Public Service Alliance of Canada et al. v. Canadian Corp. of Commissionaires (Southern Alberta) et al., 2004 ABQB 529

• Judge: Phillips, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 12, 2004
• Citations: 2004 ABQB 529;(2004), 374 A.R. 252 (QB)

PSAC v. Corp. of Commissionaires (2004), 374 A.R. 252 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. AU.022

In The Matter Of the Labour Relations Code, R.S.A. 2000, c. L-1, as amended;

And In The Matter Of Reasons for Decision of the Alberta Labour Relations Board dated August 13, 2003

Public Service Alliance of Canada and Peter Langford (applicants) v. Canadian Corp. of Commissionaires (Southern Alberta) and the Alberta Labour Relations Board (respondents)

(0301 13199; 2004 ABQB 529)

Indexed As: Public Service Alliance of Canada et al. v. Canadian Corp. of Commissionaires (Southern Alberta) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Phillips, J.

July 16, 2004.

Summary:

The Public Service Alliance of Canada and an employee (the applicants) filed an unfair labour practice complaint, which was upheld by the Alberta Labour Relations Board (the Wallace panel). The employer applied for a reconsideration of the Wallace panel's decision. Another panel of the Board (the Lucas panel) heard the reconsideration application. The Lucas panel found that the Wallace panel had committed an error of law with respect to an issue regarding reasonable apprehension of bias. The Lucas panel ordered a rehearing of the unfair labour practice complaint. The applicants applied for judicial review of the Lucas panel's decision.

The Alberta Court of Queen's Bench dismissed the application.

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Waiver - The Public Service Alliance of Canada and an employee (the applicants) filed an unfair labour practice complaint - The applicants and the employer entered into a settlement agreement and the hearing of the complaint by the Alberta Labour Relations Board (the Wallace panel) was adjourned - The applicants subsequently asked the Wallace panel to reconvene to decide the unfair labour practice complaint - The Wallace panel found that the settlement agreement had been fundamentally breached and that it did not bar it from hearing the complaint - The employer objected that it was impossible for the Wallace panel, being privy to the settlement agreement, to be seen as impartial - The Wallace panel held that any objection to it ruling on the complaint was waived where no objection was raised at the outset of the reconvened hearing or when the settlement agreement was entered into evidence - The Wallace panel upheld the unfair labour practice complaint - On a reconsideration application, a different panel of the Board (the Lucas panel) found an error of law respecting the apprehension of bias issue and ordered a rehearing of the unfair labour practice complaint - The applicants applied for judicial review - The Alberta Court of Queen's Bench dismissed the application - The Lucas panel did not err in concluding that the employer had raised its apprehension of bias objection at the earliest practicable opportunity, i.e., once the Wallace panel decided that the settlement agreement was void and it proposed a continuation of its hearing of the unfair labour practice complaint - See paragraphs 84 to 97.

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - The applicants applied for judicial review of a reconsideration decision of a panel of the Alberta Labour Relations Board (the Lucas panel), which revoked a decision of another panel of the Board (the Wallace panel) - The applicants argued that the Lucas panel applied an inappropriate standard of review to the Wallace panel's decision - The issue had not been raised before the Lucas panel - The Alberta Court of Queen's Bench held that the new issue was properly raised on the judicial review application for three reasons: (1) the new issue went to the Board's jurisdiction in some sense; (2) the new issue was not one that required an evidentiary foundation that could only be introduced before the Board; and (3) the Board's participation in relation to the new issue ensured that its expertise would be sufficiently brought to bear on the issue - See paragraphs 23 to 32.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - The applicants applied for judicial review of a reconsideration decision of a panel of the Alberta Labour Relations Board (the Lucas panel), which revoked a decision of another panel of the Board (the Wallace panel) - The applicants argued that the Lucas panel applied an inappropriate standard of review (correctness) in its reconsideration of the Wallace panel's decision, having made its selection with reference to the Board's Information Bulletin #6 rather than by applying the factors in Pushpanathan v. Can. (S.C.C.) - The issue had not been raised before the Lucas panel - The Alberta Court of Queen's Bench held that the Board was entitled to participate fully in relation to the new issue raised on the judicial review application - The Board was not limited to making submissions on the standard of review that the court should apply in reviewing the Lucas panel's selection of standard of review - The Board was also entitled to make submissions specifically and generally supportive of Information Bulletin #6 - See paragraphs 33 to 38.

Labour Law - Topic 526

Labour relations boards and judicial review - Powers of board - Power to reconsider, rescind, etc. - The applicants applied for judicial review of a reconsideration decision of a panel of the Alberta Labour Relations Board (the Lucas panel), which revoked a decision of another panel of the Board (the Wallace panel) - The applicants argued that the Lucas panel applied an inappropriate standard of review (correctness) in its reconsideration of the Wallace panel's decision, having made its selection with reference to the Board's Information Bulletin #6 rather than by applying the factors in Pushpanathan v. Can. (S.C.C.) - The Alberta Court of Queen's Bench held that it was not patently unreasonable for the Lucas panel to select the standard of review set out in the Board's Information Bulletin #6 in its reconsideration of the Wallace panel's decision - It was also correct to do so - See paragraphs 63 to 81.

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - General - Standard of review - The applicants applied for judicial review of a reconsideration decision of a panel of the Alberta Labour Relations Board (the Lucas panel), which revoked a decision of another panel of the Board (the Wallace panel) - The applicants argued that the Lucas panel applied an inappropriate standard of review to review the Wallace panel's decision - The Alberta Court of Queen's Bench employed the pragmatic and functional analysis and concluded that the Lucas panel's selection of standard of review in its reconsideration of the Wallace panel's decision was reviewable by the court on the patent unreasonableness standard - See paragraphs 39 to 62.

