The Alberta Teachers ’ Association Applicant - v. -, 2013 ABQB 220

Court of Queen ’ s Bench of Alberta Citation: Alberta Teachers ’ Association v Northern Lights School Division No. 69, 2013 ABQB 220 Date: 20130416 Docket: 1103 05384, 1203 02181 Registry: Edmonton Between: The Alberta Teachers ’ Association Applicant - and - Northern Lights School Division No. 69 Respondent Corrected judgment: A corrigendum was issued on April 18, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Don J.

Manderscheid _______________________________________________________ I. Nature of the Matter [ 1 ] The Alberta Teachers’ Association (“ATA”) applies for judicial review of a decision issued on March 8, 2011 (“Award”) by an arbitration panel (“Panel”) chaired by J. Leslie Wallace. The Panel denied both an individual and the ATA’s policy grievance alleging that the Northern Lights School Division No. 69 (“Northern Lights”) violated

Article 8 of the collective agreement between the parties by paying summer school teachers on a pro rata rather than on a half day or full day basis. The ATA also seeks judicial review of a second decision of the Panel issued on January 10, 2012 (“Supplementary Award”) denying the ATA’s request that the proceedings be reopened to allow admission of evidence correcting testimony given by one of Northern Lights’ witnesses at the hearing.

II. Background [ 2 ] The ATA is the bargaining agent for the teachers employed by Northern Lights. There were a number of collective agreements between 1996 and 2006 governing the relationship between the parties. [ 3 ] The factual background to this matter is set out in the Award. As noted by the Panel, most teachers work for about ten months of the year but are paid in twelve monthly pay cheques. Summer school, if offered, is taught by teachers who elect to work during the summer for extra pay. [ 4 ] Alberta Education required that summer school programs have a minimum of 80 instructional hours.

Northern Lights, which started its summer school program in 1997, decided to offer courses with 90 instructional hours, scheduled five days a week for 3.5 hours per day. Morning classes were from 8:30 to noon. Afternoon courses were also offered. [ 5 ] Northern Lights chose to pay its summer school teachers in accordance with the collective agreement salary grid, which depended on the teacher’s years of education and experience. Following brief discussions in 1997 between representatives of Northern Lights and the ATA, the parties adopted an addendum to their collective agreement (“Addendum”) that became

Article 8 of subsequent agreements. That

Article states: 8.0 Summer School Instruction Teachers providing instructional services for courses approved by the Division during the months of July and August shall be paid one two-hundredth (1/200th) of their grid placement for every full day that instruction is provided. One-half (½) day of instructional service will be paid one four-hundredth (1/400th) of their grid placement. [ 6 ] The fractions set out in this provision are commonly used in educational collective agreements in Alberta and reflect that a school year is a maximum of 200 teaching days ( School Act , s 97(2)).

Reference to these fractions is meant to reduce the annual teacher’s salary to a daily (1/200th) and half-day (1/400th) salary rate. [ 7 ] In 2004, Alberta Education scheduled the August provincial diploma examinations one week earlier. This made it impossible for Northern Lights to deliver summer courses over five weeks. Due to this fact, Northern Lights elected to offer their summer courses over four weeks, five days a week for 4.5 hours per day. Morning courses ran from 8:30 a.m. to 1:00 p.m.

The Superintendent for Northern Lights approved the half-day rate for summer session teachers being pro-rated to reflect the longer hours of instruction. The payroll officer calculated a pro-rated amount of 64 percent (4.5 hours/7 hour day) and 128 percent (9 hours/7 hour day) of the 1/200th daily amount for teaching one course and two courses per day respectively.

Although the evidence presented to the Panel suggested a number of reasons why the seven hour denominator might have been selected, that evidence was not definitive. [ 8 ] Northern Lights did not consult with the ATA before unilaterally imposing the post-2004

schedule and pro-rata rates. [ 9 ] In the summer of 2009, the grievor, James Johnson accepted a summer school teaching position with Northern Lights, teaching one 4.5 hour course per day. He told the Panel it was his recollection that the job posting on the Canada Education website specified that the summer school job was a full time equivalent of 1.0. Neither party could produce the advertisement and there was conflicted evidence from Northern Lights’ witnesses who testified at the hearing. Mr. Johnson said that when he contacted Northern Lights’ Director of Instruction shortly after starting his summer school job, he was referred to the collective agreement, specifically

Article 8, and the salary grid. He concluded from his review of these that he would be paid 1/200th of the grid rate. When he subsequently learned he would be paid only 64 percent of the 1/200th salary rate, he filed a grievance stating the following:

When I was hired as a summer school teacher, I was informed that I would be paid 1/200th of my annual salary for each day I worked as a summer school teacher. Later I was informed this was an error and that summer school teachers would be paid roughly 64% of 1/200th for every day of service given. The statement of earnings I received from the Board confirms that the pay was roughly 64% of 1/200 of my annual salary. I believe this contravenes the 2006/12 collective agreement held between the Board and the Alberta Teachers’ Association (association).

