Alberta Union of Provincial Employees v Alberta (Alberta Gaming and Liquor Commission, 2017 ABQB 266

Court of Queen’s Bench of Alberta Citation: Alberta Union of Provincial Employees v Alberta (Alberta Gaming and Liquor Commission, 2017 ABQB 266 Date: 20170412 Docket: 1603 02553 Registry: Edmonton Between: Alberta Union of Provincial Employees Applicant - and - Alberta Gaming and Liquor Commission Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A.

Yungwirth _______________________________________________________ Introduction [ 1 ] This is an application by Alberta Union of Provincial Employees [AUPE or Union] for judicial review of the decision of a three-person Board of Arbitration [Board], issued on January 14, 2016, which unanimously concluded that an agreement had been reached between the AUPE and the Alberta Gaming and Liquor Commission [AGLC or Employer], and dismissed the grievance as having been resolved [Board Decision]. [ 2 ] In 2013, while bargaining of a new collective agreement was underway, AUPE filed a grievance asserting that the AGLC’s unilateral imposition of a disability management policy – which deals with issues such as, sickness and attendance, duties to accommodate, privacy, etc. – was a violation of the existing collective agreement [Collective Agreement].

Some of the issues in the

grievance process were the subject of proposals previously put forward by the AGLC during collective bargaining, but were not accepted by the AUPE in the final Collective Agreement. [ 3 ] The grievance was scheduled to be heard in January of 2015. Prior to the scheduled date, attempts were made by AGLC and AUPE through their respective representatives, to negotiate a settlement of the grievance. Following what the AGLC perceived as an agreement having been reached with respect to the grievance, the hearing set for January 2015 was adjourned.

The AUPE later denied that an agreement had been reached and rescheduled the arbitration hearing. [ 4 ] As a preliminary issue, the Board found that an agreement was reached between AUPE and AGLC on the grievance. The AUPE challenges the Board Decision, which is the subject of the within judicial review proceeding. Background Facts [ 5 ] AUPE is the bargaining agent for the employees of AGLC.

Their relationship is governed by the provisions of the Public Service Employee Relations Act , RSA 2000, c P-43. [ 6 ] AUPE and AGLC were parties to a Collective Agreement with a term from January 1, 2011 to July 31, 2013. [ 7 ] On May 3, 2013, AUPE served AGLC with a notice to bargain and the parties entered into negotiations regarding the terms of the new collective agreement. [ 8 ] Mr.

Lee Gagne is the Chair of AUPE Local 050 involved with AGLC, and participated in the bargaining process. [ 9 ] During the bargaining process, AGLC sought to change Articles 27 – Illness Leave Benefits, 28 – Proof of Illness, and 29 – Conditions of Illness, and the Union would not agree to those proposed changes. Subsequently, on August 27, 2014, the parties concluded their collective agreement, which did not include the proposed changes to Articles 27, 28, or 29.

AGLC has not printed and signed the new agreement while awaiting the Board’s determination of whether the grievance had been settled, resulting in revisions to these Articles. [ 10 ] During the collective bargaining process, on September 24, 2013, AUPE filed a grievance against the AGLC alleging violation of the Collective Agreement. AGLC had introduced a new “Disability Management Program Policy 10.01.01” mid-term and AUPE argued that this violated the terms of the existing Collective Agreement, specifically Articles 1, 7, 14, 27, 28, and 29.

Arbitration on the grievance was agreed to and was eventually set for January 5, 6, and 9, 2015. [ 11 ] In the negotiations for settlement of the grievance, AGLC was represented by lawyers Jessica Thomson and Dwayne Chomyn QC. The AUPE was represented by a Union Representative, Greg Maruca, who reported to Lee Gagne rather than to the Directors at AUPE headquarters. Mr. Maruca had not been involved in the collective agreement negotiations that were underway at the time that this grievance was filed. [ 12 ] The sequence of events for the negotiations in relation to the grievance were as follows:

a) On September 23, 2014, Ms. Thomson wrote an email to Mr. Maruca seeking particulars of the grievance;

b) Ms. Thomson and Mr. Maruca spoke by phone on November 7, 2014. Mr. Maruca then sent Ms. Thomson a document, prepared by an AUPE disability benefit specialist, containing commentary outlining the issues with respect to the AGLC’s Disability Management Program;

