James v. Northern Lakes College, 2012 ABQB 588

Court of Queen ’ s Bench of Alberta Citation: James v. Northern Lakes College, 2012 ABQB 588 Date: 20120927 Docket: 1003 20370 Registry: Edmonton Between: Aloysius James Plaintiff(Appellant) - and - Board of Governors of Northern Lakes College, Lynne Haas, and Owen Stanford Defendants(Respondents) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.P. Marceau _______________________________________________________ [ 1 ] This is an appeal of the decision of Master L.A. Smart dated January 5, 2012, cited James v.

Northern Lake College , 2012 ABQB 6 . [ 2 ] The Appellant, Aloysius James, was an instructor and probationary employee within the meaning of the collective agreement between the Board of Governors of Northern Lakes College and the Faculty Association of Northern Lakes College. He was dismissed from that position on December 15, 2008, although he said he did not receive notice of same until January 7, 2009. [ 3 ] Upon the application of the Respondent college, the Master summarily dismissed the Appellant ’ s Statement of Claim

originally filed November 30, 2010. The Affidavit of Service was sworn December 8, 2010 but does not indicate the date of service. The record also shows that the Statement of Claim was amended on December 14, 2010. [ 4 ] The basis relied upon by the Master was that this Court had no jurisdiction over the essential character of the dispute. At para [33] the Master set out his conclusion: Therefore, the grievance process set out in the collective agreement has exclusive jurisdiction over Mr. James ’ complaints. The legislation indicates that the process was intended to govern disputes that fall within its ambit. All of Mr. James ’ complaints, in their essential character, arise out of the

interpretation, or operation of the collective agreement. The grievance process offered effective redress for Mr. James despite the fact that Mr. James, as a probationary employee did not have access to independent, third-party arbitration. [ 5 ] The standard of review on appeal of the Master ’ s decision on all issues is correctness: Bacheli v. Yorkton Securities Inc. , 2012 ABCA 166 .

While I find the Master made no error of fact or law on the matters he decided, there were two issues which were not clearly before him. [ 6 ] Firstly, the Appellant argued that essentially this was a dispute which should have been referred to compulsory arbitration pursuant to the terms of the collective agreement and the Post-Secondary Learning Act , S.A. 2003, c. P-19.5 (the “ PSLA ” ). Secondly, the Appellant contended that he did in fact grieve his termination through his representative under the collective agreement, Mr.

Purkis. [ 7 ] I begin by addressing his first contention, that this dispute should have been referred to compulsory arbitration. The applicable collective agreement for the period July 1, 2006 to June 30, 2009 is attached to the Affidavit of Lynne Haas (Vice-president of College Services), a defendant in this action.

Article 25.01 reads in part: (

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. . . . (

d) A complaint alleging harassment, unjust treatment, discrimination, or alleging unfair working conditions, may be presented as a Grievance directly to Level 2. A decision given at Level 2 shall be final and binding on the Parties and all interested persons. (

e) A Grievance concerning the dismissal or termination of employment of a probationary Employee, or a Grievance concerning a written reprimand, may be subject to the Grievance Procedure except that it shall not be a subject of arbitration at Level 3. . . . (g) “ Days ” means calendar days.

Article 25.03 reads in part: Grievance Process The Director of Human Resource Services shall advise all Employees of the name, title and mailing address of the Designated Officer for Levels 1 and 2 of this Grievance Procedure. A copy shall be sent to the Association.

The Parties strongly encourage frank and thorough discussions to resolve differences which might otherwise become formal Grievances. (

a) Level 1 An Employee wishing to pursue a Grievance shall submit it in writing to the Designated Officer at Level 1 within fourteen (14) days of the date upon which the subject of the Grievance occurred or the time the Employee first became aware of the subject of the Grievance. The Designated Officer shall reply in writing within fourteen (14) days of receipt of the Grievance. (

b) Level 2 With the approval of the Association in writing, an Employee not satisfied with the reply at Level 1 shall, within fourteen (14) days of receipt of that decision submit his Grievance in writing to the Designated Officer at Level 2. The Designated Officer at Level 2 shall reply in writing to the Employee within fourteen (14) days of receipt of the Grievance at Level 2 and shall submit a copy of his reply to the Association. . . . It is noted that 25.04 deals with a Level 3 Grievance which provides for arbitration. [ 8 ] The Appellant argues that

section 88.1 of the PSLA mandates that the dispute he has with the Respondent college must go to arbitration. As background, I cite s.87(1) of the PSLA: Academic staff agreements 87(1) The board and the academic staff association of a public post-secondary institution shall enter into negotiations for the purpose of concluding or renewing an agreement. Of some relevance is s. 87(4):

(4) The agreement between the board and the academic staff association of a public college shall, with respect to the employment of academic staff members, contain provisions respecting at least the following matters: . . . (

e) procedures respecting the settlement of differences between the parties arising from the

interpretation, application or operation of the agreement;

Section 88.1 reads:

Compulsory binding arbitration 88(1) Where a dispute that arises during the negotiation of an agreement under

section 87 cannot be resolved by the board and the academic staff association of (

a) a public college, (

b) a technical institute, or (

c) a public post-secondary institution established after the coming into force of this Act, the board or the academic staff association shall refer the dispute to compulsory binding arbitration. . . . [ 9 ] The short answer to the Appellant ’ s argument is that his termination is not “ a dispute that arises during the negotiation of an agreement under

section 87 that cannot be resolved by the board and the academic staff association. ” This is simply a provision which applies before a collective agreement has been entered into; not to a dispute between academic staff and the college during the term of the collective agreement. Therefore, compulsory arbitration was not mandatory in these circumstances. [ 10 ] Turning now to address the second argument raised by the Appellant. The Appellant contended that he in fact grieved the decision to terminate him through Mr.

