Western Avalon School Bd. v. NAPE, (2000) 191 Nfld. & P.E.I.R. 5 (NFCA)

• Judge: O'Neill, Marshall and Cameron, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: October 18, 1999
• Jurisdiction: Newfoundland and Labrador
• Citations: (2000), 191 Nfld. & P.E.I.R. 5 (NFCA)

Western Avalon School Bd. v. NAPE (2000), 191 Nfld. & P.E.I.R. 5 (NFCA);

    577 A.P.R. 5

MLB headnote and full text

Temp. Cite: [2000] Nfld. & P.E.I.R. TBEd. JL.003

Newfoundland Association of Public Employees (appellant) v. Western Avalon Roman Catholic School Board (respondent)

(96/27; 2000 NFCA 39)

Indexed As: Board of Education (Roman Catholic) of Western Avalon v. Newfoundland Association of Public Employees

Newfoundland Supreme Court

Court of Appeal

O'Neill, Marshall and Cameron, JJ.A.

July 4, 2000.

Summary:

An employer applied to quash an arbitrator's decision which found that it had violated the seniority provisions of its collective agreement.

The Newfoundland Supreme Court, Trial Division, in a decision reported at 138 Nfld. & P.E.I.R. 225; 431 A.P.R. 225, allowed the application. The union appealed.

The Newfoundland Court of Appeal dismissed the appeal.

Arbitration - Topic 8009

Judicial review - Jurisdiction of arbitrator -Error of law on the face of the record - Error respecting burden of proof - A union grieved an employee's layoff - On review of the arbitrator's decision, the chambers judge held that while the arbitrator acknowledged that the burden of proof to establish on a balance of probabilities that the layoff was contrary to the collective agreement was on the union, her statements respecting the compelling arguments that the employer failed to make suggested what amounted in the circumstances to an equal burden on both parties, and this was patently unreasonable - On appeal, the union submitted that the arbitrator's statements were merely a reflection of the shifting burden of adducing evidence which occurs in most cases, rather than the ultimate or legal burden of establishing the grievance - The Newfoundland Court of Appeal rejected the submission - See paragraph 44.

Labour Law - Topic 9120

Public service labour relations - Grievances - Evidence and proof - [See Arbitration - Topic 8009 ].

Labour Law - Topic 9517

Public service labour relations - Collective agreement - General and definitions - Interpretation - Past practice - A school's maintenance hours were reduced - Caul, a janitor, was declared redundant - Ryan, a maintenance janitor, was a junior employee in a senior classification - His hours were increased after Caul's layoff, but there was an overall reduction in hours - The arbitrator found that the employer had the right to abolish the position and lay off Caul unless it acted in bad faith - The arbitrator then held that the Board should have done what it had done previously, distribute the reduction in hours between Caul and Ryan - The Newfoundland Court of Appeal stated that it was dangerous to view one prior action as establishing a practice which might aid in interpreting an agreement - See paragraphs 46 to 47.

Labour Law - Topic 9621

Public service labour relations - Collective agreement - Management rights - General -The Newfoundland Court of Appeal stated that "[t]he task of an arbitrator when examining an exercise of a discretionary right is not to have the arbitrator decide how the discretion should have been exercised but to determine whether management's exercise of its discretion is within the range of reasonable responses to the circumstances, if one accepts the reasonableness test, or simply whether the decision was made bona fide and without discrimination, if one follows the traditional test. ... Whether [the decision] was the correct one, is not for the arbitrator or for this court to decide." - See paragraph 39.

Labour Law - Topic 9868

Public service labour relations - Job layoffs and other work reduction schemes - Seniority clauses - Effect of - Caul, a school janitor worked 20 hours per week - Ryan, a maintenance janitor worked 30 hours - He was a junior employee in a senior classification - He could do Caul's job, but Caul could not do his job - When the school's maintenance hours were reduced by 10, the school board laid off Caul and increased Ryan's hours to 40 - An arbitrator found that there was no lack of work and that Caul's layoff violated her seniority rights under the collective agreement - The Newfoundland Court of Appeal upheld a decision overturning the arbitrator's decision - "Lack of work" did not require that all of the tasks performed by the laid off employee no longer be done - See paragraph 45.

Labour Law - Topic 9868

Public service labour relations - Job layoffs and other work reduction schemes - Seniority clauses - Effect of - Caul, a school janitor worked 20 hours weekly - Ryan, a maintenance janitor worked 30 hours weekly - Ryan was a junior employee in a senior classification - While Ryan could do Caul's job, Caul could not do Ryan's job - When the school's maintenance hours were reduced by 10, the school board laid off Caul and increased Ryan's hours to 40 - An arbitrator found that the layoff violated Caul's seniority rights under the collective agreement - A chambers judge overturned the decision - The Newfoundland Court of Appeal agreed with the chambers judge that, by ignoring an article in the collective agreement, the arbitrator gave the collective agreement an interpretation that it could not reasonably bear (patently unreasonable error).

