newfoundland v. labrador, 2011 NLTD 82

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION ( GENERAL ) Citation : Newfoundland and Labrador Association of Public and Private Employees v.

Newfoundland and Labrador (Treasury Board) , 2011 NLTD(G) 82 Date : 20110 609 Docket : 200601T5443 BETWEEN: newfoundland and labrador association of public and private employees APPLICANT AND: her majesty the queen in right of newfoundland , as represented by The Honourable the President of Treasury Board RESPONDENT Corrected Decision: The text of the original judgment was corrected on June 24, 2011, and a description of the corrections is appended. ___________________________________________________________________ Before: The Honourable Madam Justice Maureen Dunn ___________________________________________________________________ Place of Hearing: St.

John’s, Newfoundland and Labrador Appearances: Sheila H. Greene, Q.C. Counsel for the Applicant Chantelle MacDonald Newhook Counsel for the Respondent

Authorities Cited: CASES CONSIDERED: Newfoundland and Labrador Association of Public and Private Employees v. Her Majesty the Queen inRight of Newfoundland and Labrador (Grievors Parsons and Hynes), 2003 NLCA 61; Voice Construction Limited v.Construction and General Workers Union, Local 92, 2004 SCC 23 , [2004] 1 S.C.R. 609; Dunsmuir v. New Brunswick,2008 SCC 9 , [2008] 1 S.C.R. 190; Locke’s Electrical Limited v. Newfoundland and Labrador (Labour Relations Board),2010 NLTD 27; O’Reilly’s Irish Bar Inc. v. 10385 Nfld.

Ltd. (2003), 231 Nfld. & P.E.I.R. 20 (NLTD); Newfoundland and LabradorAssociation of Public and Private Employees (Terra Fewer) and Grace Sparkes House, unreported decision of James C. Oakleydated September 14, 2005; Newfoundland and Labrador Association of Public and Private Employees (Paul Layman) v. HerMajesty the Queen in Right of Newfoundland (1997), (NL SC), 155 Nfld. & P.E.I.R. 15 (N.L.T.D.); N.A.P.E.(Jerry Quinlan) v. Treasury Board (1999), (NL CA), 169 Nfld. & P.E.I.R. 315 (N.L.S.C.T.D.); U.F.C.W., Local1252 v.

The Western Star (1995), (NL SC), 130 D.L.R. (4th) 538 (N.L.S.C.T.D.); Loyalist College of AppliedArts and Technology (Board of Governors) v. O.P.S.E.U. (2003), (ON CA), 63 O.R. (3d) 641 (Ont. C.A.) STATUTES CONSIDERED: Public Service Collective Bargaining Act, R.S.N.L. 1990, c. P-42; Labour Relations Act, R.S.N.L. 1990,c. L-1; Arbitration Act, R.S.N.L. 1990, c.

A-14 TEXTS CONSIDERED: Brown and Beatty, Canadian Labour Arbitration, 4th Edition: 2:3221; Black’s Law Dictionary, RevisedFourth Edition, West Publishing Company REASONS FOR JUDGMENT Dunn, J.: INTRODUCTION [1] The applicant applies for an order to set aside an arbitrator’s award published to the parties on November 1, 2006, on theground that it constitutes an excess of jurisdiction in that it: (

a) contains unreasonable findings of fact, law or mixed fact and law; (

b) gives to the Collective Agreement

interpretations which it cannot reasonably bear; (

c) alters, modifies or amends the Collective Agreement; (

d) such other errors of law and jurisdiction as counsel may advise and this honourable Court permit as further grounds for thisapplication. The applicant states the arbitrator’s decision should be quashed and remitted to a new arbitrator for consideration in accordance withdirectives of this Court. background [2] This matter has a long and laboured history. On August 27, 2002, Andelyn Hanrahan was terminated from her employment

as a crisis intervention/childcare worker at Grace Sparkes House. At the time of her termination she was a probationary employee. [ 3 ] The matter proceeded to arbitration with the applicant raising a preliminary objection stating the employer had violated Hanrahan’s rights by not informing her she was entitled to union representation at the termination meeting and/or was not advised of the purpose of the meeting sufficiently far in advance for her to decide if she wanted union representation.

The respondent raised a preliminary objection submitting the matter was inarbitrable because at the time of termination Hanrahan was a probationary employee who had been assessed as unsuitable by the employer. [ 4 ] A majority of a Board of Arbitration, on November 17, 2003 (hereinafter, at times, referred to as “Buffett # 1”), denied the applicant’s preliminary objection and upheld the respondent’s, in part. In its decision the majority stated: 1. The Union’s preliminary objection that the grievor’s rights were violated is denied.

The rights in question are the right to union representation, to be notified of such a right, and to be notified of the purpose of the meeting in advance. 2. The Employer’s preliminary objection is upheld in part and only insofar as the grievance cannot go forward on the basis that the employer has to show just cause. It may go forward on the basis of the alleged bad faith on the part of the employer and if the Union wishes to assert that the dismissal was for reasons which do not touch upon unsuitability, it may go forward on that basis as well. 3.

Insofar as the grievance alleged other violations of the collective agreement, the matter may proceed on these bases subject to any preliminary objection that the parties may wish to raise. [ 5 ] The applicant sought judicial review of the award and on October 18, 2004, Russell, J. of this Court, granted the applicant’s application, set aside the award, and remitted the matter back to the board of arbitration for consideration.

Russell, J. focused on one issue as set out in paragraph 27: The majority decision of the board is set aside and the matter remitted to the same board of arbitration for reconsideration of the issue of whether on the wording of the Collective Agreement and the facts of this matter the employer should have notified the grievor of the purpose of the meeting. [ 6 ] Russell, J. arrived at this decision after considering the case of Newfoundland and Labrador Association of Public and Private Employees v.

Her Majesty the Queen in Right of Newfoundland and Labrador (Grievors Parsons and Hynes), 2003 NLCA 61 , observing at paragraph 15 : The Applicant notes that the decision of the Trial Division Judge in Newfoundland and Labrador Association of Public and Private Employees v. Her Majesty the Queen in Right of Newfoundland and Labrador (Grievors Parsons and Hynes) … on which the majority relied was successfully appealed to the Newfoundland and Labrador Court of Appeal ( 2003 NLCA 61 ).

The Court of Appeal held that based on the provisions of the Collective Agreement there existing the Board did not make a patently unreasonable finding when it found that the employer should have notified the grievors of the purpose of the meeting.