c) On November 14, 2014, Mr. Maruca sent Ms. Thomson an email asking if she had any comments on the document. He also advised that he would be away from December 17, 2014 to January 5, 2015 and would not be checking his email between December 25 and January 1;

d) On November 25, 2014, Ms. Thomson emailed Mr. Maruca and advised that she had comments on the document. Also that day, Mr. Chomyn emailed Mr. Maruca suggesting a call to discuss “issues, production, documents and witnesses” and they were able to connect;

e) On November 28, 2014, there was a phone call between Mr. Chomyn, Ms. Thomson, and Mr. Maruca. The parties discussed the options to settle the grievance, including the elimination of the medical board (which would result in changes to the Collective Agreement that had been opposed by the AUPE during the negotiations). Mr. Chomyn advised Mr. Maruca that the elimination of the medical board was an issue that arose in bargaining and that the AGLC had “pitched it as win,” but the AUPE “interpreted [it] as loss.” During this call, Mr. Maruca stated “we’re close to saying this is acceptable.” Mr.

Maruca said that he had “to get the local Chair on board,” and he sought to adjourn the hearing. Mr. Chomyn advised that he did not know if his client would agree. Mr. Chomyn suggested that Mr. Maruca should send him a draft settlement “subject to the principals agreeing” and that there would be a meeting on December 15, 2014 to finalize the agreement;

f) Later on November 28, 2014, Mr. Maruca sent a document containing proposed terms of settlement for review. The document was sent “without prejudice” with a cover email noting that Mr. Maruca would try to get the local Chair in his office the next week on Monday or Tuesday. The proposed settlement terms stated that: “The following is made as an offer to settle or reduce the issues related to AGLC Disability Management Program Policy 10.01.01.

This offer is, subject to the approval of the Parties, including the Union Chair.” The settlement document also stated in the second last paragraph: “Collective Agreement 28.03(a)(b); 28.04 It is understood that the Medical Board is a very intrusive and expensive process and the same results [can] be accomplished by the Disability Management Process. Wording that waives the use of the Medical Board. AGLC agrees that during the life of the Collective Agreement they will not utilize Articles 28.03(a),(b); & 28.04 relating to the Medical Board”;

g) Mr. Chomyn replied later on November 28, 2014, stating “I will get back to you as soon as possible. But just to make sure we have a common understanding regarding the outcome of this, I take it we agree the policy would be fully implemented after this….I would also think we should take your notes and turn it into a formal agreement. We could even amend the CA as it has not been printed yet”;

h) On December 1, 2014, Mr. Maruca replied, stating “I can agree in principle. However, I want to meet with my guys first. Hoping to meet with them on Wednesday”;

i) On December 10, 2014, Mr. Chomyn’s assistant emailed Mr. Maruca to inquire as to whether there was an agreement between the parties. Mr. Maruca replied indicating that he would advise after a meeting to be held the next day;

j) On December 12, 2014, Mr. Chomyn’s assistant again emailed Mr. Maruca asking if he could provide confirmation if an agreement has been reached after the previous day’s meeting;

k) Mr. Maruca replied on December 12, 2014 with an email stating “we are very close” and raising some points requiring explanation. He indicated that there would be no need to go continue with arbitration if “the changes I sent in earlier are made and the above is explained”;

l) On December 15, 2014, Mr. Chomyn sent Mr. Maruca an email stating “As I understand it the parties have arrived at a settlement based on my email of November 28, 2014 with the clarifications set out in your email of Friday. My client is reviewing it today and I expect that we will be able to embrace and incorporate your qualifications. I will confirm when I receive that instruction and I suggest that we formalize this in an agreement. I will have something on your desk by tomorrow at noon”;

m) On December 15, 2014, Ms. Thomson and Mr. Maruca spoke by phone as Ms. Thomson was preparing the draft agreement and wanted to ensure that Mr. Maruca was the person to whom she should send it. At the beginning of the conversation, the parties confirmed that the agreement they had was “subject to parties accepting.” Mr. Maruca indicated that he would communicate with his principals once he had the draft agreement, and that “they are not perfect to go with it” and “would rather not have a policy at all” but he would put the proposal forward;