The collective agreement speaks to payment for summer school at rates of 1/400th for a half day of service and 1/200th for a full day of service. There is no provision for proration of a day of service under

article 8. [ 10 ] On August 31, 2009, the ATA filed a policy grievance, which read:

Article 8 directs that there are two ways to compensate teachers for service rendered for summer school instruction; 1/200 of salary for a full day or 1/400 of annual salary for a half day. If the parties had intended to consider days other than half or full days, the parties who negotiated the clause at the time would have written this into the clause. Thus, the Association expects teachers who work more than a half day ought to be compensated at a rate of 1/200 for their day of service... Thus, pursuant to

article 16 of the 2006/12 collective agreement between the Board and the Association, the Association is launching a policy grievance on behalf of teachers employed as summer school teachers by the Board... The remedy sought is that the Board properly compensate teachers who give summer school service as per the collective agreement at a rate of 1/200 for every day or 1/400 for every half day of service rendered retroactive to the time where the Board decided to pro-rate... [ 11 ] The grievances both proceeded to arbitration on November 16 and 17, 2010 before the Panel, chaired by J.

Leslie Wallace. [ 12 ] During the ATA’s cross-examination of Ron Taylor, the Associate Superintendent of Human Resources for Northern Lights, the issue of pay for substitute teachers was raised. Mr. Taylor testified that the Division’s practice was to keep substitute teachers for a half day or full day. However, if a substitute teacher was present for 0.75 of a day, he or she would receive 0.75 of a full day’s pay (i.e. their pay would be prorated based on the number of hours taught).

Other witnesses spoke to the practice in relation to principal designates. [ 13 ] The Panel heard closing arguments on January 31, 2011 and issued its Award on March 8, 2011. It accepted Northern Lights’s

interpretation of

Article 8, which allowed for prorating the 1/200th and 1/400th rates, and dismissed the grievances. [ 14 ] Following the hearing and issuance of the Award, Mr. Taylor and Lisa Everitt, the ATA’s Executive Staff Officer, exchanged e-mails. Mr. Taylor acknowledged he had misunderstood a conversation he had had with Payroll regarding the pay of substitute teachers. On March 7, 2011, he confirmed to Ms.

Everitt by e-mail that substitute teachers were only paid half day or full day rates. [ 15 ] On March 21, 2011, the ATA asked the Panel to re-open the hearing to consider the effect of the corrected testimony on its Award. [ 16 ] In a letter to the Panel also dated March 21, 2011, counsel for Northern Lights submitted that Mr. Taylor’s main evidence on the application of the rule applicable to substitute teachers had not changed. The rule was that substitute teachers would not be sent home short of working a half day or full day. As a result, there was no general practice of rounding up.

Counsel further indicated that, in response to e-mails from Ms. Everitt after the hearing, Mr. Taylor looked for but initially was unable to find specific examples of prorating of substitute teacher’s pay, leading to his e-mail of March 7, 2011. However, upon further investigation Mr. Taylor subsequently learned on March 17, 2011 of one example during the 2003-2005 time period where a substitute teacher’s pay was prorated. Furthermore, Mr.

Taylor also found a few examples where a substitute worked less than the entire half or full day but was paid the half or full day rate. [ 17 ] In the Supplementary Award, the majority of the Panel accepted that Mr. Taylor’s evidence at the hearing on the practice of paying substitute teachers 0.75 of the daily rate for teaching 0.75 of a normal day had been incorrect. However, it dismissed the ATA’s request that the hearing be re-opened as it considered the Panel functus officio . It also commented that Mr.

Taylor’s evidence did not occupy a “central point” in its reasoning and it affected “only one of several possible sources of extrinsic evidence that might be used to resolve ambiguous collective agreement language.”

[ 18 ] The ATA’s nominee on the Panel dissented. She commented that as there is no right of appeal from an arbitration board in Alberta and only a limited right of judicial review, a strict application of the doctrine of functus officio would prevent the full and fair hearing of the evidence and would not foster industrial peace. III. Issues [ 19 ] The issues before the Court include: A. What is the appropriate standard of review on each of the issues? B. Did the majority err in concluding that the Panel was functus officio ? C. Was the Panel’s Award unreasonable? IV. Analysis A.