On this basis the Applicant submits this matter should be resubmitted to the Board for further consideration … [ 7 ] On June 9, 2005, the majority of the Board of Arbitration issued its reconsideration award (hereinafter, at times, referred to as “Buffett # 2”) and upheld the applicant’s preliminary objection, declaring that the discharge of Andelyn Hanrahan was null and void. It reinstated Ms. Hanrahan as a probationary employee effective the date of her discharge.

After reviewing the relevant provisions of the applicable Collective Agreement the majority, in arriving at their conclusion, state at pages 13 and 14: Thus, following the same logic and line of reasoning displayed by the Court of Appeal in Parsons and Hynes, given that there is a right to union assistance provided for in all matters arising under the collective agreement and based upon the fact that this right could be rendered meaningless or that its meaningful character could be greatly diminished if there was not an obligation to advise of the nature of the employer-employee interaction about to take place, we find that there existed an obligation on the employer to inform the employee of what the meeting was about.

The Employer by not informing the Grievor of what the meeting was about violated the collective agreement such that the Grievor’s representational rights were interfered with. Consequently her discharge is null and void and she is reinstated as a probationary employee effective the date of her discharge with all the rights she enjoyed prior to her discharge including the right to be placed no further down on the on call list than she was at the time of her termination. [ 8 ] Hanrahan and two Union employees met with the employer on July 25, 2005. Ms.

Hanrahan had been asked to attend the meeting “to discuss the arbitration award concerning Grace Sparkes House”. At the meeting, the employer provided Ms. Hanrahan with a termination letter which stated, inter alia : After careful consideration and deliberation, we have concluded that your employment with Grace Sparkes House be discontinued for reasons of unsuitability. [ 9 ] As a result of the foregoing decision, Andelyn Hanrahan filed a grievance on July 25, 2005, on the basis there had been a violation of

Article 11 and other pertinent articles of the Group Homes Master Collective Agreement. This arbitration proceeded to grievance before Arbitrator John Scott on August 29, 2006. On November 1, 2006, Arbitrator Scott rendered his decision. Briefly stated the Union argued Scott had no jurisdiction to hear the matter as the matter had been previously disposed of in the arbitration award dated June 9, 2005 (Buffett # 2). The Union raised the principles of res judicata and estoppel to support its position. It further submitted

probationary employees cannot be denied access to the grievance and arbitration procedures in termination situations. [ 10 ] The employer took the position, pursuant to

Article 11.01(

c) of the Collective Agreement, the arbitrator was without jurisdiction to hear the matter. It was the employer’s view the judicial review and subsequent reconsideration decision did not address or challenge the employer’s right to terminate a probationary employee. [ 11 ] Arbitrator Scott dealt with both the Union’s objection and the employer’s objection at pages 24-26 of his award.

As to the Union’s objection Arbitrator Scott found: The Union’s Objection : The Union relies, in the first instance, on s.40(4) of the Public Service Collective Bargaining Act and on Newfoundland Association of Public and Private Employees v. Treasury Board, Re: Paul Layman Newfoundland Supreme Court Trial Division , Barry, J.

May 13, 1997 which reads (at para. 17) “Whatever the position at common law, I agree with the Employer that s.40(4) of the Public Service Collective Bargaining Act requires arbitrators to follow previous awards involving the same parties and identical issues.” The Union argues that I am, therefore, bound to give effect to the final (June 9, 2005) reconsideration Award of the Board chaired by Arbitrator Buffett since, in the Union’s view, the parties and the issues are identical. I note that the Employer Witness testified that the Grievor was reinstated as ordered by the reconsideration award.

This evidence was not persuasively challenged, and the fact is at least inferentially supported by the fact of the 2005 termination letter (Consent #3). Thus, with respect, the Act and Judge Barry’s ruling do not guide me in dealing with the instant issues. In the instant matter I am siesed [sic] of a complaint concerning a termination of a probationary employee.

The probationary employee was accompanied by two Union representatives during the meeting at which she was given the termination, and she had been told that the purpose of the meeting was “to discuss the arbitration award concerning Grace Sparkes House.” The issues addressed in the reconsideration Award are different. That Award deals with the Grievor’s right to be informed of the purpose of the meeting under

Article 4:08. The reconsideration award ruled that the 2002 termination was “null and void” based, in part, on that Board’s reading of the Parsons and Hynes Appeal decision which addressed that representation rights issue. In the matter before me no representation rights issue was raised. Therefore, since the issues are not identical, I find that I am not required to follow the previous reconsideration award in the way the Union argues.

The Union also argued that I am without proper jurisdiction since the Employer is barred under the principle of res judicata from terminating the Grievor since, on its own account, the grounds for the 2005 termination are precisely and exactly identical to those invoked in the 2005 termination. With respect, I am not persuaded of the Union’s position.

While it is the fact that the grounds for the 2005 termination are precisely and exactly identical to those invoked in the 2005 termination, there is nothing in the record of the jurisprudence and litigation as presented on the matter that would lead to a conclusion that the Employer acted in violation of the Collective Agreement in imposing the 2005 termination.

Article 11.01(

c) specifies the employer’s right to act as it did. The reconsideration award dealt with a defect in its 2002 action that rendered the 2002 action “null and void.” I am not aware of a similar defect in its 2005 action, and none was entered into evidence or argued. Thus, I find no grounds on which I might apply the principle of res judicata in the instant matter. Similarly, and with respect, I find the Union’s argument based on estoppel and collateral attack to be without merit.

A collateral attack is an attempt to avoid the effect or get around a ruling or an award by opening up another judicial process rather than appealing the original one. It is true that the employer did not appeal the reconsideration award. The employer argued and provided some testimony and documentary evidence to show that it had complied with the requirements of that Award. Thus, I find no grounds to sustain the argument that there is an improper collateral attack involved in the Employer’s 2005 action.

