Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, 2004 SCC 23, [2004] 1 SCR 609

Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, [2004] 1 S.C.R. 609, 2004 SCC 23

Construction & General Workers’ Union, Local 92                                          Appellant

v.

Voice Construction Ltd.                                                                                   Respondent

Indexed as:  Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92

Neutral citation:  2004 SCC 23.

File No.:  29547.

Hearing and judgment:  January 23, 2004.

Reasons delivered:  April 8, 2004.

Present:  McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ.

on appeal from the court of appeal for alberta

Labour relations — Collective agreement — Interpretation by labour arbitrator — Employer’s  obligation to hire dispatched workers — Appropriate standard of review of arbitrator’s award.

Judicial review — Labour relations — Interpretation  of collective agreement — Arbitrator’s award — Appropriate standard of review.

The appellant, a trade union representing labourers in the construction industry, dispatched a union member from its hiring hall to the respondent, a construction company, notwithstanding the respondent’s request that she not be sent to its job sites.  The appellant claimed that the respondent’s refusal to put her to work constituted a violation of the collective agreement and grieved the matter, stating that the respondent was required to hire the labourers dispatched by the union providing they were qualified and had not been previously terminated for cause.  The arbitrator found that the collective agreement’s “name hire” and “dispatch” provisions constituted an express restriction on the respondent’s broad right to “hire and select workers” and accordingly held that the respondent was required to hire qualified workers properly dispatched by the union.  On an application for judicial review under s. 143(2) of the Alberta Labour Relations Code, the reviewing judge found that the arbitrator had exceeded her jurisdiction by finding an express restriction on management’s rights to hire and select.  He applied a standard of correctness and quashed the award.  A majority of the Court of Appeal upheld the decision.

Held:  The appeal should be allowed and the arbitrator’s award restored.

Per McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and Fish JJ.:  In assessing an arbitrator’s ruling, a reviewing judge should adopt a pragmatic and functional analysis to determine the appropriate standard of review.  Only after the standard of review is determined can the administrative tribunal’s decision be scrutinized.  An application for certiorari under s. 143(2) of the Labour Relations Code does not put the review beyond the reach of the pragmatic and functional approach but rather is a factor to be considered when conducting that analysis.  Here, when the relevant factors of the pragmatic and functional approach are considered, the result mandates the less deferential standard of reasonableness.  Neither the reviewing judge nor the Court of Appeal conducted the analysis mandated by the pragmatic and functional approach.

In applying the reasonableness standard, every element of the arbitrator’s reasoning need not pass the reasonableness test; only the reasons as a whole need support the decision.  The arbitrator’s conclusion that the dispatch provisions in art. 6.01 and the name hire provisions in art. 6.02 of the collective agreement qualified the respondent’s unfettered right to hire and select workers under art. 7.01 is reasonable given the terms of the agreement.  The reviewing judge should not have interfered.

Per LeBel and Deschamps JJ.:  The appropriate standard of review was reasonableness.  The arbitrator’s interpretation of the hiring provisions in the collective agreement was rational globally.  It fell within the range of reasonable interpretations and therefore should not be disturbed by a reviewing court.

The appropriateness of using the patent unreasonableness and reasonableness simpliciter standards needs to be re-evaluated.  Patent  unreasonableness is an inadequate standard that provides too little guidance to reviewing courts, and has proven difficult to distinguish in practice from reasonableness simpliciter despite the many permutations it has gone through.  The approach that a decision will not stand if it cannot be rationally supported by the relevant legislation should apply to judicial review on any reasonableness standard.

Cases Cited

By Major J.

Referred to:  U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, 2001 SCC 36; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178; Alberta Union of Provincial Employees, Branch 63 v. Board of Governors of Olds College, [1982] 1 S.C.R. 923; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Canada Safeway Ltd. v. RWDSU, Local 454, [1998] 1 S.C.R. 1079; Foothills Provincial General Hospital v. United Nurses of Alberta, Local 115 (1998), 228 A.R. 122, leave to appeal refused, [1999] 3 S.C.R. xiii; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42.

By LeBel J.

Referred to:  Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20.

