Alberta Health Services v. Alberta Union of Provincial Employees, 2012 ABQB 243

Court of Queen ’ s Bench of Alberta Citation: Alberta Health Services v. Alberta Union of Provincial Employees, 2012 ABQB 243 Date: 20120416 Docket: 1103 11412 Registry: Edmonton Between: Alberta Health Services Applicant - and - Alberta Union of Provincial Employees Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A. W. Germain _______________________________________________________ 1. Introduction [ 1 ] An Edmonton area hospital fired an employee.

That employee worked under a collective agreement [the “Agreement”] between the Alberta Health Services [“AHS”] and her union, the Alberta Union of Provincial Employees [“AUPE”]. AUPE grieved the dismissal. An Arbitration Board [the “Board”] concluded that the employer had missed a mandatory deadline in the dismissal process and in result declined to consider the merit of the dismissal: Alberta Health Services v. Alberta Union of Provincial Employees , 2011 A.G.A.A. No. 2 , 2010 L.A.C. (4 th ), 106 C.L.A.S. 114 [the “Board Decision”]. [ 2 ] The Applicant, AHS, applies for judicial review.

I conclude that the Board made errors of law in its

interpretation of the

[ 2 ] The Applicant, AHS, applies for judicial review. I conclude that the Board made errors of law in its

interpretation of the deadline provision of the collective agreement in question. As a consequence the decision is unreasonable. In result, the matter is referred back to the same panel of the Board to consider the case on the merit. These reasons explain why I have come to that conclusion. 2. Overview of Facts [ 3 ] Factual allegations about the conduct of the employee presented here represent the views of the employer and have not been determined to be factually correct by any court or tribunal. In these reasons the employee is not identified by name.

The employee was on staff at a hospital in the Edmonton area. It is asserted that part of her job description was as a custodian. On July 31, 2008, in the evening, a patient vomited in one of the x-ray rooms of the hospital. The employee was called. She initially failed to attend but after attending asserted that the clean up was not her job [the “July 31 Conduct”]. Another staff member then cleaned up the room but not before the x-ray suite was out of service for a time.

Her employer asserts that her dereliction of duty caused inconvenience to other staff, and put the public at risk by keeping that facility out of service. [ 4 ] This incident led to a disciplinary interview, held on August 14, 2008, at which time the Applicant asserts that the employee denied involvement in the July 31 Conduct and attempted to blame others. The Applicant asserts that the employee’s conduct on August 14, 2008 [the “August Conduct”] also constitutes an incident where dismissal is the appropriate corrective step.

The employee asserts that at the August interview her employer denied her opportunity for adequate Union representation, a breach of

Article 11.04 of the Agreement. [ 5 ] The Board found that the employer knew about the July 31 Conduct by August 6 and concluded that this knowledge started a 15 day mandatory time period to notify the employee of their proposed corrective action. The final result is that the employer was one day late when it notified the employee of her termination on August 28, 2008. The Board concluded the dismissal was null and void, based on

Article 11.01 of the Agreement, which provides the 15 day notification period. [ 6 ] The Applicant also argues the Board’s conduct of the hearing breached the requirements of procedural fairness. To understand this argument requires additional factual information about the hearing itself. [ 7 ] Unlike a civil trial in the courts, in a labour arbitration there is no provision for mandatory disclosure, nor any pre-hearing discovery or questioning. This probably flows from the historic hope that labour disputes would be handled quickly and expeditiously.

Although (according to counsel) some disclosure does take place, that is as a result of the collegiality of the lawyers practising in this area of law rather than a mandated and formal process. I accept these representations from the lawyers who appeared before me. [ 8 ] This meant that the argument about the 15 day time limit having expired did not develop until the second day of the hearing. At that point information about when the employer first became aware of the July 31 incident emerged during cross-examination by AUPE’s lawyer.

However, prior to the hearing the parties had entered into an agreed statement of facts. One fact was: “... an acceptance of the jurisdiction of the Board”. The Board in its decision-making process thus had to evaluate the impact of that agreed fact, if any, in light of a newly developing and emerging argument that a breach of a mandatory clause (Clause 11.01) might extinguish the very issue of the jurisdiction of the Board. The Board concluded that the employee and AUPE could not be bound by the implication of a fact of which it was unaware.