The Union also supported its claims by reference to the (September 2005) preliminary award of the Board chaired by Arbitrator Oakley in the grievance of Terra Fewer , and in particular its attention to the requirements of the Public Service Collective Bargaining Act . That Award found that where there is a “difference” over whether an assessment was reasonable and not arbitrary, discriminatory or made in bad faith, an arbitration board may review an employer’s action even when a Collective Agreement contains a clause such as

11.01(c). But there is no such “difference” in the instant mater before me. The principles so ably set out in Terra Fewer do not apply in the matter before me. In

summary, I find that the Union’s preliminary objection to my jurisdiction fails on all points. [ 12 ] In responding to the employer’s objection regarding

Article 11.01(

c) Arbitrator Scott finds: The Employer’s Objection : The Employer objected to my accepting jurisdiction because

Article 11.01(

c) determines that “…The termination of probationary employees for reasons of unsuitability…as assessed by the Employer, is not subject to the grievance or arbitration jurisdiction.” I note that judicial review by Russell, J. of the initial (November 2003) award of the Board chaired by Arbitrator Buffett did not disturb that award in respect of its findings or reasoning on the Employer’s right under

Article 11.01(

c) to terminate a probationary employee “for reasons of unsuitability or incompetence, as assessed by the Employer.” The persuasive evidence shows the Grievor was reinstated per the reconsideration award as a “probationary employee,” and that her 2005 dismissal was for “unsuitability…as assessed by the Employer.” Therefore, absent other defects or issues grieved, I am barred under

Article 11.01(

c) from assuming jurisdiction. [ 13 ] In the result, Arbitrator Scott sustained the employer’s objection finding he was without jurisdiction in the matter grieved. collective agreement [ 14 ] The Collective Agreement being the subject matter of this arbitration is the Group Homes Master Collective Agreement expiring June 30, 2004, a copy which can be found attached to the Originating Application.

The parties agree it is this Collective Agreement which governs the matters between them throughout these proceedings. [ 15 ] Articles 8.04 and 11 are relevant to the within review: … 8.04 Decision of the Board The decision of the majority shall be the decision of the Board. Where there is no majority decision, the decision of the Chairperson shall be the decision of the Board. The decision of the Board of Arbitration shall be final, binding and enforceable on all parties, and may not be changed.

The Board of Arbitration shall not have the power to change this Agreement or to alter, modify or amend any of its provisions. However, the board shall have the power to dispose of a grievance by any arrangement which it deems just and equitable. ... PROBATION, DISCHARGE, SUSPENSION & DISCIPLINE 11.01(

a) Probationary Period The probationary period shall be 520 working hours for all employees (full time, part-time and temporary). Temporary employees shall be allowed to accumulate periods of employment in order to complete their probationary period. For the purpose of this Clause, time off with pay approved by the Employer shall be considered as time worked. (

b) Discharge Procedure The Employer has the right to discipline and discharge employees for just cause. However, any employee who has completed the probationary period and claims to have been unjustly disciplined, discharged or suspended shall be provided with written notification within seven (7) calendar days of the occurrence or discovery of the matter giving rise to the discipline, discharge or suspension.

(

c) Termination of Probationary Employee The termination of probationary employees for reasons of unsuitability or incompetence, as assessed by the Employer, is not subject to the grievance or arbitration procedure. 11.02 Unjust Suspension or Discharge Should it be found upon investigation that an employee has been unjustly suspended or discharged, the employee shall be immediately reinstated in his/her former position, without loss of seniority and shall be compensated for all time lost in an amount equal to his/her normal earnings during the pay period next preceding such discharge or suspension, or by any other arrangement as to compensation which is just and equitable in the opinion of the parties or in the opinion of a Board of Arbitration if the matter is referred to such a Board. public service collective bargaining act [ 16 ] Provisions of the Public Service Collective Bargaining Act were also considered by Arbitrator Scott and argued by the parties herein.

They include: Arbitration provisions 39(1) A collective agreement which does not contain provisions for final settlement by arbitration or otherwise, of all differences between the parties to or persons bound by the agreement or on whose behalf it was entered into, where those differences arise out of the

interpretation, application, administration or alleged violation of the collective agreement, including a question as to whether a matter is arbitrable, shall be considered to contain those provisions set out in subsection 86(2) of the Labour Relations Act , but the reference in that subsection to the Minister of Employment and Labour Relations shall, for the purposes of this section, be a reference to the chairperson. … Decision of arbitration board 40.

(1) The decision of a majority of the members of an arbitration board is an award of that board, and where there is no majority decision, the decision of the chairperson is the award of that board.

(2) An award shall be signed by the chairperson of the arbitration board making the award.

(3) Every party to and every person bound by a collective agreement shall be bound by and comply with (

a) a provision for final settlement of a difference contained, or considered to be contained in the agreement; and (

b) an award made with respect to the agreement.

(4) An arbitration board shall not make an award which would amend or change a collective agreement, a judgment or an earlier award. … Labour Relations Act [ 17 ] Section 39(1) of the Public Service Collective Bargaining Act incorporates by reference Section 86(2) of the Labour Relations

Act [1] , which reads: … 86.

(2) Where a collective agreement does not contain the provision required by subsection (1) the agreement shall be considered to contain the following provisions: … (

e) The arbitration board named under this provision shall hear relevant evidence and argument relating to the difference or allegation by the parties or counsel on behalf of either or both of them and make a decision on the difference or allegation and the decision is final and binding upon the parties and upon a person on whose behalf this agreement was made; … arbitration act [ 18 ] Additionally, the parties submit provisions of the Arbitration Act should be considered, particularly clauses 12, 13 and 14 which read: Remission to arbitrator 12.

(1) In all cases of the reference to arbitration the court may remit all or any of the matters referred for the reconsideration of the arbitrators or umpire,

(2) When an award is remitted under subsection (1), the arbitrators or umpire shall, unless the order otherwise directs, make their award within 3 months after the date of the order. Removal of arbitrator 13. Where an arbitrator or umpire has misconducted himself or herself, the court may remove the arbitrator or umpire. Setting aside of award 14.

(1) Where an arbitrator or umpire has misconducted himself or herself, or an arbitration or award has been improperly procured, the court may set the award aside. … issues [ 19 ] Issues identified by the applicant are: 1.

What is the appropriate standard of review of an arbitral finding that a probationary employee’s termination is inarbitrable, on an arbitral finding that an Employer can avoid a previous declaration that a termination is null and void by rerunning the discipline process, where an arbitrator exceeds jurisdiction by amending or changing three previous awards involving the same parties contrary to subsection 40(4) of the Public Service Collective Bargaining Act , and where an arbitrator makes an error of fact?

2. Did the Arbitrator exceed his jurisdiction pursuant to subsection 40(4) of the Public Service Collective Bargaining Act in refusingto follow the Buffett Award #1, the Buffett Award #2 and an award of Arbitrator James C. Oakley in Newfoundland and LabradorAssociation of Public and Private Employees (Terra Fewer) and Grace Sparkes House? 3. Was the Arbitrator reasonable in his determination that the Employer could avoid a previous ruling that a termination was nulland void by rerunning the discipline in accordance with the Collective Agreement? 4.

Was the Arbitrator reasonable in not following two previous arbitration awards involving the same Employer that held that thetermination of a probationary employee could be arbitrated on the narrow grounds of bad faith and whether she was dismissed ongrounds that could be characterized as unsuitability? 5. Was the Arbitrator reasonable in his finding that Ms. Hanrahan had been reinstated in the absence of any evidence that she hadworked for the Employer received any salary or even entered the Employer’s premises? 6.

