Calgary (City) v. International Association of Fire Fighters (Local 255), 2012 ABQB 90

Court of Queen ’ s Bench of Alberta Citation: Calgary (City) v. International Association of Fire Fighters (Local 255), 2012 ABQB 90 Date : 20120206 Docket: 1101 05763 Registry: Calgary Between: City of Calgary Applicant - and - International Association of Fire Fighters, Local 255 Respondent _______________________________________________________ Memorandum of Judgement of the Honourable Madam Justice M.C.

Erb _______________________________________________________ [ 1 ] Dwight Weinberger is one of more than 40 City fire fighters who together have filed an action in this Court alleging negligence, among other torts, against the Board of Trustees (Pension Board) of the Firefighters Supplementary Pension Plan (FSPP). [ 2 ] They claim that the Pension Board through its agent, the City of Calgary, failed to inform them of their right to purchase eligible prior pensionable service at the time they left other pensioned employment with the City to became firefighters.

The impact of this is that they became ineligible for five years of bridge pension benefits to which they would otherwise have been entitled.

[ 3 ] At the same time, the International Association of Fire Fighters, Local 255 filed a grievance on behalf of Mr. Weinberger seeking similar remedies but against the City of Calgary, the other party to the Collective Agreement between them. The two also negotiated the terms of the FSPP which established its Pension Board.

FSPP is not a party to the Collective Agreement and the party that is (the City of Calgary) has no independent authority to deal with the FSPP except in its capacity as its delegated agent. [ 4 ] The City seeks judicial review of a Labour Arbitration Board’s majority decision that it had exclusive jurisdiction to hear the Union’s grievance filed on Mr. Weinberger’s behalf. If successful, the Arbitration Board’s jurisdiction would be supplanted by proceedings in the Court of Queen’s Bench. The Union asserts that no reviewable error occurred and seeks dismissal of the City’s application.

History of the Supplementary Pension Plan [ 5 ] A brief history of the supplementary pension plan will provide some context on the issue before this Court. The pension plan has been reviewed in the Court of Queen’s Bench on a number of occasions and its history has been well set out in Calgary Firefighters’ Supplementary Pension Plan v.

The City of Calgary 2004 ABQB 125 (per Park J.) in the following lightly edited narrative. [ 6 ] In 1975, the City and the Union agreed to create the FSPP as a supplement to the Local Authorities Pension Plan (LAPP). [ 7 ] In about 1987, it became necessary to register the FSPP pursuant to the provisions of the Income Tax Act and its Regulations. To facilitate registration, the City and the Union entered into a Trust Agreement dated September 23, 1987, which established the Board and constituted a trust fund.

The City and the Union also established the Rules and Regulations of the FSPP. [ 8 ] The FSPP essentially provided a “bridging” benefit for members of the Calgary Fire Department from the five- year -period between the age of 60 years (the required age of retirement from the Fire Department and the City) and 65 years (the age retired members are eligible to apply for a pension from the LAPP). [ 9 ] The Pension Board is responsible for the collection (Article 3 of the Trust Agreement) and deposit (Article 4) of both the employee and employer contributions to the trust fund.

The Fund consists of the assets and liabilities arising from the contributions of the City and the Union members together with funds accruing from of the investment of those contributions. The Fund is administered in accordance with the terms and conditions set out in the Trust Agreement (Articles 5 and 6). [ 10 ] A Memorandum of Settlement dated March 8, 1995, between the City and the Union concerning the FSPP (the “Memorandum”) amended the plan text as of April 3, 1995.

That Memorandum confirmed the responsibility of the Pension Board to administer the FSPP, subject to its right to delegate administrative tasks and duties to the City. [ 11 ] The Memorandum also provides that, “the Pension Board will continue to govern the Plan pursuant to the Trustee Agreement dated September 23, 1987 as amended from time to time.” The Amended and Restated Rules and Regulations of the plan text became effective on April 3, 1995. [ 12 ] In addition to the powers and duties of the Pension Board,

Article 8 of the Trust Agreement sets out the general powers of the Pension Board in dealing with the Plan and the Fund. Those powers are generally described as the full power and authority to decide and determine, in the Pension Board’s absolute discretion (and as is deemed prudent and conservative and in the best interest of the Plan), all questions relating to the administration of the Fund, but include, inter alia , the following specific powers: (

a) Article 8(c): to employ suitable agents and counsel, including actuaries, custodians, solicitors, investment managers, outside chartered accountants or auditors, and to pay their reasonable expenses and compensation out of the Fund (see also