Words and Phrases

Lack of work - The Newfoundland Court of Appeal discussed the meaning of this phrase as found in a collective agreement -See paragraph 45.

Cases Noticed:

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. 14].

U.E.S., 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).

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140, refd to. [para. 14, footnote 5].

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, refd to. [para. 14, footnote 5].

Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), [1993] 2 S.C.R. 230; 152 N.R. 1; 63 O.A.C. 1; 102 D.L.R.(4th) 609, refd to. [para. 14].

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161, refd to. [para. 15].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 16].

Planet Development Corp. and Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry in the United States and Canada, Local 740, [1990] 3 S.C.R. 644; 123 N.R. 241; 88 Nfld. & P.E.I.R. 15; 274 A.P.R. 15; 91 C.L.L.C. 14,002; 76 D.L.R.(4th) 389; 48 Admin. L.R. 1, refd to. [para. 17].

Board of Education of Toronto v. Ontario Secondary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, refd to. [para. 17].

Lakeland College Faculty Association and Kaai v. Lakeland College (1998), 223 A.R. 1; 183 W.A.C. 1; 162 D.L.R.(4th) 338 (C.A.), refd to. [para. 19].

University of Alberta v. Non-Academic Staff Association (1993), 34 L.A.C.(4th) 229 (Alta.), refd to. [para. 27].

Simon Fraser University v. Association of University and College Employees, Local 6, Teaching Support Staff Union (1983), 2 C.L.R.B.R.(N.S.) 329 (B.C.), refd to. [para. 28].

Metropolitan Toronto Board of Commissioners of Police v. Metropolitan Toronto Police Association (1981), 124 D.L.R.(3d) 684 (Ont. C.A.), refd to. [para. 33].

Council of Printing Industries of Canada v. Toronto Printing Pressmen and Assistants' Union, Local 10 (1983), 149 D.L.R.(3d) 53 (Ont. C.A.), refd to. [para. 33].

Toronto (City) v. Canadian Union of Public Employees et al. (1990), 39 O.A.C. 82; 69 D.L.R.(4th) 268 (C.A.), refd to. [para. 33].

Metropolitan Toronto (Municipality) v. Canadian Union of Public Employees, Local 43 - see Toronto (City) v. Canadian Union of Public Employees et al.

Assiniboine South Teachers' Association of the Manitoba Teachers' Society v. Board of Education of Assiniboine South School Division No. 3 (1998), 128 Man.R.(2d) 231; 163 D.L.R.(4th) 343 (Q.B.), refd to. [para. 34].

Browne, Re (1996), 141 Nfld. & P.E.I.R. 181; 443 A.P.R. 181 (Nfld. T.D.), refd to. [para. 35].

Iron Ore Co. of Canada v. United Steelworkers of America, Local 5795 - see Browne, Re.

Halifax (City) v. Municipal Association of Police Personnel (1994), 131 N.S.R.(2d) 199; 371 A.P.R. 199 (S.C.), refd to. [para. 36].

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. 37].

Allen's Food Industries Inc. v. Bakery, Confectionery and Tobacco Workers' International Union, Local 446 (1994), 46 L.A.C.(4th) 64 (N.S.), refd to. [para. 44].

Southern Alberta Institute of Technology v. Alberta Union of Provincial Employees, Local 39 (1994), 43 L.A.C.(4th) 261 (Alta.), refd to. [para. 44].

Newfoundland (Treasury Board) v. Newfoundland Association of Public Employees (1996), 147 Nfld. & P.E.I.R. 243; 459 A.P.R. 243 (Nfld. T.D.), dist. [para. 44].

Battlefords and District Co-operatives Ltd. v. Retail, Wholesale and Department Store Union, Local 544, [1998] 1 S.C.R. 1118; 226 N.R. 143; 168 Sask.R. 151; 173 W.A.C. 151, refd to. [para. 51].

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. 51].

Authors and Works Noticed:

Black's Law Dictionary [para. 57].

Oxford Dictionary [para. 57].

Palmer, Earl Edward, and Palmer, Bruce Murdoch, Collective Agreement Arbitration in Canada (3rd Ed. 1991), generally [para. 32].

Counsel:

Sheila H. Greene, for the appellant;

Michael Harrington, Q.C., for the respondent.

This appeal was heard on October 18, 1999, by O'Neill, Marshall and Cameron, JJ.A., of the Newfoundland Court of Appeal. On July 4, 2000, Cameron, J.A., delivered the following decision for the court.