Was the Arbitrator reasonable in rendering a decision on the merits of the grievance in a preliminary award on arbitrability? standard of review [20] The first matter to be decided is the appropriate standard of review to be applied in the present circumstances. The historicalapproach was modified in Voice Construction Limited v. Construction and General Workers Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609. Three standards of review were recognized, patent unreasonableness, reasonableness and correctness.

Courts were mandated to adopt a pragmatic and functional approach involving the consideration of four contextual factors: (1) the presence or absence of a privative clause or statutory right of appeal, (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question, (3) the purposes of the legislation and provision, in particular, and (4) the nature of the question, that is, law, fact or mixed law and fact. [21] The standard of review to be applied in cases such as this has been revised as set out in Dunsmuir v. New Brunswick, 2008SCC 9 , [2008] 1 S.C.R. 190.

The Court has moved from a three standard of review approach to two standards of review,reasonableness and correctness. Both standards are defined by the Court in Dunsmuir commencing at paragraph 47: 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. 48 … What does deference mean in this context? ... The notion of deference "is rooted in

part in a respect for governmental decisionsto create administrative bodies with delegated powers" (Mossop, (SCC), [1993] 1 S.C.R. 554 at p. 596, per L'Heureux-Dubé J., dissenting). We agree with David Dyzenhaus where he states that the concept of "deference as respect" requires of the courts"not submission but a respectful attention to the reasons offered or which could be offered in support of a decision": "The Politics ofDeference: Judicial Review and Democracy", in M.

Taggart, ed., The Province of Administrative Law (1997), 279 at p. 286 (quoted withapproval in Baker, (SCC), [1999] 2 S.C.R. 817 at para. 65, per L'Heureux-Dubé J.; Ryan, 2003 SCC 20 ,[2003] 1 S.C.R. 247 at para. 49). 49 Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to thedeterminations of decision makers.

As Mullan explains, a policy of deference "recognizes the reality that, in many instances, thoseworking day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree ofexpertise or field sensitivity to the imperatives and nuances of the legislative regime": D. J. Mullan, "Establishing the Standard ofReview: The Struggle for Complexity?" (2004), 17 C.J.A.L.P. 59, at p. 93.

In short, deference requires respect for the legislative choicesto leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particularexpertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. 50 As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also withoutquestion that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes

just decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing courtwill not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysiswill bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own viewand provide the correct answer.

From the outset, the court must ask whether the tribunal's decision was correct. [22] The method of selecting the appropriate standard to be applied was reviewed by me at paragraph 20 of Locke’s ElectricalLimited v.

Newfoundland and Labrador (Labour Relations Board), 2010 NLTD 27, commenting on and citing paragraphs 53-64 ofDunsmuir: [20] The Court then turns its attention to the method of selecting the appropriate standard in individual cases stating, “… As we willnow demonstrate, questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from thefactual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness.

Some legal issues,however, attract the more deferential standard of reasonableness.” The discussion as to which legal issues attract the more deferentialstandard is helpful in determining the standard to be applied herein. It is no better stated than by the Supreme Court of Canada fromparagraphs 53 through 64, part of which discussion is set out hereafter: 53 Where the question is one of fact, discretion or policy, deference will usually apply automatically (Canada (Attorney General) v.Mossop, (SCC), [1993] 1 S.C.R. 554, at pp. 599-600; Dr. Q, at para. 29; Suresh, at paras. 29-30).

We believe that thesame standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readilyseparated. 54 Guidance with regard to the questions that will be reviewed on a reasonableness standard can be found in the existing case law.Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which itwill have particular familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), (SCC), [1995] 1S.C.R. 157, at para. 48; Toronto (City) Board of Education v.

O.S.S.T.F., District 15, (SCC), [1997] 1 S.C.R. 487, atpara. 39. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of ageneral common law or civil law rule in relation to a specific statutory context: Toronto (City) v. C.U.P.E., at para. 72. Adjudication inlabour law remains a good example of the relevance of this approach. The case law has moved away considerably from the strictposition evidenced in McLeod v. Egan, (SCC), [1975] 1 S.C.R. 517, where it was held that an administrative decisionmaker will always risk having its

interpretation of an external statute set aside upon judicial review. 55 A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and areasonableness test applied: - A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference. - A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). - The nature of the question of law.

A question of law that is of "central importance to the legal system ... and outside the ...specialized area of expertise" of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E.,2003 SCC 63 , [2003] 3 S.C.R. 77, at para. 62).

On the other hand, a question of law that does not rise to this level may becompatible with a reasonableness standard where the two above factors so indicate. 56 If these factors, considered together, point to a standard of reasonableness, the decision maker's decision must be approached withdeference in the sense of respect discussed earlier in these reasons. There is nothing unprincipled in the fact that some questions of lawwill be decided on the basis of reasonableness.

It simply means giving the adjudicator's decision appropriate deference in decidingwhether a decision should be upheld, bearing in mind the factors indicated. 57 An exhaustive review is not required in every case to determine the proper standard of review. Here again, existing jurisprudencemay be helpful in identifying some of the questions that generally fall to be determined according to the correctness standard (CartawayResources Corp. (Re), [2004] 1 S.C.R. 672, 2004 SCC 26).

This simply means that the analysis required is already deemed to have beenperformed and need not be repeated. 58 For example, correctness review has been found to apply to constitutional questions regarding the division of powers betweenParliament and the provinces in the Constitution Act, 1867: Westcoast Energy Inc. v. Canada (National Energy Board),

(SCC) , [1998] 1 S.C.R. 322. Such questions, as well as other constitutional issues, are necessarily subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution: Nova Scotia (Workers Compensation Board) v.

Martin , [2003] 2 S.C.R. 504, 2003 SCC 54 ; Mullan, Administrative Law , at p. 60. 59 Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires . … 60 As mentioned earlier, courts must also continue to substitute their own view of the correct answer where the question at issue is one 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" ( Toronto (City) v. C.U.P.E. , at para. 62 , per LeBel J.).

Because of their impact on the administration of justice as a whole, such questions require uniform and consistent answers. Such was the case in Toronto (City) v. C.U.P.E. , which dealt with complex common law rules and conflicting jurisprudence on the doctrines of res judicata and abuse of process issues that are at the heart of the administration of justice (see para. 15, per Arbour J.). 61 Questions regarding the jurisdictional lines between two or more competing specialized tribunals have also been subject to review on a correctness basis: Regina Police Assn. Inc. v.

