2023 NBCA 33, 2023 NBCA 33

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 116-22-CA CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 2745 APPELLANT SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE,

SECTION LOCALE 2745 APPELANT - and - - et - HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK, AS REPRESENTED BY TREASURY BOARD RESPONDENT SA MAJESTÉ LE ROI DU CHEF DE LA PROVINCE DU NOUVEAU-BRUNSWICK, REPRÉSENTÉ PAR LE CONSEIL DU TRÉSOR INTIMÉ Canadian Union of Public Employees, Local 2745 v. His Majesty the King in Right of the Province of New Brunswick, as represented by Treasury Board, 2023 NBCA 33 CORAM: The Honourable Justice Quigg The Honourable Justice French The Honourable Justice LeBlond Syndicat canadien de la fonction publique,

section locale 2745 c. Sa Majesté le Roi du chef de la Province du Nouveau-Brunswick, représenté par le Conseil du Trésor, 2023 NBCA 33 CORAM : l’honorable juge Quigg l’honorable juge French l’honorable juge LeBlond Appeal from a decision of the Court of King’s Bench: October 12, 2022 Appel d’une décision de la Cour du Banc du Roi : le 12 octobre 2022 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : inédite Preliminary or incidental proceedings: None Procédures préliminaires ou accessoires : aucune Appeal heard: February 15, 2023 Appel entendu : le 15 février 2023 Judgment rendered: May 25, 2023 Jugement rendu : le 25 mai 2023

Reasons for judgment: The Honourable Justice Quigg Concurred in by: The Honourable Justice French The Honourable Justice LeBlond Counsel at hearing: For the appellant: Glen S. Gallant For the respondent: Daniel A. Standing Motifs de jugement : l’honorable juge Quigg Souscrivent aux motifs : l’honorable juge French l’honorable juge LeBlond Avocats à l’audience : Pour l’appelant : Glen S. Gallant Pour l’intimé : Daniel A. Standing THE COURT The appeal is allowed, the reviewing judge’s decision is set aside, and the adjudicator’s decision is reinstated.

The respondent is ordered to pay costs throughout, which are fixed at $4,000 LA COUR L’appel est accueilli, la décision de la juge siégeant en révision est annulée et la décision de l’arbitre est rétablie. L'intimé est condamnée aux dépens de l'ensemble des procédures, fixés à 4 000 $. The judgment of the Court was delivered by QUIGG, J.A. I. Introduction [ 1 ] This is an appeal from a decision of a judge of the Court of King’s Bench who, on an application for judicial review, quashed, as unreasonable, a decision by an adjudicator appointed under the Public Service Labour Relations Act , R.S.N.B. 1973, c.

P-25 (“ PSLRA ”). [ 2 ] The adjudicator’s decision pertained to a grievance between the Canadian Union of Public Employees, Local 2745 (“Union”) and the Treasury Board, now styled as “His Majesty the King in Right of the Province of New Brunswick, as represented by Treasury Board” (“Employer”). The grievance alleged the Employer violated both the collective agreement and the Pay Equity Act 2009 , S.N.B. 2009, c.

P-5.05 (“ PEA ”), by failing to make pay equity adjustment payments to all entitled Union members. [ 3 ] This dispute was complicated by the fact that the parties were negotiating two separate, but coincident, matters: a new collective agreement and, as required by the PEA , the implementation of pay equity adjustments. As this Court wrote in O’Halloran et al. v. Treasury Board , 2018 NBCA 85 , [2018] N.B.J. No. 346 (QL):

Ironically, this litigation is fueled, to a significant extent, by complaints of inequity, both procedural and substantive, in the application of the Pay Equity Act , 2009, S.N.B. 2009, c. P-5.05 . [para. 1] [ 4 ] While wage increases (also known as “general economic increases”), including their retroactivity, were and are always subject to collective bargaining, pay equity adjustments are not. For reasons that are not entirely explained by the record, at the Employer’s behest, the wage tables for the collective agreement included both wage increases and pay equity adjustments.

This led to confusion between employee entitlements to retroactive pay equity adjustments, as determined by the PEA and the General Regulation - Pay Equity Act, 2009 to begin on April 1, 2012, and entitlements to retroactive wage increase payments, as negotiated between the parties.

Following a hearing on February 10, 2021, the adjudicator issued a decision upholding the Union’s grievance and ordering the Employer to make retroactive pay equity adjustments for the period from April 1, 2012, until the cessation of their employment to all eligible employees under the PEA who were denied those adjustments (“Adjudication Decision”). [ 5 ] The Employer applied for judicial review of the Adjudication Decision, arguing it was unreasonable. The reviewing judge quashed the Adjudication Decision and remitted the matter back for adjudication.