Statutes and Regulations Cited

Labour Relations Code, S.A. 1988, c. L-1.2, ss. 140, 142, 143.

APPEAL from a judgment of the Alberta Court of Appeal (2002), 317 A.R. 214, [2002] A.J. No. 1413 (QL), 2002 ABCA 255, affirming a judgment of the Court of Queen’s Bench (2001), 287 A.R. 273, [2001] A.J. No. 488 (QL), 2001 ABQB 310, quashing a labour arbitration, [2000] A.G.A.A. No. 88 (QL).  Appeal allowed.

Lyle S. R. Kanee and Jo-Ann R. Kolmes, for the appellant.

Thomas W. R. Ross and Vicki L. Giles, for the respondent.

The judgment of McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour and Fish JJ. was delivered by

Major J. —

I.       Introduction

1                                   This appeal from the Alberta Court of Appeal relates to the interpretation of a collective bargaining agreement and the level of deference a reviewing court should give to the decision of a properly appointed arbitrator acting pursuant to the Alberta Labour Relations Code, S.A. 1988, c. L-1.2 (“LRC”).

2                                   The Court allowed the appeal from the bench and restored the arbitrator’s award for the reasons that follow.  The appropriate standard of review in this matter was reasonableness, and the decision of the arbitrator met that test. 

II.      Background

3                                   The appellant, Construction & General Workers’ Union, Local 92, is a trade union representing labourers in the construction industry in northern Alberta and the Northwest Territories.  The union, including Local 1111 from southern Alberta, negotiates a province‑wide collective agreement with a registered trade association for employers called the Construction Labour Relations — An Alberta Association Labourers (Provincial) Trade Division.  The respondent, Voice Construction Ltd., is a member of the association.

4                                   The appellant maintains a hiring hall and employers seeking labourers for hire contact the union to request the number of labourers required to be dispatched.  Linda Gergley (“Gergley”), a member of the union for 14 years, had previously worked for the respondent in the fall of 1998.  She was laid off in December of that year for lack of work.  Although there had been difficulties between her and the respondent, she had not been terminated for cause.  Nonetheless, there was a notation on her record with the respondent that she was not to be rehired.

5                                   On June 30, 2000, the respondent faxed the appellant the names of 22 labourers, including that of the Gergley, that it did not wish to have dispatched to its job sites. In late July, the respondent requested 11 labourers for a construction project.  The appellant’s dispatch slips included Gergley.  The respondent’s manager called Gergley and advised her not to come to the construction site. Despite this, on July 31, 2000, Gergley was dispatched by the union to the project in accordance with union hiring hall procedures. Although she went through the orientation session, she was not assigned to a work crew and was sent home. Two other labourers who had also been on the “not for rehire” list were given work that day by the respondent.

6                                   The appellant claimed that the respondent’s refusal to put Gergley to work constituted a violation of the collective agreement, stating that the respondent was required to hire the labourers dispatched by the union providing they were qualified and had not been previously terminated for cause.

7                                   A grievance pursuant to art. 15 of the collective agreement was taken.  This required the arbitrator to apply the terms of the collective agreement to the complaint.  Her decision turned on the interpretation of the “name hire” and “dispatch” provisions of the agreement.

8                                   The name hire provisions in art. 6.02 of the collective agreement state:

The Employer has the right to name hire supervision and employees provided such employees are in good standing with the appropriate Local Union in accordance with the following; (the following numbers are in addition to supervision)

a)    the Employer has the right to name hire the first twenty (20) employees on any one site.

b)    thereafter the Employer shall have the right to name hire one additional employee out of every four employees hired.

                                                                    . . .

9                                   The dispatch provisions in art. 6.01 include:

                                                                    . . .

(d)  Workers dispatched by the Union who do not possess the required qualifications, and who are not hired by the contractor for that reason, will not be entitled to show up pay or any travelling expenses or allowances.

(e)   When an employee is terminated for just cause and is not eligible for rehire, if the Union is notified in writing by the Employer, such former employee shall not be dispatched to that same Employer without the express prior permission of the Employer.