Article 11(b)); (

b) Article 8(e): in general, in the carrying out of the Board’s responsibilities under the Trust Agreement, to exercise all powers as-if

the Board were the owners of the Fund; (

c) Article 8(f): to make and enforce such rules and regulations as the Board shall deem necessary or proper for the efficient administration of the Plan; and (

d) Article 8(g): to compute the amount of benefits or other payments which shall be paid to any person out of the Fund in accordance with the provisions of the Plan. [ 13 ]

Section 11 of the Trustee Agreement designated the City as administrator of the Board. [ 14 ] The City and the Union have been parties to a series of labour agreements (the collective agreements) for many years.

The current Collective Bargaining Agreement between the City and the Union was ratified on July 26, 2000. [ 15 ] The FSPP is specifically referred to in the current Collective Bargaining Agreement, and the FSPP is incorporated by reference as part of that agreement. (Section 23.01 of the Collective Agreement). [ 16 ] The Pension Board itself has never been part of the collective bargaining process between the City and the Union, nor has it ever been a signatory to any collective agreement between them. Relevant legislation. [ 17 ] Sections 135 , 144 and 145 of the Labour Relations Code , R.S.A. 2000 c.

L-1 provide: 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 the subject of arbitration between the parties to or persons bound by the collective agreement. 144. 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. 145(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 the arbitrator’s 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 application 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 of it, whichever is later. Standard of Review [18] The Standard of Review which this Court is to apply must first be established. The City as the applicant, seeks a “correctness”standard because the issue is jurisdiction. The Union asks this Court to apply a standard of “reasonableness” to the Arbitration Board’sPreliminary Award on its jurisdiction. [19] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of Canada stepped back from the long-standing practice of “exhaustive review” of the determining factors it established 10 years earlier in Pushpanathan v.

Canada (Ministerof Citizenship and Immigration), (SCC), [1998] 1 S.C.R. 982 for setting the appropriate standard of review. Rather theCourt directed that a two step analysis was appropriate, at para.62: In

summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined ina satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the firstinquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [20] The factors to be applied in the second stage of the Dunsmuir analysis are described at para.64: The analysis must be contextual.

As mentioned above, it is dependent on the application of a number of relevant factors, including: (1)the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3)the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of thefactors, as some of them may be determinative in the application of the reasonableness standard in a specific case. [21] More recently, the Supreme Court provided further guidance in respect of the first stage of the Dunsmuir analysis in Smith v.Alliance Pipeline, 2011 SCC 7, [2011] 1 S.C.R. 160, holding at para.26: Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness.

The standard of correctnessgoverns: (1) a constitutional issue; (2) a question of "general law 'that is both of central importance to the legal system as a whole andoutside the adjudicator's specialized area of expertise'" (Dunsmuir, at para. 60 citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63,[2003] 3 S.C.R. 77, at para. 62); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a"true question of jurisdiction or vires" (paras. 58-61). On the other hand, reasonableness is normally the governing standard where thequestion: (1) relates to the

interpretation of the tribunal's enabling (or "home") statute or "statutes closely connected to its function, withwhich it will have particular familiarity" (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwinedlegal and factual issues. [22] The City points to the decision of the Alberta Court of Appeal in Calgary (City) v. International Association of Fire Fighters(Local 255), 2008 ABCA 77, 86 Alta. L.R. (4th) 24, which was decided prior to Dunsmuir.

The central issue before the arbitration boardin Calgary (City) was whether firefighters could maintain their employment status while collecting permanent disability benefits. [23] Both the Chambers Judge and the Court of Appeal concluded that a correctness standard applied to the arbitration board’sdecision.

The Court of Appeal, applying the pragmatic and functional analysis that guided the standard of review analysis prior toDunsmuir, concluded that the privative protection afforded to the arbitration board was limited, and agreed with the Chambers Judge thatbecause the arbitration board was required to interpret the terms of the pension plan and the LAPP regulation, the issue fell outside theboard’s core area of expertise. [24] The City points out that Calgary (City) was distinguished by Greckol J. in Shepherd’s Care Foundation v. Alberta Union ofProvincial Employees, 2011 ABQB 281, [2011] A.J. No. 472.

