Alberta Union of Provincial Employees, Branch 63, Edmonton, et al. v. Board of Governors of Olds College, [1982] 1 SCR 923

Supreme Court of Canada

Alberta Union of Provincial Employees, Branch 63, Edmonton, et al. v. Board of Governors of Olds College, [1982] 1 S.C.R. 923

Date: 1982-06-23

The Alberta Union of Provincial Employees on behalf of Branch 63, Edmonton, Alberta Appellant;

and

The Public Service Employee Relations Board in and for the Province of Alberta and its members Appellant;

and

The Board of Governors of Olds College, Olds, Alberta Respondent.

File No.: 16305.

1982: February 9; 1982: June 23.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA

Labour relations—Arbitration as to items to be incorporated into first collective agreement—The Public Service Employee Relations Board finding certain items non-arbitral by statute—Findings of Court reviewing Board’s decision appealed—Whether or not items properly excluded from arbitration board’s consideration by Court of Appeal—The Public Service Employee Relations Act, 1977 (Alta.), c. 40, ss. 9, 11, 48, 49, 89.

During negotiations for a first contract, the college and the union found it necessary to submit a list of contentious items, to be considered for inclusion in the agreement, for a ruling by an arbitration board. The Public Service Employee Relations Board decided that sixty items could be submitted to arbitration and that seven were excluded by s. 48(2) of the Act. The Court of Appeal reversed in part the findings of the trial judge in an application to quash and held that four matters were non-arbitral due to the operation of s. 48 of the Act. This Court considered whether or not those items were to be excluded from interest arbitration.

Held (Martland and Beetz JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Ritchie, Dickson, Estey, McIntyre, Chouinard and Lamer JJ.: Certiorari, considered in light of the privative effects of ss. 9 and 11, was a

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long way from an appeal and was subject to established decisions precluding judicial interference with the Board’s interpretations that were not plainly unreasonable. The section 48(2) restrictions as to what was arbitral did no extend to article 12.01 envisaging agreement on changes in pay rates or other benefits under and during the course of a concluded agreement. Article 49.01, dealing with classification (and essentially a pay item), and article 50, dealing with classification appeal procedure, too, were not excluded by s. 48(2): the employee sought a reclassification within a system established by the employer, with the impact relating to the accompanying pay. There was no reviewable error of law in associating the appeal procedure under proposed article 50 with a reclassification request. The Board did not unreasonably decide that article 49.05, dealing with the red-circling of an employee’s rate of pay, was arbitrable. It was preferable to leave this well-understood matter as an arbitral item than to assume the authority to exclude it from the arbitration board’s consideration.

Per Martland and Beetz JJ., dissenting: The reasons of Prowse J.A. and Clement J.A. in the Court of Appeal were correct, and the appeal should be dismissed with costs.

[McLeod v. Egan, [1975] 1 S.C.R. 517; Bradburn v. Wentworth Arms Hotel, [1979] 1 S.C.R. 846; Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178; Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245; Bradley v. Canadian General Electric Co. Ltd. (1957), 8 D.L.R. (2d) 65, referred to.]

APPEAL from a judgment of the Alberta Court of Appeal (1980), 115 D.L.R. (3d) 575, 23 A.R. 460, 13 Alta. L.R. (2d) 320, confirming the decision of H.J. MacDonald J., with respect to four items of proposed collective agreement excluded from interest arbitration, in an application to quash a decision of the Alberta Public Service Employee Relations Board. Appeal allowed, Martland and Beetz JJ. dissenting.

James Robb, for the appellant Union.

A.C.L. Sims, for the appellant Board.

D.R. Laird, for the respondent.

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The judgment of Laskin C.J. and Ritchie, Dickson, Estey, McIntyre, Chouinard and Lamer JJ. was delivered by

THE CHIEF JUSTICE—This appeal concerns the reviewability on certiorari of decisions of the Alberta Public Service Employee Relations Board made in the exercise of exclusive jurisdiction conferred upon it by The Public Service Employee Relations Act, 1977 (Alta.), c. 40. Three sections of the Act relate to this question, namely, ss. 9, 11 and 89. Involved in the application of these provisions is s. 48 of the Act. I shall come to these sections shortly.

