Saskatoon (City) v. Canadian Union of Public Employees, Local 59 et al., 2008 SKCA 11

• Judge: Sherstobitoff, Jackson and Smith, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 22, 2008
• Jurisdiction: Saskatchewan
• Citations: 2008 SKCA 11;(2008), 307 Sask.R. 73 (CA)

Saskatoon v. CUPE (2008), 307 Sask.R. 73 (CA);

      417 W.A.C. 73

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. JA.016

The City of Saskatoon (applicant/appellant) v. Canadian Union of Public Employees, Local 59 and Jeffrey Balone (respondents/respondents)

(No. 1050; 2008 SKCA 11)

Indexed As: Saskatoon (City) v. Canadian Union of Public Employees, Local 59 et al.

Saskatchewan Court of Appeal

Sherstobitoff, Jackson and Smith, JJ.A.

January 22, 2008.

Summary:

Balone was the senior applicant for a position of Research Coordinator with the Saskatoon Police Service. The collective agreement provided that seniority was to be the determining factor in selecting the successful applicant, provided the applicant possessed the required qualifications. The City of Saskatoon took the position that Balone lacked the required qualifications and another applicant was successful. Balone grieved. An arbitration board concluded that the qualifications for the position established by the City were reasonable and made in good faith. However, the arbitration board also concluded that Balone, despite his lack of qualifications set by the City, was capable of doing the job. The arbitration board ordered that Balone be placed in the position. The City applied for judicial review.

The Saskatchewan Court of Queen's Bench, in a decision reported at 255 Sask.R. 77, dismissed the application. The court held that the applicable standard of review was reasonableness simpliciter and that the arbitration board's decision was not unreasonable.

The Saskatchewan Court of Appeal allowed the appeal and quashed the arbitration board's decision. Smith, J.A., held that the standard of review was reasonableness simpliciter. She concluded that the board's determination that it was entitled to make its own assessment of Balone's ability to do the job, despite finding that he did not have the qualifications fixed by the employer and that those qualifications were reasonable and set in good faith, was unreasonable. Sherstobitoff and Jackson, JJ.A., had reservations about whether the appropriate standard of review was reasonableness simpliciter as opposed to patent unreasonableness. However, they concluded that the board's decision was patently unreasonable, as well as unreasonable, for the reasons given by Smith, J.A., and they were therefore in agreement with the result.

Labour Law - Topic 9185

Public service labour relations - Job competitions - General - Qualifications of applicant - Fixing of - [See Labour Law - Topic 9206 ].

Labour Law - Topic 9206

Public service labour relations - Job selection - General - Job qualifications - General - Balone was the senior applicant for a position of Research Coordinator with the Saskatoon Police Service - The collective agreement provided that seniority was to be the determining factor in selecting the successful applicant, provided the applicant possessed the required qualifications - The City of Saskatoon took the position that Balone lacked the required qualifications and another applicant was successful - Balone grieved - An arbitration board concluded that the qualifications for the position established by the City were reasonable and made in good faith - However, the arbitration board also concluded that Balone, despite his lack of qualifications set by the City, was capable of doing the job and it ordered that he be placed in the position - The City applied for judicial review - The chambers judge dismissed the application, holding that the board's decision was not unreasonable - The City appealed - The Saskatchewan Court of Appeal allowed the appeal and quashed the board's decision - Smith, J.A., held that the standard of review was reasonableness simpliciter - She concluded that the board's determination that it was entitled to make its own assessment of Balone's ability to do the job, despite finding that he did not have the qualifications fixed by the employer and that those qualifications were reasonable and set in good faith, was unreasonable - Sherstobitoff and Jackson, JJ.A., had reservations about whether the standard of review was reasonableness simpliciter as opposed to patent unreasonableness - However, they concluded that the board's decision was patently unreasonable, as well as unreasonable, for the reasons given by Smith J.A. - See paragraphs 58 to 80.

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators or grievance appeal boards - Scope of review (incl. standard) - The Saskatchewan Court of Appeal considered the standard of review to be applied to a decision of a labour arbitrator interpreting provisions of a collective agreement - Smith, J.A., concluded that based on the Supreme Court of Canada's decision in Voice Construction, the standard of review was reasonableness simpliciter - See paragraphs 18 to 57 - Sherstobitoff and Jackson, JJ.A., had reservations about Smith, J.A.'s finding that the standard of review was reasonableness simpliciter as opposed to patent unreasonableness - Those reservations stemmed from the fact that the judgment in Atlas Industries Ltd., the only judgment of the Saskatchewan Court of Appeal that had dealt with the application of Voice Construction in Saskatchewan, and the judgment upon which Smith, J.A., most relied in concluding that the standard was reasonableness simpliciter, was not based on a complete analysis of the four contextual factors bearing on the selection of an appropriate standard of review - Further, Voice Construction arose in Alberta and the Courts of Appeal of other provinces with legislation more similar to that of Saskatchewan had found that, notwithstanding Voice Construction, the standards of review in their provinces remained that of patent unreasonableness - Sherstobitoff, J.A., stated that "if the requisite analysis were carried out in this case, the result would be a determination that the appropriate standard of review would be that of patent unreasonableness ... However, in the interests of institutional comity, and the court's natural reluctance to depart from its previous decisions, we are not prepared to stray from Atlas Industries, particularly when it is not necessary to do so. It would be preferable for the court, more fully constituted, to revisit the decision in Atlas Industries, in a future case" - See paragraphs 79 to 85.

