Alberta Union of Provincial Employees v Alberta, 2011 ABQB 752

Court of Queen ’ s Bench of Alberta Citation: Alberta Union of Provincial Employees v Alberta, 2011 ABQB 752 Date: 20111201 Docket: 1103 03666 Registry: Edmonton In the Matter of the Public Service Relations Act , RSA 2000, c P-43 And In the Matter of an Arbitration Award Dated the 14 th day of February, 2011 by Mr.

Leslie Wallace, Sole Arbitrator And In the Matter of the Termination Grievance of Jamie Graham Between: Alberta Union of Provincial Employees Applicant - and - Her Majesty the Queen in Right of Alberta Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice S.D. Hillier _______________________________________________________

Introduction [ 1 ] This application for judicial review addresses the nature and scope of the Grievance Procedure between these parties as it affects the rights of a wage employee in a Co-op Education Program. The basic issue is whether or not the worker on a temporary training assignment is entitled to access to third party arbitration for his discrimination complaint. For reasons which follow, I am obliged to conclude that the Arbitrator did not err declining jurisdiction to hear the matter.

Background [ 2 ] The case concerns the interests of Jamie Graham, a grievor with cerebral palsy who was dismissed in July 2008 for what he alleges were discriminatory reasons. [ 3 ] As a student in the Faculty of Management at the University of Lethbridge, Mr. Graham was hired at Alberta Employment and Immigration (“Employer”) as a Policy Analyst for the period from May 1 to December 31, 2008. His condition, as made known prior to the offer of employment, requires that he use a wheelchair and voice recognition software.

He and the Employer were subject to the 2007 Collective Agreement between the Alberta Government and the Alberta Union of Provincial Employees (“AUPE”). Mr. Graham was classified as a “Wage Employee” under the Collective Agreement. [ 4 ] By letter dated July 8, 2008, Mr. Graham was advised that his employment would terminate effective July 22, 2008, “...due to your inability to satisfactorily perform the duties and requirements of your position...”.

AUPE filed a grievance alleging that the Employer’s action was unjust, unreasonable, unfair, discriminatory, improper, disciplinary and constituted a financial penalty. [ 5 ] The complaint did proceed to a Step 1 grievance formal hearing conducted by a Designated Officer who dismissed the matter in a brief letter on October 20, 2008. According to the Collective Agreement between the parties, the decision at Level 1 is “final and binding”. [ 6 ] AUPE nonetheless filed for Arbitration and a hearing was convened in November 2009.

The Employer argued as a preliminary jurisdictional objection that the Collective Agreement expressly restricted access to arbitration. The Sole Arbitrator, J. Leslie Wallace, heard submissions and issued a 43 page written decision on February 14, 2011 dismissing the grievance based on lack of jurisdiction.

Positions of the Parties [ 7 ] AUPE argues that Wallace committed reviewable errors in failing to hear the merits of the discrimination complaint in the face of the decision of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v Ontario Public Service Employees Union, Local 324 (OPSEU) , 2003 SCC 42 , [2003] 2 SCR 157. It is AUPE’s position that Parry Sound incorporates human rights into all collective agreements, and that human rights issues must be adjudicated by independent arbitration.

Neither Alberta legislation, nor the parallels with bad faith relied upon by Wallace in his decision, justify limiting the applicability of the Supreme Court’s decision in Parry Sound . Further, any dispute resolution mechanism under s. 135 of the Labour Relations Code , RSA 2000, c L- 1 (the “Code”) must be fair and equitable, a standard not met where an Employer makes a binding decision on its own discriminatory actions against a Wage Employee. [ 8 ] The Employer does not dispute that Parry Sound generally incorporates human rights into collective agreements. However it

relies on the Alberta legislation and case law to support its position that the parties did provide for and are entitled to use alternate processes in lieu of arbitration to adjudicate human rights, particularly for temporary wage employees. According to the Employer, nothing in Parry Sound undermines the legislative distinctions between Ontario and Alberta as to the legislative choice of forum through which various disputes are to be resolved. Legislation [ 9 ] The parties are covered under the provisions of the Public Service Employee Relations Act , RSA 2000, c P-43 (“PSERA”), not the Code.

