Saint John (City) v. Saint John Firefighters' Association, International Association of Fire Fighters, Local 771, (2011) 371 N.B.R.(2d) 247 (CA)

• Judge: Turnbull, Robertson and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 10, 2010
• Jurisdiction: New Brunswick
• Citations: (2011), 371 N.B.R.(2d) 247 (CA);2011 NBCA 31

Saint John v. IAFF (2011), 371 N.B.R.(2d) 247 (CA);

    371 R.N.-B.(2e) 247; 959 A.P.R. 247

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] N.B.R.(2d) TBEd. AP.010

Renvoi temp.: [2011] N.B.R.(2d) TBEd. AP.010

The City of Saint John (appellant) v. Saint John Firefighters' Association, International Association of Fire Fighters, Local 771 (respondents)

(73-10-CA; 2011 NBCA 31)

Indexed As: Saint John (City) v. Saint John Firefighters' Association, International Association of Fire Fighters, Local 771

Répertorié: Saint John (City) v. Saint John Firefighters' Association, International Association of Fire Fighters, Local 771

New Brunswick Court of Appeal

Turnbull, Robertson and Green, JJ.A.

April 7, 2011.

Summary:

Résumé:

Five City of Saint John firefighters applied for and received a permanent disability pension under the City of Saint John Pension Act. They were subsequently determined to be no longer totally and permanently disabled. Four of the five were eligible to receive a regular pension under the Pension Act, but they wanted to return to the workplace. The fifth was ineligible, but was re-employed by the City in a newly created position. A policy grievance was filed, claiming that the former pensioners had a right to return to active service or to be placed on sick leave under the collective agreement until accommodated in the workplace. The City maintained that, under the Pension Act, the employment relationship was severed once an employee was granted a permanent disability pension, thereby negating any duty to accommodate the former firefighters. The majority of the arbitration board accepted the grievance. Having regard to what it considered "past practice", the board construed the provisions of the collective agreement broadly and concluded that employment status was not lost under the collective agreement once a disability pension issued. The board reasoned that as the Act did not expressly terminate employment status upon receipt of a permanent disability pension, the provisions of the collective agreement prevailed. The City applied for judicial review.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2010), 361 N.B.R.(2d) 50; 931 A.P.R. 50, dismissed the application. The City appealed.

The New Brunswick Court of Appeal allowed the appeal. The court held that under the Pension Act, employment status was lost once a permanent disability pension issued. Therefore, there could be no duty to accommodate the former firefighters. The court set aside the arbitration board's decision. It followed that the grievance was to be dismissed.

Estoppel - Topic 1387

Estoppel in pais (by conduct) - Circumstances where doctrine not applicable - To limit the exercise of a statutory power - [See Labour Law - Topic 9023 and second Labour Law - Topic 9517 ].

Labour Law - Topic 9023

Public service labour relations - Definitions - Employee - Five City of Saint John firefighters applied for and received a permanent disability pension under the City of Saint John Pension Act - They were subsequently determined to be no longer totally and permanently disabled - Four of the five were eligible to receive a regular pension under the Pension Act, but they wanted to return to the workplace - The fifth was ineligible, but was re-employed by the City in a new position - A policy grievance was filed, claiming the former pensioners had a right to return to active service or to be placed on sick leave under the collective agreement until accommodated in the workplace - The City maintained that, under the Pension Act, the employment relationship was severed once an employee was granted a permanent disability pension, thereby negating any duty to accommodate the former firefighters - The arbitration board accepted the grievance - Having regard to "past practice", the board construed the collective agreement broadly and concluded that employment status was not lost under the collective agreement once a disability pension issued - The board reasoned that as the Act did not expressly terminate employment status upon receipt of a permanent disability pension, the provisions of the collective agreement prevailed - The City applied for judicial review - The application was dismissed - The City appealed - The New Brunswick Court of Appeal allowed the appeal - The court agreed with the applications judge's application of the reasonableness standard of review to the arbitration board's interpretation of the collective agreement and the correctness standard to the board's interpretation of the Act - However, the court did not agree that the board's decision met those standards - The board's interpretation of the collective agreement hinged on art. 11.01, which dealt with "seniority" - The board's interpretation was not reasonable as it would lead to an absurdity: every firefighter and former firefighter, including retirees in receipt of a regular pension, would effectively maintain a life-time right to a job - The board "effectively interpreted the Act narrowly so as to accommodate a broad but mistaken interpretation of the collective agreement" - The interpretative principle that private statutes were to be interpreted strictly against their promoters was of limited application in the modern law and had no application in this case - Past practice also had no application - The "Collier decision", on which the plea of past practice rested in this case, involved the 1970 version of the Pension Act and provisions of a collective agreement no longer in force - Further, past practice was a manifestation of the estoppel doctrine, which could not trump a legislative enactment - Interpreting the Pension Act using the contextual/purposive approach, the court concluded that, under the Act, employment status was lost once a permanent disability pension issued - Therefore, there could be no duty to accommodate the former firefighters.