Regina (City) Board of Police Commissioners , [2000] 1 S.C.R. 360, 2000 SCC 14 ; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General) , [2004] 2 S.C.R. 185, 2004 SCC 39 . 62 In

summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of defence to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. 63 The existing approach to determining the appropriate standard of review has commonly been referred to as "pragmatic and functional". That name is unimportant.

Reviewing courts must not get fixated on the label at the expense of a proper understanding of what the inquiry actually entails. Because the phrase "pragmatic and functional approach" may have misguided courts in the past, we prefer to refer simply to the "standard of review analysis" in the future. 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 the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. [ 23 ] In the above extract the court in Dunsmuir sets out a method of selecting the appropriate standard to be adopted in individual cases.

The factors to be considered are found in paragraphs 55 and 64 of the decision and are similar to those set out in Voice Construction . [ 24 ] A standard of review analysis and the application of the factors to the case at hand is in order. There is a collective agreement privative clause as set out in Clause 8.04 which clause mandates the decision of a board of arbitration is final, binding and enforceable on the parties.

Similarly, the Public Service Collective Bargaining Act , Section 39(1) by incorporating Section 86(2) of the Labour Relations Act statutorily mandates decisions of arbitration boards are final and binding upon the parties and upon a person on whose behalf the collective agreement was made. That being said, I agree with the applicant’s submission, despite the existence of a privative clause, as here, there is an express statutory right of judicial review for misconduct or improper procurement of an award ( O’Reilly’s Irish Bar Inc. v. 10385 Nfld. Ltd. (2003), 231 Nfld. & P.E.I.R. 20 (NLTD) ).

The applicant takes the view the privative protection at play is partial or equivocal and co-exists with a statutory right to judicial review as set out in Sections 12 , 13 and 14 of the Arbitration Act thus signaling some deference, but not considerable deference. The respondent, on the other hand, believes the same provisions call for significant deference on judicial review of a labour arbitrator’s decision.

It would seem to me the privative clause contained in the Group Homes Master Collective Agreement, along with references to both the statutory provisions and case law provided by parties’ counsel, call for increased consideration to be given to a labour arbitrator’s decision but does not call for the higher level of deference which is accorded, for example, to decisions of the Labour Relations Board. [ 25 ] The next factor for consideration is that of arbitral expertise.

As stated in paragraph 54 of Dunsmuir , deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function. Further, deference may be warranted where the administrative tribunal has developed particular expertise in the application of a general common law in relation to a specific statutory context. In other words, courts exercise deference where the arbitrator is acting within the core of his expertise. This core expertise would include the

interpretation and application of collective agreements as well as awards arising out of the same collective agreement and awards, generally, in relation to other collective agreements. Labour arbitrators have special knowledge in the area of labour relations. I conclude the nature of the administrative regime governing arbitrators’ calls for considerable deference in decisions pertaining to collective agreements and awards arising therefrom. The standard to be applied in the foregoing instances is that of reasonableness. [ 26 ] There is, however, one issue that requires review on the more stringent standard of correctness and that is whether or not

Arbitrator Scott exceeded his jurisdiction pursuant to subsection 40(4) of the Public Service Collective Bargaining Act in refusing tofollow Buffett # 1 and an award of Arbitrator James C. Oakley in Newfoundland and Labrador Association of Public and PrivateEmployees (Terra Fewer) and Grace Sparkes House[2], particularly as to whether or not his award changed or amended the awards inthe two foregoing arbitrations. I arrive at this conclusion, in part, on the basis administrative bodies must be correct in theirdeterminations of true questions of jurisdiction. The nature of the issue before Arbitrator Scott, on this point, requires a correctunderstanding of the relevant

section of the act as well as the determinations in Buffett # 1 and the Terra Fewer award. It does not allowfor the application of a reasonableness standard with the expectation of exploration of

interpretations which might apply to the awards. analysis [27] The foremost question to be answered is whether or not Arbitrator Scott exceeded his jurisdiction by amending or changingprevious awards as submitted by the applicant/Union. As set out in Section 40(4) it is correct to say an arbitration board shall not makean award which would amend or change a collective agreement, a judgment or an earlier award. On this argument an award whichamends an earlier award is an excess of jurisdiction. Both Barry, J. in Newfoundland and Labrador Association of Public andPrivate Employees (Paul Layman) v.

Her Majesty the Queen in Right of Newfoundland (1997), (NL SC), 155Nfld. & P.E.I.R. 15 (N.L.T.D.) and Orsborn, J. in N.A.P.E. (Jerry Quinlan) v. Treasury Board (1999), (NL CA),169 Nfld. & P.E.I.R. 315 (N.L.S.C.T.D.) agreed with the principle set out in Section 40(4).

Barry, J., pointed out the subsection negatedhaving to decide whether or not principles of res judicata and issue estoppel bind arbitrators. [28] In determining whether or not Arbitrator Scott failed to follow the three previous awards, in this matter, being Buffet # 1, thedecision of Russell, J. and Buffett # 2, as well as the preliminary award in Terra Fewer it is helpful to utilize the approach adopted in ananalysis of res judicata and issue estoppel.

As stated in Brown and Beatty, Canadian Labour Arbitration, 4th Edition: 2:3221, page 2-110: It has been held, however, that in order to be a conclusive bar to the second grievance, the first award must meet three conditions. First,it must be between the same parties; second, the matter in dispute must be identical in both proceedings, involving the same or anunaltered collective agreement; and finally, it must have been brought for the same object.

Accordingly, to determine whether thedoctrine applies, or, indeed, whether an earlier award could be shown to be erroneous, may require evidence to be adduced in addition toargument.

In the result, it has been held that res judicata did not operate as a bar where the prior arbitration involved a different local union, or adifferent employer, or where the grievance arose under a similar but different statute, or where the merits of the dispute had not beendetermined in the previous award. [Emphasis added] In the present case it is undisputed the parties are identical and the collective agreements the same in all proceedings referenced in theforegoing paragraph. [29] In Buffett # 1 the employer was partially successful on the jurisdictional argument.

The arbitration board upheld theemployer’s preliminary objection, in part, and only insofar as the grievance could not go forward on the basis the employer had to showjust cause for dismissal of Hanrahan. The board agreed the matter could proceed on the basis of alleged bad faith or if the Union wishedto assert the dismissal was for reasons which did not touch upon unsuitability.