Standard of Review [ 20 ] The ATA notes that grievance arbitration awards generally are subject to the standard of review of reasonableness. It accepts that reasonableness should be the standard applied by the Court in its review of the Award. [ 21 ] The ATA takes the position that the Award in this case was unreasonable in that the Panel ignored relevant evidence and unnecessarily relied on extrinsic evidence of negotiating history. It also asserts that the evidence of negotiating history was unreliable. Further, it contends the Award was unreasonable as the Panel failed to properly apply rules of

interpretation to the collective agreement and its reasoning was inconsistent. [ 22 ] As I understand it, the ATA suggests the Panel’s decision that it was functus officio had two aspects. The first was its

interpretation of s 143(2) of the Labour Relations Code , to which the ATA maintains that the standard of review of reasonableness applies. It submits that the Panel’s

interpretation in that regard was unreasonable. The second was its decision not to admit the new evidence, which the ATA contends is a matter of procedural fairness to which the standard of correctness applies. It says the Panel acted unfairly in denying the ATA the opportunity to present the corrected evidence. In oral argument, the ATA clarified that it takes the position that correctness is the standard of review to be applied to the functus issue. [ 23 ] Northern Lights contends that awards of arbitrators are reviewable for errors of law on the face of the record.

It submits the Panel did not make any such error of law, nor did it commit any breaches of natural justice or procedural unfairness. [ 24 ] Northern Lights submits the appropriate standard of review for the Panel’s

interpretation of

Article 8 is reasonableness, while the decision on functus officio should be reviewed on the standard of correctness. [ 25 ] In Smith v Alliance Pipeline Ltd. , 2011 SCC 7 at para 26 , [2011] 1 SCR 160, Fish J for the majority summarized the court’s decision in Dunsmuir v New Brunswick , 2008 SCC 9 at paras 51-60 , [2008] 1 SCR 190 regarding the types of issues generally to be reviewed under each of the two standards of review. In this respect, the standard of correctness governs:

(1) a constitutional issue; (2) a question of “general law that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise”; (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires ”. [ 26 ] With respect to reasonableness, such standard normally is the governing standard for: (1) an issue relating to the

interpretation of the tribunal's enabling (or "home") statute or "statutes closely connected to its function, with which it will have particular familiarity;" (2) questions raising issues of fact, discretion or policy; or (3) inextricably intertwined legal and factual issues. [ 27 ] In Nor-Man Regional Health Authority Inc. v Manitoba Association of Health Care Professionals , 2011 SCC 59 at para 30 , [2011] 3 SCR 616, the court clarified that a reviewing court should first assess if the jurisprudence has already determined the standard of review to be applied with regard to a particular category of question.

If it has, there is no need for the court to undertake an analysis of the factors which make it possible to identify the proper standard of review. [ 28 ] The court noted at para 31 that prevailing case law has established that arbitral awards under a collective agreement generally are to be reviewed on the standard of reasonableness. [ 29 ] The parties agree, as do I, that reasonableness is the appropriate standard to apply to my review of the Panel’s Award. [ 30 ] According to the majority in Dunsmuir para 47 , a review for reasonableness requires the court to consider whether there is “justification, transparency and intelligibility within the decision-making process” and whether the decision falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” [ 31 ] The parties also agree, as do I, that the correctness standard should govern my review of the majority decision in the Supplementary Award that the Panel made a final decision and was functus officio , which in effect was a decision that there were no proper grounds on which it could reconsider the Award. [ 32 ] In Lysohirka v British Columbia , 2012 BCCA 457 , 39 BCLR (5th) 15, one of the issues under consideration was the standard of review to be applied to a decision of the Workers’ Compensation Board Review Division declining the appellant’s request that it reconsider two of its earlier decisions.

The British Columbia Workers ’ Compensation Act permits the Review Division to reconsider its own decisions on the chief review officer’s own initiative or, where there is no appeal to the Appeal Tribunal, if there is new evidence that is substantial and material to the decision. Neither of those grounds was applicable in that case. Instead, the reconsideration officer conducted what she termed a common law review. [ 33 ] The British Columbia Court of Appeal determined at para 32 that such a review is available only in exceptional circumstances

where the basis of the review is a true jurisdictional error. It recognized that, as a result of Alberta (Information and Privacy Commissioner) v Alberta Teachers ’ Association , 2011 SCC 61 , [2011] 3 SCR 654, there is some doubt whether there are any “true jurisdictional questions.” Nevertheless, the court concluded at para 41 that the case before it was one of the exceptional ones that was properly examined in the jurisdictional context.