n) On December 17, 2014, Ms. Thomson sent a Memorandum of Settlement to Mr. Maruca by email. It included a draft amended policy and a draft amendment to the Collective Agreement. The covering letter to the email included the statement “These documents are being provided for your consideration and are subject to final approval by our respective clients”;

o) On December 19, Ms. Thomson emailed Mr. Maruca asking for a response. He replied that day, indicating that “I note all requested changes aren’t in the agreement. Under the POLICY

section was supposed to be a statement reading as I proposed in document sent to Dwayne. Under medical certificate words as applicable were to be added. Top p2 4th line was to include the duty to accommodate reference. Also needs to be the reference that any costs associated with the policy are borne by AGLC. Can you advise on this”;

p) Ms. Thomson replied on December 19, 2014, stating, “We do not believe that the points you raise will be a problem but subject to our client signing off on these final points it is our position that we have an agreement for settlement. We understand that you are on holidays and thus if you confirm we have an agreement in principle we will speak with our client on Monday and advise Andy Sims, QC that we have an agreement, adjourn the matter sine die and have the agreement with the changes incorporated on your desk for execution when you return in the new year;

q) On December 23, 2014, Mr. Maruca replied, “I can confirm the agreement in principle. Thanks for your hard work. All the best!”;

r) On the afternoon of December 23, after receiving Mr. Maruca’s email, Ms. Thomson notified the arbitration chair by email copied to Mr. Maruca and her client, that the parties “have reached a settlement agreement in relation to the Disability Management Program Policy Grievance” and seeking an adjournment sine die pending execution of the agreement. There was no exception taken to this by Mr. Maruca and so the grievance hearing was cancelled. Ms. Thomson then sent Mr.

Maruca a new version of the Memorandum of Settlement for review and signature, stating “we believe that your concerns have been addressed as follows….” in reference to the four issues raised in Mr. Maruca’s email of December 19;

s) On January 5, 2015, Mr. Maruca met with the Locals’ officials, including Mr. Gagne. They would not agree to amend the Collective Agreement by taking out the medical board process;

t) On January 5, 2015, Mr. Maruca sent Ms. Thomson an email requesting a “joint clarification meeting” on January 9, 2015. Ms. Thomson replied that Mr. Chomyn was not available and asked for a signed copy of the Agreement;

u) On January 7, 2015, Mr. Maruca advised Ms. Thomson by email that “in regards to the Memorandum of Settlement I can’t agree to #2. Also this wasn’t discussed. We are accepting the Employer has the right to have this policy subject to the collective agreement. In regards to #4 we want to leave this

Article in the collective agreement. This shouldn’t be a problem because it is the Employer who invokes the article. Since the

article relating to pay for medicals is in the draft appendix b it would have to be put somewhere else. We are available to meet on Jan 13 th . With these changes we will sign the settlement;

v) January 8, 2014, Ms. Thomson responded by letter stating, “it is our position we have a final and binding agreement, subject only to execution of the final document.” The letter indicated that they viewed Mr. Maruca’s letter of January 7 to be an attempt to renegotiate the agreement by changing key terms. It requested a signed copy of the agreement by January 13, 2015, failing which they would seek an emergency hearing before the Board;

w) Mr. Maruca replied saying that his agreement in principle regarding

Article 28 was “subject to my guys’ review. In the end

the Chair wouldn’t agree.” Ms. Thomson replied indicating that her client’s position was that “an agreement was reached on essential terms on December 23, 2014; and

x) The matter proceeded to hearing before an arbitration board with evidence and argument on March 26- 27, and June 1, 2015. Reasons for decision were issued January 14, 2016. Decision of the Board of Arbitration [ 13 ] The Board summarized the facts, including the history of the negotiations on the grievance. [ 14 ] An error was made with respect to the timing of the December 23, 2014 email from Mr. Maruca (referenced in Item No. (

q) above). It was described in the Board Decision as having been sent on Friday, December 19 at 10:16. [ 15 ] There was also an error with respect to the sequence of events that occurred on December 23, 2014. The sequence was that Mr. Maruca sent his email of December 23, 2014 confirming an agreement in principle, and then Ms. Thomson advised Mr. Sims, QC of the settlement and requested adjournment of the hearing. It was after the email was sent to Mr. Sims that the new version of the Memorandum of Settlement was sent by Ms. Thomson to Mr.