The Act admittedly applies to the Board of Governors of Olds College, the respondent herein, and to its non-academic employees who are represented in collective bargaining thereunder by the appellant Union which had been certified as their bargaining agent. Strikes and lockouts are prohibited by ss. 93 and 94 of the Act, but collective bargaining is envisaged, with arbitration of “interest” disputes in substitution of strikes and lockouts. In short, the terms of a collective agreement may be established by an arbitral award if an employer and a certified union of employees are unable, even after mediation if authorized by the Board, to settle their differences as to the acceptable terms of a proposed collective agreement. Not all differences on proposed collective agreement terms are arbitrable. Section 48 of the Act excludes certain specified matters from arbitration. It reads as follows:

48. (1) An arbitration board may only consider, and an arbitral award may only deal with, those matters that may be included in a collective agreement.

(2) Notwithstanding subsection (1), none of the following matters may be referred to an arbitration board and provisions in respect of the following matters shall not be contained in the arbitral award of an arbitration board:

(a) the organization of work, the assignment of duties and the determination of the number of employees of an employer;

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(b) the systems of job evaluation and the allocation of individual jobs and positions within the systems;

(c) selection, appointment, promotion, training or transfer;

(d) pensions.

The Public Service Employee Relations Board, established under the Act, is empowered to administer it in accordance with its terms. Section 9(1) gives the Board extensive powers “to decide for the purposes of this Act” whether, inter alia

9. (1) …

(a) a corporation, commission, board, council or other body is an employer;

(b) a person is an employee;

(c) an organization of employees is a trade union;

(d) a trade union is a proper bargaining agent;

(e) the parties to a dispute have settled the terms and conditions to be included in a collective agreement;

…

(m) a matter in dispute is an arbitral item;

…

and the Board’s decision is final and binding.

This provision is fortified by s. 11 of the Act which is in these terms:

11. The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Board thereon is final and conclusive for all purposes, but the Board may, at any time, reconsider any order, notice, directive, declaration, certificate or other decision made by it and vary or revoke it.

Attention of the Court was drawn particularly to the vesting of final and conclusive authority in the Board to determine all questions of fact or law that arise in any matter before it. This authority embraces, of course, the powers vested in the Board under s. 9(1).

Whatever privative effect ss. 9 and 11 have standing alone, it is qualified by s. 89(2) of the

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Act, although added privative provision against review is made by s. 89(1). Section 89, in toto, is as follows:

89. (1) No award, proceeding or decision of a tribunal shall be questioned or reviewed in any court, and no order shall be made or process entered or proceedings taken in any court, (whether by way of injunction, declaratory judgment, prohibition, quo warranto or otherwise) to question, review, prohibit or restrain the tribunal in any of his or its proceedings.

(2) Notwithstanding subsection (1), the award, proceeding or decision of a tribunal may be questioned, or reviewed by way of an application for certiorari or mandamus, if an application therefor is filed with the Court not later than 30 days after the date of the award, proceedings or decision of the tribunal.

It will be noted that s. 89(1) does not embrace certiorari or mandamus, and they remain as procedural resorts to challenge decisions of the Board (which is a “tribunal” as defined in s. 76) or to require the Board to perform statutory duties. In the face of this explicit provision for review, it is impossible to read it out of this statute or to subordinate it to ss. 9 and 11 or even to limit it to questions of jurisdiction in the strict sense, as urged by counsel for the Union and counsel for the Board. That being said, however, it still remains to consider the scope of review on alleged errors of law, and it is my opinion that the commanding terms of s. 9(1) and especially of s. 11 cast a gloss on the extent to which decisions of the Board may be overturned by a Court. Certiorari, considered in the light of ss. 9(1) and 11, is a long way from an appeal and is subject to restriction in accordance with a line of decisions of this Court which, to assess them generally, preclude judicial interference with interpretations made by the Board which are not plainly unreasonable. Jurisdictional errors, including want of natural justice, are clearly reviewable and subject to reversal as was conceded by the appellants, but they are not involved here.