The Board concluded that there was neither expressed nor implied waiver. [ 9 ] The Applicant challenges that element of their decision on the basis that it is incorrect, unreasonable, or procedurally unfair. The unfairness assertion flows from the fact that in light of the written acceptance of jurisdiction, AHS could not have expected in advance of the hearing that it would need evidence that AUPE knew of the August 6 date, and thus had waived its relevance when AUPE agreed to accept the tribunal’s jurisdiction. 3. The Position of the Parties

[10] The Applicant asserts that the Board made an error or group of errors in its analysis of the operation of Clause 11.01 (the 15day dead-line clause) that collectively led to an unreasonable decision. The Applicant also asserts that the Board breached the duty ofprocedural fairness in its handling of the second issue of waiver.

Finally, AHS say that the Board made another unreasonable error when it characterized the August 14th dishonesty of the employee as simply an aggravating circumstance of the July incident, rather than a newbasis for discipline. [11] The position of the Respondent is that the Board Decision is reasonable and within the range of possible outcomes that canflow from the evidence. Accordingly, deference to the Board should result in the dismissal of this application. 4. Preliminary Issue - Breach of

Article 11.04 [12] During the Board’s hearing the Board had to deal with an alleged breach of

Article 11.04, which requires, in part, that: Any employee who is to be disciplined ... shall be entitled to have a union steward present at the interview ... [Collective Agreement,

Article 11.04, Tribunal Proceeding Return, Exhibit 1] [13] The employer seeks to use the conduct of the employee at the August interview as either a separate basis for dismissal, or asfound by the Board in considering a different issue, a potentially aggravating circumstance. AUPE countered at the Board hearing that,contrary to

Article 11.04, the employee was denied adequate union representation on August 14. [14] The Board agreed with the Union’s position. At Board Decision, para. 141 it concluded: This is a difficult case. [The employee] was in a very precarious position. The investigation proceeded with less attention to thecollective agreement protection than appropriate.

Such protections are all the more important for people who are in a vulnerableposition, either because of their employment history or because of limitations in their ability to advocate on their own behalf. [15] Before reaching this conclusion the Board conducted a thorough, comprehensive, and adequate analysis: Board Decision,paras. 107-141. [16] The Applicant now accepts the Board’s decision, agrees with the Board’s approach on

Article 11.04, and that the result isreasonable. It has undertaken not to re-litigate this issue, if I decide to direct this matter back for a further hearing. As that is the decisionthat I have arrived at, it is necessary that this decision record this Court’s acceptance of the Board’s analysis and conclusion in relation toArticle 11.04, and the AHS undertaking. Thus the re-hearing will start on the basis that the employee’s

Article 11.04 entitlements werebreached. The Board will assess the import and impact of that. 5. The Standard of Review [17] Different issues may require a different standard of review. The present approach is indicated by Dunsmuir v. NewBrunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, most recently confirmed in Doré v. Barreau du Québec, 2012 SCC 12. Two standardsmay apply, correctness or reasonableness: Dunsmuir v. New Brunswick. Modern jurisprudence also allows a judge to accept thestandard of review without a comprehensive ‘Pushpanathan analysis’ (Pushpanathan v.

Canada (Minister of Citizenship andImmigration), (SCC), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193) where both parties agree on the appropriatestandard.

[18] The expertise of the Board in its home jurisdiction is well established: Dunsmuir v. New Brunswick, at para. 68. [19] In this case the parties agree that the standard of review is to a standard of reasonableness: 1. on the issue of

interpretation of

Article 11.01, 2. on the handling of the impact of the August 14 interview between the employer and employee, and 3. analysis and

interpretation of the law of waiver. [20] However, Counsel disagree on the standard of review on the issue of the waiver. Where the issue of waiver movestangentially into the issue of procedural fairness, AHS asserts that the standard is that of correctness. It says the issue is a matter ofprocedural fairness and fairness equates to correctness. AUPE however asserts that this issue also must be decided on whether theapplication of the law of waiver was or was not reasonable.