It held at para 43 that the Reconsideration Officer’s exercise of her jurisdiction must be reviewed on the correctness standard. [ 34 ] I note that Rothstein J, writing for the majority in Alberta (Information and Privacy Commissioner) , commented at para 43 that even if “true questions of jurisdiction” are eliminated as a separate category attracting a correctness review, that would not preclude correctness reviews of tribunal decisions interpreting their home statute where the issue is: (1) a constitutional question; (2) a question of law of central importance to the legal system as a whole and that is outside of the expertise of the adjudicator; or (3) a question concerning the jurisdictional lines between competing specialized tribunals (emphasis added). [ 35 ] Given there is some controversy as to the scope of jurisdictional questions, I prefer to focus on whether the issue of functus officio is a question of law of central importance to the legal system as a whole which lies outside of the expertise of an arbitrator. [ 36 ] In Toronto (City) v Canadian Union of Public Employees (CUPE), Local 79 , [2003] 3 SCR 77, 2003 SCC 63 , the grievor had been fired shortly after being convicted for sexually assaulting a child under his supervision.

He successfully applied for judicial review of his dismissal. The Supreme Court of Canada expressed the view that the reasonableness of the arbitrator’s decision depended on the correctness of his assumption that the conviction was not conclusive evidence that the grievor had committed the assault. The court stated at para 15 that this assumption rested on the arbitrator’s analysis of complex common law rules and conflicting jurisprudence dealing with the re-litigation of issues finally decided in previous judicial proceedings.

The court remarked that the doctrines of res judicata and abuse of process, which were in issue there, called for a judicial balance between finality, fairness, efficiency and authority of judicial decisions. It found the application of those rules, doctrines and principles was clearly outside the sphere of expertise of labour arbitrators even though they might be required to have recourse to them. The court held that in such a case, the arbitrator must correctly answer the question of law raised.

See also Calgary (City) v Alberta (Human Rights and Citizenship Commission ), 2011 ABCA 65 , 505 AR 115, which is to a similar effect. [ 37 ] Based on these decisions, it is my view that a similar doctrine such as functus officio , which also concerns the balance between finality in litigation and fairness, can be characterized as a question of general law that is of central importance to the legal system as a whole and which lies outside the arbitrator’s specialized area of expertise. [ 38 ] Accordingly, the appropriate standard of review is correctness. [ 39 ] The ATA contends in the present case that the majority’s decision not to reopen the proceedings to allow the admission of new evidence is a matter of natural justice or procedural fairness.

There is no doubt the functus officio decision and the inquiry whether justice demands reopening of the proceedings are intertwined here. [ 40 ] In Armstrong v International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146 , 2010 ABCA 326 at para 15 , 493 AR 259, the court confirmed that the Dunsmuir standard of review analysis does not apply to issues of procedural fairness or natural justice. Such issues are reviewed “based on whether the proceedings met the level of fairness required by law...

Because the court decides whether the fairness standard has been met, in that sense fairness is reviewed for ‘correctness’.” See also, Tartaglia v Alberta (Workers' Compensation Board, Appeals Commission) , 2012 ABCA 186 at para 23 , 533 AR 138. B.

Was the Majority ’s Decision in the Supplementary Award Correct? [ 41 ] In the decision of the majority of the Panel as stated in the Supplementary Award, the majority of the Panel denied the ATA’s request to re-open the final Award as it considered the Panel to be functus officio . [ 42 ] The majority noted that the Labour Relations Code , RSA 2000, c L-1 does not provide labour arbitration boards with the express statutory power of reconsideration, as it does with the Labour Relations Board, nor is there anything in the Code from which such a power can be inferred. I agree.

[43] Section 143(1)(

c) of the Labour Relations Code provides that: 143(1) The arbitrator or the chair of the arbitration board or other body may (

c) correct in any award any clerical mistake, error or omission. [44] In Canadian Union of Public Employees, Local 61 (Saint John Policemen's Protective Assn.) v Saint John (City) (1995), (NB CA), 170 NBR (2d) 222 (NBCA), an interest arbitration board mistakenly dealt with a number of matterspreviously settled by the parties. It subsequently reconvened to correct the mistake. The appellant sought judicial review, claiming theboard was functus officio. On appeal from the lower court’s decision, the New Brunswick Court of Appeal held that a provision in theNew Brunswick Industrial Relations Act similar to s 143(1)(

c) had no application as the mistake of the board was not clerical. [45] I agree with Northern Lights that s 143(1)(

c) is a codification of the slip rule and the purported error here does not fall withinthat provision. [46] ATA argues s 143(2) of the Code empowered the Panel to consider any evidence it considered proper. That

section reads: 143(2) An arbitrator, arbitration board or other body (

a) may accept any oral or written evidence that it considers proper, whether admissible in a court of law or not, (

b) is not bound by the law of evidence applicable to judicial proceedings... [47] In Alberta Liquor Store Assn. v Alberta (Gaming & Liquor Commission), 2006 ABQB 904 at para 44, 406 AR 104, Slatter Jcommented: When an application for judicial review is brought, all of the evidence is "fresh", in the sense that there is no evidence on the record ofthe Court prior to the commencement of the application, and there is no prior record to "refresh".

