Pine Creek School Division No. 30 v. Pine Creek Division Association No. 30 of the Manitoba Teachers' Society, (1979) 1 Man.R.(2d) 93 (CA)

• Judge: Monnin, Hall and Huband, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 17, 1979
• Jurisdiction: Manitoba
• Citations: (1979), 1 Man.R.(2d) 93 (CA)

Pine Creek Sch. Bd. v. Teachers Soc. (1979), 1 Man.R.(2d) 93 (CA)

MLB headnote and full text

Gypsumville District Teachers' Association No. 1612 of the Manitoba Teachers' Society v. Consolidated School District of Gypsumville No. 2461, Minister of Education and Piercy; Pine Creek School Div. No. 30 v. Pine Creek Div. Assoc. No. 30 of the Manitoba Teachers' Society, Minister of Education and Myers

Indexed As: Pine Creek School Division No. 30 v. Pine Creek Division Association No. 30 of the Manitoba Teachers' Society

Manitoba Court of Appeal

Monnin, Hall and Huband, JJ.A.

September 17, 1979.

Summary:

This case arose out of applications for a declaration that nominees to a tripartite arbitration board were disqualified for bias. The Public Schools Act, C.S.M.M., c. P-250, s. 387(2), provided for the establishment of an arbitration board to settle impasses in collective bargaining negotiations. Each party was required to nominate a member to the board and the Minister was required to appoint the nominees of the parties to the board. The two nominees then selected a chairman. In practice parties tended to nominate the same individuals to various boards and, as usual in such tripartite boards, the nominees of the parties represented their party's interest and the chairman in effect made the decision. Ultimately, a teachers' association in one such arbitration applied for a declaration that the school board's nominee should be disqualified for bias and in another arbitration a school board made a similar application attacking the teachers' nominee. Croft, J., of the Manitoba Court of Queen's Bench dismissed both applications. The applicants' appealed.

The Manitoba Court of Appeal dismissed the appeal. The Court of Appeal held that in such tripartite boards it was expected that the nominees of the parties would be partial and act as advocates for their parties - see paragraphs 1 to 24.

Huband, J.A., dissenting, was of the opinion that the parties' nominees to the boards were required to be impartial. He was of the opinion that the teachers' nominee was not biased merely because he had been the teachers' nominee on past boards and had tended to write decisions favouring the teachers - see paragraphs 41 to 47. Huband, J.A., was of the opinion that the school board's nominee should be disqualified for bias, because he had advised the school board on strategy and tactics respecting the present arbitration proceedings for which he was on the arbitration board - see paragraphs 48 to 56.

Arbitration - Topic 3544

Arbitrator - Appointment - Disqualifications - Bias - Party's nominee to tripartite board - The Public Schools Act, C.C.S.M., c. P-250, s. 387(2), provided for the establishment of an arbitration board to settle impasses in collective bargaining negotiations - Each party was required to nominate a member to the board and the Minister was required to appoint the nominees of the parties to the board - The two nominees then selected a chairman - In practice parties tended to nominate the same individuals to various boards and, as usual in such tripartite boards, the nominees of the parties represented their party's interest and the chairman in effect made the decision - Ultimately, both parties applied for a declaration that the nominee of the other be disqualified for bias - The Manitoba Court of Appeal dismissed the application - The Court of Appeal held that in such tripartite boards it was expected that the nominees of the parties would be partial and act as advocates for their parties - See paragraphs 1 to 24.

Cases Noticed:

Szilard v. Szasz, [1955] S.C.R. 1, dist. [para. 14].

Committee for Justice and Liberty et al. v. National Energy Board (1976), 68 D.L.R.(3d) 716, consd. [para. 19].

Re Gainers Ltd. and Local 319 of the United Packing House Workers of America (1964), 47 W.W.R.(N.S.) 554, appld. [para. 19].

Construction and General Workers Union, Local 890 v. Graham Construction Limited et al., [1977] 3 W.W.R. 667, consd. [para. 19].

InterMountain Division Association No. 56 v. Duck Mountain S.D. No. 1179 (1961), 38 W.W.R.(N.S.) 106, consd. [para. 19].

Flin Flon Division Association No. 46 v. Flin Flon School Division No. 46 (1964), 49 W.W.R.(N.S.) 426, consd. [para. 19].

Norwood Division Association No. 8 v. Norwood School Division No. 8, [1972] 5 W.W.R. 485, consd. [para. 19].

The King v. Sussex Justices, [1924] 1 K.B. 256, consd. [para. 52].

Statutes Noticed:

Public Schools Act, C.C.S.M., c. P-250, sect. 387(2), sect. 389 [paras. 10, 26].

Authors and Works Noticed:

Carrothers, Labour Arbitration in Canada, p. 76 [para. 76].

Mitchell, Leon, Interest Arbitration in the Federal Public Service, Isaac Pitblado Lectures on Continuing Legal Education (1978) [para. 30].

Reid, Administrative Law and Practice, p. 220 [para. 16].

Counsel:

F.D. Allen, Q.C., for the appellant Gypsumville District Teachers and for the respondent Pine Creek Div. Assoc. No. 30;

D.H. Ringstrom, for the respondent Consolidated School District and the appellant Pine Creek School Division.

This case was heard on June 28, 1979, at Winnipeg, Manitoba, before MONNIN, HALL and HUBAND, JJ.A., of the Manitoba Court of Appeal.

On September 17, 1979, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MONNIN, J.A. - see paragraphs 1 to 24;

HUBAND, J.A., dissenting - see paragraphs 25 to 56.

HALL, J.A., concurred with MONNIN, J.A.