This finding is consistent with the decision inNewfoundland and Labrador Association of Public Employees (Terra Fewer) and Grace Sparkes House, unreported, James C.Oakley, dated September 14, 2005, dealing with the same parties, the same collective agreement and similar argument under the sameprovision of the Collective Agreement being clause 11.01(c). In Terra Fewer the employer raised a preliminary objection that wherethe probationary employee was terminated for reasons of unsuitability or incompetence pursuant to 11.01(

c) of the CollectiveAgreement, the grievor did not have access to the grievance and arbitration procedure. After a comprehensive analysis of the issue theBoard found, at page 44: In

summary, the Board finds as follows: (1) the dispute concerning the termination of a probationary employee is arbitrable on the basisof the express terms of

Article 11.01(

c) and on the basis of the implied term that arbitrators may review the decision to dismiss aprobationary employee where the decision was arbitrary, discriminatory or made in bad faith; (2) the standard of review of theEmployer’s decision to terminate the employment of a probationary employee, is that (1) the Arbitration Board may review theEmployer’s assessment of the Grievor as to unsuitability or incompetence under

Article 11.01(

c) to determine whether the Employer’sdecision was reasonable and not arbitrary, discriminatory or made in bad faith; and (

b) the Arbitration Board may review the Employer’sactions generally, under the term of the Collective Agreement implied by arbitral principle, to determine if those actions were arbitrary,discriminatory or made in bad faith. In the result, the employer’s preliminary objection in Terra Fewer was denied and the grievance found to be arbitrable.

I observe in thefinal analysis on the merits of the grievance the Union was unsuccessful and the dismissal of the employee upheld. [30] The Union raised two preliminary objections before the board in Buffett # 1, one pertaining to representational rights and theother to whether or not notice of the purpose of the meeting ought to have been provided to Hanrahan, in advance, as she was beingdismissed.

The panel rejected both arguments finding the grievor’s rights were not violated and she was not entitled to be advised of aright to union representation at the meeting or to be notified of the purpose of the meeting in advance. [31] When the matter came before Russell, J., of this Court, on judicial review, the applicant Union applied for an order settingaside the decision in Buffett # 1 and requesting the matter be remitted back to the arbitration board for reconsideration. Theapplicant/Union did not take issue with the decision of the majority in respect of the employer’s preliminary objection and the employer

did not apply for judicial review of the finding. Russell, J. dealt with the Board’s findings as to representational rights and advance notice.

He concluded the grievor/employee was not entitled to be notified of a right to be represented at the meeting but felt, based on the Court of Appeal decision in Her Majesty the Queen in Right of Newfoundland and Labrador (Grievors Parsons and Hynes) , and in light of this decision not being available to the arbitration board at the time of the hearing and decision in Buffett # 1, the matter should be remitted back to the board for reconsideration on the sole issue of the appropriateness of being notified as to the purpose of the meeting, in advance.

The Board (Buffett # 2) reconvened and considered the direction of Russell, J., arriving at the following conclusion: Thus, following the same logic and line of reasoning displayed by the Court of Appeal in Parsons and Hynes, given that there is a right to union assistance provided for in all matters arising under the collective agreement and based upon the fact that this right could be rendered meaningless or that its meaningful character could be greatly diminished if there was not an obligation to advise of the nature of the employer-employee interaction about to take place, we find that there is existed an obligation on the employer to inform the employee of what the meeting was about.

The Employer by not informing the Grievor of what the meeting was about violated the collective agreement such that the Grievor’s representational rights were interfered with. … [ 32 ] In the result, Buffett # 2 allowed the grievance stating: … We find that for the reasons hereinbefore stated the Grievor’s rights were violated and her discharge is null and void.

She is reinstated effective the date of her discharge as a probationary employee with all the rights she enjoyed prior to her discharge … [ 33 ] This series of decisions clarifies three matters significant to the parties and their Collective Agreement, particularly as it pertains to the rights of probationary employees.

They are: first, when the employer calls a meeting wherein a probationary employee is to be dismissed notice of the intent of the meeting is to be given to the employee, in advance; second, the employee is not entitled to be advised of a right to union representation at the meeting, it is presumed once notice is given an employee will seek out such representation to attend with him/her if he/she wishes same; and, third, in a dispute between the parties concerning the termination of a probationary employee the employer does not have to show just cause for dismissal but the Union may grieve such dismissal on the basis the decision was arbitrary, discriminatory or made in bad faith.

Arbitrator Scott in his review of the 2005 termination of Hanrahan would be bound by the foregoing principles. I add, at no stage in this process were the merits of the dismissal determined. [ 34 ] What occurred after Buffett # 2 and the appropriateness of it became the subject matter of the Scott arbitration. Hanrahan was given advance notice of a meeting to be held on July 25, 2005, and was informed of her right to have a union representative with her. At the Scott arbitration hearing Hanrahan testified she expected to meet with the employer to discuss her reinstatement arising out of Buffett # 2.

The employer, on the other hand, intended to proceed with dismissal of Hanrahan, having complied with the decisions previously referenced. Hanrahan testified she was not reinstated to her former position, rather, she was provided with a termination letter. She agreed she was told the purpose of the July 25th meeting stating one Ms. Follett, on behalf of the employer, indicated to her the meeting was to discuss the arbitration award concerning Grace Sparkes House.

Employer witness, Lisa Slaney, testified the employer took the view Hanrahan had been reinstated to her position by virtue of Buffett # 2 maintaining her unsuitability for the position continued. In other words, having reviewed the earlier reasons for the 2002 dismissal and how they were arrived at Follett came to the same conclusion as to Hanrahan’s unsuitability for the job. [ 35 ] The letter of termination given Hanrahan at the July 25, 2005 meeting reads: 93. Grace Sparkes House Incorporated is committed to providing a vital service to victims of family violence.

That service requires observation of the utmost standards of efficiency and professionalism. The Corporation, under the direction of its Board of Directors, provides this service through its Crisis Intervention Workers and Child Services Workers. These positions require a great deal of personal judgment, professionalism and interpersonal skills. When you were hired by the Corporation, it was on a probationary basis. This probationary period is meant to allow the Corporation time to assess the capacity of the employee to fulfill the requirements of the position.

In effect, to determine whether or not the employee is “the right fit” for the organization. After careful consideration and deliberation, we have concluded that your employment with Grace Sparkes House be discontinued for reasons of unsuitability. [ 36 ] The Union’s position before Arbitrator Scott was the employer had failed to comply with the award in Buffett # 2, that is, reinstatement of Hanrahan had not occurred.

The employer’s position was reinstatement had been effected by virtue of the wording of the award itself in its declaration the earlier dismissal was null and void and further, in stating, “… she is reinstated as a probationary employee effective the date of her discharge with all the rights she enjoyed prior to her discharge …”. On the issue of reinstatement, Arbitrator Scott stated at page 24 of his decision, “ … I note that the employer witness testified that the Grievor was reinstated as ordered by the reconsideration award.