I come now to the issues which are before this Court and which were before the Alberta Court of Appeal. The Union and the College were engaged

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in bargaining for a first collective agreement. There were large areas of disagreement between them. There is no doubt that they were in a dispute about many items intended by one or the other to be incorporated in a collective agreement. It was open to each of them to submit a list of arbitral items claimed to be in dispute and which either one or both wished to have submitted to an arbitration board. This is provided under s. 49 of the Act. Section 49(3) and (4) is as follows:

49. …

(3) Upon receipt of a request by either party under subsection (1), the Board shall as soon as possible send a copy of the request and the list of arbitral items claimed to be in dispute, to the other party.

(4) The party receiving the copy of the request for the appointment of an arbitration board shall within 10 days of receipt of the copy and if the party has additional arbitral items to add, send those items to the Board and send a copy of them to the other party to the dispute.

The Public Service Employee Relations Board established an arbitration board as requested, and in a subsequent hearing proceeded to determine, in accordance with its authority under s. 9(1)(m) of the Act, what items put forward as arbitral items were in that category and what items were excluded by virtue of s. 48 of the Act. Sixty items were held to be in the arbitral class and seven items (including subclauses of some proposed items) were held to be excluded as falling under s. 48(2) of the Act. An application by the respondent to quash parts of the decision of the Board came before H.J. MacDonald J. The Union withdrew one item and the learned Judge proceeded to consider the others and concluded that item 12 (embracing sub-articles 12.01, 12.02, 12.03 and 12.06 of proposed article 12), item 52 (embracing sub-articles 49.01, 49.04 and 49.05 of proposed article 49), item 53 (embracing sub-articles 50.01, 50.02, 50.03, 50.04 and 50.05 of proposed article 50) and item 46 (embracing sub-article 42.10 of proposed article 42) should be quashed.

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On appeal to the Alberta Court of Appeal, that Court, in majority reasons of Prowse J.A., concurred in by Clement J.A., reversed the trial Judge in part, but held, as he did, that articles 12.01, 49.01, 49.05 and all of article 50, were non-arbitrable. Moir J.A. dissented in part and would have held proposed article 12.01 to be an arbitrable item.

What is before this Court, therefore, are the four provisions which the Court of Appeal majority held to be excluded from interest arbitration as falling within s. 48 of the Act. I note that Prowse J.A. stated that the parties had gone to arbitration on the items not contested before H.J. MacDonald J.

I pass now to a consideration of the articles proposed by the appellant for inclusion in a collective agreement with the respondent. It should be pointed out that merely because certain disputed provisions put forward by either party are found to be arbitrable does not, per se, mean that they automatically become collective agreement items. If the issues in dispute go to arbitration, at the direction of the Public Service Employee Relations Board under s. 50 of the Act, it is for the arbitral tribunal, under s. 55, to pass on the appropriateness of including arbitral items in a collective agreement. It is hardly necessary to point out the difference between “interests” arbitration and “rights” arbitration; the latter concerns adjudication of disputes arising under a concluded (or imposed) collective agreement and provision for such adjudication is made under ss. 61 to 68.

The proposed article 12.01 reads as follows:

12.01 The Employer during the life of this Agreement may with the agreement of the Union Executive:

(a) alter rates of Employee compensation, or,

(b) alter any Employee entitlement or Employee rights which are contained within this Agreement, and upon such agreement these

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changes shall become the rates, entitlements, or Employee rights.

Prowse J.A. was of the opinion, very shortly expressed, that this provision was in the teeth of s. 49(1) of the Act which speaks of “a dispute” which cannot be resolved and which may then be referred to the Board with a request for arbitration. I am unable to appreciate how s. 49(1) comes into the picture. It goes to the initiation of proceedings before the Board as to whether an item is arbitrable and whether it should be referred to an arbitration board. Nothing in the proposed article 12.01 engages s. 49(1); the article envisages agreement on changes in rates of pay or other employee entitlements under a concluded agreement during the life of the agreement and, if no agreement is reached, then, taking article 12.01 alone, the employer’s position governs. There is no suggestion that the proposed article 12.01 offends any of the provisions of s. 48(2) of the Act. If not, I see no reason for excluding article 12.01 as an appropriate arbitral item. I agree, accordingly, with Moir J.A. on this point.