In Shepherd’s Care Foundation, the issue was whether the terms of thecollective agreement should be interpreted in accordance with the LAPP regulation so as to require the employer to make contributions to

the LAPP for both temporary and full-time employees. Although the issue focused on the interplay between the LAPP regulation and thecollective agreement, the central interpretive question involved provisions of the collective agreement. Greckol J. concluded that theappropriate standard of review was reasonableness, stating at para.23: Unlike the situation in Calgary (City), in which the primary interpretative task centred on the pension plan (albeit the plan wasincorporated into the collective agreement), in the present case, the focus of the Board was on ascribing a meaning to

Article 24.01 of theAgreement. In my view, that is not a question of law of "central importance to the legal system ... and outside the ... specialized area ofexpertise" of the administrative decision maker so as to attract a correctness standard: Toronto (City) at para. 62. The Board'sinterpretation of

article 24.01 took into consideration the eligibility requirements in the LAPP Regulation. However, SCF did not raise anargument as to the meaning of the LAPP Regulation provisions, only their effect on the Agreement.

Interpretation of the provisions ofthe Agreement is a subject that falls within the home territory of the Board. [25] The distinction between the decisions in Calgary (City) and Shepherd’s Care Foundation is helpful and emphasizes theimportance of determining the nature of the question confronting the arbitration board. On questions involving the

interpretation ofcollective agreements, labour arbitrators have particular expertise and their decisions are entitled to a measure of deference: VoiceConstruction Ltd. v. Construction & General Workers’ Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609; Public Service Alliance ofCanada Union of Canadian Transportation Employees Local 30301 v. Calgary Airport Authority, 2006 ABQB 379 at paras. 37-41;Finning (Canada) a Division of Finning International Inc. v. International Assn. of Machinists and Aerospace Workers Local Lodge 99,2004 ABQB 155.

This deference extends to decisions in which the labour arbitrator must determine whether, under the terms of thecollective agreement, the issue in question falls within its jurisdiction. [26] In Assn. of Employees Supporting Education Services v. University of Manitoba, 2008 MBQB 234, the decision under reviewwas, as here, a preliminary determination by the arbitrator on jurisdiction.

The appropriate standard of review was found to bereasonableness because the question was not whether the arbitrator had jurisdiction to interpret the provisions of the collective agreement(a true question of jurisdiction) but whether the issue itself was arbitrable (arising out of the collective agreement). The Court inUniversity of Manitoba considered LaForest J.’s comments in (Canada) Ltd. v.

National Automobile, Aerospace and AgriculturalImplement Workers Union of Canada (CAW-Canada), (SCC), [1993] 2 S.C.R. 230, (SCC) at para.29: I have no doubt that the power to determine arbitrability will for many "matters" connote a grant of jurisdiction stricto sensu.Specifically, when the "matter" must be measured against the collective agreement to determine if it is arbitrable, the arbitrator will havethe right to be wrong. This takes account of the entire purpose of the provision, which is to empower the arbitrator to deal withdifferences between the parties relating to the agreement.

Moreover, this is in accord with the arbitrator's core area of expertise. After all,the most frequent challenge of an arbitrator's jurisdiction is an assertion by one of the parties that the incident underlying a grievance isnot contemplated by the collective agreement. These issues are resolved by the arbitrator's application of the facts to the agreement as heor she interprets it, and this process is clearly intended to be left to the expertise of the arbitrator. However, when it comes to determiningwhether a collective agreement governs the rights and obligations of the parties irrespective of the

interpretation of that agreement, thearbitrator has no benchmark; the existence or subsistence of the collective agreement itself is called into question. Although the arbitratorhas the power to decide these questions, he or she must be correct in doing so. [27] Similarly, in Alberta v. Alberta Union of Provincial Employees, 2008 ABCA 258, the Alberta Court of Appeal decided thatthe appropriate standard of review for the labour arbitration board’s preliminary decision on jurisdiction was reasonableness.

There, thearbitration board had assumed limited jurisdiction over an employee-filed grievance about his termination, despite a provision in thecollective agreement expressly precluding its jurisdiction to arbitrate, by implying a provision of good faith. Applying the Dunsmuir test,the Court held (para.29): The Board was not required to determine whether it had the power to decide whether the grievance was arbitrable. The CollectiveAgreement specifically gave that power to the Board. Therefore, the question before the Board was not a true jurisdiction question:Dunsmuir at para. 59.