Nevertheless, the following provisions of the Code are applicable to the Employer by virtue of s. 44 of PSERA: 135. Every collective agreement shall contain a method for the settlement of differences arising

a) as to the

interpretation, application or operation of the collective agreement,

b) with respect to a contravention or alleged contravention of the collective agreement, and

c) as to whether a difference referred to in clause (

a) or (

b) can be subject of arbitration between the parties to or persons bound by the collective agreement. 136. If a collective agreement does not contain the provision required under

section 135 , the collective agreement is deemed to contain those of the following provisions in respect of which it is silent: (

a) If a difference arises between the parties to or persons bound by this collective agreement as to the

interpretation, application, operation or contravention or alleged contravention of this agreement or as to whether such a difference can be the subject of arbitration, the parties agree to meet and endeavour to resolve the difference. (

b) If the parties are unable to resolve a difference referred to in clause (a), either party may notify the other in writing of its desire to submit the difference to arbitration. . . . (

g) The arbitrator shall inquire into the difference and issue an award in writing, and the award is final and binding on the parties and on every employee affected by it. . . . 142(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.

Collective Agreement [ 10 ] In addition, the following Collective Agreement provisions are relevant: 4.02 This Agreement applies to an Employee: ... (

c) hired for wage employment, except that the following shall not apply ... (iv)

Article 29 in the case of termination of employment (

d) A Wage Employee who is dismissed for disciplinary reasons in accordance with

Article 28-Disciplinary Action, shall have access to Level 1 of the Grievance Procedure as provided in Sub-Clause 29.01(

e) but not to any other Levels of the Grievance Procedure. However, a Wage Employee shall not have access to

Article 29-Grievance Procedure in the case of termination of employment. 29.01 Definition and Scope (

a) A grievance is a difference arising out of the

interpretation, application, operation or any contravention or alleged contravention of this Agreement or as to whether any such difference can be the subject of arbitration. ... (

e) A grievance concerning the disciplinary dismissal of a Wage Employee may be submitted at Level 1 but not at any other Levels of the Grievance Procedure. Such a grievance shall be submitted in writing and the decision given by the Designated Officer at Level 1 shall be final and binding on the Parties and all interested persons. . . . 29.05 Power of Boards of Arbitration ... (

b) Arbitration Boards, single arbitrators and mediator-arbitrators shall not add to, alter, modify or amend any part of the terms of the Collective Agreement by their decision, nor make any decision inconsistent with it. ... Issues [ 11 ] The sole issue is whether the Arbitrator erred in dismissing the grievance based on lack of jurisdiction. Standard of Review

[12] AUPE contends that the proper standard of review is correctness because the issue involves a preliminary determination oftrue jurisdiction or vires. As stated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190: 59 Administrative bodies must also be correct in their determining of true questions of jurisdiction or vires. [...] “Jurisdiction” isintended in the narrow sense whether or not a tribunal has authority to make the inquiry.

In other words, true jurisdiction questions arisewhere the tribunal must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter. Thetribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline ofjurisdiction. [13] Additionally, the dispute concerns a matter of general law in respect of which there are divergent lines of authority requiringclarification.

See Irving Pulp and Paper Ltd v Communications Energy and Paperworkers Union of Canada, Local 30, 2011 NBCA58, [2011] NBJ No 230 at para 5. [14] The Employer submits that the reasonableness standard applies because the Arbitrator was specifically empowered to decidewhether a grievance is arbitrable, and was interpreting the home legislation and Collective Agreement in order to do so. [15] The caution on this topic dates back more than 30 years: the courts should not “brand as jurisdictional, and therefore subject tobroader curial review, that which may be doubtfully so”.

See Canadian Union of Public Employees, Local 963 v New BrunswickLiquor Corp, (SCC), [1979] 2 SCR 227 at 233, as referenced in Dunsmuir at para 35 and Smith v Alliance PipelineLtd., 2011 SCC 7, [2011] 1 SCR 160 at para 36. [16] The standard of review for arbitrators dealing with jurisdiction under this Collective Agreement has been set and confirmedby two decisions of the Alberta Court of Appeal: Alberta v Alberta Union of Provincial Employees, 2008 ABCA 258, 433 AR 159(“Davis”) and Alberta Union of Provincial Employees v Alberta, 2010 ABCA 147, 194 LAC (4th) 1 (“Guay”) at para 6. [17] The conclusion reached in these decisions exempts the Court from conducting a contextual standard of review analysis inthese circumstances.

