United Nurses of Alberta, Local 301 v. Capital Health Authority (University of Alberta), 2007 ABQB 612

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 18, 2007
• Citations: 2007 ABQB 612;(2007), 435 A.R. 1 (QB)

United Nurses v. Capital Health Authority (2007), 435 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. FE.022

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

And In the Matter of the collective agreement between the United Nurses of Alberta, Local 301, and Capital Health Authority, for the period April 1, 2003-March 31, 2006;

And In the Matter Of UNA, Local 301, Group Grievance 041004 respecting Amanda Garneau, Susan Yacyna, and Policy Grievance 041005 respecting missed rest breaks on call back;

And In The Matter Of an award by an Arbitration Board consisting of P.A. Smith, Q.C., Chair; R. Wotherspoon, Employer Nominee; and J. Jesse, Union Nominee, dissenting, issued on August 22, 2006.

United Nurses of Alberta, Local 301 (applicant) v. Capital Health Authority (University of Alberta)

(respondent)

(0603 11527; 2007 ABQB 612)

Indexed As: United Nurses of Alberta, Local 301 v. Capital Health Authority (University of Alberta)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

October 11, 2007.

Summary:

Article 9.04 of the collective agreement provided that on-call nurses who were called into work for emergency situations were "deemed to be working overtime ...". Nurses who were called back were paid at the overtime rate and were paid for breaks whether or not they were able to take breaks. In December 2004, the employer changed its practice, taking the position that call back nurses were not entitled to breaks and would no longer be paid for breaks not taken. An arbitration panel determined that the employer was not required to pay nurses for missed breaks on call back shifts. The union sought judicial review.

The Alberta Court of Queen's Bench allowed the application. The arbitration award was set aside and the matter remitted to a newly constituted arbitration panel for a new determination.

Arbitration - Topic 8403

Judicial review (incl. appeals) - Grounds - Misconduct - Unreasonable or patently unreasonable interpretation - Article 9.04 of the collective agreement provided that on-call nurses who were called into work for emergency situations were "deemed to be working overtime ..." - Article 8 covered overtime, including pay and how rest periods and meal breaks were handled - Nurses who were called back were paid at the overtime rate and were paid for breaks whether or not they were able to take breaks - In December 2004, the employer changed its practice, taking the position that call back nurses would no longer be paid for breaks not taken - An arbitration panel determined that the employer was not required to pay nurses for missed breaks on call back shifts - The Alberta Court of Queen's Bench set aside the award - There were defects in the panel's reasoning that rendered the decision unreasonable - The panel found that article 9 did not incorporate article 8 by the use of the words "deemed to be working overtime ..." - The panel failed to consider the rules of construction that would permit similar and even conflicting provisions to stand and be given a reasonable interpretation - There was no line of reasoning to support the panel's decision that the deeming words could not incorporate article 8 - See paragraphs 32 to 52 and 133.

Arbitration - Topic 8403

Judicial review (incl. appeals) - Grounds - Misconduct - Unreasonable or patently unreasonable interpretation - Article 9.04 of the collective agreement provided that on-call nurses who were called into work for emergency situations were "deemed to be working overtime ..." - Article 8 covered overtime, including pay and how rest periods and meal breaks were handled - Nurses who were called back were paid at the overtime rate and were paid for breaks whether or not they were able to take breaks - In December 2004, the employer changed its practice, taking the position that call back nurses would no longer be paid for breaks not taken - An arbitration panel determined that the employer was not required to pay nurses for missed breaks on call back shifts - The Alberta Court of Queen's Bench set aside the award - There were defects in the panel's reasoning that rendered the decision unreasonable - The panel decided that the heading of article 9.04 ("Call Back Pay") meant that call back nurses were deemed overtime for pay purposes only - Although headings were interpretive tools, the panel did not take into account all of the clauses under article 9.04 - Some of the clauses under article 9.04 did not deal with pay, while other clauses under article 9 that did deal with pay were under different headings - The panel relied too heavily on the heading for its interpretation of the words "deemed to be working overtime" - See paragraphs 53 to 64 and 134.