If instead of applying for judicialreview the Applicants applied for a re-hearing before the Board, and then applied to use new and better evidence that had beendiscovered, that would be "fresh" evidence. Most tribunals are not bound strictly by the rules of evidence, and a tribunal might or mightnot agree to have a new hearing, and might or might not agree to consider the fresh evidence. [48] In my view, s 143(2) is not intended to address the situation of new or fresh evidence sought to be admitted after a decisionhas been rendered but rather evidence sought to be adduced within the hearing itself.

I also note that Slatter J’s remark was obiter. In anyevent, s 143(2)(

a) states an arbitration board may accept any oral or written evidence that it considers proper. It does not providedirection on how the board can or should exercise any such discretion.

As I discuss below, I am of the view that the Palmer test for theadmission of fresh evidence on appeal can be used in the circumstances of this case. [49] As the Panel could find no statutory authority allowing it to reconsider its decision, it turned to the common law doctrine offunctus officio and correctly identified Chandler v Alberta Association of Architects, (SCC), [1989] 2 SCR 848 as theleading authority on application of that doctrine in the administrative context. [50] The issue in Chandler was whether the Practice Review Board of the Alberta Association of Architects was functus officio

after delivering a report on the practices leading to the bankruptcy of a particular architectural group. Sopinka J, for the majority inChandler, noted (at para 9) the Alberta Architects Act did not purport to confer on the Board the power to rescind, vary, amend orreconsider a final decision that it had made.

As a result, it was necessary to determine if it had made a final decision, and whether it wasfunctus officio. [51] At para 20, Sopinka J commented: As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enablingstatute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there hasbeen a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptionsenunciated in Paper Machinery Ltd. v. J. O.

Ross Engineering Corp., supra. [52] He confirmed (at para 21) the common law doctrine of functus officio applies to administrative proceedings, but in a moreflexible way as it is based on the policy ground favouring finality of proceedings rather than the rule developed in relation to courtdecisions which are subject to full appeal.

As Sopinka J noted, justice may require that administrative proceedings be reopened in certaincircumstances to provide relief where it would not otherwise be available because there is no appeal. [53] It would appear from Chandler that an administrative decision may be reconsidered in the following circumstances: ∙ if the tribunal’s enabling statute (or other relevant statute) empowers it to vary, amend or reconsider a final decision; ∙ if the tribunal made a clerical slip in its decision; ∙ if there was a manifest error by the tribunal in expressing its intention; ∙ if the tribunal did not fully discharge its mandate; that is, its initial decision was a nullity or there was something left to bedecided; and ∙ if there is a right of appeal only on a question of law (or, presumably, no right of appeal at all) and justice demands the decisionbe revisited. [54] The ATA submits the Award in the present case, which was issued in reliance on incorrect evidence, is a nullity, and tocomplete its mandate and afford fairness to the parties, the Panel is obliged to re-open the case. [55] In making this argument, the ATA relies on Grier v Metro International Trucks Ltd. (1996), (ON SC),28 OR (3d) 67, a decision of the Ontario Divisional Court.

The parties in Grier had submitted an agreed statement of facts. It was onlyafter the referee had rendered her decision that it was discovered there had been a critical typographical error in one of the factspresented. The referee denied the Ministry’s request that she reconsider her decision. The Ministry then sought judicial review of bothdecisions. [56] The court in Grier noted the incorrect fact may not have been determinative of the referee’s decision, but it did influence it.

Itconcluded the referee’s first decision was a nullity since it was fatally tainted by her reliance on a crucial fact which both parties agreedwas incorrect. The court was of the view the referee should be permitted to consider the matter afresh and render a valid decision. [57] The majority of the Panel in the present case took issue with the judge’s characterization in Grier of a decision as a nullity if itis influenced by incorrect evidence of a crucial fact.