Since the arbitrator is specifically empowered to decide whether a grievance is arbitrable (Code, s. 135; CollectiveAgreement,

Article 29) the question is not a true matter of jurisdiction but the exercise of: 29 ...its core jurisdiction in interpreting its own statute, the Collective Agreement and labour law cases. This contextual factor suggestsdeference. Moreover, the Board has developed particular expertise on such interpretive issues. This factor also suggests deference.

In theresult, we conclude that the appropriate standard of review for the Board’s decision is reasonableness. (Davis) [18] I am not persuaded that any differences as between arbitration decisions to date, nor the scope of the legal issue underconsideration here, detracts in any material way from these two binding decisions. In Davis, the Court of Appeal examined whether aboard of arbitration made a reviewable error in exercising limited jurisdiction to determine whether the employer acted in bad faith indismissing a probationary employee.

In Guay, the Court of Appeal considered whether an arbitrator committed a reviewable error indeclining jurisdiction for a competition grievance alleging discrimination. The reasonableness standard was applied by the Court inreviewing both decisions. [19] As to the concern about clarification of divergent lines of authority, this issue too has been fairly well settled. There is nothingto preclude arbitrators from reaching different

interpretations under the terms of the same collective agreement. In Essex County RomanCatholic School Board v Ontario English Catholic Teachers’ Association (2001), (ON CA), 56 OR (3d) 85, 150OAC 2, the Ontario Court of Appeal supported two conflicting

interpretations in the face of a prior judicial review. See also OttawaPolice Association v Ottawa Police Services Board (2008), (ON SCDC), 233 OAC 51, [2008] OJ No 277 (Div Ct) atparas 30-31.

[20] Even if conflicting decisions allowed judicial intervention as a matter of course, a variation of the standard of review wouldnot follow. Administrative law cases have emphasized that the deference accorded to tribunals interpreting their home legislation is notto be overridden by a need for consistency.

In Domtar Inc v Quebec (Commission d'appel en matière de lésions professionnelles), (SCC), [1993] 2 SCR 756, [1993] SCJ No 75, L’Heureux-Dubé J. stated at 796-97: In my opinion, there is a real risk that superior courts, by exercising review for inconsistency, may be transformed into genuine appellatejurisdictions. Far from being neutral, the concept of consistency is an elusive parameter which, varying depending on the objectivesought, may distort the very nature of judicial review. The arbitrariness which the judicial sanction is designed to remedy may, thus,become the result.

In Bibeault, supra, Beetz J. commented as follows on the use of the theory of preliminary or collateral questions as ameans of arriving at judicial review (at p. 1087): The concept of the preliminary or collateral question diverts the courts from the real problem of judicial review: it substitutes thequestion "Is this a preliminary or collateral question to the exercise of the tribunal's power?" for the only question which should be asked,"Did the legislator intend the question to be within the jurisdiction conferred on the tribunal?" [Emphasis added.] In my opinion, questions as to the advisability of resolving a jurisprudential conflict avoid the main issue, namely, who is in the bestposition to rule on the impugned decision.

Substituting one's opinion for that of an administrative tribunal in order to develop one's owninterpretation of a legislative provision eliminates its decision-making autonomy and special expertise. Since such intervention occurs incircumstances where the legislature has determined that the administrative tribunal is the one in the best position to rule on the disputeddecision, it risks, at the same time, thwarting the original intention of the legislature.

Any inquiry into decision-making inconsistencywhere there is no patently unreasonable error thus diverts courts of law from the fundamental question which the legislature has in anycase already answered. [21] In my view this rationale applies most strongly in a labour relations context.

Although different and perhaps evenirreconcilable results may leave parties with some uncertainties, they are at liberty to address the matter in collective bargaining.Obviously, in many circumstances that is not a complete solution for the individuals involved, but it is consistent with the Albertalegislative model which leaves the choice of dispute resolution largely up to the parties. [22] Accordingly, neither the question of jurisdiction nor the reconciliation of conflicting cases gives rise to a change in thestandard of review.