Arbitration - Topic 8403

Judicial review (incl. appeals) - Grounds - Misconduct - Unreasonable or patently unreasonable interpretation - Article 9.04 of the collective agreement provided that on-call nurses who were called into work for emergency situations were "deemed to be working overtime ..." - Article 8 covered overtime, including pay and how rest periods and meal breaks were handled - Nurses who were called back were paid at the overtime rate and were paid for breaks whether or not they were able to take breaks - In December 2004, the employer changed its practice, taking the position that call back nurses would no longer be paid for breaks not taken - An arbitration panel determined that the employer was not required to pay nurses for missed breaks on call back shifts - The Alberta Court of Queen's Bench set aside the award - There were defects in the panel's reasoning that rendered the decision unreasonable - The panel relied too heavily on a previous arbitration panel's decision, Fort McMurray Regional Hospital v. Canadian Health Care Guild - There was a critical difference between the two cases - In Fort McMurray, the major issue was interpretation of the call back and overtime provisions where there was a direct conflict between the pay stated in the call back provision and the pay stated in the overtime provision - The Fort McMurray decision ought to have been distinguished - It was unreasonable to apply that decision here - See paragraphs 65 to 79 and 135.

Arbitration - Topic 8403

Judicial review (incl. appeals) - Grounds - Misconduct - Unreasonable or patently unreasonable interpretation - Article 9.04 of the collective agreement provided that on-call nurses who were called into work for emergency situations were "deemed to be working overtime ..." - Article 8 covered overtime, including pay and how rest periods and meal breaks were handled - Nurses who were called back were paid at the overtime rate and were paid for breaks whether or not they were able to take breaks - In December 2004, the employer changed its practice, taking the position that call back nurses would no longer be paid for breaks not taken - An arbitration panel determined that the employer was not required to pay nurses for missed breaks on call back shifts - The Alberta Court of Queen's Bench set aside the award - There were defects in the panel's reasoning that rendered the decision unreasonable - The panel's determination that management's position accorded with common sense was flawed - The panel found that payment for missed rest breaks only flowed from missed scheduled breaks - However, a close review of the collective agreement demonstrated easily that there were overtime situations where the overtime nurses were entitled to rest breaks - The panel failed to consider all of the relevant sections in the collective agreement - See paragraphs 80 to 96 and 136.

Arbitration - Topic 8403

Judicial review (incl. appeals) - Grounds - Misconduct - Unreasonable or patently unreasonable interpretation - Article 9.04 of the collective agreement provided that on-call nurses who were called into work for emergency situations were "deemed to be working overtime ..." - Article 8 covered overtime, including pay and how rest periods and meal breaks were handled - Nurses who were called back were paid at the overtime rate and were paid for breaks whether or not they were able to take breaks - In December 2004, the employer changed its practice, taking the position that call back nurses would no longer be paid for breaks not taken - An arbitration panel determined that the employer was not required to pay nurses for missed breaks on call back shifts - The Alberta Court of Queen's Bench set aside the award - The arbitration award failed to give effect to the clear language of the collective agreement - Article 8 was incorporated by reference into article 9 - The panel unreasonably excluded the incorporation because there might be overlap or conflict - There was no conflict - There was some overlap, but the rules of construction dealt with that - Meaning could be given to all of the words by concluding that the deeming provision incorporated article 8 - This conclusion was supported by the employer's past practice of paying for missed rest periods and lunch breaks - The panel failed to give effect to the deeming words - Its interpretation was unreasonable - See paragraphs 97 to 121 and 137.

Labour Law - Topic 9513

Public service labour relations - Collective agreement - General and definitions - Interpretation - General - [See first, third and fourth Arbitration - Topic 8403 ].

Labour Law - Topic 9516

Public service labour relations - Collective agreement - General and definitions - Interpretation - Headings - [See second Arbitration - Topic 8403 ].

Labour Law - Topic 9517

Public service labour relations - Collective agreement - General and definitions - Interpretation - Past practice - [See fifth Arbitration - Topic 8403 ].

Labour Law - Topic 9565

Public service labour relations - Collective agreement - Pay, severance pay and expense allowances - Overtime pay - On callback - [See all Arbitration - Topic 8403 ].

Labour Law - Topic 9705

Public service labour relations - Collective agreement - Arbitration - Awards - Grounds for quashing - [See all Arbitration - Topic 8403 ].