However, as I have concluded this case without analysis of that issue thisdisagreement becomes less important. [21] Nevertheless, I note that the Canadian law that guides how a court reviews whether a tribunal met the requirements ofprocedural justice may have undergone significant revision after this judicial review was heard. In Doré v. Barreau du Québec, Abella J.at para. 43 concludes that an administrative tribunal’s decision that a law is or in not constitutional is reviewed on a standard ofcorrectness.

However, at para. 45, she states that judicial review of whether the proceedings and conclusion of a tribunal conforms to theCharter of Rights and Freedoms (Canadian Charter of Rights and Freedoms,

Part 1, Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11 [the “Charter”]) is due deference and reviewed on a reasonableness standard. Procedural justice isa facet of Charter, s. 7: R. v. Rodgers, 2006 SCC 15 at para. 23, [2006] 1 S.C.R. 554; R. v. Rose, (SCC), [1998] 3S.C.R. 262 at para. 99, 166 D.L.R. (4th) 385; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309 at 361-62, 44 D.L.R. (4th) 193. Itis arguable that the recent Doré v.

Barreau du Québec instruction of the Supreme Court of Canada suggests that judicial review courtsshould evaluate any alleged breach of procedural justice by a tribunal with deference. [22] I agree with the parties that for those issues that remain live the Board’s decision should be tested on a standard ofreasonableness. 6. Analysis A. Issue 1 - Is Agreement Clause 11.01 Mandatory? [23]

Article 11.01 of the Agreement, with the superfluous words removed, states: Disciplinary action by the employer ... including dismissal, will be taken within 15 days (excluding Saturdays, Sundays, and namedholidays), of the date the employer first became aware of, or reasonably should have become aware of the occurrence of the act. ... Anemployer request to extend these time lines, in order to complete a proper investigation, shall be by mutual consent in writing of theparties. [24] The Board analyzed this clause. Its investigation revolves around whether this clause is directory or mandatory.

The majorityof the Board concluded Clause 11.01 was mandatory and the breach of the 15 day time made the employer’s dismissal of the employee

null and void. The dissenting opinion was to the contrary. [25] The Applicant characterizes Clause 11.01 and its deadline as procedural in character. I agree. [26] The Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011SCC 61, [2011] 3 S.C.R. 654 [“ATA”] touches on this topic. The court considers whether a time line should be viewed in a flexiblemanner or as a ‘drop dead’ deadline.

While Justice Rothstein does not decide the matter on that basis, he criticizes a formalisticinterpretation of legislative text: [73] The parties, the trial judge and the Court of Appeal all approached the time lines issue as though it engaged the distinctionbetween mandatory and directory legislative provisions. R. W. Macaulay and J. L. H. Sprague succinctly explain themandatory/directory distinction as follows: Where a provision is imperative it must be complied with.

The consequence of failing to comply with an imperative provision will varydepending on whether the imperative direction is mandatory or directory.

Failing to comply with a mandatory direction will render anysubsequent proceedings void while failing to comply with [a] directory command will not result in such invalidation (although the personto whom the command was directed will not be relieved from the duty of complying with it. (Practice and Procedure Before Administrative Tribunals (loose-leaf), vol. 3, pp. 22-126 to 22-126.1) [74] This Court has previously expressed doubt as to the usefulness of the mandatory/directory distinction. In British Columbia(Attorney General) v.

Canada (Attorney General), (SCC), [1994] 2 S.C.R. 41, Iaccobucci J. affirmed that [T]he “mandatory” and “directory” labels themselves offer no magical assistance as one defines the nature of a statutory direction.Rather, the inquiry itself is blatantly result-oriented. ... Thus, the manipulation of mandate and direction is, for the most part, themanipulation of an end and not a means. In this sense, to quote again from Reference re Manitoba Language Rights, [(SCC), [1985] 1 S.C.R. 721], the principle is “vague and expedient” (p. 742).