Consistent with Dunsmuir (paras 62-64) and as confirmed in Smith (paras 24-26) the Court is satisfied that the law issettled: the governing standard of review is reasonableness in these circumstances. To the extent this conclusion is at odds with thereasoning in Irving Pulp (paras 4-5), with the utmost respect, I am not satisfied that the approach taken in that case is consistent withDunsmuir, which case binds this Court. [23] The majority in Dunsmuir comments as follows on the scope of the test of reasonableness: 47 ...Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review forreasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and tooutcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibilitywithin the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptableoutcomes which are defensible in respect of the facts and law.

Analysis [24] A brief overview of Arbitrator Wallace’s decision is necessary in order to determine whether it meets this standard ofreasonableness. I will state at the outset that a reading of the Wallace decision reveals ample justification, transparency and intelligibility.The only issue, therefore, is whether the decision falls with a range of possible, acceptable outcomes which are defensible in respect ofthe facts and law. In this case, there were only two possible outcomes.

[25] Arbitrator Wallace fairly identified the threshold issue as being whether “...there [is] a ‘discrimination exception’ to thegeneral rule in Alberta that it is permissible for the parties to deny access to arbitration, so long as they provide some other method forresolution of collective agreement rights disputes” (Wallace Decision, para 1).

The information before him indicated that DesignatedOfficers are “out-of-scope employees, trained by the Employer, but given significant freedom to seek settlements and to adjust grievancesin a forum designed to offer greater fairness, real or perceived, at the early stages of the grievance procedure than might exist if thedecision were made by line management” (para 6). [26] He considered the relevant statutory and Collective Agreement provisions.

He noted that the Courts in both Royal AlexandraHospital and Alberta Hospital Employees Union (1981), (AB KB), 127 DLR (3d) 312, [1981] AJ No 1003 (QB) andAUPE v Alberta (1988), (AB KB), 61 Alta LR (2d) 110, [1988] AJ No 626 (QB) held that a unilateral employerdecision may be a “method for the settlement of differences” under s. 135.

He cited Alberta v Alberta (Public Service EmployeeRelations Adjudication Board) (1985), 1985 ABCA 2 , 36 Alta LR (2d) 253, [1985] AJ No 599 (CA) (“Cherneski”) for theproposition that where an exclusion of a class of employees from the grievance procedure exists, there is no “difference” upon which anarbitrator can take jurisdiction, and to take jurisdiction in such a case amounts to amendment of the collective agreement. [27] He then discussed AUPE v Alberta (Mental Health Hospital Board), [1987] AJ No 436 (CA) in which the termination washeld to be void as the official who purported to terminate lacked the necessary delegation of statutory authority to terminate theprobationary employee.

This was deemed to be an exception which gave the arbitrator jurisdiction to hear the grievance because it was acase of a true ultra vires decision. [28] Arbitrator Wallace considered McLeod v Egan, (SCC), [1975] 1 SCR 517 and Weber v Ontario Hydro, (SCC), [1995] 2 SCR 929 as both providing a helpful backdrop to Parry Sound, which he summarized in some detail. [29] Arbitrator Wallace then turned to the Davis case, in which a probationary employee in the public service grieved hertermination, alleging bad faith, and was unsuccessful at Level 2.

He quoted Clackson J. extensively (2007 ABQB 410, 424 AR 335),including his statement at para 37 that as long as collective agreement provisions do not shelter criminal actions, violations of humanrights or violations of statutes, it is up to the parties to fashion their agreement. Arbitrator Wallace reviewed the Court of Appealreasoning in Davis and concluded that there is no “bad faith exception” to the rule in Alberta that parties may exclude arbitration ofcertain management actions.

He observed that Davis does not specifically address the issue of a “discrimination exception”, andrecognized that Clackson J. left open the possibility of such an exception.

However, he also noted that the existence of a discriminationexception was not in issue in the Davis case and that despite Clackson J.’s ponderings, the Court of Appeal said nothing about the issue. [30] Arbitrator Wallace concluded that Alberta cases have not yet squarely addressed whether a breach of human rights legislationconstitutes an exception to the Royal Alexandra Hospital rule, on the ground that it is a statutory breach or that it renders themanagement act void.

