Siksika Health Services v Health Sciences Association of Alberta, 2017 ABQB 683

Court of Queen’s Bench of Alberta Citation: Siksika Health Services v Health Sciences Association of Alberta, 2017 ABQB 683 Date: 20171120 Docket: 1701 08878 Registry: Calgary Between: Siksika Health Services Applicant - and - Health Sciences Association of Alberta and Alberta Labour Relations Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.D.

Macleod _______________________________________________________ [1] Health Sciences Association of Alberta (Health Sciences) made a successful application before the Alberta Labour RelationsBoard (ALRB) to be certified as the bargaining agent for 19 ambulance drivers employed by Siksika Health Services (Siksika). Siksikaapplies before me for a stay of the Order, pending judicial review of the ALRB decision, which is scheduled for May 18, 2018.

I grantedan interim stay until I issued this decision. [2] Applications for a stay engage the three-part test set out in RJR-MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311. In addition, Health Sciences raises the issue of res judicata, on the basis that the ALRB refused Siksika’sapplication for a stay, pursuant to section 12(4) of the Labour Relations Code, RSA 2000, c L-1.

Health Sciences also argues that thisapplication is an abuse of process, and that if it is entertained at all, it should be as an application for judicial review of the ALRB’srefusal. [3] Siksika is controlled and governed by the Siksika Nation. It is headquartered at, and operates on, the Siksika Reserve for the

members of the nation. In September 2017, its ambulance service had 19 employees and operated 2 advanced life support ambulances. Itis staffed 24 hours a day, seven days a week, to provide emergency health care to Siksika Nation members. Health Sciences is a labourunion representing over 24,000 paramedical, technical, professional, and general support employees in the public and private health caresectors of Alberta. [4] The parties agree that Siksika brought the judicial review application in a timely manner, and in compliance with section19(2) of the Labour Relations Code. [5] Rule 3.23 of the Alberta Rules of Court, AR 124/2010, provides:

(1) The Court may stay the operation of a decision or act sought to be set aside under an originating application for judicial reviewpending final determination of the originating application.

(2) Despite subrule (1), no order to stay is to be made if, in the Court’s opinion, the stay would be detrimental either to the publicinterest or to public safety. Res Judicata and Issue Estoppel [6] The preconditions for the operation of the doctrines of res judicata and issue estoppel are: (

a) that the same question has been decided; (

b) that the judicial decision which is said to create the estoppel was final; and (

c) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which theestoppel is raised. [7] The parties concede that the Court retains residual discretion whether or not to apply these doctrines in particularcircumstances. [8] I am of the view that a stay application such as this should not be subject to these doctrines.

As our Court of Appeal said inTalbot v Pan Ocean Oil Corp (1977), 1977 ALTASCAD 176 , 5 AR 361, at paragraph 9: Leaving aside special situations, interlocutory applications, in general, are not designed nor intended to adjudicate finally on issues offact or law raised by the pleadings in an action. […] [9] Also, as Siksika points out, the test the ALRB applies is based on the principles set out in RJR-MacDonald, but modified toaccount for the unique circumstances of labour relations.

In a similar application, Chief Justice Wachowich of this Court refused to applythe test in the same manner as the ALRB, because he felt bound by the principles set out in the many cases on this issue by the SupremeCourt and other appellate courts: Muskwachees Ambulance Authority Ltd v CUPE, Local 3197, 2007 ABQB 670. [10] The wording of rule 3.23 is specific, and grants this court original jurisdiction to order a stay. I see no reason to apply eitherthe doctrine of res judicata or issue estoppel to this application.

Nor do I think that Siksika should have brought this application as anapplication for judicial review, because the wording of the rule clearly indicates that Siksika has brought the appropriate motion. The Three-Part Test [11] The three-part test for a stay involves three considerations:

(1) Is there a serious question to be tried?

(2) Will the applicant suffer irreparable harm if the relief is not granted?