This means that the court which decides what ismandatory, and what is directory, brings no special tools to bear upon the decision. The decision is informed by the usual process ofstatutory

interpretation. [p. 123] [27] The exact words used to set a deadline are secondary to the functional effectiveness of a ‘hard’ or ‘soft’ deadline, as testedwith the usual principles of statutory

interpretation; “the words of a provision are to be read in their entire context and in theirgrammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo& Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21, 154 D.L.R. (4th) 193, most recently affirmed R. v.D.A.I., 2012 SCC 5 at para. 25). This approach is as applicable in interpreting a collective agreement as a statute. [28] I have concluded that the Board did make an error of law when it concluded that

Article 11.01 was mandatory and that thefailure by the employer to give notice within 15 days (taking instead 16 days) elevated this single contractual term in a collectiveagreement to a type of limitation barrier or deadline. The majority’s decision becomes unreasonable as it is not within a probable rangeof outcomes but instead leads to a result which was disproportionately inappropriate in the context of a labour relations framework. TheAgreement strives to balance the obligations and entitlements of the employee against the obligations and entitlements of the employer. [29] Treating

Article 11.01 as a “drop dead” limitation prevents the employer from dismissing an employee for cause, even wherethat cause may be proven to an acceptable standard. This penalty is disproportionate to a current public policy framework that a contractterm breached should be analyzed to determine: 1. the nature and circumstances of the breach, 2. whether prejudice has occurred as a result of the breach, and

3. what consequences properly should flow from that breach. [ 30 ] The Board’s decision was unreasonable. I am drawn to this conclusion for the following reasons. 1. Binding Case Law [ 31 ] First, I accept the Applicant’s argument on the combined effect of three cases: Dunsmuir v. New Brunswick , Alberta Union of Provincial Employees v. Alberta , 2010 ABCA 216 , 482 A.R. 292 [“ AUPA v. Alberta ”], and Alberta Health Services (Calgary Area) v. Health Sciences Assn. of Alberta (Paramedical Professional/Technical Unit) , 2011 ABCA 306 , 515 A.R. 120 [“ AHS v.

HSAA ”].These decisions brought about a legal sea change and required labour arbitration boards to be particularly cautious before concluding that an employer’s breach of a collective agreement results, in effect, that notice of the termination never happened. The Board did not have the benefit of the third case as it was released after this grievance was heard. The Board did have the benefit of Dunsmuir v. New Brunswick and AUPA v. Alberta [ 32 ] In AUPA v.

Alberta , Slatter J.A. indicated at para. 33: It is clear since the decision in Dunsmuir that a breach of procedural provisions ... is not irredeemably fatal. The breach is undoubtedly a breach of contract, but it no longer renders the entire dismissal "void". The law no longer assumes that the dismissal which obviously did happen, never happened . It is therefore up to the arbitrator to decide what remedy should be awarded for that breach of contract.

In selecting the remedy the arbitrator must often decide what damage flowed from the breach of contract, which inevitably leads to asking whether the outcome would have been any different if the procedural provisions ... had been complied with . [Emphasis added.] [ 33 ] Ironically, the Board took this jurisprudence specifically into account in their handling of the 11.04 issue [see Board Decision, para. 122, quoting the passage above]. It concluded that the AUPA v. Alberta decision of the Court of Appeal was binding authority.

Despite this acute awareness of the potential implication of Justice Slatter’s remarks, the Board failed to consider the application of those comments in its

interpretation of

Article 11.01. I can only assume that the Board unduly focused on the nature of the breach that was before the Court of Appeal in the AUPA v. Alberta case without considering the decision’s broader implications. This inconsistency in how these two related issues were handled, on its face, reflects an unreasonable line of reasoning. 2.