Purkis, the President of the faculty association and his representative under the collective agreement. The actual initiating grievance letter is not in evidence, nor is the initial response to the filing of the Grievance. What is attached to the March 30, 2012 Memorandum of the Appellant, as Exhibit B is a copy of a letter to Dave Purkis dated March 17, 2009 from Rick Neidig, President of Northern Lakes College, which reads in its first two paragraphs as follows: This letter is to acknowledge your letter dated March 3, 2009 in which you request a reconsideration of the denial of the grievance filed pursuant to

Article 25.01 of the collective agreement on behalf of Mr. Aloysius James. I have taken into account the comments provided by Mr. James in your letter. After careful consideration, the College is standing by its original decision not to extend the timeline, thereby denying the grievance. [ 11 ] During the course of argument, it seemed to be common ground between the parties that the grievance which was filed was filed more than fourteen (14) days after notice of termination was given to the Appellant (January 7, 2009 according to the Appellant).

It also seemed common ground that the grievance was denied outright as out of time because the college ’ s view was that the grievance had to be filed within fourteen (14) days. [ 12 ] The collective agreement certainly specifies a fourteen (14) day limitation for filing a grievance at Level 1 and “ with the approval of the association in writing ” an employee who is dissatisfied with the reply of the Designated Officer at Level 1 has fourteen (14) days from receipt of the decision at Level 1 to submit his grievance in writing to the Designated Officer at Level 2. However,

article 25.03(

d) specifies that grievances involving “ allegations of harassment, unjust treatment, discrimination, or alleging unfair working conditions may be presented as a Grievance directly to Level 2". There is no time specified for the submission of a grievance commenced directly at Level 2. Dismissal, on the other hand, may be grieved at Level 1 then 2, and not beyond. [ 13 ] Assuming therefore that the Appellant proceeded directly to a Level 2 Grievance, it is arguable that his grievance was submitted in time as there is no time limitation specified where a grievance proceeds directly to Level 2.

If so, the Designated Officer was wrong in refusing to proceed with the grievance at least as it applies to the Appellant ’ s claims of discrimination, harassment and unjust treatment. Query whether he had to start at Level 1 to grieve the dismissal.

[14] The procedure invoked by the Appellant was to file a Statement of Claim almost two years after his dismissal. The onlyremedy he sought against the parties was “the cost of bringing the action - $10,644.00 and damages in the sum of $380,000.00". In hissummary of facts in the Statement of Claim, the Appellant says that he submitted a grievance which was not acted upon. However, hismain complaint was that he was not allowed to go to arbitration at Level 3. The decision of Binnie J. speaking for the majority in theSupreme Court of Canada in Vaughan v.

Canada, 2005 SCC 11 , [2005] 1 S.C.R. 146 at para. 38 reads: Fifthly, I do not accept for reasons already expressed, the central assumption of the Appellant’s argument that comprehensive legislativeschemes which do not provide for third-party adjudication are not, on that account, worthy of deference.

It is a consideration but in thecase of the PSSRA it is outweighed by other more persuasive indications of clues to parliamentary intent. [15] Based on the Vaughan case, it is clear that the Appellant’s argument that the collective agreement wrongly discriminatedagainst him by precluding access to third-party arbitration by an aggrieved probationary employee is simply wrong, and the Master madeno error in his

interpretation of the Vaughan case. [16] Nevertheless, the facts as plead together, with recourse to the wording of the collective agreement, do indicate the Appellantcould have sought judicial review of the decision of the Designated Officer not to proceed with the grievance because it was submittedout of time. The time limit for bringing an application for judicial review in this case is governed by Rule 753.11 of the Alberta Rules ofCourt which were in force during the period December 15, 2008 (date of his dismissal) and November 1, 2010 when the new AlbertaRules of Court came into force. 753.11

(1) Where the relief sought is an order to set aside a decision or act, the application for judicial review shall be filed and served within six months after the decision or act to which it relates.

(2) Rule 548 does not apply to this Rule. 548.

(1) Unless there is an express provision that this Rule does not apply, the court may enlarge or abridge the time appointed by these Rules or any rules relating to time or fixed by any order for doing any act or taking any proceeding upon such terms as may be just.

(2) An enlargement may be ordered although the application therefor is not made until after the expiration of the time appointed or allowed. [17] Pursuant to the Rules, the limitation period is six months from the date of the decision to which it relates and that date cannotbe extended by the Court. The first decision occurred in February, 2009. The last decision which may be questioned is the refusal of thepresident to extend the time for grievance. That refusal was hand delivered on March 26, 2009. The latest date the Appellant could havesought judicial review is September 26, 2009.

Nothing was filed in this court before November 30, 2010 - well out of time. Therefore,even if this court could amend the prayer for relief to request judicial review of the decision not to proceed with the grievance, theAppellant would still be out of time. [18] On all the other points addressed by the Master, I find the Master made no error of law or fact. The appeal is dismissed. Theparties may speak to costs by appointment. Heard on the 14th day of September, 2012.

Dated at the City of Edmonton, Alberta this 26 th day of September, 2012. R.P. Marceau J.C.Q.B.A. Appearances: Aloysius James, self represented Matthew Woodley, Reynolds Mirth Richards & Farmer LLP for the Respondents