The Union appeals her decision to this Court. [ 6 ] The questions to be determined on this appeal are whether the reviewing judge: 1) chose the right standard of review and applied it properly; 2) made findings of fact in the absence of evidence ; and 3) erred in failing to distinguish, for the purposes of the PEA , between “His Majesty the King as Represented by Treasury Board” and “His Majesty the King as Represented by Cabinet.” [ 7 ] In my view, the overall error in the reviewing judge’s decision is her failure to follow the instructions given by the Supreme Court in Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653 , for the conduct of reasonableness review. I would accordingly allow the appeal, set aside the reviewing judge’s decision and reinstate the Adjudication Decision. II. Context A. The parties [ 8 ] The Union is the certified bargaining agent, under the PSLRA , for a group of employees who are educational and clerical support staff in schools and school district offices within the Department of Education and Early Childhood Development. [ 9 ] The Employer employs all employees specified in

Part II of the First

Schedule of the PSLRA , including all employees in the Union’s bargaining unit. B. The Collective Agreement [ 10 ] On June 7, 2016, the Union and the Employer reached a collective agreement having effect from March 1, 2013, to February 28, 2018 (“Collective Agreement”). As noted, bargaining for the Collective Agreement coincided with pay equity negotiations under the PEA . These are separate processes, and both parties acknowledged pay equity adjustments are, and were, outside the scope of collective bargaining. These adjustments are distinct from general economic increases, which were the subject of the most recent round of bargaining.

C. The Pay Equity Act, 2009 [ 11 ] At all material times between 2012 and 2016, the Union and the Employer were dealing with two distinct issues: 1) collective bargaining for a renewal agreement; and 2) the obligations created under the PEA . [ 12 ] The New Brunswick PEA came into force on April 1, 2010. This Act imposes obligations on certain public service employers to correct systemic gender pay inequities. The relevant provisions of the PEA and its General Regulation are attached as Appendix “A.” [ 13 ] In 2010, the parties commenced the pay equity implementation process as outlined in the PEA .

The process of identifying pay inequities between male- and female- dominated classifications ended on September 18, 2015, and the parties entered into a Letter of Agreement confirming its results.

The process followed to reach the agreement on pay inequities is not in dispute. [ 14 ] As the Director of Compensation and Classification testified during the adjudication hearing, in 2016, “the Employer and the Union agreed to a plan to jointly communicate the status and results of the pay equity implementation process,” which included “media releases, newsletters, Facebook posts, postings on union bulletin boards, postings on websites, and a formal press conference.” [ 15 ] The results of the pay equity implementation process were provided to the Treasury Board for a decision on the “timing and flow” of the adjustments in accordance with s. 13(3) of the PEA , which requires an employer to “determine the proportionate share of the amount of the pay adjustments to be allocated to the female-dominated classifications and how it is to be allocated among the female-dominated classifications” and to notify the affected bargaining agent in writing of its decision. [ 16 ] The pay equity implementation process under the PEA was concluded between June and July 2016, when the Employer communicated its decision pertaining to the “timing and flow” of the pay equity adjustments to the Union.

Following the completion of the pay equity implementation process, the Employer adjusted its compensation practices to provide female-dominated classifications with a rate of pay equal to the average rate of pay of male-dominated classifications that perform work of equal or comparable value. D. Joint

Interpretation Agreement respecting

Article 33.02 [ 17 ] On July 8, 2016, the parties signed an agreement on their joint

interpretation of

Article 33.02 of the Collective Agreement (“JIA”). [ 18 ] The JIA was an important aspect of the collective bargaining because it reflected the parties’ agreement to a change to

Article 33.02 (Retroactivity) regarding wage retroactivity. In the collective agreement entered into on May 4, 2011, with an expiry date of February 28, 2013,

Article 33.02 provided for the retroactivity of wage changes negotiated during that round of collective bargaining. All existing employees were entitled to the retroactive payments, but, notably, certain former employees were required to make a written claim to the Employer for their retroactive wages within 90 days from the date on which the agreement was signed. [ 19 ] Before entering into the Collective Agreement, the parties negotiated a change to

Article 33.02, whereby only those former employees who had been permanent were entitled to retroactive wages, and these former employees were required to make a written claim for their retroactive wages within 90 days from the date on which the Collective Agreement was signed. [ 20 ] Under the JIA, although they were not permanent employees, casual employees who were employed on the date on which the Collective Agreement was signed were also entitled to retroactive wages. As with the prior agreements, these employees were required to make a written claim for retroactive wage payments within 90 days from this date. [ 21 ] Neither

Article 33.02 of the Collective Agreement nor the JIA make any mention of pay equity adjustments.

