 124.

Labour Law - Topic 9596

Public service labour relations - Collective agreement - Hours of work - Shift cycle (incl. change in work hours) - [See Labour Law - Topic 9517 ].

Labour Law - Topic 9625

Public service labour relations - Collective agreement - Management rights - Work assignments and job classifications - [See Labour Law - Topic 9517 ].

Labour Law - Topic 9763

Public service labour relations - Employer rights - Right of allocation of manpower - [See Labour Law - Topic 9517 ].

Cases Noticed:

Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre) - see Newfoundland Association of Public Employees v. Newfoundland et al.

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. 14].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 15].

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; 144 D.L.R.(4th) 385, refd to. [para. 16].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 17].

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, refd to. [para. 18].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 19].

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, refd to. [para. 19].

U.E.S., Local 298 v. Bibeault - see Union des employés de service.

Union des employés de service, local 298 v. Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 19].

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; 160 D.L.R.(4th) 193, refd to. [para. 19].

Foothills Provincial General Hospital v. United Nurses of Alberta, Local 115 (1998), 228 A.R. 122; 188 W.A.C. 122; 168 D.L.R.(4th) 64 (C.A.), leave to appeal denied, [1999] 3 S.C.R. xiii; 247 N.R. 199, refd to. [paras. 24, 31, footnote 5].

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. 27, footnote 2].

International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.), Local 720 v. Volvo Canada Ltd., [1980] 1 S.C.R. 178; 27 N.R. 502; 33 N.S.R.(2d) 22; 57 A.P.R. 22, dist. [para. 29].

Alberta Union of Provincial Employees, Branch 63 v. Public Service Employee Relations Board (Alta.) and Board of Governors of Olds College, [1982] 1 S.C.R. 923; 42 N.R. 559; 37 A.R. 281, refd to. [para. 31].

Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454 and Hardy, [1998] 1 S.C.R. 1079; 226 N.R. 319; 168 Sask.R. 104; 173 W.A.C. 104, refd to. [para. 34].

Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454 et al. (2005), 257 Sask.R. 199; 342 W.A.C. 199 (C.A.), leave to appeal refused 2005 CarswellSask 540 (S.C.C.), refd to. [para. 37].

Trent University Faculty Association v. Trent University (1997), 102 O.A.C. 346; 150 D.L.R.(4th) 1 (C.A.), refd to. [para. 38].

O'Reilly's Irish Bar Inc. v. 10385 Nfld. Ltd. (2003), 231 Nfld. & P.E.I.R. 29; 686 A.P.R. 29 (N.L.T.D.), refd to. [para. 50, footnote 6].

Canadian Union of Public Employees v. Avalon East School Board (2002), 216 Nfld. & P.E.I.R. 173; 647 A.P.R. 173 (N.L.T.D.), affd. (2003), 230 Nfld. & P.E.I.R. 173; 682 A.P.R. 173 (N.L.C.A.), leave to appeal refused (2004), 330 N.R. 194; 246 Nfld. & P.E.I.R. 47; A.P.R. 47 (S.C.C.), refd to. [para. 60].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235; 2003 SCC 42, refd to. [para. 76].

United Food and Commercial Workers, Local 1252 v. Lewisporte Wholesalers Ltd. (1989), 79 Nfld. & P.E.I.R. 237; 246 A.P.R. 237 (Nfld. S.C.), refd to. [para. 78].

Syndicat catholique des employés de magasins de Québec Inc. v. Compagnie Paquet Inc., [1959] S.C.R. 206; 18 D.L.R.(2d) 346, refd to. [para. 95].

Canadian Pacific Railway Co. v. Zambri, [1962] S.C.R. 609, refd to. [para. 95].

Ainscough et al. v. McGavin Toastmaster Ltd, [1976] 1 S.C.R. 718; 4 N.R. 618, refd to. [para. 95].

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; 62 D.L.R.(4th) 437, refd to. [para. 95].

Garon (Isidore) ltée v. Syndicat du bois ouvré de la région de Québec inc. (C.S.D.) et al. (2006), 344 N.R. 1; 2006 SCC 2, refd to. [para. 96].

International Simultaneous Translations Service Ltd. v. National Association of Broadcast Employees & Technicians (1993), 35 L.A.C.(4th) 55 (B.C.), refd to. [para. 110].

Barry's Ltd. v. Fishermen, Food and Allied Workers' Union(1994), 122 Nfld. & P.E.I.R. 45; 379 A.P.R. 45 (Nfld. T.D.), refd to. [para. 116].

Board of Education (Roman Catholic) of Western Avalon v. Newfoundland Association of Public Employees (2000), 191 Nfld. & P.E.I.R. 5; 577 A.P.R. 5 (Nfld. C.A.), refd to. [para. 117].

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. 122].

Memorial University of Newfoundland v. Canadian Union of Public Employees, Local 1615 (2000), 194 Nfld. & P.E.I.R. 203; 584 A.P.R. 203 (Nfld T.D.), refd to. [para. 122].

Canadian Broadcasting Corp. v. Canadian Wire Service Guild et al. (1999), 174 Nfld. & P.E.I.R. 24; 533 A.P.R. 24 (Nfld. C.A.), refd to. [para. 122].

Statutes Noticed:

Arbitration Act, R.S.N.L. 1990, c. A-14, sect. 14, sect. 36 [para. 49].

Labour Relations Act, R.S.N.L. 1990, c. L-1, sect. 86(2)(e) [para. 47].

Public Service Collective Bargaining Act, R.S.N.L. 1990, c. P-42, sect. 45 [para. 59].

Authors and Works Noticed:

Brown, Donald J.M. and Beatty, David M., Canadian Labour Arbitration (3rd Ed.) (2005 Looseleaf Update), pp. 1-41 [para. 41]; 5-69 [para. 85]; 5-73 [para. 106].

Jones, David J., Recent Developments in Administrative Law (2004), p. 40 [para. 31, footnote 3].

Mullan, David J., Voice Construction - One Swallow Does Not a Summer Make? (2004), 11 C.L.E.L.J. 303, pp. 311 [paras. 31, 57, footnote 4]; 312 [para. 31, footnote 4]; 325 [para. 57].

Counsel:

Augustus S. Lilly, Q.C., for the applicants;

Sheila H. Greene, for the respondent.

This application was heard on February 3 and 7, 2006, in St. John's, Newfoundland and Labrador, by Barry, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following decision on March 1, 2006.