This evidence was not persuasively challenged, and the fact is at least inferentially supported by the fact of the 2005 termination letter …”. I have considered the arguments of the applicant on this point. I find Arbitrator Scott’s conclusion the grievor had been reinstated to be a reasonable one. In arriving at this decision I note the wording contained in both Buffett # 2 as well as the definition of reinstate as set out in Black’s Law Dictionary , Revised Fourth Edition, West Publishing Company, page 452: REINSTATE.

To reinstall; to re-establish; to place again in a former state, condition, or office ; to restore to a state or position from which the object or person had been removed …

[Emphasis added] [37] The phrase null and void utilized by the Board in Buffett # 2 is defined in the foregoing text at pages 1216 and 1745: NULL. Naught; of no validity or effect. Usually coupled with the word “void;” as “null and void.” … VOID. Null; ineffectual; nugatory; having no legal force or binding effect; unable, in law, to support the purpose for which it wasintended. … I conclude no further steps were required of the employer to evidence reinstatement, in these circumstances. Arbitrator Scott was terse inhis final analysis on the point but the finding was grounded in both a correct and reasonable

interpretation of the term reinstatement usedin the reconsideration award (Buffett # 2). Arbitrator Scott’s finding is further buttressed by the majority’s pronouncement the 2002discharge was “null and void”. [38] The applicant tendered the case of U.F.C.W., Local 1252 v. The Western Star (1995), (NL SC), 130D.L.R. (4th) 538 (N.L.S.C.T.D.) in support of its position, which case I find distinguishable on the facts.

In Western Star, Roberts, J.,as he then was, concluded the arbitrator, in the matter under consideration, had clearly specified his intentions regards reinstatementparticularly that the employee should have been placed in the position from which he was demoted, with all the duties andresponsibilities associated with that position. The case dealt with demotion, not termination for unsuitability. [39] The applicant also argues the employer embarked on reimposing discipline upon Hanrahan despite the Buffett # 2 award.

Thecrux of the applicant’s argument is set out at paragraph 103 of the applicant’s Memorandum of Fact and Law: A violation of the right to union representation is the most serious substantive breach which an Employer can commit in the disciplinaryprocess. A breach of the right to union representation results in the loss of a vital opportunity to make representations to the employer,which loss can not be remedied. [40] Applicant’s counsel cites Newfoundland and Labrador Association of Public and Private Employees v.

Her Majesty theQueen in Right of Newfoundland and Labrador, 2003 NLCA 61, 213 Nfld. & P.E.I.R. 33, where Cameron, J., at paragraph 25 states: 1. The right to have union representation is considered to be a substantive right, not a question of procedure; 2. If the collective agreement explicitly states that the employer has a duty to advise the employee of his or her right torepresentation, even in the presence of words indicating that the employee must request such assistance, failure to advise of the right isconsidered a breach of duty (eg. Sunnybrook Hospital v.

Sunnybrook Hospital Employees’ Union, Local 777 (1993), (ON LA), 36 L.A.C. (4th) 129 (Ont. Arb. Bd.)); and 3. If the right to have representation is granted by a collective agreement, in the absence of words relieving the employer of theduty, a duty on the employer to advise an employee of the right will be implied (Toronto City) v.

C.U.P.E., Local 79, supra is an exampleof such a case, as is: Hickeson – Langs, supra) [41] As I understand the applicant’s argument, on this submission, because a substantive right, in this instance the right to unionrepresentation, has been breached the employer is precluded from, to use the applicant’s term, “rerunning the discipline process”. Inshort, the Union submits the employer is barred from proceeding with termination for reasons of unsuitability which arose prior to herreinstatement. This position forecloses the merits of the earlier termination from being heard and adjudicated upon.

It has the practicaleffect of placing a probationary employee back into a position for which she was deemed unsuitable. I would adopt the statement set outin the extract from Brown and Beatty at paragraph 28 herein which concluded res judicata did not operate as a bar where the merits ofthe dispute had not been determined in the previous award.

I say this having concluded the approach and considerations relevant to resjudicata remain relevant in an application pursuant to Section 40(4) of the Public Service Collective Bargaining Act. [42] Additionally, the applicant failed in its submissions on representational rights in Buffett # 1. The issue was not raised beforeRussell, J. on judicial review. Further, Arbitrator Scott states at page 25 of his award the matter of representational rights was not raisedbefore him. In the result, I am not persuaded to the applicant’s view in its argument on reimposing discipline on Hanrahan.

Conclusion [43] Arbitrator Scott identified the issue before him as being a complaint concerning a termination of a probationary employee. Inthe July 25, 2005 termination, the employer set out to comply with Buffett # 2 and, in fact, did so.

Hanrahan had the benefit of advancenotice of the meeting plus two union representatives were in attendance with her at same. [44] The real problem, as I see it, with respect to Arbitrator Scott’s decision, goes back to the issue identified at the beginning of thisanalysis, that is, whether or not Arbitrator Scott exceeded his jurisdiction by amending or changing a previous award, particularly thefindings in Buffett # 1 and in the Terra Fewer case pertaining to the employer’s preliminary objection under

Article 11.01(

c) and themanner in which the two arbitration boards dealt with it. In discussing the Terra Fewer award Arbitrator Scott observed at page 26: That Award found that where there is a “difference” over whether an assessment was reasonable and not arbitrary, discriminatory ormade in bad faith, an arbitration board may review an employer’s action even when a Collective Agreement contains a clause such as

11.01(c). But there is no such “difference” in the instant matter before me. The principles so ably set out in Terra Fewer do not apply inthe matter before me. [45] Arbitrator Scott went on to conclude he was barred under

Article 11.01(

c) from assuming jurisdiction and proceeding with ahearing on the merits of the dismissal. With all due respect I believe this to be an incorrect finding on his part and one that amends theearlier findings in Buffett # 1 and Terra Fewer. Both of the foregoing awards confirm an employer does not need to show just cause asto the reason for termination of a probationary employee and further that termination for unsuitability is acceptable.

Each, however,leave open to the Union the right to grieve a dismissal on the basis of alleged bad faith on the part of the employer and for reasons whichdo not touch upon unsuitability (in the instance of Buffett # 1) and with regard to the Terra Fewer award where the employee alleges thedecision was arbitrary, discriminatory or made in bad faith.

