University of Saskatchewan v. Canadian Union of Public Employees, Local 1975 et al., (2014) 449 Sask.R. 107 (QB)

• Judge: Scherman, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 25, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 449 Sask.R. 107 (QB);2014 SKQB 190

Sask. Univ. v. CUPE (2014), 449 Sask.R. 107 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. JL.039

The University of Saskatchewan (applicant) v. Canadian Union of Public Employees, Local 1975 (respondent) and Sandra Miskolzie, Tammy Enns, and Teodora Ozaeta (respondents) and Kenneth A. Stevenson, Q.C., Rhonda Heisler, and Chris Boychuk, Q.C., sitting as the Board of Arbitration (respondents)

(2013 Q.B.G. No. 1685; 2014 SKQB 190)

Indexed As: University of Saskatchewan v. Canadian Union of Public Employees, Local 1975 et al.

Saskatchewan Court of Queens' Bench

Judicial Centre of Saskatoon

Scherman, J.

June 25, 2014.

Summary:

Three people employed by the University of Saskatchewan's Department of Culinary Services were dismissed from their positions for taking food home and consuming food on site that they had not paid for, contrary to the University's policy. The violations of the policy occurred numerous times and over an extended period of time. The employees grieved their dismissal. A Board of Arbitration found that the employees' dismissal was an excessive disciplinary response. The University applied for judicial review.

The Saskatchewan Court of Queen's Bench allowed the application and returned the matter to be heard by a newly constituted Board of Arbitration.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - A Board of Arbitration found that a university's dismissal of three employees for theft was an excessive disciplinary response - The university applied for judicial review, arguing that a reasonable apprehension of bias arose from the conduct of the union nominee on the Board - The university pointed to the affidavit evidence of its Director of Human Resources (Epp) who was a witness and observer at the arbitration proceedings - Epp stated that the union nominee was hostile and aggressive in questioning one of the university's witnesses, asked the university's witnesses questions that were detailed, probing and lengthier than the cross-examination conducted by union counsel, and questioned the employees with leading questions that elicited evidence favourable to the employees - The Saskatchewan Court of Queen's Bench found that the university had a reasonable apprehension of bias - The union nominee did not bring good faith or informed, mature and responsible judgment to her role - She went beyond asking questions to clarify, and beyond the permitted scope of being invested with a full appreciation for her nominator's proper interests - She apparently saw her role as being to support and supplement the efforts of the employees' counsel - See paragraphs 56 to 63 and 72 to 76.

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - A Board of Arbitration found that a university's dismissal of three employees for theft was an excessive disciplinary response - The university applied for judicial review, arguing that a reasonable apprehension of bias arose from the conduct of the union nominee on the Board - The union argued that allegations of bias should not be raised in the first instance on judicial review and should have been raised before the Board itself - The Saskatchewan Court of Queen's Bench found that it was appropriate for the university to raise its allegations of bias before the court in the first instance - The alleged apprehension of bias arose during the course of the arbitration proceedings based on the accumulation of a series of interactions with witnesses - Since much, if not most, of the proceedings would have occurred before the university's apprehension of bias had solidified, there would be little advantage from the efficient administration of justice in raising the matter first before the Board - There would be no particular value in the court having the benefit of the Board's opinion on whether there was a reasonable apprehension of bias because that opinion would include the opinion of the union nominee who was the focus of the university's apprehension - See paragraphs 64 to 71.

Administrative Law - Topic 3348

Judicial review - General - Practice - Time for application - A Board of Arbitration found that a university's dismissal of three employees for theft was an excessive disciplinary response - The Board did not decide what was an appropriate disciplinary response, but reserved jurisdiction to decide this issue if the parties were unable to resolve it among themselves - The university applied for judicial review - The employees' union argued that the application was premature - The Saskatchewan Court of Queen's Bench found that the application was not premature - The parties' agreement to bifurcate the arbitration had the effect of making the award delivered a final award - It would make no practical or policy sense to force the university to go through the exercise of having the Board rule on the remedy as a compulsory prerequisite to an inevitable judicial review application - See paragraphs 11 to 18.

Arbitration - Topic 8300.1

Judicial review (incl. appeals) - Grounds - General - Grounds not raised before arbitrator - [See Administrative Law - Topic 3345.2 ].

Arbitration - Topic 8406

Judicial review (incl. appeals) - Grounds - Misconduct - Bias - Lack of impartiality - [See Administrative Law - Topic 2088 ].

Labour Law - Topic 646

Labour relations boards and judicial review - Natural justice - Denial of - Bias - What constitutes - [See Administrative Law - Topic 2088 ].