10                               The arbitrator found these provisions constituted an express restriction on the respondent’s broad right to “hire and select workers”, a right recognized in art. 7.01 of the collective agreement:

Subject only to the terms of this Agreement, the Union recognizes the right of the Employer to the management of its plant and the direction of the working forces, including the right to hire and select workers, promote and/or transfer any employee or to discharge any employee for just cause, and further recognizes the right of the Employer to operate and manage its business in accordance with its commitments and responsibilities including methods, processes and means of production or handling.

She concluded that the respondent had contravened the collective agreement by refusing to hire Gergley.  In her opinion, the respondent was required to hire qualified workers who are properly dispatched by the union:  [2000] A.G.A.A. No. 88 (QL).

11                               Dea J., on an application for judicial review made to the Alberta Court of Queen’s Bench under s. 143(2) of the LRC, quashed the arbitration award:  (2001), 287 A.R. 273.  He held that the arbitrator had exceeded her jurisdiction in amending the collective agreement by finding an express restriction on management’s rights to hire and select where, in his opinion, none existed.  He applied a standard of correctness to quash the award and ordered that the matter be remitted to a differently constituted arbitration board. 

12                               The majority of the Court of Appeal, per McClung J.A., Russell J.A. concurring, upheld the decision of Dea J. and adopted his reasons:  (2002), 317 A.R. 214.

13                               Berger J.A., in dissent, would have allowed the appeal.  He held that a limited right to name hire is inconsistent with an unlimited right to select.  Berger J.A. concluded that the arbitrator was correct and found that the reviewing judge had erred in quashing the arbitrator’s decision no matter what standard of review was applied.

III.    Relevant Statutory Provisions

14                               Labour Relations Code, S.A. 1988, c. L-1.2

140(1) Subject to subsection (2), no arbitrator, arbitration board or other body shall by its award alter, amend or change the terms of a collective agreement.

(2) If an arbitrator, arbitration board or other body determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of the arbitration, the arbitrator, arbitration board or other body may substitute some other penalty for the discharge or discipline that to the arbitrator, arbitration board or other body seems just and reasonable in all the circumstances.

                                                                    . . .

142  The award of an arbitrator, arbitration board or other body is binding

(a) on the employers and the bargaining agent,

(b) in the case of a collective agreement between a bargaining agent and an employers’ organization, on the bargaining agent, the employers’ organization and employers bound by the agreement who are affected by the award, and

(c) on the employees bound by the agreement who are affected by the award,

and the employers, employers’ organization, bargaining agent and employees shall do or abstain from doing anything, as required of them by the award.

143(1) Subject to subsection (2), no award or proceeding of an arbitrator, arbitration board or other body shall be questioned or reviewed in any court by application for judicial review or otherwise, 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 arbitrator, arbitration board or other body in any of his or its proceedings.

(2) A decision, order, directive, declaration, ruling or proceeding of an arbitrator, arbitration board or other body may be questioned or reviewed by way of an application for judicial review seeking an order in the nature of certiorari or mandamus if the originating notice is filed with the Court no later than 30 days after the date of the proceeding, decision, order, directive, declaration or ruling or reasons in respect thereof, whichever is later.

(3) The Court may, in respect of an application pursuant to subsection (2), determine the issues to be resolved on the application, and limit the contents of the return from the arbitrator or arbitration board to those materials necessary for the disposition of those issues.

IV.    Analysis

A.     Determining the Standard of Review

15                               Canadian jurisprudence is plain that in assessing an arbitrator’s ruling, the reviewing judge should adopt a pragmatic and functional analysis to determine the appropriate standard of review:  U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, 2001 SCC 36; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63.  The purpose is to ascertain the extent of judicial review that the legislature intended for a particular decision of the administrative tribunal: Pushpanathan, supra, at para. 26; Dr. Q, supra, at para. 21; C.U.P.E., Local 79, supra, para. 13.

16                               The pragmatic and functional approach involves the consideration of four contextual factors:  (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the question — law, fact or mixed law and fact:  Pushpanathan, supra, at paras. 29-38; Dr. Q, supra, at para. 26; Ryan, supra, at para. 27.  No one factor is dispositive:  Mattel, supra, at para. 24.

