Public Service Alliance of Canada v. Sydney Airport Authority, (2015) 367 N.S.R.(2d) 164 (CA)

• Judge: Fichaud, Bryson and Scanlan, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 17, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 367 N.S.R.(2d) 164 (CA);2015 NSCA 105

PSAC v. Airport Authority (2015), 367 N.S.R.(2d) 164 (CA);

    1157 A.P.R. 164

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.024

Sydney Airport Authority (appellant) v. Public Service Alliance of Canada (respondent)

(CA 436238; 2015 NSCA 105)

Indexed As: Public Service Alliance of Canada v. Sydney Airport Authority

Nova Scotia Court of Appeal

Fichaud, Bryson and Scanlan, JJ.A.

November 17, 2015.

Summary:

A union applied for judicial review of an arbitrator's decision dismissing an employee's grievance after he was denied vacation credits while on paid sick leave. The arbitrator agreed with the employer that the collective agreement did not permit an employee to accumulate vacation credits while on sick leave with pay.

The Nova Scotia Supreme Court, in a judgment reported (2015), 355 N.S.R.(2d) 275; 1123 A.P.R. 275, allowed the application, quashed the arbitrator's decision and remitted the matter to a different arbitrator. The arbitrator's decision was unreasonable. The employer appealed.

The Nova Scotia Court of Appeal allowed the appeal and reinstated the arbitrator's decision. The arbitrator's decision was reasonable and should not have been set aside.

Labour Law - Topic 9354

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Unreasonable decisions - [See Labour Law - Topic 9549 ].

Labour Law - Topic 9549

Public service labour relations - Collective agreement - Vacation and holidays - Vacation credits earned while on paid sick leave - An employee was on paid sick leave - The collective agreement permitted employees to accumulate vacation credits for each month that they received at least 10 days' "pay" - The employee grieved the employer's denial of vacation credits for the period of time that he was on paid sick leave - An arbitrator dismissed the grievance - The judicial review judge quashed the decision as unreasonable - The issue was whether "pay" was intended to include pay received while on sick leave - The arbitrator found no evidence in the collective agreement that "pay" was intended to include sick leave pay; that it was anomalous for an employee to accrue vacation credits while not actively at work - The judge held that the arbitrator provided sufficient reasons to explain the basis for his conclusion and his "reasoning path" was sufficiently transparent - However, the arbitrator "preferred a policy choice over an interpretive exercise which resulted in an unreasonable conclusion" - The arbitrator asked himself the wrong question by focussing on the nature of "sick leave" rather than interpreting the plain meaning of the words in the collective agreement - The arbitrator did not consider "pay" in the context of all of the collective agreement - The arbitrator worked his way backwards from the desired result and did not carry out the required interpretive analysis to determine what the parties intended "pay" to include in the context of the entire collective agreement - The arbitrator erred in concluding that the plain meaning of "pay" was anomalous without considering the broader agreement - The Nova Scotia Court of Appeal allowed the employer's appeal and reinstated the arbitrator's decision - The arbitrator's decision that only those employees who actually work earn vacation benefits was reasonable and should not have been set aside - If the union did not like the result it was free to renegotiate the collective agreement when it expired - See paragraphs 12 to 31.

Cases Noticed:

Maritime Paper Products Ltd. v. Communications, Energy and Paperworkers' Union, Local 1520 (2009), 278 N.S.R.(2d) 381; 886 A.P.R. 381; 2009 NSCA 60, refd to. [para. 8].

Egg Films Inc. v. Labour Board (N.S.) et al. (2014), 343 N.S.R.(2d) 204; 1084 A.P.R. 204; 2014 NSCA 33, refd to. [para. 10].

Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30 (2013), 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 11].

McConnell, Hopkinson, Wilson and Benjamin v. Douglas Aircraft Co. of Canada Ltd. and O'Shea, [1980] 1 S.C.R. 245; 29 N.R. 109, refd to. [para. 12].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 16].

Complex Services Inc. v. Ontario Public Service Employees Union, Local 278 (2011), 106 C.L.A.S. 211; 2011 CarswellOnt 5935, refd to. [para. 23].

McLean v. British Columbia Securities Commission (2013), 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [para. 25].

Domtar Inc. v. Commission d'appel en matiére de lésions professionelles et autres, [1993] 2 S.C.R. 756; 154 N.R. 104, refd to. [para. 29].

Nova Scotia Nurses Union, Camp Hill Hospital, Local v. Camp Hill Hospital (1989), 94 N.S.R.(2d) 430; 247 A.P.R. 430 (C.A.), refd to. [para. 29].

Halifax Employers Association v. International Longshoremen's Association, Local 269 (2004), 226 N.S.R.(2d) 159; 714 A.P.R. 159; 2004 NSCA 101, leave to appeal denied (2004), 334 N.R. 197; 240 N.S.R.(2d) 399; 736 A.P.R. 399 (S.C.C.), refd to. [para. 29].

Hydro Ottawa Ltd. v. International Brotherhood of Electrical Workers, Local 636 (2007), 223 O.A.C. 114; 2007 ONCA 292, refd to. [para. 29].

Counsel:

Eric Durnford, Q.C., and Isabelle French, for the appellant;

Andrew Astritis, for the respondent.

This appeal was heard on September 29, 2015, at Halifax, N.S., before Fichaud, Bryson and Scanlan, JJ.A., of the Nova Scotia Court of Appeal.

On November 17, 2015, Scanlan, J.A., delivered the following judgment for the Court of Appeal.