Rather, the Board exercised its core jurisdiction in interpreting its own statute, the Collective Agreement andlabour law cases. This contextual factor suggests deference. Moreover, the Board has developed particular expertise on such interpretiveissues. This factor also suggests deference. In the result, we conclude that the appropriate standard of review for the Board's decision isreasonableness. [28] Alberta v. Alberta Union of Provincial Employees, Shepherd’s Care Foundation and University of Manitoba are decisionsanalogous to the case here.

The objection to the Arbitration Board’s jurisdiction is not that the Arbitration Board was not empowered todetermine whether the dispute was arbitrable (a true question of jurisdiction) but whether the grievance is governed by the collectiveagreement. In doing so, the Arbitration Board considered its own statute, the collective agreement and a substantial body of case law.

The Arbitration Board considered the terms of the FSPP and the Trustee Agreement although it was not necessary to interpret thoseprovisions to determine the arbitrability of this dispute. [29] The issue before the Arbitration Board was in fact rather simple: whether the alleged failure of the employer to advise theemployee of his right to purchase eligible prior service was arbitrable under the terms of the Collective Agreement. The case law appearsto be clear that the appropriate standard of review of a decision of this nature is reasonableness.

Even if it is not clear, reasonableness stillappears to be the appropriate standard to apply given the second requirement of the Dunsmuir test. [30] As the Court of Appeal noted in Alberta v. Alberta Union of Public Employees (para.28), the privative clauses (sections 144and 145) of the Labour Relations Code suggest deference in addition to referencing the purpose and role of labour arbitrators. [31] I find that the appropriate standard of review of the Labour Arbitration Board decision in its Preliminary Award isreasonableness.

The standard of reasonableness is described in Dunsmuir at para.47: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [32] The next question is whether the Arbitration Board’s decision is reasonable. [33] It is useful to review the arguments of Counsel for the City and the Union before considering what the Arbitration’s Boardadditionally considered, its ultimate decision and whether it meets the standard of reasonableness.

The City’s Position [34] It is the City’s position that the Union’s claim is properly against the Pension Board because the City only ever acted as theBoard’s agent exercising its delegated authority. On the Union’s allegation that, apart from any capacity as the administrator for thePension Board, the City breached its duty of care as an employer, the City echos that same position – that it acted only as the PensionBoard’s delegated authority.

The City further argued that, in any event, the essential character of the dispute is set out in the Statement ofClaim filed in the Court of Queen’s Bench of Alberta against the Pension Board, and it would be an abuse of process to litigate thisdispute in two fora. [35] The City cited the Supreme Court of Canada’s decision in Quebec (Commission des droits de la personne et des droits de lajeunesse) v. Quebec (Attorney General), 2004 SCC 39 , [2004] 2 S.C.R. 185, in which McLachlin C.J. observed at paras 14-15: ...there is no legal presumption of exclusivity in abstracto.

Rather, the question in each case is whether the relevant legislation applied tothe dispute at issue, taken in its full factual context, establishes that the labour arbitrator has exclusive jurisdiction over the dispute. This question suggests two related steps. The first step is to look at the relevant legislation and what it says about the arbitrator'sjurisdiction. The second step is to look at the nature of the dispute, and see whether the legislation suggests it falls exclusively to thearbitrator .

The second step is logically necessary since the question is whether the legislative mandate applies to the particular dispute atissue. It facilitates a better fit between the tribunal and the dispute and helps "to ensure that jurisdictional issues are decided in a mannerthat is consistent with the statutory schemes governing the parties", according to the underlying rationale of Weber, supra; see ReginaPolice Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14, at para. 39

[36] In considering the both the legislation and the nature of the dispute (as per Dunsmuir), the City argued that s.135 of theAlberta Labour Relations Code, unlike s.45(1) of the Ontario Labour Relations Act (at issue in Weber) does not mandate arbitration asthe exclusive method for resolving all disputes arising from a collective agreement. The City also argued that the facts in this dispute donot arise expressly or inferentially from the Collective Agreement despite the fact that the FSPP had been incorporated by reference intothe Collective Agreement.

Further, the duty of care alleged to have been breached was owed by the Pension Board not the City ofCalgary. The Union’s Argument [37] The Union’s position is that a complaint that an employer failed to adequately advise an employee of pension and similarelections is a proper matter for a grievance filed by a Union or a member employee. The Union pointed to a number of judicial decisionsin which an employer was found to have owed a duty to inform employees of benefit plan options, both in its capacity as employer and aspension plan administrator.