17                               Three standards of review have been recognized — patent unreasonableness, reasonableness and correctness:  Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 30; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 55; Ryan, supra, at para. 24.

18                               Dr. Q, supra, confirmed that when determining the standard of review for the decision of an administrative tribunal, the intention of the legislature governs (subject to the constitutional role of the courts remaining paramount — i.e., upholding the rule of law).  Where little or no deference is directed by the legislature, the tribunal’s decision must be correct.  Where considerable deference is directed, the test of patent unreasonableness applies.  No single factor is determinative of that test.  A decision of a specialized tribunal empowered by a policy-laden statute, where the nature of the question falls squarely within its relative expertise and where that decision is protected by a full privative clause, demonstrates circumstances calling for the patent unreasonableness standard.  By its nature, the application of patent unreasonableness will be rare.  A definition of patently unreasonable is difficult, but it may be said that the result must almost border on the absurd.  Between correctness and patent unreasonableness, where the legislature intends some deference to be given to the tribunal’s decision, the appropriate standard will be reasonableness.  In every case, the ultimate determination of the applicable standard of review requires a weighing of all pertinent factors:  see Pushpanathan, supra, at para. 27.

19                               Only after the standard of review is determined can the administrative tribunal’s decision be scrutinized.  It is important to recognize that the same standard of review will not necessarily apply to every ruling made by an arbitrator during the course of an arbitration:  see C.U.P.E., Local 79, supra, at para. 14.

20                               Rather than determining the appropriate standard of review and then assessing the arbitrator’s decision on that basis, the reviewing judge in this appeal appears to have reversed these steps.  He first concluded that the labour arbitrator’s interpretation of the collective agreement amounted to an amendment of the agreement and therefore exceeded her jurisdiction.

21                               In a manner of speaking, the cart was put before the horse.  The reviewing judge should have determined the standard of review before assessing the arbitrator’s reasons.  In Pushpanathan, at para. 28, Bastarache J. explained the error in the reviewing judge’s approach:

Although the language and approach of the “preliminary”, “collateral” or “jurisdictional” question has been replaced by this pragmatic and functional approach, the focus of the inquiry is still on the particular, individual provision being invoked and interpreted by the tribunal.  Some provisions within the same Act may require greater curial deference than others, depending on the [four] factors which will be described in more detail below.  To this extent, it is still appropriate and helpful to speak of “jurisdictional questions” which must be answered correctly by the tribunal in order to be acting intra vires.  But it should be understood that a question which “goes to jurisdiction” is simply descriptive of a provision for which the proper standard of review is correctness, based upon the outcome of the pragmatic and functional analysis.  In other words, “jurisdictional error” is simply an error on an issue with respect to which, according to the outcome of the pragmatic and functional analysis, the tribunal must make a correct interpretation and to which no deference will be shown.  [Emphasis added.]

22                               Neither the reviewing judge nor the Court of Appeal conducted the analysis mandated by the pragmatic and functional approach.  In a number of appeals this Court has applied a standard of patent unreasonableness to the decisions of labour arbitrators relative to the interpretation and application of collective agreements: see Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178, at p. 214; Alberta Union of Provincial Employees, Branch 63 v. Board of Governors of Olds College, [1982] 1 S.C.R. 923, at p. 935; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at pp. 337-39; Canada Safeway Ltd. v. RWDSU, Local 454, [1998] 1 S.C.R. 1079, at paras. 58-60.  However, when the pragmatic and functional approach is applied here, the result mandates the less deferential standard of reasonableness.     

23                               The provisions of the LRC do not provide arbitrators the protection of a full privative clause.  While it is true that s. 143(2) provides a limited attack on the privative effect of s. 143(1) by making an allowance for certiorari or mandamus if the application is made within 30 days, this cannot be interpreted as a right of appeal.  In addition, s. 142 simply states that the decision of an arbitrator is only “binding” upon the parties.

24                               The respondent also raised in argument that an application for certiorari under s. 143(2) puts the review beyond the reach of the pragmatic and functional approach.  This submission fails.  Historically, certiorari was a prerogative remedy based on judicial review.  The allowance for certiorari in the LRC is now a factor to be taken into account when conducting the pragmatic and functional analysis, but does not displace it.