Labour Law - Topic 645

Labour relations boards and judicial review - Natural justice - Denial of - Bias - [See Administrative Law - Topic 2096 ].

Labour Law - Topic 834

Labour relations boards and judicial review - Procedure - Decision - Reconsideration of - [See Labour Law - Topic 526 ].

Cases Noticed:

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, appld. [para. 23].

College of Hearing Aid Practitioners of Alberta v. Zieniewicz et al., [2003] A.R. Uned. 678; 2003 ABCA 346, dist. [para. 23].

Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425, refd to. [para. 24].

Foothills Provincial General Hospital v. United Nurses of Alberta, Local 115 (1998), 228 A.R. 122; 188 W.A.C. 122 (C.A.), leave to appeal denied, [1999] 3 S.C.R. xiii; 247 N.R. 199, refd to. [para. 24].

Shubenacadie Indian Band v. Canadian Human Rights Commission et al., [1998] 2 F.C. 198; 138 F.T.R. 275 (T.D.), affd. (2000), 256 N.R. 109; 187 D.L.R.(4th) 741 (F.C.A.), leave to appeal denied, [2001] 1 S.C.R. viii; 267 N.R. 396, refd to. [para. 24].

A.G.T. Ltd. v. Graham et al. (1997), 142 F.T.R. 185 (T.D.), refd to. [para. 24].

Wal-Mart Canada Inc. v. United Steelworkers of America et al., [1997] O.A.C. Uned. 502 (Div. Ct.), leave to appeal denied [1997] O.J. No. 4003 (C.A.), leave to appeal denied, [1998] 1 S.C.R. xv; 228 N.R. 98, refd to. [para. 26].

Provincial Health Authorities of Alberta, Re, [2001] Alta. L.R.B.R. 439, refd to. [para. 26].

Alberta Energy Co. v. Goodwell Petroleum Corp. et al. (2003), 339 A.R. 201; 312 W.A.C. 201; 233 D.L.R.(4th) 341; 2003 ABCA 277, refd to. [para. 34].

Ferguson Bus Lines Ltd. v. Amalgamated Transit Union, Local 1374, [1990] 2 F.C. 586; 108 N.R. 293 (F.C.A.), leave to appeal refused (1990), 127 N.R. 240 (S.C.C.), refd to. [para. 34].

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. 35].

Imperial Oil Ltd. et al. v. Alberta (Minister of Environment) et al. (2003), 338 A.R. 1; 2003 ABQB 388, refd to. [para. 37].

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; 2003 SCC 20, refd to. [para. 39].

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. 40].

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).

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 41].

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 41].

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. 43].

Alberta v. Labour Relations Board (Alta.) et al. (2002), 293 A.R. 251; 257 W.A.C. 251; 2001 ABCA 299, leave to appeal denied [2002] 3 S.C.R. ix; 300 N.R. 200; 320 A.R. 200; 288 W.A.C. 200, consd. [para. 43].

Birch Hills - see Alberta v. Labour Relations Board (Alta.).

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. 45].

Canadian Union of Public Employees, Local 963 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. 47].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 47].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432; 198 N.R. 99, refd to. [para. 47].

Edmonton Police Service Senior Officers' Association v. Wideman et al. (1999), 252 A.R. 99; 1999 ABQB 788, refd to. [para. 52].

International Union of Operating Engineers, Local 955 v. Vertex Construction Services Ltd. et al. (2001), 304 A.R. 89; 2001 ABQB 976, refd to. [para. 52].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268; 2002 SCC 3, refd to. [para. 59].

Plimmer v. Chief of Police et al. (2004), 354 A.R. 62; 329 W.A.C. 62; 2004 ABCA 175, dist. [para. 66].

Loutan v. Alberta Union of Public Employees, 2002 ABQB 272, refd to. [para. 70].

Budhai et al. v. Canada (Attorney General), [2003] 2 F.C. 57; 292 N.R. 379 (F.C.A.), dist. [para. 80].

Energy and Chemical Workers' Union and Atomic Energy of Canada Ltd., Re, [1986] 1 F.C. 103; 64 N.R. 126 (F.C.A.), leave to appeal denied (1986), 72 N.R. 77 (S.C.C.), refd to. [para. 89].

Zündel v. Canadian Human Rights Commission et al. (2000), 264 N.R. 174; 195 D.L.R.(4th) 399 (F.C.A.), refd to. [para. 89].

Authors and Works Noticed:

Brown, Donald, J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2003 Looseleaf Ed.), para. 5:2120 [para. 29].

Cheshire, Geoffrey Chevalier, and Fifoot, Cecil Herbert Stuart, The Law of Contract (10th Ed. 1981), p. 492 [para. 86].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (3rd Ed. 1999), pp. 128, 129 [para. 30]; 385, 386 [para. 90].

Wright, David, and Raso, Jerry, Labour Relations Board Remedies in Canada (1999 Looseleaf), paras. 25:3000 [para. 71]; 25:3300 [para. 53].

Counsel:

William Johnson, Q.C., for the applicants;

William Cascadden, for the respondent, Canadian Corps of Commissionaires (Southern Alberta);

Shawn McLeod, for the respondent, the Alberta Labour Relations Board.

This application was heard on March 12, 2004, before Phillips, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on July 16, 2004.