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Scope of review (incl. standard) - [See Labour Law - Topic 9023 ].

Labour Law - Topic 9517

Public service labour relations - Collective agreement - General and definitions - Interpretation - Past practice - [See Labour Law - Topic 9023 ].

Labour Law - Topic 9517

Public service labour relations - Collective agreement - General and definitions - Interpretation - Past practice - The New Brunswick Court of Appeal stated that "Past practice is one of the most frequently asserted bases for the application of the estoppel doctrine. Typically, an argument with respect to past practice arises in circumstances where the parties have engaged in a long-standing practice that deviates from the terms of a collective agreement. The deviation may arise in one of two ways: either the practice is clearly in violation of the collective agreement, or there is a provision in the collective agreement which is ambiguous. In the latter context, the past practice is used to interpret the ambiguous provision. Generally speaking, however, labour arbitrators are cautious when applying the estoppel doctrine where the basis of the representation has been past practice ... It is also important to realize that the doctrine of estoppel is inoperative against legislation. In other words, the collective agreement cannot attempt to contract out of or contradict legislation ... As well, if past practice is based on a 'wrong' interpretation of a statute, the wrong interpretation cannot make law" - See paragraph 48.

Municipal Law - Topic 1103

Employees - Employee or servant defined - [See Labour Law - Topic 9023 ].

Statutes - Topic 510

Interpretation - General principles - Strict interpretation - [See Labour Law - Topic 9023 and first Statutes - Topic 8705 ].

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - [See Labour Law - Topic 9023 ].

Statutes - Topic 8705

Private or special statutes - Interpretation - The New Brunswick Court of Appeal stated that "To the extent that the law recognizes the rule of strict construction, applicable to private Acts of the New Brunswick Legislature, the rule must be confined to cases falling within its historical origins: the granting of privileges or monopolies to private companies. The law says that in these cases there is a need to ensure that the rights of third parties are not infringed, except to the extent the infringement is clearly authorized. Now is the time to dispel the mistaken notion that private enactments are somehow negotiated behind closed doors and, therefore, outside the purview of public scrutiny. Private Acts, like public Acts, are adopted in accordance with the procedures applicable to public statutes, such as the Standing Committee on Private Bills. If a private Act bestows a benefit on its promoters at the expense of third parties (for example, by taking away common law rights), then it is for the courts to decide on a case by case basis the interpretative outcome based on the conventional rules of statutory interpretation" - See paragraph 60.

Statutes - Topic 8705

Private or special statutes - Interpretation - [See Labour Law - Topic 9023 ].

Droit du travail - Cote 9023

Relations de travail dans la fonction publique - Définitions - Employé - [Voir Labour Law - Topic 9023 ].

Droit du travail - Cote 9353

Relations de travail dans la fonction publique - Révision judiciaire - Décisions des adjudicateurs, arbitres, commissions d'appel de griefs ou fonctionnaires - Portée (y compris la norme de révision) - [Voir Labour Law - Topic 9353 ].

Droit du travail - Cote 9517

Relations de travail dans la fonction publique - Convention collective - Généralités et définitions - Interprétation - Pratique antérieure - [Voir Labour Law - Topic 9517 ].

Droit municipal - Cote 1103

Employés - Définition d'employé - [Voir Municipal Law - Topic 1103 ].

Législation - Cote 510

Interprétation - Principes généraux - Interprétation stricte - [Voir Statutes - Topic 510 ].