Maruca. [ 16 ] For the reasons indicated below, nothing turns on these errors in the description of the facts. [ 17 ] The Board Decision also confirms on page 12, second paragraph, that Mr. Maruca agreed that he had been told by Mr. Chomyn that they would not agree (to adjourn) until they had a deal in place – or words to that effect. [ 18 ] The Board Decision outlines the position of the AGLC, that this case turns on whether Mr. Maruca had ostensible authority to bind the Union.

The AGLC argued that by December 23, 2014, the parties had reached an agreement in principle, with clear terms, which was not expressed (by then) to be subject to any further approvals. [ 19 ] The position of the AUPE was that there was no binding settlement agreement because, among other things, the settlement was always subject to the approval by the clients on each side, the term “agreement in principle” does not convey an unqualified agreement in these circumstances, and that Mr.

Maruca did not speak to Local 050, which was his client, until he returned from vacation on January 5, 2015. [ 20 ] The Union argues that this case is not about ostensible authority at all, and asserts that Mr. Maruca’s negotiations were at all times subject to the approval of his principals. [ 21 ] The authorities relied on by the parties were reviewed by the Board. [ 22 ] In its decision, starting at page 21, the Board:

a) confirms that this is a difficult case where the parties worked diligently to try to resolve the matter under time pressures due to Christmas vacation, and for Mr. Maruca, while he was out of the province and for a few days, out of the country.

b) confirms that the law of agency holds that an agreement entered into by an agent with ostensible authority is binding on the principal.

c) finds the most compelling evidence as to whether a deal was reached was that concerning the Employer’s willingness to entertain an adjournment of the January hearing. The Employer was clear that it would not adjourn the hearing unless an agreement was reached. This meant a firm deal, not a deal subject to each side’s later approval.

The Board Decision stated at the bottom of page 12, that, “It is in this context that the use of the words “agreement in principle” must be examined.” The Board found that “the willingness to adjourn was expressly subject to the parties reaching a firm deal which, once the Employer communicated its acceptance of the four minor issues stipulated in Mr. Maruca’s December 19 email – they had.”

d) finds that a firm agreement to settle this case was in fact reached in December and the arriving at that firm agreement was the condition on which the adjournment was agreed upon. [ 23 ] The Board went on to uphold the Employer’s preliminary objection, and dismiss the grievance as having been resolved. Issue for Determination [ 24 ] The issue in this judicial review is whether the Arbitration Board erred in its determination that the parties had reached a final settlement agreement on the grievance in December, 2014.

Standard of Review [ 25 ] Both parties concede – and I accept their submissions – that the standard of review that applies to the decision of a labour arbitration board making arbitral awards under a collective agreement, or exercising its authority in accordance with its “home statute” is reasonableness: Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals , 2011 SCC 59 at para 31 , [2011] 3 SCR 616; Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd , 2013 SCC 34 at para 7 , [2013] 2 SCR 458 [ Irving Pulp ].

[ 26 ] A decision is reasonable if it is justifiable, transparent and intelligible. The reasons must be read together with the outcome and serve the purpose of showing whether the result falls within the range of possible acceptable outcomes that are defensible in respect of the facts and law.

The decision must be able to stand up to a somewhat probing examination, and it will be unreasonable only if there is no line of analysis within the reasons that could reasonably lead the decision-maker to its conclusion: Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 , [2008] 1 SCR 190; Law Society of New Brunswick v Ryan , 2003 SCC 20 at para 55 , [2003] 1 SCR 247; Newfoundland and Labrador Nurses’Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para 164 , [2011] 3 SCR 708 [ Newfoundland Nurses ]; and Edmonton School District No 7 v Dorval , 2016 ABCA 8 at para 39 , 609 AR 280.