In approaching articles 49.01 and 50, and, indeed, article 49.05, I must say that it would have been helpful if there were reasons given by the Board on its decisions on arbitrability. However, it was overwhelmed by sixty disputed items, but it had the advantage of submissions by counsel and it would be wrong to think that it did not give due consideration to each of the items in dispute, finding as it did that in seven cases the disputed items were not arbitral ones. At the same time, it is obvious that Prowse J.A. treated the case before him as more akin to an appeal than to one involving a limited right of review. In so doing, he appears to have misapprehended what was involved in McLeod v. Egan, [1975] 1 S.C.R. 517 and in Bradburn v. Wentworth Arms Hotel, [1979] 1 S.C.R. 846. Both these cases, although concerned with grievances under collective agreements, required the arbitration boards (dealing with “rights” arbitrations) to consider applicable public statutes. The interpretation of those statutes

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did not require so-called curial deference to the views of the arbitration boards.

That, however, is not this case. Here the Public Service Employee Relations Board is operating in its home territory, so to speak. It was concerned with the interpretation and application of provisions confided by its constituent Act to its exclusive administration, with its decision stated to have final and conclusive effect. In such circumstances, the proper approach by a reviewing court is not the blunt substitution of judicial opinion for the views of the Board but rather that expressed by Dickson J. in Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227, at p. 237, where he formulated the issue of scope of review as follows:

…was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

I should note that Dickson J. was also dealing with a public service labour relations Act and with the administration of the Act by a board.

Justice Dickson’s approach was adopted in Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178, in the reasons of Pigeon J. at p. 214, and it is also evident in the reasons of Estey J. speaking for the Court in Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245, at pp. 274 ff.

Needless to say, however the scope of review is limited according to the reach of near-privative clauses, there is no complete ouster of review, even on errors of law unless a privative clause clearly enjoins interference on this ground: see Bradley v. Canadian General Electric Co. Ltd. (1957), 8 D.L.R. (2d) 65.

With these considerations in mind, I turn to the remaining articles which are in issue here.

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Proposed article 49.01 may be considered in association with proposed article 50. Article 49.01 is under the general heading of “Classification” and article 50 is headed “Classification Appeal Procedure”. These provisions are in these terms:

49.01 When an Employee considers that the duties and/or responsibilities of his position have been materially changed since the last review, and the Department Head has not requested a review, the Employee may make a request in writing to the President for reclassification. An Employee not satisfied with the President’s decision in regard to classification may appeal the decision in accordance with the Classification Appeal procedures outlined in Article 50.

…

50.01 An Employee wishing to appeal the President’s decision pursuant to Article 49.01 shall submit a request in writing to the Board within twenty-one (21) days.

50.02 The Board shall select two (2) members to act on the Appeal Board and request the Union to appoint a Branch member or Union Staff Officer to the Appeal Board. The senior management representative shall be Chairman of the Board.

50.03 The Appeal Board may call upon records and interview such persons concerned as it sees fit and render a decision, within fourteen (14) days of the appointment of the last member to the Appeal Board. The decision of the Appeal Board shall be final and binding. The Employee may initiate another request for reclassification after six (6) months has elapsed from the decision of the Appeal Board.

50.04 The persons concerned shall be advised within seven (7) days of the decision of the Appeal Board.

50.05 Notwithstanding any of the foregoing, the Appeal Board may not create, delete, or alter classes or class specifications.

Prowse J.A. dealt with these articles in his reasons, as follows:

Article 49.01 and the whole of article 50 set out an appeal procedure which if given effect would directly impinge upon matters excluded under Section 48(2) in

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that it subjects the employer’s decision with respect to job evaluation, appointment, selection, promotion or transfer as the case may be, to arbitration. In my view this matter is not arbitrable.

In my opinion, the Alberta Court of Appeal was wrong to interfere with the conclusion of the Board that proposed article 49.01 was an arbitral item. If proposed article 49.04 and proposed article 42.10 are arbitral items, as the Alberta Court of Appeal held (dealing as they do, respectively, with salary entitlement when an employee’s position is reclassified to a higher salary assignment and with salary entitlement upon a promotion to a higher classification), I am unable to find a reviewable ground for challenging the Board’s conclusion that proposed article 49.01, which is also essentially a pay or salary item, is arbitral. I see nothing in s. 48(2) of the Act to exclude pay issues from the permitted list of arbitral items, it being conceded that the establishment of a job classification system and the slotting of employees within the job classifications are reserved to the employer so long as these are not used to affect adversely the rates of pay or salary theretofore being paid to the employees. What the employee purports to seek under article 49.01 is a reclassification within a system established by the employer, the impact relating to the accompanying pay. This being so, I see no reviewable error of law in associating the appeal procedure under proposed article 50 with a reclassification request under s. 49.01.

