Labour Law – Arbitration Board – Judicial Review – Standard of Review, Labour Law – Arbitration – Judicial Review – Appeal
The appellant, Service Employees International Union, appealed the decision of a Queen’s Bench judge that quashed the decision of an arbitrator (see: 2019 SKQB 282). The appellant had filed grievances on behalf of two of its members, employees of the respondent, Saskatchewan Health Authority. Each of the employees were casually employed as continuing care aides (CCA), although neither held one of the specified qualifications, a Continuing Care Aide Certificate. Their applications for positions advertised by the respondent for permanent full-time CCAs were passed over in favour of candidates who held the Certificate but had less seniority. The arbitrator had considered the terms in the collective agreement and two Letters of Understanding (LOU) that related to the issue of qualifications, utilizing the modern approach to interpreting agreements set out in Imperial Oil, and concluded that the agreement had been breached when the employees were denied the positions. She found that the respondent had not correctly assessed the grievors according to the agreement when it ignored their equivalent qualifications and then gave the positions to an applicant with less seniority. In the judicial review of the arbitrator’s decision, the parties agreed that the reasonableness standard of review should be used. The chambers judge applied it and found that the award was unreasonable because the arbitrator had failed to apply established arbitral precedent or, alternatively, did not explain her failure to follow established precedent. As well, the decision did not fall within the range of acceptable outcomes. Among the issues were whether the chambers judge correctly: 1) interpreted the award, 2) concluded that the award was unreasonable because of the arbitrator’s failure to explain why did it not follow arbitral precedent, and 3) concluded that the award rendered “nugatory” the relevant provisions in the agreement and the LOU.
HELD: The appeal was granted by a majority of the panel hearing it and the order quashing the award was set aside. The court found that the arbitrator properly followed the modern approach to interpreting the agreement and justified her award with transparent and intelligible reasons that rationally accounted for the language of the agreement. The chambers judge had identified the appropriate standard of review, but without the benefit of the Supreme Court’s recent decision in Vavilov that requires a reviewing court to proceed only with a correct understanding of the reasons given by the tribunal whose decision is under review. It determined with respect to each issue that the chambers judge: 1) had not correctly interpreted the award. He had misread the arbitrator’s reasons when he concluded that she had conflated the requirement in the LOU for the “ability to do the work” and the provision in the agreement that established that the seniority of an employee who was able to do the work also having the necessary “qualifications.” The arbitrator had treated the two as separate requirements that must be met before a candidate could lay claim to a position based on seniority; 2) had erred in concluding that the award was unreasonable because of the arbitrator’s failure to explain why she had not followed arbitral precedent, because that conclusion was based on his assessment that she had conflated ability with qualifications. As she had not, it was not necessary for her to follow the rule in arbitral precedent that “qualifications are different from ability” or to explain why she did not follow it; and 3) erred in finding the award unreasonable for the same reason as provided in the previous issues. The arbitrator had not conflated the requirements and further, had justified her interpretation of the agreement with transparent and intelligible reasons. Although the respondent had raised that the award was unreasonable for reasons other than those found by the judge, the court rejected its arguments. In dissent, Barrington-Foote J.A. upheld the chambers judge’s finding that the arbitrator’s decision was unreasonable. He found her interpretation that the relevant phrases in the agreement and the LOUs all held the same meaning to be incorrect.