Position of the Union [ 27 ] The Union maintains that the Board Decision was erroneous or unreasonable because it:

a) Applied a legal meaning to the phrase “agreement in principle” not intended by the Union representative in determining the ultimate issue;

b) Placed insufficient weight on or failed to consider the specific facts and circumstances in context in finding that the final approval by the Union’s principals was not an essential condition of the contract; and

c) Incorrectly or unreasonably found that the agreement to adjourn the hearing was the most compelling piece of evidence in determining whether a final agreement had been reached. [ 28 ] The Union argues that final approval by the Union representative’s principals remained an essential term of the agreement throughout the negotiation process, and as it was never obtained, the agreement was never finalized. [ 29 ] The AUPE further argues the phrase “agreement in principle” is not, on its own, proof that the parties have entered into a firm contract.

Whether a contract crystallized depends on the point at which the pre-requisites of “‘offer, acceptance, and consideration, arising from a meeting of the minds on all terms’ have been met.” [ 30 ] The Board, submits the Union, failed to give consideration to the long chain of communications setting out the parties’ concurrence on a term of their draft settlement being that it was “subject to” agreement by their principals.

Therefore, the “agreement in principle” was an endorsement of the entire agreement, including the requirement for agreement by principals. [ 31 ] The Union argues that the Board gave undue weight to Mr. Chomyn’s subjective belief that the contract had been finalized while ignoring or undervaluing the ample objective evidence that finalization and approval of the deal by the Union’s principals was an essential term of the contract. [ 32 ] Finally, the Union argues that because the new version of the Memorandum of Settlement was not sent to Mr.

Maruca until after the hearing was adjourned, this is proof that there was no agreement reached between the parties before the hearing was adjourned. Position of the Employer [ 33 ] The Employer maintains that the Board’s reasons, read as a whole, are reasonable. [ 34 ] AGLC submits that Mr.

Maruca acted as AUPE’s agent during the negotiations and had ostensible authority to bind his principal to the settlement that was reached. [ 35 ] Relying on case law, the AGLC submits that the principle of ostensible authority must be viewed in the unique context of labour relations where the employer and the union work in conjunction on a near-constant basis to resolve issues in the workplace. [ 36 ] The Employer argues that an objective consideration of the evidence indicates that the parties concluded their settlement negotiations after reaching an agreement.

Analysis [ 37 ] For the reasons indicated below, I find that the Board Decision was reasonable. [ 38 ] The Board determined that this case deals with the ostensible authority of an agent. I agree. Though the Union argues that the issue of ostensible authority of an agent is a red herring in this case, it failed to substantiate that claim. [ 39 ] The Board considered the series of communications between the parties going back to September 23, 2014. There was no deficiency with that account.

As indicated above, in my view, nothing turns on the two errors that related to the description of the timing of the email and the sequence of the events of December 23, 2014: Irving Pulp at para 54 , where the Supreme Court of Canada indicated that the administrative decision under review “must be approached as an organic whole, not as a line-by-line treasure hunt for error,” citing Newfoundland Nurses at para 14 . [ 40 ] In analyzing the communications between the Union and the Employer, the following considerations are important:

a) Each side had an honest belief that the agent with whom they were dealing, had ostensible authority to enter into an agreement.

b) In the initial communications, Mr. Maruca was clear on several occasions that he needed to get the approval of hisprincipals.

c) Then on December 1, 2014, Mr. Maruca indicated that “I can agree in principle. However, I want to meet with my guysfirst. Hoping to meet with them on Wednesday.” It was reasonable for the AGLC to believe that at that Wednesday meeting, Mr. Marucawould be reviewing the agreement terms with his principals.

d) The same could be said about the communication on December 10, 2014 – Mr. Maruca was asked if there was an agreementbetween the parties, and he replied indicating that he would advise after a meeting to be held the next day. It was reasonable for theAGLC to conclude that Mr. Maruca would be getting directions from his principals at that meeting on the issue of whether there was anagreement.

e) Then on December 12, 2014, after he had apparently met with his principals, Mr. Maruca’s confirmation that “we are veryclose,” his request for clarification on some points, and his indication that there would be no need to continue with arbitration if “thechanges I sent in earlier are made and the above is explained” all support the reasonableness of the Employer’s conclusion that Mr.Maruca had received approval from his principals, subject to those clarifications and changes requested earlier.

f) Mr. Chomyn’s email on December 15, 2014, communicated his understanding that the parties had reached an agreement.

g) By December 17, 2014, a complete document was sent to Mr. Maruca, including attached Appendices.