Cases Noticed:

Bibeault - see Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

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. 11].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R.(4th) 193, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 11].

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. [para. 11].

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. 11].

Toronto (City) et al. 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, refd to. [para. 11].

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, refd to. [para. 11].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College, [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1; 2004 SCC 28, refd to. [para. 13].

Nabors Canada LP v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2006), 397 A.R. 57; 384 W.A.C. 57; 2006 ABCA 371, refd to. [para. 14].

Foster v. Transportation and Safety Board (Alta.) (2006), 397 A.R. 82; 384 W.A.C. 82; 2006 ABCA 282, refd to. [para. 14].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, refd to. [para. 14].

Brandt Tractor Ltd. v. Pardee Equipment Employees Association (2006), 399 A.R. 290; 2006 ABQB 327, refd to. [para. 15].

A & H Steel Ltd. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local 720 (2007), 414 A.R. 130; 2007 ABQB 109, refd to. [para. 15].

Canadian Union of Public Employees Local 784 v. Board of Education of Edmonton School District No. 7 (2005), 363 A.R. 123; 343 W.A.C. 123; 2005 ABCA 74, refd to. [para. 24].

Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc. (2005), 382 A.R. 270; 2005 ABQB 496, refd to. [para. 25].

United Food and Commercial Workers' Union, Local 401 v. Canada Safeway Ltd. et al., [2006] A.R. Uned. 197; 2006 ABQB 97, refd to. [para. 25].

Newfoundland Association of Public Employees v. Newfoundland (Attorney General), [1978] 1 S.C.R. 524; 16 N.R. 16; 12 Nfld. & P.E.I.R. 238; 25 A.P.R. 238, refd to. [para. 41].

Marriott Corp. of Canada Ltd. v. Canadian Union of Public Employees et al. (1995), 80 O.A.C. 389 (Div. Ct.), refd to. [para. 41].

Keephills Aggregate Co. v. Subdivision and Development Appeal Board (Parkland County) et al. (2003), 348 A.R. 41; 321 W.A.C. 41; 2003 ABCA 242, refd to. [para. 42].

Capital Health Authority v. United Nurses of Alberta, Local 33 (On-Call Grievance), [1999] A.G.A.A. No. 101, refd to. [para. 57].

Bingo Press and Specialty Ltd. v. Retail Wholesale Canada/CAW Division, Local 462 (Temporary Transfers Grievance), [2003] O.L.A.A. No. 10, refd to. [para. 57].

Halifax Regional Municipality and Municipal Association of Police Personnnel (1996), 58 L.A.C.(4th) 340, refd to. [para. 69].

Foothills Provincial General Hospital v. United Nurses of Alberta Local 115, [1993] A.J. No. 434 (Q.B.), refd to. [para. 84].

Canadian Union of Public Employees, Local 3421 v. Calgary (City) (2000), 274 A.R. 388; 2000 ABQB 770, affd. (2002), 312 A.R. 341; 281 W.A.C. 341; 2002 ABCA 231, refd to. [para. 101].

University College of Cape Breton v. Canadian Union of Public Employees, Local 3131 (Gray) (1998), 90 L.A.C.(4th) 425, refd to. [para. 103].

Lakeport Beverages v. Teamsters Local Union 938 (2005), 201 O.A.C. 267; 258 D.L.R.(4th) 10 (C.A.), refd to. [para. 124].

Authors and Works Noticed:

Brown, Donald J.M., and Beatty, David M., Canadian Labour Arbitration (4th Ed. 2006) (Looseleaf), paras. 3:4430 [paras. 109, 114, 116]; 4:2100, 4:2110 [para. 124]; 4:2220 [para. 67].

Palmer, Earl Edward, and Palmer, Bruce Murdoch, Collective Agreement Arbitration in Canada (3rd Ed. 1991), p. 127 [para. 58].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 264 to 265 [para. 48]; 273 to 275 [para. 49].

Counsel:

Ritu Khullar (Chivers Carpenter), for the applicant;

Raylene Palichuk (Neuman Thompson), for the respondent.

This application was heard on February 6 and May 18, 2007, by Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on October 11, 2007.