Labour Law - Topic 9154

Public service labour relations - Discipline and dismissal of civil or public servants - Dismissal - What constitutes cause for - Three people employed by a university's Department of Culinary Services were dismissed from their positions for taking food home and consuming food on site that they had not paid for, contrary to the university's policy - The violations of the policy occurred numerous times and over an extended period of time - The employees grieved their dismissals - A Board of Arbitration found that the dismissals were an excessive disciplinary response because the university did not have an express policy or consistent practice of terminating employees for theft, and because of mitigating factors which included the employees' clean record and the fact that the thefts were not major - The Saskatchewan Court of Queen's Bench allowed the university's application for judicial review - The premise that the discipline level should be modified where an employer did not have an express policy and consistent practice of terminating for theft was unreasonable - The Board's omnibus treatment of all three employees was also unreasonable - The Board gave no consideration to the fact that one of the employees (the lead hand) authorized and assisted others to violate the policy instead of ensuring awareness of and enforcing the policy - It was unreasonable to conclude that the necessary foundation of trust in the employment relationship had not been destroyed - See paragraphs 35 to 55.

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 9154 ].

Cases Noticed:

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161; 2001 SCC 38, refd to. [para. 2].

Saskatchewan v. Saskatchewan Government and General Employees' Union et al. (2008), 325 Sask.R. 263; 2008 SKQB 341, refd to. [para. 11].

Chief of Police of Saskatoon City Police Force v. Board of Police Commissioners of Saskatoon et al. (2003), 231 Sask.R. 95; 2003 SKQB 111, refd to. [para. 14].

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. 19].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 20].

Sherwood Co-operative Association Ltd. v. Retail, Wholesale and Department Store Union, Local 539 et al. (2013), 427 Sask.R. 10; 591 W.A.C. 10; 2013 SKCA 119, refd to. [para. 21].

Saskatchewan Joint Board Retail, Wholesale, and Department Store Union, Local 454 v. Canada Safeway Limited, 2004 CanLII 66213 (Sask. Lab. Arb.), refd to. [para. 30].

Great Atlantic & Pacific Co. of Canada v. United Food & Commercial Workers International Union, Local 175 (Bradt Grievance) (2007), L.A.C.(4th) 116 (Ont. Lab. Arb.), refd to. [para. 30].

Maple Leaf Fresh Foods v. United Food and Commercial Workers Union, Local 832 (2007), 163 L.A.C.(4th) 348 (Man. G.A.), refd to. [para. 30].

Loblaws Supermarkets Ltd. v. United Food & Commercial Workers International Union, Local 1000A (McDonald Grievance) (1998), 74 L.A.C.(4th) 129 (Ont. Lab. Arb.), refd to. [para. 30].

Embassy Suites Hotel v. Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351 (1995), 48 L.A.C.(4th) 150 (Ont. Lab. Arb.), refd to. [para. 30].

Grand & Toy Ltd. v United Steelworkers of America, Local 9197 (Collicutt Grievance) (2008), 176 L.A.C.(4th) 289 (Ont. Lab. Arb.), refd to. [para. 30].

Canada Safeway Ltd. v. United Food & Commercial Workers Local 2000 (1987), 29 L.A.C.(3d) 176 (B.C.C.A.A.A.), refd to. [para. 46].

Codville Co. v. R.W.D.S.U., Locals 454 & 480 (1991), 17 L.A.C.(4th) 289 (Sask. Lab. Arb.), refd to. [para. 47].

Bailey et al. v. Saskatchewan Registered Nurses' Association (1996), 142 Sask.R. 1 (Q.B.), refd to. [para. 59].

Bajwa v. British Columbia Veterinary Medical Association, [2010] B.C.T.C. Uned. 848; 2010 BCSC 848, refd to. [para. 64].

Eckervoght et al. v. British Columbia (Minister of Employment and Investment) (2004), 201 B.C.A.C. 302; 328 W.A.C. 302; 241 D.L.R.(4th) 685; 2004 BCCA 398, refd to. [para. 65].

Abitibi Consolidated Co. of Canada v. Communications, Energy and Paperworkers Union of Canada, Local 60N (2008), 273 Nfld. & P.E.I.R. 17; 833 A.P.R. 17; 2008 NLCA 4, refd to. [para. 66].

Refrigeration Workers Union, Local 516 v. Labour Relations Board of British Columbia, [1986] 4 W.W.R. 223; 27 D.L.R.(4th) 676 (B.C.C.A.), refd to. [para. 72].

Blanchette v. C.I.S. Ltd., [1973] S.C.R. 833; 36 D.L.R.(3d) 561, refd to. [para. 73].

Yorkton (City) v. Yorkton Professional Firefighters Association, Local 1527 et al. (2001), 213 Sask.R. 161; 260 W.A.C. 161; 207 D.L.R.(4th) 651; 2001 SKCA 128, refd to. [para. 74].

Authors and Works Noticed:

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (4th Ed. 2004), generally [paras. 67, 68].

Counsel:

David M.A. Stack and Kelsey O'Brien (student-at-law), for the applicant;

Juliana K.J. Saxberg, for CUPE.

This application for judicial review was heard before Scherman, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on June 25, 2014.