The right of the Union to proceed where allegations of employer bad faith,discrimination and arbitrariness are made is reinforced in the decision of the Board in Buffett # 1 commencing at page 26: That said however, it is still open to the grievor to assert that it was not at all for reasons of unsuitability that she was dismissed. Forexample, if the employer dismissed her because she had red hair, that could not be said to form any basis for a judgment as to suitabilityand she could certainly grieve her dismissal on that basis. She could also assert bad faith and grieve on the basis of bad faith.

Bad faith was one of the allegations made by the Grievor. Thus, we hold that the grievor can grieve and have resort to arbitrationclaiming that she was dismissed not on the basis of unsuitability and she can also grieve claiming that the employer in terminating herwas acting in bad faith. To hold to the contrary that she could not grieve on these basis would, in our view, do violence to the collective agreement. Therestriction that the collective agreement places on access to arbitration is not that broad.

If the Union wishes to assert that bad faith existed or the fact that this was not a dismissal for anything that could be judged asunsuitability, it is our ruling that it can do so. [46] Support for the correctness of the awards made in Buffett # 1 and Terra Fewer can be found in the Ontario Court of Appealdecision in Loyalist College of Applied Arts and Technology (Board of Governors) v. O.P.S.E.U. (2003), (ONCA), 63 O.R. (3d) 641 (Ont. C.A.) at p. 657, paragraphs 57-61, inclusive: [57] The question of the Board’s jurisdiction to hear the grievance brings into play two competing principles.

The first principle isthat, generally, arbitrators cannot review the merits of an employer’s decision to dismiss a probationary employee. The second principle,a qualification on the first, is that arbitrators may be entitled to review an employer’s decision to dismiss a probationary employee if thedecision is made in bad faith or is based on a illegal or invalid consideration. Both principles are reflected in this collective agreementand the governing statute, the Colleges Collective Bargaining Act. The application of the second principle clothed the Board withjurisdiction to hear Ms.

Bergman’s grievance because her dismissal was based on an invalid consideration, namely, the condition of hercontinuing employment. [58] Probationary employees are typically thought of as serving a period of apprenticeship. During this period employers expectwider latitude in their decisions to dismiss new employees judged not suitable for continued employment. Thus, ordinarily probationaryemployees cannot expect the protection of the just cause provision enjoyed by those employees who have completed their probationaryperiod. See Nordair Inc. v. I.A.M., Local 2309 (1985), (CA LA), 22 L.A.C. (3d) 177 (Can. Arb.

Bd.); C.U.P.E.(Production Unit) v. Canadian Broadcasting Corp., [1995] C.L.A.D. No. 57 (Can. Arb. Bd.). … [60] Nonetheless, the College did not have an unfettered right to dismiss probationary employees. Although the collective agreementdid not give probationary employees the right to just cause for dismissal, it did give them other limited rights. An alleged breach of anyof these rights may give rise to a difference in the

interpretation, application or administration of the collective agreement, and failingresolution, would then be arbitrable. See Ontario Hydro v. Ontario Hydro Employees’ Union, Local 1000 (1983), (ON CA), 41 O.R. (2d) 669 (Ont. C.A.). [61] So, for example, one right of a probationary employee was the right not to be discriminated against on the various groundsprescribed in

Article 4.01. [FN2]. Another right was the right not to be dismissed in bad faith. For many years arbitrators and courtshave held that this right is an implied term of every collective agreement and extends to all employees, including probationaryemployees. See Brampton Hydro Electric Commission v. C.A.W., Local 1285 (1993), (ON SC), 15 O.R. (3d) 773

(Ont. Div. Ct.) and Toronto (Metropolitan) v. C.U.P.E., Toronto Civic Employees Union, Local 43 ((July 3, 1981), Callaghan J., Saunders J., Steeles J. (Ont. Div. Ct.), (unreported). [ 47 ] Based on Buffett # 1, Terra Fewer and the arguments before me, I conclude Arbitrator Scott, unfortunately, did not comply with Section 40(4) of the Public Service Collective Bargaining Act in that he made an award which amended and/or altered previous awards involving the same parties, the same collective agreement and the same jurisdictional argument.

This finding, on his part, was an incorrect one and breached the standard of correctness required. Even were a reasonableness standard applied it cannot be said Arbitrator Scott’s finding was reasonable in the circumstances. In closing, it is important to note the finding in Buffett # 1, on this issue, was not subject to judicial review before Russell, J. and both Buffett # 1 and Terra Fewer stand as correct statements of the law. [ 48 ] The decision of Arbitrator Scott foreclosed the right of Hanrahan to have the issue of her dismissal determined on the merits of the case.

It is not clear as to why Arbitrator Scott concluded there was no “difference” over whether the assessment was reasonable and not arbitrary, discriminatory or made in bad faith in the within matter. Clearly, in Buffett # 1 the Board acknowledged the existence of such a “difference”.

In any event, I agree with the applicant’s submission it would be a violation of natural justice and a denial of the right to a fair hearing were Hanrahan prohibited from proceeding with a hearing on the merits, should she wish to do so. disposition [ 49 ] In respect of all of the submissions of the applicant, except regards the decision of Arbitrator Scott as it pertains to the employer’s preliminary objection on jurisdiction arising out of

Article 11.01(

c) I conclude his findings are reasonable and would not disturb them. [ 50 ] As to Arbitrator Scott’s finding he was barred under

Article 11.01(

c) from assuming jurisdiction, this finding is incorrect and contrary to Section 40(4) of the Public Services Collective Bargaining Act . Further, it cannot be said to be a reasonable finding were such a standard to be applied.

Accordingly, the decision of Arbitrator Scott, on this one point, is quashed and the matter is to be remitted to a new arbitrator for a hearing on the merits of the dispute should Hanrahan wish to proceed with grievance of her dismissal on the grounds of bad faith, discriminatory conduct and/or arbitrariness. [ 51 ] In light of the applicant’s success in the matter it is awarded its costs of the application. _____________________________ Maureen Dunn Justice APPENDIX Corrections made on June 24, 2011: 1.

The first four lines of paragraph 22 were deleted and replaced with the following: [22] The method of selecting the appropriate standard to be applied was reviewed by me at paragraph 20 in Locke’s Electrical Limited v. Newfoundland and Labrador (Labour Relations Board) , 2010 NLTD 27 , commenting on and citing paragraphs 53-64 of Dunsmuir : 2. On page 2 under “ CASES CONSIDERED ”, at lines 6, 7 and 8, the citation “ Newfoundland and Labrador Association of Public and Private Employees v.

Newfoundland and Labrador (Treasury Board) , 2011, 200601T5443” was deleted and replaced by the following citation: “ Locke’s Electrical Limited v. Newfoundland and Labrador (Labour Relations Board) , 2010 NLTD 27 ”.