Interpretation of

Article 11.01 Must Involve Remedy [ 34 ] There are other reasons that make the Board’s decision unreasonable. First, the Board acts from a false premise that the concluding portion of the article, by which additional time could be sought, is meaningless unless the

article is interpreted as mandatory. That is not the case, nor can it be. There are clearly potential consequences to the employer for breaching the time period covenant, even with a conclusion that

Article 11.01 is directory. This breach of contract would have to be analyzed to determine prejudice and remedies. The portion of the term relating to consensual extensions has meaning whether or not the clause is mandatory or directive. 3. Language and Construction of the Agreement [ 35 ] Finally, it cannot so lightly be ignored that some portions of the Agreement, particularly the investigative processes found in many parts of

Article 10, often use the word “shall” and then describe a specific penalty or remedy for breach of the provision. However,

Article 11.01 uses the word “will”, often considered a descriptor of less mandatory conduct.

Article 11.01 does not provide a specific penalty for its breach. [ 36 ] Could it really be expected that in the collective bargaining process, either union or employer would contemplate that a time period as short as 15 days could become an absolute limitation on discipline? Here it seems unreasonable and harsh to conclude what is clearly a modest breach of the collective agreement, a breach by only one day, as fatal to the employer’s disciplinary effort. That is particularly true where the employee already knew “something was up” from an August 14 meeting.

[ 37 ] Taken in the entire context of the collective agreement, there is less reason for

Article 11.01 to be considered mandatory than, for example,

Article 11.04, yet in result the Board concluded that a breach of

Article 11.04 could not render something void ab initio . [ 38 ] Further, the time period of 15 days in so short a period of time for an employer to investigate and respond intelligently to an allegation of misconduct that expiry of that period could not have been intended to act as a “drop dead” limitation. It is more reasonable, in the context of the collective agreement, to concluded that the breach of this short period of time would be seen as a directive. There would be some, but not fatal, consequences for failure by the employer to meet that time line. [ 39 ] I therefore conclude the shortness of time encourages an

interpretation that the provision is directory only. Public policy would dictate that this type of clause would operate in a way to keep the employer’s feet to the fire, investigate promptly, and report fairly to an employee, but nevertheless allow a tribunal flexibility to consider the real extent of any mischief that results from a breach of the time limit and then craft an appropriate remedy. [ 40 ] In that sense I agree with Counsel for the Applicant that to rule

Article 11.01 is mandatory is, in effect, to create a disproportionality. It creates an outcome where the parties have no effective review mechanism, and becomes a potential example of “two wrongs equaling a right”. [ 41 ] I prefer to interpret

Article 11.01 in a manner similar to time periods in the Alberta Rules Of Court , Alta Reg 124/2010. That gives the Board an opportunity to determine the effect of the breach, the prejudice that flows from it, and to craft an appropriate remedy. An

interpretation of

Article 11.01 as mandatory is inconsistent with modern dispute resolution which focuses on getting to the substance of the problem and not creating procedural barriers. B. Issue 2 - Did the Board Mishandle the Waiver or Implied Waiver? [ 42 ] The second area identified by the Applicant as requiring Judicial Review is that the Board mishandled the concept of waiver or implied waiver.

Conducting this analysis is not necessary in light of my conclusion on the first question, however the issue was argued by counsel and deserves commentary. [ 43 ] Comment is also appopriate because if the Applicant’s view of the circumstances becomes the prevailing one, labour relations law will be set back considerably as the parties will never enter into any agreement about jurisdiction, or instead any agreement concerning the jurisdiction of a labour arbitration board will become so convoluted and conditional as to render that agreement ineffective. [ 44 ] On February 19, 2010 the parties entered into an “agreed statement of facts” [Tribunal Proceeding Return, Agreed Statement of Facts, Exhibit 4] which included the following: 6.

The parties do not object to the composition of the arbitration board. The parties agreed that the arbitration board has jurisdiction to hear and determine the grievance . The parties agreed to waive the time limits set out in

Article 10.04(

d) of the collective agreement. [Emphasis added.] It is the highlighted sentence in paragraph 6 from the Agreed Statement of Facts that AHS alleges prevents the Board from coming to a conclusion that the time limit issue (Article 11.01) was (if interpreted as a mandatary deadline) not waived. [ 45 ] The Applicant’s thesis is that once AUPE agreed in writing that the jurisdiction of the board is admitted, then that precluded the Board from responding to any argument and evidence that arose, in any way, which had the result that the jurisdiction of the Board could be brought into question.