The Union further cited a number of arbitration decisions in which an employer’s failure to provide advicewas found to be the appropriate subject of a grievance under a collective bargaining regime. The Union further argued that the grievancehere is a claim directly against the City in its capacity as employer and in its capacity as administrator. The Union argued that the City’sdual duties arose out of the collective agreement as contemplated by the Supreme Court in Weber.

The Arbitration Board’s Analysis [38] The Arbitration Board first considered the Weber decision, a case in which an employee took an extended leave of absence,was suspected of malingering and the employer retained private investigators who engaged in aggressive surveillance. The employeebrought an action based on trespass, nuisance, deceit and invasion of privacy and claimed breaches of his

Section 7 and 8 rights under theCanadian Charter of Rights and Freedoms. [39] The issue in Weber was whether s.45(1) of the Ontario Labour Relations Act, R.S.O. 1990, c.L.2 ousted the jurisdiction of theCourts over the employee’s action against his employer. After a review of the jurisprudence, McLachlin J. concluded that s.45(1)mandated an exclusive jurisdiction model, in which “...if the difference between the parties arises from the collective agreement, theclaimant must proceed by arbitration and the courts have no power to entertain an action in respect of that dispute” (at para.50).

Todetermine whether the dispute arises from the collective agreement, the nature of the dispute and the ambit of the collective agreementmust be considered: Weber, at para.51. [40] The Arbitration Board also considered several decisions of the Alberta courts which (the City argued) called into question theapplicability of the exclusive jurisdiction model in Alberta.

The Arbitration Board observed that the Alberta Court of Appeal rejected thepresumption of exclusivity of a labour arbitrator over a statutory tribunal but did not reject the exclusivity of jurisdiction approachbetween labour arbitrators and the courts: Calgary Health Region v. Alberta Human Rights and Citizenship Commission, 2007 ABCA 120, 74 Alta. L.R. (4th) 23; Amalgamated Transit Union Local 583 v. the City of Calgary, 2007 ABCA 121, 75 Alta. L.R. (4th) 75 (leaveto appeal denied: [2007] S.C.C.A.

No. 294) [41] The Arbitration Board also referred to the fact that the exclusive jurisdiction model has been applied in Alberta: StrathconaSteel Mfg. Inc. v. Oliva, (1986) 1986 ABCA 246 , 48 Alta. L.R. (2d) 193 (C.A.) (leave to appeal denied: [1987] S.C.C.A. No.162) which predates Weber; and Koenig v. Marsh, 2005 ABCA 118, 363 A.R. 269 and Eastaugh v. Halat, 2009 ABCA 122,6 Alta. L.R.(5th) 43, which postdate Weber. [42] The Arbitration Board also referenced at length, Bisaillon v. Concordia University, 2006 SCC 19 , [2006] 1 S.C.R.666.

Although the City had pointed out that the circumstances in Bisaillon were not comparable because of the differences in thelegislation, the Arbitration Board found it helpful. In Bisaillon, the issue was whether certain amendments to a supplemental pensionplan were actionable in a class action or whether arbitration was required under the terms of the collective agreement which incorporatedthe supplemental pension plan.

Applying the test in Weber, Lebel J. concluded (para.2) that a class action is incompatible with theexclusive jurisdiction of grievance arbitrators and the representative function of certified unions. However, LeBel J. noted (para. 33) thatthe Supreme Court has: ...[C]learly adopted a liberal position according to which grievance arbitrators have a broad, exclusive jurisdiction over issues relating to

conditions of employment, provided that those conditions can be shown to have an express or implicit connection to the collective agreement. [ 43 ] In considering the jurisdiction of the labour arbitrator over issues arising out of a pension plan incorporated into a collective agreement, LeBel J. went on to say (para.37): ...the Court of Appeal accepted the prevailing line of authority, according to which issues relating to a pension plan that has been incorporated into a collective agreement arise, at least implicitly, out of the collective agreement (at para.4).

In that case, as in the case I mentioned in the preceding paragraphs, the collective agreement provided, inter alia, that the employer was to continue offering the pension plan for a specified term. A provision or reference of this nature in a collective agreement is sufficient to establish the arbitrator’s jurisdiction over a dispute respecting the

interpretation or application of a pension plan. [ 44 ] The Arbitration Board (like LeBel J. in Bisaillon ) placed considerable emphasis upon the exclusive power of certified unions to negotiate conditions of employment, and consequently the union’s monopoly on representation.