It expressed the view that an error in the evidence heard by the Panel, at most, couldbe said to have lead to an error of mixed fact and law within its core jurisdiction. In my view, the Panel was correct in that regard. As the

Supreme Court of Canada indicated in Chandler, as a general rule an error within jurisdiction does not justify a tribunal revisiting itsdecision. [58] In reflecting on the result in Grier, the Panel commented that: “[i]t offends common notions of justice that a tribunal mightmake its decision based wholly or predominantly upon evidence that is afterwards agreed to be wrong, and then the aggrieved party isunable to look to the tribunal to do anything about it.” The Panel was under the impression judicial review could remedy anyunreasonable errors made by a tribunal in the exercise of its jurisdiction, including a palpable and overriding error of fact. [59] In my view, the Panel was wrong in determining that judicial review is available as a remedy where one of the factsinfluencing the decision of a tribunal is subsequently discovered to be incorrect.

There are only limited circumstances when affidavitevidence is permitted on judicial review. Those circumstances do not include new evidence not available to the tribunal. As stated bySlatter J (as he then was) in Alberta Liquor Store Assn. v Alberta (Gaming & Liquor Commission), 2006 ABQB 904 at paras 40-42,44,406 AR 104: The general rule is that judicial review is conducted based on the Return filed by the tribunal. Neither Rule 406 nor Rule 753.08 requirean affidavit in support.

The record before the tribunal is generally the record before the Court, and additional affidavits and evidence areexceptional: White v. Alberta (Workers' Compensation Board Appeals Commission), 2006 ABQB 359, 57 Alta. L.R. (4th) 282, 41Admin. L.R. (4th) 141 (Alta. Q.B.) at para. 35. There are some instances where supplementary evidence is allowed: [White ], supra, at para. 35. Evidence may be allowed to show bias,or a reasonable apprehension of bias, where the facts in support of the allegation do not appear on the record.

Sometimes breaches of therules of natural justice will not be apparent from the record, and evidence to demonstrate the grounds of the application may be filed:Western Canada Wilderness Committee v. British Columbia (Ministry of Forests, South Island Forest District), 2002 BCSC 1260, 45Admin. L.R. (3d) 161, 50 C.E.L.R. (N.S.) 56 (B.C.S.C. [In Chambers]) at paras. 26-27, aff'd other grounds 2003 BCCA 403, 185B.C.A.C. 58, 15 B.C.L.R. (4th) 229 (B.C.C.A.). Extrinsic evidence might exceptionally be allowed on other issues, like standing.

Wherea tribunal makes no, or an inadequate record of its proceedings, affidavits are permissible to show what evidence was actually placedbefore the tribunal: S.C.F.P., Local 301 c. Quebec (Conseil des services essentiels), (SCC), [1997] 1 S.C.R. 793(S.C.C.), at para. 86. As a general rule, however, evidence that was not before the tribunal and that relates to the merits of the decision is not permitted onjudicial review. [60] Slatter J concluded fresh evidence relating to the merits of the matter before the tribunal discovered since the tribunal madeits decision is not admissible on judicial review.

He rejected the suggestion that the test for allowing new evidence on a judicial reviewapplication is similar to the test on an appeal; that is, the test set out in R v Palmer, (SCC), [1980] 1 SCR 759 at 775. [61] As the Panel in the present case, was of the view that a critical error in the evidence heard by a tribunal could be remedied onjudicial review, it failed to directly address another of the criteria identified in Chandler for allowing reconsideration of a tribunal’sdecision; that is, whether justice demands the decision be revisited where there is no right of appeal. [62] Did justice demand the Award be revisited?

The Palmer test is applied by appellate courts in assessing whether the interestsof justice require that fresh evidence be admitted on an appeal. The test was summarized as follows in Public School Boards' Assn. ofAlberta v Alberta (Attorney General), 2000 SCC 2 at para 6, [2000] 1 SCR 44:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, (SCC), [1964]S.C.R. 484.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [ 63 ] In my view, it is appropriate to apply the Palmer test in the circumstances of this case. [ 64 ] The first part of the Palmer test is to determine if the fresh evidence, by due diligence, could have been adduced at the hearing. Ms. Gray, the ATA nominee on the Panel, suggested in her dissent in the Supplementary Award that this is not a case involving “new” evidence; that is, evidence that should have been called at the hearing.

Rather, it is a situation where the witness misstated evidence. I note, however, that Palmer itself involved a situation where a trial witness subsequently asserted his trial evidence had been a fabrication. [ 65 ] I agree with Northern Lights, that the new or corrected evidence in this case could have been adduced at the original hearing or, at the very least, prior to the Panel’s issuance of the Award. The evidence sought to be admitted existed prior to the hearing. The ATA submits it did not anticipate that the pay of substitute teachers would be in issue in the proceedings.

While that may be so, it could have requested an adjournment after hearing Mr. Taylor’s evidence in order to confirm or gather its own evidence on the subject. It did not do so. The hearing took place on November 16 and 17, 2010, but closing arguments were not made until January 31, 2011. The ATA could have made efforts to verify Mr. Taylor’s evidence during that interval. There is no indication it did so. It was only towards the end of February 2011, that the ATA representative sought clarification from Mr. Taylor as to whether it was Northern Light’s practice to prorate pay for substitute teachers.