Putting this another way, since the 15 day rule was interpreted by the Board to disengage their ability to handle this issue, then that conclusion was in response to an argument the Board never had in its jurisdiction. AUPE had waived a right to challenge the Board’s jurisdiction by the agreed statement of facts.

[ 46 ] I suspect that there is not a single litigant who would ever consent to the jurisdiction of a tribunal if it meant that the tribunal could not act, rule, or find as a fact any fact which permitted a ruling or

interpretation that could possibly render the steps taken by an opposing party as void for being out of time. [ 47 ] During the hearing I suggested to counsel that perhaps this paragraph is commonly included in these factual agreements on almost a pro forma basis. Counsel for the Applicant resiled from that suggestion.

If that is the case, I suspect that once AHS’s view becomes widely known opposing counsel will either not consent to this jurisdictional boilerplate, or will qualify the agreement to such an extent that the clause becomes devoid of any meaning. [ 48 ] Here, this learned Board correctly observed that it would be impossible to conclude that the agreement accepting the jurisdiction of the Board is also a waiver of the breach of the time period, particularly where the AUPE had no knowledge of this breach until the 16 day delay was discovered during the Applicant’s evidence at the hearing. [ 49 ] In the labour hearing milieu, where there is no discovery process, no obligation to produce documents (although I am led to believe that many are customarily exchanged and produced), not only is the Board’s ruling correct, it is the only conclusion that makes common sense.

I suggest with the greatest of respect that when the AUPE agreed to the jurisdiction of the Board, the AUPE were simply agreeing to certain preliminary procedures and facts, such as the grievance had been properly filed and the dispute remained unresolved. If that is not the case then I suspect that the disputed sentence will never appear in another agreed statement of facts. [ 50 ] Applying the facts to this discussion, the Board concluded first that the AUPE had notice of the July 31 incident on August 6.

It also accepted that the AUPE did not initially have notice of that fact, instead it emerged at the hearing itself. So, in result, the Board concluded that whatever paragraph 6 of the agreed statement of facts meant, it could not bar the Respondent from raising this

Article 11.01

interpretation issue which had effectively fallen into its lap at the hearing. Not only do I reject the Applicant’s suggestion that the Board handled this development in an incorrect way, I conclude the Board handled this emergent issue in the only way it could. Factually, this is necessary to provide continued efficacy to this method of satisfying labour grievances. To bar a litigant from raising an issue of which it only became aware at a hearing would be inappropriate. C. Issue 3 - Procedural Unfairness [ 51 ] This segues into the Applicant’s third argument.

Their counsel at the Board hearing assumed, in light of the agreed fact accepting the jurisdiction of the Board, that the employer did not have to call rebuttal evidence to show an actual waiver by AUPE of the time period by conduct. The evidence that AHS now suggests it might have called is evidence that the AUPE knew of the August 6 date well in advance of the hearing, and as a consequence the AUPE’s choice to not raise the

Article 11.01 issue in advance of the hearing would have constituted a waiver by conduct. That would undercut the Board’s conclusion that AUPE could not waive in writing a right about which it knew nothing. [ 52 ] Counsel for AHS before the Board, who was not the barrister who argued the case before me, came to a conclusion and took a strategic decision not to call further evidence or re-open the case based on his experience and understanding of labour law. The hearing lawyer believed that the AUPE would be required to first apply to withdraw from its agreement that the Board had jurisdiction. Only then would AHS be in jeopardy of the type of

interpretation and application of

Article 11.01 that occurred in this case. [ 53 ] AHS asserts that it was caught by surprise by the Board’s actions as it concluded that, in the absence of a withdrawal of the agreed fact consenting to jurisdiction, the worst result would be some type of punitive remedy for the one day overdue discipline notice. Even after the arbitration hearing concluded counsel remained of the view that the agreed fact going to jurisdiction prevented the AUPE from raising this issue. [ 54 ] I express some doubt about this.