25                               Article 15.04 of the collective agreement has a privative clause that states:

                                                                    . . .

If the complaint is not settled within three (3) days thereafter (excluding Saturdays, Sundays and Holidays), either party may take the grievance to an arbitrator for final and binding settlement.  [Emphasis added.]

26                               Although ss. 142 and 143 of the LRC and art. 15.04 do not constitute full privative protection, they suggest that increased consideration be given to the decisions of labour arbitrators:  see Olds College, supra, at pp. 926-27; Bradco, supra, at p. 333; Foothills Provincial General Hospital v. United Nurses of Alberta, Local 115 (1998), 228 A.R. 122 (C.A.), at para. 12, leave to appeal refused, [1999] 3 S.C.R. xiii.  A partial privative clause, in the absence of other factors, does not bestow the greatest degree of deference.  It simply requires a careful assessment of the arbitrator’s role.

27                               The arbitrator in this case was required to interpret the collective agreement.  Collective agreements, although similar to, are different in some respects from other types of contracts.  While interpreting contracts falls squarely within the expertise of courts, arbitrators, who function within the special sphere of labour relations, are likely in that field to have more experience and expertise in interpreting collective agreements.  Consequently, this favours a certain degree of curial deference to arbitrators’ interpretation and application of collective agreements.

28                               The LRC seeks to regulate and resolve labour disputes in the most efficacious and least disruptive way.  Generally, the resolution of labour relations disputes by the Labour Relations Board requires “polycentric” decision making which means it involves a number of competing interests and considerations, and calls for solutions that balance benefits and costs among various constituencies:  see Pushpanathan, at para. 36.  By contrast, proceedings before an arbitrator do not require the consideration of broad policy issues.  Instead, the role of the arbitrator is to resolve a two-party dispute.  In this appeal, that dispute related to the employer’s obligation to hire dispatched workers.  Even so, this factor suggests a deferential standard of review.

29                               The nature of the problem at issue is a question of law — the interpretation of the terms of the collective agreement.  The arbitrator stated at para. 18 of her decision:

I am asked to examine the provisions of this contract and determine whether the Employer has the right to refuse to hire qualified workers dispatched by the Union.  In considering this matter, I am obliged to interpret the contract language as negotiated by the parties in accordance with well-accepted principles of contract interpretation.

Generally speaking, questions of law are subjected to a more searching review than are other questions, and frequently require the standard of correctness.  Nevertheless, the interpretation of collective agreements, as noted in para. 27, is at the core of an arbitrator’s expertise and this, in turn, points to some deference.

30                               Taking into account all these factors, the arbitrator’s decision in this appeal is entitled to a measure of deference, the appropriate standard of which is reasonableness.

B.      Application of the Standard of Reasonableness

31                               In Ryan, supra, at para. 55, Iacobucci J. explained that a decision will be unreasonable

. . . only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.  If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56).  This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).

It is not necessary for every element of the tribunal’s reasoning to pass the reasonableness test.  The question is whether the reasons as a whole support the decision:  Ryan, supra, at para. 56.

32                               Generally management has a residual right to do as it sees fit in the conduct of its business.  This right is subject to any express term of a collective agreement or human rights and other employment-related statutes providing otherwise:  see Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, 2003 SCC 42, at para. 28.  Here, art. 7.01 affirms the respondent’s broad right to hire and select workers.  However, this recognition is prefaced by the clause “Subject only to the terms of this Agreement”.

33                               The most controversial aspect of the arbitrator’s decision is her finding that the respondent’s right to hire and select workers was expressly restricted by the operation of other provisions in the agreement.  Those provisions included:  art. 6.01(d) which excuses an employer from hiring an unqualified worker who is dispatched by the union; art. 6.01(e) which prevents the union from dispatching a worker who had been previously terminated for just cause by the employer; and art. 6.02 which provides for a name hire regime where the employer has the right to name hire the first 20 workers on any job site and thereafter one worker for every four hired.  In her view, these provisions would be redundant if an employer maintained an unfettered right to select from qualified workers dispatched by the union.

