United Nurses of Alberta, Local 115 v. Calgary Health Authority (Foothills Medical Centre), 2002 ABQB 859

• Judge: Sullivan, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 01, 2002
• Citations: 2002 ABQB 859;(2002), 324 A.R. 306 (QB)

United Nurses v. Health Authority (2002), 324 A.R. 306 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. OC.105

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

And In The Matter Of an arbitration of grievance on behalf of Robyn Boyer filed by United of Alberta Local 115, pursuant to a Collective Agreement between the United Nurses of Alberta Local 115 and the Calgary Health Authority (Foothills Medical Centres) in effect for the period of April 1, 1999 - March 31, 2001;

And In The Matter Of an award of an Arbitration Board consisting of Chair P.A. Smith, Employer Nominee S. Hunter and Union Nominee L. Coates, dated the 19th Day of December 2001

United Nurses of Alberta, Local 115 (Robyn Boyer) (applicants) v. Calgary Health Authority (Foothills Medical Centre) (respondent)

(0201 00977; 2002 ABQB 859)

Indexed As: United Nurses of Alberta, Local 115 v. Calgary Health Authority (Foothills Medical Centre)

Alberta Court of Queen's Bench

Judicial District of Calgary

Sullivan, J.

September 27, 2002.

Summary:

Boyer complained that she had been discriminated against when she failed to obtain a temporary nursing position because she was planning on taking a maternity leave approximately half-way through the nine month posting. The arbitration board dismissed the complaint. Boyer applied for judicial review.

The Alberta Court of Queen's Bench allowed the application, quashed the arbitration board's decision and remitted the matter to a newly constituted board for determination.

Civil Rights - Topic 985

Discrimination - Employment - Duty to accommodate - [See Labour Law - Topic 6621 ].

Civil Rights - Topic 998

Discrimination - Employment - Exceptions - Bona fide or reasonable occupational requirement or qualification - [See Labour Law - Topic 6621 ].

Labour Law - Topic 6621

Industrial relations - Collective agreement -Interpretation - Hiring of employees - Temporary positions - An arbitration board rejected Boyer's grievance that she had been discriminated against when she failed to obtain a temporary nursing position because she was planning on taking a maternity leave approximately half-way through the nine month posting - The Alberta Court of Queen's Bench quashed the board's decision - The board erred by failing to correctly apply the third step of the "Meiorin" bona fide occupational requirement (BFOR) analysis (i.e., in determining whether "availability" was a BFOR) - The board did not inquire as to the steps taken by the employer when developing the availability standard, such as whether the employer investigated alternative approaches - The court stated that the board appeared to assume that because availability was found to be a core component of a temporary position that the employer had no duty to accommodate or that any accommodation would result in undue hardship - The board also erred in making a finding of undue hardship without requiring any evidence from the employer to prove that undue hardship would be the result.

Labour Law - Topic 7112

Industrial relations - Collective agreement -Enforcement - Arbitration - Judicial review - Scope of review - An arbitration board rejected Boyer's complaint that she had been discriminated against when she failed to obtain a temporary nursing position because she was planning on taking a maternity leave approximately half-way through the nine month posting - The Alberta Court of Queen's Bench quashed the board's decision - The court stated that the standard of review in this case was that of correctness - The board did not engage in the appropriate legal analysis respecting the duty to accommodate and, further, assumed, without evidence, that the employer would experience undue hardship if required to hire Boyer initially and then re-post the position - As the board made an error of law with respect to human rights legislation (a matter outside its expertise), the Board's decision was reviewable on a standard of correctness - See paragraphs 34 to 42.

Cases Noticed:

Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees' Union, [1999] 3 S.C.R. 3; 244 N.R. 145; 127 B.C.A.C. 161; 207 W.A.C. 161, refd to. [para. 20].

Syndicat national des employés de la commission scolaire ré gionale 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. 3].

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

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. 34].

University of Alberta Non-Academic Staff Association v. University of Alberta (1997), 205 A.R. 161; 52 Alta. L.R.(3d) 256 (Q.B.), refd to. [para. 35].

Foothills Provincial General Hospital v. United Nurses of Alberta, Local 115 (1998), 228 A.R. 122; 188 W.A.C. 122; 168 D.L.R.(4th) 64 (C.A.), refd to. [para. 35].

Newfoundland Association of Public Employees v. Newfoundland et al., [1996] 2 S.C.R. 3; 196 N.R. 212; 140 Nfld. & P.E.I.R. 63; 438 A.P.R. 63; 134 D.L.R.(4th) 1, refd to. [para. 35].

Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre) - see Newfoundland Association of Public Employees v. Newfoundland et al.

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161, refd to. [para. 36].

Paccar of Canada Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1; 62 D.L.R.(4th) 437; 89 C.L.L.C. 14,050; [1989] 6 W.W.R. . 673; 40 Admin. L.R. 181, refd to. [para. 37].

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [para. 38].

Alberta v. Labour Relations Board (Alta.) et al. (2002), 293 A.R. 251; 257 W.A.C. 251 (C.A.), refd to. [para. 38].

Communications, Energy and Paperworkers Union, Local 440 v. Kimberley-Clark, Nova Scotia (2000), 185 N.S.R.(2d) 145; 575 A.P.R. 145 (S.C.), refd to. [para. 40].

Public Service Alliance of Canada v. Greater Toronto Airports Authority, [2002] O.J. No. 746 (Sup. Ct.), refd to. [para. 40].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 41].

United Nurses of Alberta, Local 37 et al. v. Provincial Health Authorities (Alta.) et al. (1999), 253 A.R. 57 (Q.B.), refd to. [para. 42].

United Nurses of Alberta, Local 33 et al. v. Capital Health Authority et al. (2001), 286 A.R. 178; 253 W.A.C. 178 (C.A.), refd to. [para. 42].

Central Alberta Dairy Pool v. Human Rights Commission (Alta.), [1990] 2 S.C.R. 489; 113 N.R. 161; 111 A.R. 241, refd to. [para. 49].

Human Rights Commission (Ont.) and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 12 O.A.C. 241, refd to. [para. 49].

Renaud v. Board of Education of Central Okanagan No. 23 and Canadian Union of Public Employees, Local 523, [1992] 2 S.C.R. 970; 141 N.R. 185; 13 B.C.A.C. 245 ; 24 W.A.C. 245, refd to. [para. 49].

Canada (Procureur général) v. Mongrain, [1992] 1 F.C. 472; 135 N.R. 125 (F.C.A.), refd to. [para. 50].

Dominion Colour Corp. and Teamsters Chemical, Energy and Allied Workers, Local 1880, Re (1999), 83 L.A.C.(4th) 330 (Ont.), refd to. [para. 56].

Superintendent of Motor Vehicles (B.C.) et al. v. Council of Human Rights (B.C.), [1999] 3 S.C.R. 868; 249 N.R. 45; 131 B.C.A.C. 280; 214 W.A.C. 280, refd to. [para. 57].

Statutes Noticed:

Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, sect. 7(3) [para. 13].

Counsel:

J.R. Carpenter, for the plaintiff;

W.J. Armstrong, Q.C., for the defendant.

This application was heard on May 1, 2002, before Sullivan, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on September 27, 2002.