Section 48(1) is not a very precise provision but, in so far as it generalizes as to “matters that may be included in a collective agreement”, I can think of nothing that is more integral to a collective agreement than its wage and salary clauses. There is also this to be said in considering whether the Board transgressed s. 48(2). The Board is entitled, in view of its powers under s. 9(1)(m) as fortified by s. 11, to have the most beneficial construction place upon its decisions by the Court, a construc-

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tion that would reasonably accommodate the Board’s administration of the Act.

It remains to consider proposed article 49.05. It reads as follows:

49.05 An Employee whose position is reclassified to a lower salary assignment, through no fault of his own, shall not suffer a loss in pay, and the Employer shall assist the Employee to relocate to a position assigned to his former classification.

Prowse J.A. dealt with this as follows in his reasons:

Article 49.05 sets out the Union’s proposal for dealing with the consequence that would result when an employee, through no fault of his own, is reclassified to a lower level. As set out above if the manner in which the consequences are dealt with does not fetter management’s ability to deal with any of the matters referred to in Sec. 48(2) the matter is arbitral. Here the Union proposes that reclassification should not result in a reduction in pay even though services of the nature provided by the employee were no longer required by the employer. In addition the employer would be bound to assist the employee “to relocate to a position assigned to his former classification.” In my view both aspects of the consequences of reclassification which the Union wish the arbitrators to consider impinge upon and fetter the rights accorded the employer under Sec. 48(2). To be required to pay an employee at a scale that was not related to the scale fixed for the work he was performing could well fetter management’s ability to make the changes circumstances dictated. To give an undertaking to assist employees to relocate might well impinge upon its freedom to promote or transfer employees as it saw fit. In these circumstances I am of the view that article 49.05 does not disclose an arbitral matter.

This article gives me much concern in respect of the Board’s decision that it is an arbitral item. It is on its face a salary protection provision where the employer reclassifies a position for reasons having nothing to do with employee competence. Moreover, I do not regard it as directed to any particular employee’s position, unless he is the only one in it, but rather as involving a reclassification to a

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lower level for reasons affecting the nature of the operations included in the classification, as for example, by reason of improved technology which simplifies the operations. It is, of course, arguable that if an employer is to be obliged to maintain the same rate (to “red circle” the rate, to use a commonly understood expression) for a job classification with a reduced level of complexity, this is an interference with the employer’s classification authority under s. 48(2), at least indirectly. The situation may be a doubtful one but I do not think I can regard the Board’s decision as patently unreasonable. Maintenance of pay is a value in collective bargaining which is well understood and I think it preferable to leave the matter as an arbitral item to be considered by the board of arbitration rather than to assume the authority of excluding it from that board’s consideration. Wage protection or wage maintenance provisions are not expressly within s. 48(2) of the Act, and it would be giving that provision a particular interpretation, harnessing it to wages or rates of pay, if proposed article 49.05 should be found to offend it. The concluding part of proposed article 49.05 is a supplementary provision which does not oblige the employer to create a position for an employee but to make a move back to a previous position likely if such a position becomes available and the employee can fill it.

I would, accordingly, allow the appeal and restore the decision of the Board. The appellant Union is entitled to costs throughout against the respondent College. There will be no order as to costs to or against the Public Service Employee Relations Board.

The reasons of Martland and Beetz JJ. were delivered by

MARTLAND J. (dissenting)—I am in agreement with the reasons of Prowse J.A. and Clement J.A. in the Court of Appeal and, accordingly, would dismiss the appeal with costs.

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Appeal allowed with costs, MARTLAND and BEETZ JJ. dissenting.

Solicitors for the appellant The Alberta Union of Provincial Employees on behalf of Branch 63, Edmonton, Alberta: Hladun, Blakely, Edmonton.

Solicitors for the appellant The Public Service Employee Relations Board of Alberta: Sims, Philp & Kent, Edmonton.

Solicitors for the respondent: Cook, Snowdon & Laird, Edmonton.