34                               There were no provisions in the collective agreement explaining how the name hire procedure was to be carried out and no evidence from the respondent with respect to the number of labourers already at the job site.  The respondent submitted that the number of labourers on the site is beside the point and further stated whatever purpose art. 6.02 served, it did not restrict an employer’s right to hire and select workers in any way.

35                               There is a narrow line between expressly stated and necessarily implied.  An “express” restriction may nonetheless be open to interpretation.  The presence of the provisions referred to by the arbitrator led to a decision that, taken as a whole, is capable of withstanding a “somewhat probing examination”:  Ryan, supra, at para. 46; Dr. Q, supra, at para. 39.  Even if a more or less compelling conclusion can be drawn from the provisions of the collective agreement, that does not, on its own, render the arbitrator’s interpretation unreasonable. 

36                               In my view, the arbitrator’s conclusion that the dispatch provisions in art. 6.01 and the name hire provisions in art. 6.02 qualified the respondent’s unfettered right to hire and select workers under art. 7.01 is reasonable given the terms of the agreement.  The reviewing judge should not have interfered. 

37                               Since this is sufficient to dispose of the appeal, there is no need to consider the arbitrator’s alternative finding that if the respondent’s hiring rights are not restricted by provisions of the agreement, an employer must act reasonably in exercising its discretion to refuse to hire qualified and properly dispatched workers.

V.     Disposition

38                               I would allow the appeal, restore the arbitrator’s award, and grant costs to the appellant throughout.

The reasons of LeBel and Deschamps JJ. were delivered by

39                               LeBel J. — I have considered the reasons of Major J. and, subject to the following comments, I concur with his disposition of the appeal.  I also agree that the appropriate standard of review is reasonableness and that the arbitrator’s interpretation of the hiring provisions in the collective agreement was reasonable.  I do not feel the need to inquire more deeply into the degree of reasonableness of the arbitral award.

40                               This Court has a history of applying the patent unreasonableness standard in reviewing the decisions of labour arbitrators, as can be seen from the reasons of my colleague (para. 22).  However, my colleague has now concluded that the reasonableness simpliciter standard would be more appropriate in reviewing the decision of the arbitrator in the present case.  This again raises the point I discussed in Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, namely that it is time for this Court to reevaluate the appropriateness of using the patent unreasonableness and reasonableness simpliciter standards.  Patent unreasonableness is an inadequate standard that provides too little guidance to reviewing courts, and has proven difficult to distinguish in practice from reasonableness simpliciter.  This difficulty persists despite the many permutations it has gone through (C.U.P.E., Local 79, at paras. 78-83).  With respect, adding yet another definition of patent unreasonableness would not make its application any easier nor its conceptual validity more obvious.

41                               It is illuminating in this respect to consider the definition of patent unreasonableness by Dickson J. (as he then was) in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, at p. 237, which is the seminal judgment of our Court in the development of a modern law of judicial review.  Rather than contemplating the metaphysical obviousness of the defect, he explained that a decision will only be patently unreasonable if it “cannot be rationally supported by the relevant legislation”.  This is consistent with what Iacobucci J. observed in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, in discussing what the reasonableness standard of review entails, at para. 49: “the reasonableness standard requires a reviewing court to stay close to the reasons given by the tribunal and ‘look to see’ whether any of those reasons adequately support the decision”.  The “rationally supported by the relevant legislation” standard is one that not only signals that great deference is merited where discretion has been exercised, but also makes clear that a reviewing court cannot let an irrational decision stand.  As I observed in C.U.P.E., Local 79, supra, at para. 108, this approach should apply to judicial review on any reasonableness standard.

42                               On the facts of this appeal, the arbitrator’s interpretation of the hiring provisions was rational globally.  It falls within the range of reasonable interpretations, and therefore should not be disturbed by a reviewing court.  Thus, I conclude that the courts below erred in quashing the award.  I agree with Major J. that the appeal should be allowed, the arbitrator’s award restored, and costs granted to the union throughout.

Appeal allowed with costs.

Solicitors for the appellant:  Chivers Kanee Carpenter, Edmonton.

Solicitors for the respondent:  McLennan Ross, Calgary.