His response that he had misunderstood his conversation with Payroll and the ATA was correct that only full and half day rates were paid to substitutes was emailed to the ATA on March 7, 2011, a day before the Panel’s Award was issued. [ 66 ] In light of my conclusion that the new or corrected evidence could have been adduced at the hearing or before the Award was issued, it is not necessary for me to decide on the other parts of the Palmer test.

Nevertheless, I find the evidence does not bear on a potentially decisive issue in the arbitration and could not reasonably, when taken with the other evidence adduced at the hearing, be expected to have affected the result. [ 67 ] In addition to Mr. Taylor, former teacher and ATA Economic Policy Committee Chair, Bruce Adolf also testified during the hearing. He said that in his experience, substitutes normally worked the full day for a full day’s pay but if present from, say, 11:00 a.m. to the end of the day, they would receive a full day’s pay.

Garry Raab, a retired principal and the Summer School Co-ordinator for Northern Lights, indicated that in his experience, a teacher sent home early would not receive a full day of pay, but normally substitute teachers were allowed to work a full day. [ 68 ] Clearly, the three witnesses agreed the general practice was that substitute teachers would work for a full day for a full day’s pay. The evidence sought to be admitted by the ATA would not alter the evidence concerning the general practice. [ 69 ] The Panel remarked the stronger evidence regarding

Article 7.1 indicated Northern Lights prorated the pay of substitute teachers. However, as there was other evidence that in practice substitutes were kept for a full day rather than being sent home, the Panel determined there was no absolutely clear past practice. As a result,

Article 7.1 was not helpful in interpreting

Article 8. [ 70 ] If the Panel agreed to admit the evidence sought to be adduced by the ATA, presumably it would be obliged to admit the rebuttal evidence of Northern Lights. At best, the result of this evidence would be to indicate there were exceptions to the general practice of having substitute teachers work a full day for a full day’s pay. This additional extrinsic evidence relating to exceptions to the practice surrounding

Article 7.1 would be no more helpful to the Panel in interpreting

Article 8 than was Mr. Taylor’s original evidence, which also identified an exception to the general practice. I also note

Article 7.1 refers to “one half day or less,” a phrase that differs from

Article 8. [ 71 ] The majority of the Panel in the Supplementary Award recognized the original evidence of Mr. Taylor was not demonstrably incorrect, nor did it occupy a central role in the reasoning of the Panel in the Award.

[ 72 ] In my view, justice did not and does not demand the Award be re-opened. Nor have the other criteria in Chandler been met. [ 73 ] Accordingly, the majority of the Panel did not err in finding the Panel was functus officio . C. Was the Award Reasonable? [ 74 ] The Panel’s Award is intelligible and the reasoning transparent. [ 75 ] The Panel found neither the collective agreement nor the School Act defined the word “day” as containing a particular number of hours.

The Panel commented that while the parties appear to have accepted, prior to 2004, that 3.5 hours of instruction was a “half- day,” there was no objective meaning to the words that was not informed by what Northern Lights actually did in organizing its summer school. Once the summer school program was compressed,

Article 8 could be interpreted to mean that any course taking longer than 3.5 hours was one of a full day, or it could be interpreted to mean a full day was the 9 hours set by Northern Lights for two courses. A third alternative was that

Article 8 effectively set an hourly rate for summer school instruction. The Panel concluded the terms “full day” and “half day” as used in

Article 8 were patently or latently ambiguous, thereby justifying admission of extrinsic evidence. In my view, that was a reasonable conclusion. Indeed, the ATA conceded in oral argument that

Article 8 may contain a latent ambiguity. [ 76 ] In rejecting the ATA’s argument that

Article 8 is clear and admits of only one meaning, the Panel noted a period of 4.5 hours is not a full day of work by its ordinary and natural meaning. Also, there was no past practice to draw on of paying 4.5 hours of summer school instruction as a full day.

In addition, 4.5 hours is substantially less than an instructional day of 5.5 hours under the School Act and of the 7.0 hours for delivery of two courses in the Northern Lights pre-2004 summer school. [ 77 ] The Panel considered the following provisions of the collective agreement and found the references to “full day” and “half day” in those Articles did not point to a particular conclusion: 7.1 Effective September 1, 2006 to August 31, 2007, payment for a full day of substitute teaching shall be $162.24; for one half day or less of substitute teaching payment shall be $81.12 inclusive of four per cent vacation pay.