The Arbitration Board pointed out that if the court is found to have exclusive jurisdiction in these kinds of circumstances, it would be open to dissident employees to bring actions independent of the Union, effectively undermining its monopoly on representation and the collective representation system itself. [ 45 ] Finally, the Arbitration Board considered the issue of the absence of the Pension Board in the proceedings before it. However, it did acknowledge that because the Pension Board was not a party to the collective agreement, it could not be a party to the arbitration.

The Arbitration Board also pointed out that it was the parties, not the Pension Board, who had the power to alter the plan, and it was the parties’ “interest arbitration awards and collective agreements... [that] have molded the plan from the outset.” [ 46 ] In the final analysis, the Arbitration Board concluded that the dispute arose out of the Collective Agreement directly, given the incorporation of the FSPP by reference, and the nature of the duties alleged to have been breached by the City.

These duties, the Arbitration Board found, arose both out of the City’s position as employer and as the delegated authority of the Pension Board. The Arbitration Board’s Decision [ 47 ] The Arbitration Board’s decision appears in the last paragraph of the Preliminary Award : This is a decision as to the arbitrability of the grievance. We find it is an arbitral matter within the exclusive jurisdiction of this Board.

We find that, given the rejection of the concurrent or overlapping jurisdiction models over disputes between the Courts and arbitration, we have no discretion to defer, on a “best fit” approach, which for this grievance in any event favours arbitration. We emphasize that we are not suggesting that this gives us any authority to direct the Trustees in any way or rule on their conduct or liability. The claim we must adjudicate is against the City of Calgary. It does not involve the application of s.135 of the Alberta Labour Code.

The Reasonableness of the Preliminary Award [ 48 ] The City argued that the Labour Arbitration Board erred in its application of Weber because it failed to consider the legislative intent behind the language used in s.135 of the Alberta Labour Relations Code, in particular failing “to look at the relevant legislation and what it says about the arbitrator’s jurisdiction ” (Quebec (Commission des droits de la personne et des droits de la jeunesse) (para.15).

The City argued that the Arbitration Board elevated the principle of representational exclusivity above the specific legislative intent of s.135. [ 49 ] I agree with the City that, in crafting its decision, the Arbitration Board might have more specifically linked its reasons to the Weber test. However, I do not agree, that the Arbitration Board failed to apply the Weber test in any systemic manner or failed to consider the relevant legislation.

[50] It is clear that the Arbitration Board was cognizant of the requirements of Weber. It was open to the Arbitration Board inconsidering the legislation and what it says about the jurisdiction of labour arbitrators in Alberta, to review the applicable case law . Itdid so to no small extent.

The Arbitration Board, relying on the Alberta Court of Appeal decisions in Strathcona Steel, Koenig andEastaugh, concluded that the statutory scheme in Alberta supports the exclusive jurisdiction model described in Weber when the disputefalls within the scope of the Collective Agreement. [51] As the Union points out, the Arbitration Board might also have looked at Allen v.

Alberta, 2003 SCC 13 , [2003] 1S.C.R. 128, (para. 12) in which LeBel J. held: ... in accordance with the legislative intent evidenced by the labour relations schemes implemented since the Second World War inCanada, such as the Alberta statutes which apply in this appeal, disputes arising out of the

interpretation, application or violation of acollective agreement should be dealt with exclusively under the grievance procedure established in accordance with the agreement or therelevant labour legislation.

As a general rule, provided though that they fall within the ambit of the collective agreement, such disputesshould be disposed of by labour arbitrators and regular civil courts do not retain concurrent jurisdiction over them. [52] I find that it was reasonable, in considering the legislative scheme in Alberta, for the Arbitration Board to examine the keydecisions and conclude that the scheme, notwithstanding the differences in language between s.135 of the Labour Relations Code andthe legislation in Ontario and Quebec, supported an exclusive jurisdiction model.

As previously noted here, when the dispute arises outof the collective agreement, it falls within the scope of the Arbitration Board’s exclusive jurisdiction. [53] The Arbitration Board recognized that the LAPP had been expressly incorporated into the collective agreement. Accordingly,because of that incorporation, it was reasonable for the Arbitration Board to find that the ambit of the collective agreement encompassedissues arising out of the FSPP.