Cases Noticed:

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, consd. [paras. 15, 81].

University of Saskatchewan v. University Employees' Union, Local 1975 (2004), 251 Sask.R. 27; 2004 SKQB 286, refd to. [para. 15].

Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454 and Hardy, [1998] 1 S.C.R. 1079; 226 N.R. 319; 168 Sask.R. 104; 173 W.A.C. 104, refd to. [para. 19].

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, refd to. [para. 22].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [paras. 22, 82].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 22].

Westfair Foods Ltd. v. United Food and Commercial Workers, Local 1400 et al. (2004), 254 Sask.R. 123; 336 W.A.C. 123; 244 D.L.R.(4th) 726; 2004 SKCA 119, consd. [para. 40].

Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454 et al. (2005), 257 Sask.R. 199; 342 W.A.C. 199; 2005 SKCA 30, consd. [para. 41].

Extra Foods v. United Food and Commercial Workers, Local 1400 et al. (2005), 275 Sask.R. 160; 365 W.A.C. 160; 2005 SKCA 154, consd. [para. 42].

Westfair Foods Ltd. v. United Food and Commercial Workers, Local 1400 et al. (2006), 285 Sask.R. 67; 378 W.A.C. 67; 263 D.L.R.(4th) 397; 2006 SKCA 8, consd. [para. 43].

Atlas Industries Ltd. v. Sheet Metal Workers' International Association, Local 296, [2006] 9 W.W.R. 587; 279 Sask.R. 236; 372 W.A.C. 236; 2006 SKCA 48, consd. [paras. 44, 82].

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. 44].

United Food and Commercial Workers, Local 1400 v. Westfair Foods Ltd. et al., [2007] 6 W.W.R. 59; 289 Sask.R. 274; 382 W.A.C. 274; 2007 SKCA 22, consd. [para. 46].

Halifax Employers Association v. International Longshoremen's Association, Local 269 (2004), 226 N.S.R.(2d) 159; 714 A.P.R. 159; 243 D.L.R.(4th) 101; 2004 NSCA 101, consd. [paras. 48, 84].

Nova Scotia Teachers Union v. Nova Scotia Community College (2006), 241 N.S.R.(2d) 183; 767 A.P.R. 183; 265 D.L.R.(4th) 288; 2006 NSCA 22, consd. [para. 49].

Cape Breton (Regional Municipality) v. Canadian Union of Public Employees, Local 933 (2006), 245 N.S.R.(2d) 219; 777 A.P.R. 219; 270 D.L.R.(4th) 572; 2006 NSCA 80, consd. [paras. 51, 84].

Lakeport Beverages v. Teamsters Local Union 938 (2005), 201 O.A.C. 267; 258 D.L.R.(4th) 10 (C.A.), consd. [paras. 53, 84].

Camco Inc. v. United Electrical, Radio and Machine Workers, Local 555 (1989), 35 L.A.C.(3d) 227 (Arb.), consd. [para. 61].

Foothills Provincial General Hospital v. United Nurses of Alberta, Local 115 (1997), 60 L.A.C.(4th) 120 (Arb.), consd. [para. 62].

U.E.W., Local 523 v. Union Carbide Canada Ltd. (1967), 18 L.A.C. 109 (Arb.), refd to. [para. 71].

Sunbeam Home v. London and District Service Workers' Union, Local 220 (1984), 13 L.A.C.(3d) 183, refd to. [para. 72].

St. Catherines General Hospital v. Service Employees Union, Local 204 (1984), 13 L.A.C.(3d) 378, refd to. [para. 74].

Public Service Commission (N.S.) v. Nova Scotia Government and General Employees Union (2004), 223 N.S.R.(2d) 57; 705 A.P.R. 57; 238 D.L.R.(4th) 410; 2004 NSCA 55, refd to. [para. 84].

Syndicat canadien de la Fonction publique, section locale 1773 v. Shediac (Ville) (2005), 280 N.B.R.(2d) 324; 734 A.P.R. 324; 2005 NBCA 20, refd to. [para. 84].

Authors and Works Noticed:

Brown, Donald J.M., and Beatty, David M., Canadian Labour Arbitration (4th Ed. 2006), pp. 6-40 to 6-41, para. 6:3100 [para. 74].

Counsel:

Barry H. Rossmann, Q.C., for the appellant;

Peter J. Barnacle, for the respondents.

This appeal was heard on May 17, 2007, before Sherstobitoff, Jackson and Smith, JJ.A., of the Saskatchewan Court of Appeal.

The judgment of the Court of Appeal was delivered on January 22, 2008, including the following opinions:

Smith, J.A. - see paragraphs 1 to 78;

Sherstobitoff, J.A. (Jackson, J.A., concurring) - see paragraphs 79 to 86.