h) Mr. Maruca’s response on December 19, 2014, suggested that he also understood the agreement that had been reached,because he requested 4 (four) changes to bring the document in line with what he understood to be the agreement – as it had been 2 dayssince the draft agreement was sent, and as Mr. Maruca’s response was not subject to his talking to his guys, it was objectively reasonablefor the employer to conclude that Mr. Maruca was speaking with his principals as the matter was unfolding.

i) There can be little doubt that when Ms. Thomson sent her email to Mr. Maruca on December 19, 2014, she wascommunicating to Mr. Maruca, her belief that once her client agreed to the 4 (four) points raised by Mr. Maruca, the parties had anagreement.

j) In that context, when Mr. Maruca responded with the statement “I can confirm the agreement in principle” without anyreference to needing approval by his principals, it was reasonable for the Employer to conclude he was confirming a binding agreement. [41] Further, it is important to consider Ms.

Thomson’s December 19, 2014 email and the indication that “if you confirm we havean agreement in principle we will speak with our client on Monday and advise Andy Sims, QC that we have an agreement, adjourn thematter sine die and have the agreement with the changes incorporated on your desk for execution when you return in the new year.”Taken in context with Mr. Chomyn’s clear indication that his clients would not agree to adjourn the hearing unless there was anagreement in place, it is reasonable for the Employer AGLC to conclude that the statement “I can confirm the agreement in principle”meant that Mr.

Maruca was confirming on behalf of his principals, a final agreement. [42] It is also significant that when Mr. Maruca, in his December 19, 2014 email, raised 4 (four) concerns about changes that weresupposed to have been made to the agreement, he never said anything about the proposed amendments to the Collective Agreement toeliminate the medical board provisions.

By this time, he had already, on November 28, 2014, sent his proposed terms for settlement tothe Employer AGLC, and had met with his client, AUPE, on what appears to have been December 11, 2014 (based on the chronology ofevents shown above) to discuss the terms of settlement. [43] Similarly vital is the fact that when Mr.

Maruca received confirmation by way of email copied to him, that the hearing hadbeen adjourned on the basis that the parties had reached a settlement, he took no steps to correct that conclusion, if he did not agree withit. [44] I am satisfied that the written reasons of the Board, along with the record, transparently demonstrate that all of these thingswere considered by the Board. [45] The Union does not contest the assertion that where a Union representative holds himself out as having authority to resolve amatter on behalf of the Union, that representative can bind the Union. [46] However, the Union maintains that the need for Mr.

Maruca to obtain the approval of his principals was a term of theagreement or a condition of the settlement. This argument by the Union, in my view, appears to discount the recognition of the ostensibleauthorities of both the AUPE and the AGLC’s agents in the negotiation process. [47] The need for Mr. Maruca to obtain approval from his principal (the AUPE) has to be located within and reconciled with theexisting ostensible authority to bind his principal.

The same legal principle applies to the AGLC’s agent and his or her principal, basedon the reasoning that “[o]stensible authority is simply a form of estoppel”: IUOE, Local 955 v Construction Labour Relations Assn(Alberta), (AB KB), 1987 CarswellAlta 613 at para 27, 82 AR 309 (Alta QB); Alberta (Department of Innovationand Advanced Education) and AUPE (Harrold), Re, 2015 CarswellAlta 107 at para 9 (Alta Arb). [48] While the scope of this ostensible authority may be limited, the intention to do so needs to be expressed in clear terms:Etobicoke (Borough) v Etobicoke Professional Fire Fighters’ Assn, Local 1137, 1982 CarswellOnt 2501 at para 8 (Ont Arb).

The sameview was crystallized in IBEW, Local 213 and John Inglis Co, Re, 1974 CarswellBC 655 at para 15, [1974] 1 Can LRBR 481 (BCLRB), as follows: The reasons for [the ostensible authority] policy apply with even more telling force in labour relations. The union or the employer canpick its own negotiators. It can place limitations on what its representatives can do simply by telling the other side what those limits are.Suppose instead that the scope of the agent’s authority is left vague and the latter goes ahead and makes certain commitments in arriving

at an agreement.