This is consistent with Bisaillon, in which it was held (para.37) that the incorporation of a pension plan ina collective agreement is sufficient to establish the arbitrator’s jurisdiction over a dispute involving the application of the pension plan. Itis also consistent with Park J.’s decision dealing with this very same collective agreement and pension plan. (Calgary Firefighters’Supplementary Pension Plan (Trustee of), at para.73: The FSPP is incorporated into and forms part of the Collective Agreement.

In addition the Trustee Agreement is attached to the FSPP asSchedule “A” and is specifically referenced on page 7 of the FSPP. D.J. Brown and D.M Beatty, Canadian Labour Arbitration, looseleaf, 3rd edition, (Aurora, Ont: Canada Law Book, 1988) at Para. 4:1400 and the cases of Hamilton v. I.C.I. Canada Inc., [2001] O.T.C. 741and Paller v.

Great West Life Assurance Co., 2003 BCSC 582 , 2003 Carswell BC 891 are guiding authority for the propositionthat ancillary benefit plans, which are incorporated by reference into a collective agreement, are viewed as part of the collectiveagreement. [54] In short, it was reasonable (and consistent with legal authority) for the Arbitration Board to conclude that the CollectiveAgreement encompassed disputes arising between Union members and the City arising out of the City’s responsibilities, independentlyas employer and as the delegated agent of the Pension Board for the administration of the FSPP. [55] In characterizing the nature of the dispute, the Arbitration Board relied on a number of decisions which found that anemployer owes a duty of care to advise employees in relation to benefits.

Whether the Union can establish that the City failed toadequately advise its employees is a question that will ultimately have to be determined on the merits.

However, there is no question thatthis dispute arises both out of the relationship of employer and employee governed by the Collective Agreement and out of the City’sduties as delegated to it by the Pension Board pursuant to a pension plan incorporated by reference into the Collective Agreement. [56] The City further contends that the Arbitration Board paid too little attention to the fact that the Pension Board itself was not aparty to the Collective Agreement and could not be a party to the arbitration.

The City complains that none of the authorities relied uponby the Arbitration Board involved circumstances where a third party was expressly charged with administering the benefit. [57] The Arbitration Board acknowledged the difficulties which might arise out of its limited jurisdiction. The Arbitration Boardconcluded, however, that if the Pension Board is found to be liable to the employees, it would be because their agent, the City, had beenfound to have failed in its duties to adequately advise them.

The Arbitration Board observed that there is nothing in the grievance thatsuggests an independent basis for liability on the part of the Pension Board. [58] Rather, the allegation is that the problems repose exclusively with the City as employer and delegated administrator. Theappropriate remedy in the event liability is established might well sound in damages rather than a direction to the Pension Board as theArbitration Board observed.

Conclusion [ 59 ] The decision of the Arbitration Board must withstand review on the basis of reasonableness which requires this Court to consider the existence of justification, transparency and intelligibility in the decision-making process and to consider whether the Board’s decision falls within a range of possible, acceptable outcomes defensible in fact and law. [ 60 ] The Arbitration Board considered the appropriate, relevant authorities.

It applied the test set out in Weber , considered the ambit of the Collective Agreement, including the incorporation of the FSPP into it, and the nature of the dispute itself. [ 61 ] The Arbitration Board considered the jurisprudence on the exclusive jurisdiction model and concluded, reasonably, that the law of Alberta supports the proposition that labour arbitrators enjoy exclusive jurisdiction over disputes arising out of the terms of a collective agreement.

Considering the incorporation of the FSPP into the Collective Agreement, and the nature of the dispute, which includes the allegation that the City failed as employer to adequately advise its employees, the Arbitration Board concluded that this grievance arises out of the Collective Agreement and falls within its exclusive jurisdiction. [ 62 ] The decision is transparent and intelligible and falls within the range of possible, acceptable outcomes. It is therefore reasonable. [ 63 ] Accordingly, I find that the Arbitration Board made no reviewable error.

The City’s application is dismissed. [ 64 ] If the parties are not able to agree, costs may be spoken to within a reasonable time frame. Heard on the 13 th day of September, 2011. Dated at the City of Calgary, Alberta this 6th day of February, 2012. M.C. Erb J.C.Q.B.A. Appearances: Russell D. Albert Armstrong Management Lawyers for the Applicant

Sean McManus McManus & Hubler for the Respondent