Législation - Cote 2603

Interprétation - Interprétation de mots et d'expressions - Règle dite "moderne" (y compris interprétation d'après le contexte) - Intention découlant de l'ensemble de la loi ou d'un article - [Voir Statutes - Topic 2603 ].

Législation - Cote 8705

Lois privées ou spéciales - Interprétation - [Voir Statutes - Topic 8705 ].

Préclusion - Cote 1387

Préclusion du fait par conduite - Circonstances de non-application de la doctrine - Limite ུ l'exercise d'un pouvoir légal - [Voir Estoppel - Topic 1387 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 27].

Calgary (City) v. International Association of Fire Fighters Local 255 (2006), 398 A.R. 26; 2006 ABQB 133, affd. (2008), 429 A.R. 235; 421 W.A.C. 235; 2008 ABCA 77, refd to. [para. 29].

Wentworth Arms Hotel Ltd. et al. v. Hotel and Restaurant Employees and Bartenders International Union, Local 197, [1979] 1 S.C.R. 846; 24 N.R. 417, refd to. [para. 31].

Bradburn v. Wentworth Arms Hotel Ltd. - see Wentworth Arms Hotel Ltd. et al. v. Hotel and Restaurant Employees and Bartenders International Union, Local 197.

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. 31].

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [para. 32].

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, refd to. [para. 32].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al., [2009] 2 S.C.R. 678; 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 34].

Nolan v. Kerry (Canada) Inc. - see Nolan et al. v. Superintendent of Financial Services (Ont.) et al.

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 2011 SCC 7, refd to. [para. 35].

Trainor v. Saint John and Board of Trustees of City of Saint John Pension Act (1984), 54 N.B.R.(2d) 1; 140 A.P.R. 1 (T.D.), refd to. [para. 37].

Thorne et al. v. Board of Trustees of the City of Saint John Pension Act (1987), 84 N.B.R.(2d) 343; 214 A.P.R. 343 (C.A.), refd to. [para. 37].

Brien v. City of Saint John Pension Board, [1994] N.B.J. No. 147 (Q.B.), refd to. [para. 37].

Saint John (City) Pension Board et al., Re (2006), 301 N.B.R.(2d) 1; 783 A.P.R. 1; 2006 NBCA 70 (C.A.), refd to. [para. 37].

Amalgamated Transit Union Local 1182 v. City of Saint John et al. - see Saint John (City) Pension Board et al., Re

Bowater Maritimes Inc. v. Communications, Energy and Paperworkers Union, Locals 117, 146, 164 and 263 et al. (2011), 368 N.B.R.(2d) 348; 949 A.P.R. 348; 2011 NBCA 22, refd to. [para. 37].

Inco Ltd., Manitoba Division, Re, [1997] M.G.A.D. No. 55 (G.A.D.), refd to. [para. 46].

Imperial Oil Ltd. v. Minister of National Revenue, [2006] 2 S.C.R. 447; 353 N.R. 201; 2006 SCC 46, refd to. [para. 48].

Compagnie pour l'éclairage au gaz de St-Hyacinthe v. Compagnie des pouvoirs hydrauliques de St-Hyacinthe (1895), 25 S.C.R. 168, refd to. [para. 58].

B.C. Electric Railway Co. v. Pribble, [1926] A.C. 466, refd to. [para. 58].

Statutes Noticed:

City of Saint John Pension Act, S.N.B. 1994, c. 112, sect. 15(1), sect. 21(2) [para. 65]

Authors and Works Noticed:

Brown, Donald, J.M., and Beatty, David M., Canadian Labour Arbitration: Commentary and Current Notes (4th Ed. 2006) (2010 Looseleaf Update), vol. 1, pp. 2-85, 2-86 [para. 48].

Cིཾté, Pierre-André, Interpretation of Legislation in Canada (3rd Ed. 2000), generally [paras. 28, 57]; pp. 227 [para. 56]; 504 [paras. 56, 58].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), generally [para. 57].

Counsel:

Avocats:

John L. Nugent and Scott A. Brittain, for the appellant;

Joël Michaud and Daniel P.L. Léger, for the respondents.

This appeal was heard on November 10, 2010, before Turnbull, Robertson and Green, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered by Robertson, J.A., in both official languages on April 7, 2011.