A fair and sensible labour relations policy must hold the principal to that agreement. [49] The statement above is supported by the legal principle that asserts: the existence and scope of an apparent or ostensibleauthority is governed largely by the class of agent employed, provided the agent is acting in accordance with the agent’s ordinary trade,business or profession; or by some custom of the agent’s particular trade, business or profession on which such apparent or ostensibleauthority can be predicated: CED Agency IV.2 (The Authority of Agents), §75. [50] In Russelsteel Ltd v Consolidated Northern Drilling & Exploration Ltd, (AB KB), [1981] 4 WWR 113 atpara 6, 1981 CarswellAlta 253 (Alta QB), the Court held that: Where a principal holds out to a third party that an agent has been authorized to act on behalf of the principal, the principal is bound bythe acts of the agent, although the agent may, in fact, have no authority or only a limited authority, or where the agent’s authority hasbeen reduced or terminated by the principal but the third party received no notice, on the grounds that the agent has apparent orostensible authority and the principal knows that the third party may rely on such holding-out and the principal is thereby estopped fromdenying the agency.[Emphasis added]. [51] Thus, in my view, absent a clear and express limitation, if an agent initially indicates that he needs approval of his principal,and then at some point after meeting with his principal no longer makes that representation, it is reasonable for the other party toconclude that the agent remains and continues to act within the ambit of his ostensible authority. [52] The Union also argues that the agreement to adjourn the hearing cannot override an objective assessment of whether or notthe agent had ostensible authority to bind the Union.

I agree, but the Board did not do this. The agreement to adjourn was but one ofseveral factors that the Board considered. The Board did describe the circumstances surrounding the adjournment as “the mostcompelling evidence.” This does not, in my view, render the Board Decision unreasonable. [53] The Union also argues that the parties could not have had an agreement before the hearing was adjourned because thecommunication of the acceptance by the Employer of the four points raised by Mr. Maruca did not occur until Ms. Thomson sent Mr.Maruca a new version of the Memorandum of Settlement for review and signature.

This happened after Ms. Thompson had notified thearbitration chair by email copied to Mr. Maruca and her client, that the parties “have reached a settlement agreement”. This also does notrender the Board Decision unreasonable. [54] Ms. Thomson’s December 19, 2014, email stated, “We do not believe that the points you raise will be a problem but subject toour client signing off on these final points it is our position that we have an agreement for settlement.

We understand that you are onholidays and thus if you confirm we have an agreement in principle we will speak with our client on Monday and advise Andy Sims, QCthat we have an agreement, adjourn the matter sine die and have the agreement with the changes incorporated on your desk for executionwhen you return in the new year.” The communication that Ms. Thomson’s client has “signed off” on the final four points happened intwo ways. First, when she sent the adjournment request to the arbitration chair and that request was copied to Mr. Maruca, and secondwhen she sent Mr.

Maruca a new version of the Memorandum of Settlement for review and signature. These things happened onDecember 23, 2014, within 1 hour and 8 minutes of each other. The arbitration chair did not confirm the adjournment of the hearing untilthe next day. Mr. Maruca’s failure to object to Ms. Thomson’s statement that the parties “have reached a settlement agreement” supportsthe Employer’s claim that it thought that a final and binding agreement had been reached. [55] The Board took the position that it was Mr.

Maruca who was responsible for indicating whether the necessary approvals hadbeen given. [56] The Board did not find that the words “agreement in principle” always means entering into a final and binding contract. In thiscase it did. [57] At the end of the day, given the communications between the parties, it was reasonable for AGLC to assume that Mr. Marucawas in communication with his client and that prior to his December 23 communication confirming an agreement in principle, he hadreceived the required approvals to bind the Union to a final agreement.

Disposition [58] In the result, I find that the Board Decision issued on January 14, 2016, which unanimously concluded that an agreement hadbeen reached between the AUPE and the AGLC, and dismissed the grievance as having been resolved, is transparent and intelligible. The decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [59] Accordingly, the Union’s application for judicial review is dismissed. Heard on the 23rd day of March, 2017. Dated at the City of Edmonton, Alberta this 12th day of April, 2017.

D.A. Yungwirth J.C.Q.B.A. Appearances: Patrick Nugent Nugent Law Office for the Applicant Kevin Feth, Q.C. Field Law for the Respondent