University of Saskatchewan v. University Employees' Union, Local 1975, 2004 SKQB 286

• Judge: G.A. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 23, 2004
• Jurisdiction: Saskatchewan
• Citations: 2004 SKQB 286;(2004), 251 Sask.R. 27 (QB)

Sask. Univ. v. Univ. Employees (2004), 251 Sask.R. 27 (QB)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. JL.042

The University of Saskatchewan (applicant) v. the University Employees' Union Local 1975 C.U.P.E. (respondent)

(2004 Q.B.G. No. 424; 2004 SKQB 286)

Indexed As: University of Saskatchewan v. University Employees' Union, Local 1975

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

G.A. Smith, J.

June 23, 2004.

Summary:

The College of Dentistry of the University of Saskatchewan established a clinic to provide training to senior students to facilitate transition from their university education and training to private practice. The College held a job competition for the position of Dental Assistant II. The grievor grieved the College's failure to appoint her to the position. An arbitrator allowed the grievance and ordered that the grievor be placed in the position. The University applied for judicial review.

The Saskatchewan Court of Queen's Bench allowed the application and quashed the arbitrator's award.

Arbitration - Topic 5561

The award - Arriving at an award - Precedent - The College of Dentistry of the University of Saskatchewan held a job competition - The grievor was unsuccessful because she lacked the required recent experience in a private clinic - An earlier award respecting the same competition (the Wallace award) had concluded that the requirement was reasonable and pertinent - An arbitrator, appointed under the collective bargaining agreement, allowed the grievance - The Saskatchewan Court of Queen's Bench quashed the decision - The arbitrator had in effect determined what skills and experience were reasonably required and concluded that they did not require recent experience in a private clinic and the grievor had "the equivalent of" or "close to" the required skills - She in effect concluded that the recent experience requirement was not legitimate or reasonable - That finding was not open to her given the Wallace award - Although the arbitrator correctly recognized that the standard for reviewing the College's assessment of the grievor's qualification was reasonableness, she applied the wrong standard by substituting her opinion - See paragraphs 16 to 47.

Courts - Topic 89

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Boards and tribunals - [See Arbitration - Topic 5561 ].

Labour Law - Topic 9185

Public service labour relations - Job competitions - General - Qualifications of application - Fixing of - [See Arbitration - Topic 5561 ].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators or grievance appeal boards - Scope of review (incl. standard) - An arbitrator allowed a grievance by an unsuccessful candidate in a job competition - The employer sought judicial review - At issue was whether the arbitrator (1) misinterpreted the extent to which she was bound by a prior arbitration award respecting the same competition; (2) applied the wrong standard of review, substituting her own opinion for that of the employer in assessing the grievor's qualifications relative to the required qualifications; and (3) erred in awarding the post to the grievor rather than having it re-posted - The decision was protected by a partial privative clause - The Saskatchewan Court of Queen's Bench determined that the first issue was a question of law fundamental to the scope of the arbitrator's inquiry and went directly to jurisdiction and was reviewable on the standard of correctness - The second issue was a question of mixed fact and law which fell within the broad area of the arbitrator's expertise and was reviewable on the standard of reasonableness simpliciter - The third issue fell squarely within the arbitrator's expertise and engaged an element of discretion, including policy considerations, and was reviewable on the standard of patent unreasonableness - See paragraphs 6 to 15.

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 223 D.L.R.(4th) 599; 2003 SCC 19, refd to. [para. 6].

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; 223 D.L.R.(4th) 577; 2003 SCC 20, refd to. [para. 6].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92 (2004), 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, consd. [para. 8].

Sisters of St. Joseph v. Service Employees Union, Local 210 (1992), 52 O.A.C. 353; 89 D.L.R.(4th) 189 (Div. Ct.), affd. (1997), 102 O.A.C. 192; 155 D.L.R.(4th) 674 (C.A.), refd to. [para. 14].

Counsel:

Neil G. Gabrielson, Q.C., for the applicant;

Peter J. Barnacle, for the union.

This application was heard by G.A. Smith, J., of the Alberta Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on June 23, 2004.