Effective September 1, 2007 to August 31, 2008, payment for a full day of substitute teaching shall be $167.11; for one half day or less of substitute teaching payment shall be $83.56 inclusive of four per cent vacation pay... 4.3 Principal Designate - The allowance for service in this capacity shall be as follows: September 1, 2006 - August 31, 2007: $24/half day, $48.03/full day September 1, 2007 - August 31, 2008: $24.72/half day, $49.47/full day . [Emphasis added.] [ 78 ] As noted above, the Panel found the evidence was contradictory on the practice relating to payment of substitute teachers under Articles 7.1 for a “full day” or a “half day or less.” It concluded that

Article 7.1 was not helpful in interpreting

Article 8. [ 79 ] The Panel noted Northern Lights paid principal designates only a half day or full day supplement under

Article 4.3, but commented this practice reflected the expectation a principal designate is expected to see through to completion any administrative tasks that arose during their time on duty, even if required to do so after the incumbent principal’s return. As similar reasoning could not be extended to

Article 8, the Panel held the principle of like expression could not be resorted to where a clause shared a common problem of ambiguity but the extrinsic evidence differed.

[ 80 ] The Panel considered the ATA’s

interpretation of

Article 8, which would mandate a summer school teacher teaching one 4.5 hour course per day be paid a “full day” rate of 1/200th of the grid. It expressed the view that this was the weakest possible

interpretation and would produce a startling result as it would mean a summer school teacher who taught one course per day would be paid the same amount as a teacher who taught two courses per day. While there was no clear evidence any given teacher taught two courses per day, it was not unreasonable to contemplate such a scenario. [ 81 ] The Panel rejected Northern Lights’ submission that it could resolve the ambiguity in

Article 8 by taking into consideration the fact that Northern Lights had paid summer school teachers on a pro rata basis for the past five summers without any grievances having been filed. The Panel explained it could not take this into account as there was no evidence that any ATA representative had actual knowledge of that practice. [ 82 ] The ATA submits that, even if there is a latent ambiguity in

Article 8, the Panel failed to consider the surrounding circumstances, in particular the common understanding of the parties of what a “half day” and “full day” meant. [ 83 ] The Panel did look to evidence of bargaining history. The evidence the Panel considered was from trustee Heather Welwood, the only witness who spoke about the discussions between the parties leading up to the Addendum, although she had not been a party to those discussions. [ 84 ] The ATA complains Ms. Welwood’s evidence was unreliable. The Panel acknowledged the evidence of negotiating history was scant. It was aware Ms.

Welwood was not a party to the negotiations relating to the Addendum. Apparently, she recalled there being brief discussions with an ATA officer that secured the ATA’s agreement to the Addendum. It was open to the Panel to admit this rather vague hearsay evidence. The ATA did not dispute it agreed to the Addendum. Even without Ms. Welwood’s evidence, it was reasonable for the Panel to infer the ATA would not have agreed to the Addendum without first knowing how many hours Northern Lights wished its summer school teachers to teach.

It concluded it was an “unavoidable inference” the ATA consented to the Addendum knowing Northern Lights intended to pay 1/400th of the grid salary for 3.5 hours of instruction and 1/200th of the salary for seven hours of instruction.

The Panel characterized this as an implicit agreement to “hourly remuneration of half-daily grid salary, divided by 3.5.” [ 85 ] The ATA argues the parties would have provided for pro rata calculation of rates, as they did in relation to group insurance plan premiums and leave entitlements (Articles 10.4, 11.3.16, 20.2-20.4, 21.2-21.4, 24.5), if that had been their intention. [ 86 ] The Panel did not address this argument directly other than to comment that it appeared the parties did not provide for what would happen if the instructional hours per day in a course changed.

The Panel determined it was consistent with the parties’ implicit agreement of hourly remuneration of half-daily grid salary divided by 3.5 that a teacher teaching one course per day would be paid that rate multiplied by 4.5 rather than 3.5 when course length and instructional hours changed. [ 87 ] In my view, the Award is reasonable as it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. V. Conclusion [ 88 ] The ATA’s application for judicial review of the Award and Supplementary Award is denied.

If the parties cannot agree on costs, they may speak to the issue before me within 60 days of the release of this decision. Heard on the 20 th day of March, 2013. Dated at the City of Edmonton, Alberta this 16 th day of April, 2013.

Don J. Manderscheid J.C.Q.B.A. Appearances: Joel Michaud Field LLP for the Alberta Teachers’ Association Colin R. Fetter Brownlee LLP for Northern Lights School Division No. 69 _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice Don J. Manderscheid _______________________________________________________ The date the Decision was signed has been amended to read April 16, 2013.