I reconfirm that in my estimation the agreement concerning the jurisdiction of the Board is simply an agreement that procedurally all of the appropriate steps have been taken to divert and settle the case, and that the Board must now be involved. Additionally, that agreement may simply mean that all necessary paperwork had been created and filed to properly put the case before the Board.

[ 55 ] My conclusion is that paragraph 6 cannot create or bar reliance on evidence that is not known. Further, when this issue came up in cross-examination the lawyer for the employer became aware that it would be argued at the conclusion of the hearing. Any uncertainty or doubt about what type of argument would result, or the potential consequences of a decision on

Article 11.01 could have been clarified at that point. [ 56 ] The 15 day issue emerged during the course of the Applicant’s case. AHS was not precluded from calling further or other witnesses to nip any potential argument in the bud. Further, after the AUPE did not apply to withdraw their agreed fact (the jurisdictional fact) and before the case closed the AHS’s lawyer could have insisted on clarification of the range of issues before the Board, and sought leave to call further evidence. It did neither.

A miscalculation, by counsel, on how a case will progress before a tribunal does not equate to a failure to be fair, on the part of the Board. While the members of labour arbitration tribunals are noted as expert in their field, and required to perform their tasks in a manner coherent with the principles of fair procedural and justice, they do not become responsible for the expectations of those who appear before them. [ 57 ] I conclude the Board did not treat the applicant unfairly, irrespective of whether I apply the standard of reasonableness or correctness to the issue of procedural fairness.

The Applicant fails on this portion of its submission. D. Issue 4 - The Effect of the August Conduct [ 58 ] This issue is also eclipsed by my finding that the Board acted unreasonably when it concluded that

Article 11.01 was mandatory. However, this question was argued before me and may be developed further when the Board hearing continues. This argument is easy to understand. To offset the risk flowing from the fact the Board might treat

Article 11.01 as having a mandatory effect, the employer argued, alternatively, that the August interview with the employee, the August Conduct, also gave the employer grounds to dismiss the employee. Termination as a consequence of the August Conduct would have the effect that the dismissal letter, dated August 28, fell within the

Article 11.01 15 day notice period. [ 59 ] That is a courageous argument, but is struck down by the facts. The termination letter [Tribunal Proceeding Return, Albert Alberta Health Services Letter to the employee dated August 28, 2008, Exhibit 2], begins with the heading: “Re: Investigation of incident - July 31, 2008”. [ 60 ] The Board concluded that under these circumstances the August 14 incident did not ‘reset’ the 15 day period. Instead, the Board concluded that, at best, the August 14 Conduct was an aggravating circumstance.

This conclusion at para. 100 of the Board Decision appears logical, and certainly is reasonable. Deference would prevent any successful judicial review on the basis of that argument. E. Issue 5 - Return of This Matter to the Existing Board or a New Panel? [ 61 ] Counsel addressed the issue of potential remedies. The Applicant wants this dispute to be assigned to a new board for a new hearing. The Applicant cites prejudice and potential bias, having succeeded in a judicial review.

The AUPE indicates that labour arbitration boards are sophisticated and can provide a fair decision that follows the direction of this Court. [ 62 ] I prefer the Respondent’s position. While I recognize that there may be some cases where it might be best that a new panel review the entire matter, here the Board in a well-written legal-based decision concluded only that the employer was out of time.

The minority disagreed, and I have found with great reluctance, due to the respect I have for this Board, that errors of law have occurred that amount to an unreasonable decision. [ 63 ] My conclusion is in large part because of a shifting legal landscape. There is nothing in my ruling that would suggest that the Board cannot deal with the case on the merits. That option remains the most practical as the current panel has much background information on this matter.

This dispute is therefore returned to the Board to determine the merit of the discipline process taken by the employer, and any collateral issues that flow from its deliberations.

7. Costs [ 64 ] If the parties are unable to agree on costs of the judicial review before me they may approach me again. Heard on the 7 th day of March, 2012. Dated at Edmonton, Alberta this 13 th day of April, 2012. A. W. Germain J.C.Q.B.A. Appearances: Kevin Feth Q.C. and Ayla Akgungor Field LLP for the Applicant Sean McManus McManus & Hubler for the Respondent