(3) What is the balance of convenience as between granting and refusing the remedy? Serious Issue to be tried [12] I am of the view that there is a serious question to be tried. For many years, our courts, our governments, and our society haveattempted to define First Nations in our national context, and the rights and powers of First Nations and their members in relation to othergovernments and the people of Canada. [13] It is clear from many decisions of our appellate courts, and from public debate, that these important questions have not beenresolved.

Siksika claims that it should not be subject to the jurisdiction of the province and the ALRB in this area, because, as a nation, itentered into Treaty No 7 with the Crown, in which the Crown promised Siksika quality health care. [14] Siksika argues that, by granting Alberta legislative authority over labour relations for Siksika health employees, the Crowndirectly violates Siksika’s Aboriginal and Treaty Rights, as protected under Treaty No 7 and

section 35 of the Constitution Act, 1982,being

Schedule B to the Canada Act 1982, (UK), 1982, c 11. As the Supreme Court said in R v Sparrow, (SCC),[1990] 1 SCR 1075, at paragraph 64:

[…] By giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that aboriginal rights are affected. Implicit in this constitutional scheme is the obligation of the legislature to satisfy the test of justification. The way in which a legislative objective is to be attained must uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada’s aboriginal peoples.

The extent of legislative or regulatory impact on an existing aboriginal right may be scrutinized so as to ensure recognition and affirmation. [ 15 ] Siksika argues that it has the responsibility to deliver health care, while the federal Crown has the responsibility to pay for it.

Therefore, it is argued, Alberta violates Siksika’s treaty and constitutional rights by applying provincial regulation of labour relations issues to the delivery of Siksika’s health care services. [ 16 ] I acknowledge that this is a serious question that requires judicial consideration, while also recognizing that the question arises as to whether or not the Canada Labour Code , RSC, 1985, c L-2, should govern. I find that the first part of the test is made out.

Irreparable Harm [ 17 ] Health Sciences argues that Siksika is not subject to irreparable harm, regardless of whether it is governed by either provincial or federal labour regulations. Collective bargaining is much the same under either regime. Health Sciences cities the ALRB in Northern Alberta Dairy Pool Ltd v Miscellaneous Teamsters, Local 987 , [1991] Alta LRBR 159 (Alta LRB), at page 167: Talk of damages is often inappropriate in the labour relations context. Employers, trade unions and employees only infrequently compensate each other by damage payments.

Instead, they normally compromise their claims through the give-and-take of the collective bargaining process. We take the irreparable harm test in the labour context to mean harm that would be difficult or not susceptible to resolution through the mechanisms of the collective bargaining process or damages. It would be unwise to set damages as the sole test and ignore the (far greater) flexibility of collective bargaining solutions. [ 18 ] Health Sciences approaches the concept of irreparable harm through the lens of labour relations.

I agree with the approach of many Canadian courts that rights protected by section 35(1) of the Constitution Act, 1982 remain a very uncertain area of law, and the Court has a limited capacity to measure the extent of damage to “intangibles.” Accordingly, it is usually appropriate to follow the Supreme Court’s guidance in RJR-MacDonald , and assume that damage flowing from a breach of treaty rights will be irreparable. [ 19 ] Siksika’s constitutional and treaty rights are at the core of its identity, and the further definition of those rights is critical to its future.

I conclude that the second part of the test has been met. Balance of Convenience [ 20 ] By no means do I wish to diminish the importance of collective bargaining to the 19 individuals affected by this decision. However, I am persuaded that the balance of convenience favours maintaining the status quo. This is best achieved by granting a stay of all consequences of the ALRB decision until the judicial review is completed. [ 21 ] Siksika’s application is granted. Heard on the 26th day of October, 2017. Dated at the City of Calgary, Alberta this 20 th day of November, 2017 . A.D. Macleod J.C.Q.B.A.

Appearances: Steven T. Robertson

for Siksika Health Services J. Robert Blair and Sarah C. Crummy for Health Sciences Association of Alberta Jeremy D. Schick For Alberta Labour Relations Board