He acknowledged that the basic principles of Parry Sound apply in Alberta: the rights and obligations inemployment related statutes are implicit in Alberta collective agreements and are enforceable; furthermore, collective agreement clausesexpressly or implicitly permitting breach of these rights and obligations are ineffective.

He decided that Parry Sound is notfundamentally inconsistent with the Alberta authorities, and that it does not mandate arbitration in Alberta of an alleged discriminatorytermination. [31] He found that the Alberta scheme does not deny a substantive statutory right, but merely limits recourse to Step 1 of theGrievance Procedure, and that s. 135 of the Code allows the parties to make such an agreement. Arbitrator Wallace considered himselfbound by Davis to conclude that a Designated Officer was an acceptable “method of settlement” approved by s. 135 of the Code.

Henoted that the Collective Agreement language effectively leaves an employee to either the statutory human rights process, or a truncatedcollective agreement grievance process that denies arbitration.

He also rejected the argument that discrimination renders a terminationvoid, noting that the Alberta Human Rights Act, RSA 2000, c A-25.5 allows the tribunal the power to treat a discriminatory dismissal assomething other than void. [32] Arbitrator Wallace did not reach his conclusion without misgivings, adding that although he felt compelled to this conclusionby the decisions he had reviewed, his personal view was that a “method of settlement of differences” should provide for “some form ofdue process according to law” (para 91). [33] AUPE attacks this decision as unreasonable on three main grounds:

1) to the extent that

Article 4.02(

d) of the Collective Agreement removes the ability to arbitrate allegations of discrimination, it isillegal and void at law; 2) the

Preamble of the Code requires that any resolution be fair and equitable and there is nothing fair and equitable in having theEmployer make a binding decision on its own discriminatory actions against a Wage Employee; and 3) illegal discrimination is not the equivalent of bad faith. [34] None of these points is unique to the circumstances of this case alone.

See for example City of Edmonton v Edmonton Police Assn (“Sahim”), 167 LAC (4th)312, [2008] Alta GAA 2006-08, also reviewed at length by Arbitrator Wallace. [35] The standard of reasonableness accords deference not only to the decision itself but to the underlying legislation whichaccords such authority. The purpose of delegation is to assign decision-making responsibilities, not merely to defer consideration ofthose decisions by the courts.

The cases cited by Arbitrator Wallace note that in the context of collective bargaining, Alberta has left it tothe parties to determine the method of dispute resolution and the Courts have consistently upheld that legislative intention. (See alsoEdmonton Police Assn v Edmonton (City), [1984] AJ No. 721, (1984), 1984 ABCA 307 , 35 Alta LR (2d) 299 at 305 (CA)(“Ongarato”); United Brotherhood v Pitts Engineering (1984), 1984 ABCA 177 , 53 AR 362 at 365, [1984] AJ No 543 (CA);United Brotherhood of Carpenters and Joiners of America, Local 2410 v Pitts Engineering Construction Ltd (1984), 53 AR 362,[1984] AJ No 543 (CA)). [36] I have already stated that conflicting arbitration decisions do not vary the standard of review.

Nonetheless AUPE purports torely heavily on a decision issued recently by Arbitrator Ponak: Alberta(Solicitor General) v Alberta Union of Provincial Employees (Jungwirth Grievance) (2009), (AB GAA), 192 LAC (4th) 97, [2010] AGAA No 5 (“Jungwirth”). [37] In Jungwirth, the arbitration board decided it did have jurisdiction to determine the discrimination complaint of a grievorcorrectional officer of 20 years, reasoning that a contractual provision which sheltered an employer from review of actions that werediscriminatory or contrary to statute could not stand.

The grievance had been heard up to Level 2 as provided under the collectiveagreement. The union pointed out that the grievance would have been arbitrable if the grievor had been fired on discriminatory grounds. [38] Arbitrator Ponak cited Parry Sound for the proposition that granting arbitrators the authority to enforce substantive humanrights bolsters human rights protection by providing an accessible and inexpensive forum for the resolution of those disputes.

Theemployer suggested that the grievor in that case had the further option of appealing the Level 2 denial of her grievance to the court.However, the board concluded that the availability of alternative methods of dispute resolution did not oust the jurisdiction of thearbitrator over discrimination allegations under collective agreements. Arbitrator Ponak reasoned that limiting recourse to Level 2 turnedthe disposition of a discrimination complaint into a management right that cannot be contractually challenged, leaving an employeewithout independent contractual recourse.

The board distinguished Davis on the basis that it addressed the question of jurisdictionentirely in the context of probationary status employees, noting that there is no external law akin to human rights statutes that expresslyprotects the rights of probationers. Neither Davis nor Guay addressed discrimination, which enjoys protection under the Charter andhuman rights acts. [39] AUPE also cited Alberta Union of Provincial Employees v Alberta, 2010 ABQB 760, 201 LAC (4th) 1 (“Soenan”).

In thatcase, Marceau J. decided that s. 71 of the Financial Administration Act, although related to employment, was not the fundamental type ofemployment-related statute required for incorporation into a collective agreement. The employee sought reimbursement of legalexpenses under s. 71. Marceau J. commented at para 43 that the right in question must be a fundamental right in order to be incorporatedinto a collective agreement, “thus giving an arbitration board jurisdiction over the grievance”.

His discussion focused on the issue beforehim, which was the nature of those statutory rights which are incorporated into collective agreements. [40] AUPE argues, based on these and other cases, that since parties may not contract out of human rights, a “method ofsettlement” which allows an employer to perpetuate the discrimination is an example of the “misuse of management discretion” warnedof in Parry Sound. Parties are free to include contractual language that allows an employer to act in bad faith, but breaches of human

rights statutes are illegal and therefore must be arbitrable. [ 41 ] The reasonableness standard of review does not require the Court to decide whether Arbitrator Wallace reached the most reasonable result. In my view, the weakness in AUPE’s argument is that although the Employer can include contractual language that allows it to act in bad faith, the reasoning in Davis only receives its full application where the Employer has not in fact included such language.

The fundamental problem outlined by AUPE in relation to the Designated Officer being a “method of settlement” with respect to allegations of discrimination is that the Employer assesses its own conduct and will have difficulty doing so in an objective fashion. That same underlying issue was at play in Davis . The Court of Appeal nevertheless determined that it was unreasonable for the arbitrator to take jurisdiction given the applicable statutory and collective agreement regime. Discrimination would appear to have status at law which bad faith does not attract, regardless of the level of intent.

However, it does not necessarily follow that arbitration is the prescribed remedy. It was not unreasonable for Arbitrator Wallace to conclude that the allegation of discrimination was not an exception to the consistent

interpretation of a method of settlement in this province. [ 42 ] The opinion expressed by Binnie J. for the majority in Vaughan v Canada , 2005 SCC 11 , [2005] 1 SCR 146 confirms that this is a reasonable view: 38 ...I do not accept ... the central assumption of the appellant's argument that comprehensive legislative schemes which do not provide for third-party adjudication are not, on that account, worthy of deference.

It is a consideration, but in the case of the PSSRA it is outweighed by other more persuasive indications of clues to parliamentary intent. [ 43 ] Further, the differences between the Ontario and Alberta labour context are not irrelevant.

The Supreme Court has in other contexts recognized the importance of respecting provincial differences in the field of labour relations: RWDSU v Pepsi-Cola , 2002 SCC 8 , [2002] 1 SCR 156 at para 85 . [ 44 ] Parry Sound simply does not address the question as to whether Alberta’s non-arbitral “methods of settlement” are inadequate for the purposes of grievances involving allegations of discrimination. Arbitrator Wallace based his reasoning on legislative intent, the parties’ agreement, and the guidance provided by the Alberta Court of Appeal in Davis .

I am not called upon to determine whether his decision was correct. For the foregoing reasons, I cannot conclude that his decision is not defensible in respect of the facts and law. From that, it follows that the decision was reasonable. Conclusion [ 45 ] Arbitrator Wallace did not err in dismissing the grievance based on lack of jurisdiction. [ 46 ] If the parties cannot agree, costs may be spoken to within 30 days of the date of this decision. Heard on the 12 th day of October, 2011. Dated at the City of Edmonton, Alberta this 1 st day of December, 2011.

S.D. Hillier J.C.Q.B.A. Appearances: Micah J. Field Blakely & Dushenski for the Applicant Hugh McPhail, Q.C. McLennan Ross LLP for the Respondent