E. The Employer’s Undertaking [ 22 ] On July 21, 2016, a National Servicing Representative for CUPE agreed to an undertaking provided to the Union on behalf of the Employer (“Undertaking”). This confirmed, among other things, that: (i) “the wage tables for the new collective agreement will include the pay equity adjustments approved by Cabinet in addition to the general wage increases negotiated by the parties”; (ii) “ subparagraph 63(1) (b)(

i) of the Public Service Labour Relations Act ( PSLRA ) stipulates that the provisions of a new collective agreement shall be implemented within a period of 90 days from the date of its execution, i.e. its signature”; (iii) “[….] the Employer undertakes to implement the rates of pay in the new Collective Agreement, including the pay equity adjustments which are not subject to collective bargaining, starting September 1, 2016, meaning that employees will start receiving their full applicable new rates of pay by that date”; and (iv) “[r]etroactive wage payments will be subsequently processed in accordance with

Article 33.02 of the Collective Agreement and within the timeline required by the PSLRA , i.e. within 90 days after the date of signing.” F. Communications with employees regarding pay equity and the payment of wages [ 23 ] The Employer’s process in informing eligible employees of the results of the pay equity process included

a) issuing news releases on the Government of New Brunswick website; and

b) in July/August 2016, issuing a joint newsletter with the Union, as the bargaining agent, that specified the results of the pay equity process and confirmed the retroactivity date of April 1, 2012. These communications did not mention any requirement that applications for pay equity adjustments be made within a specified time. [ 24 ] The Employer paid retroactive wages in accordance with the Collective Agreement, JIA and Undertaking.

The JIA was entirely separate from the issue of pay equity, but, because its wage tables incorporated both wages and pay equity adjustments, the latter were also paid according to the JIA. [ 25 ] In 2017, the Union began expressing concerns that the parties’ agreement regarding wage retroactivity did not satisfy the Employer’s obligation under the PEA because it excluded some employees from retroactive pay equity payments or required some employees to apply for retroactive pay equity payments to which they were entitled under the PEA .

The Union also expressed concern that the Employer had not properly notified entitled employees of their pay equity entitlements. [ 26 ] On October 9, 2018, the Provincial President of the Union requested the following from the Human Resources Directors of New Brunswick school districts: (

a) a list of all casual employees, part-time workers and retirees who were employed any time between April 2012 and September 2016; (

b) a list of other Union members who were previously employed during that period; (

c) a list of recipients of pay equity adjustments pursuant to the pay equity evaluation; and (

d) the process of communications followed to contact employees.

[ 27 ] In response, on November 27, 2018, the Union received a list of employees who worked in the District scolaire francophone Nord-Est District between April 2012 and September 2016. The list confirmed some casual or retired employees had not received the retroactive pay equity adjustments to which they were entitled under the PEA . Notwithstanding the Union’s demands for these payments, the Employer maintained its position. [ 28 ] On May 22, 2019, the Union filed its grievance. G. The grievance and the Employer’s response [ 29 ] The Union’s grievance reads as follows: CUPE Local 2745 and the Employer (i.e.

Treasury Board) stated the process to implement pay equity in 2010. It was a long process that was finally completed in September 2015, at which time the parties agreed on the inequities and the required pay equity adjustments. At that time, the parties were also in negotiations for the renewal of the collective agreement that had expired on February 28, 2013. At the bargaining table, the Employer wanted the discussions relating to monetary items to include the pay equity adjustment as well. It was the Local’s view that pay equity should be dealt with separately from collective bargaining.

However based on the fear that the members could lose the retroactivity on the pay equity adjustments because of the Employer’s bargaining position on wages and its decision to link wages to pay equity, the Local agreed in June/July 2016 with the Employer’s proposal that: 1) the wage tables in the collective agreement would include pay equity adjustments; 2) some casuals would be excluded from entitlement to retroactive pay equity adjustments and 3) some employees had a period of 90 days within which they could request their retroactive pay equity adjustments.

Upon further reflection and internal consultations, the Local realized that this agreement with the Employer violates the Pay Equity Act, 2009 . Since then, the Local has made numerous attempts to rectify this situation in order to ensure that pay equity adjustments are paid to all of its members who are legally entitled to receive them. The Local has communicated with the Employer on numerous occasions, but the Employer refuses to do anything. It is submitted that the Employer’s conduct violates articles 1.03, 3.01 and 33.02(

a) of the applicable collective agreement, and is contrary to the following provisions of the Pay Equity Act 2009 definition of “employee” and sections 3 , 4(1) , 7 and 16 .

Despite the Local’s ongoing requests for assistance from the Pay Equity Bureau and its repeated requests to the Employer for information regarding the names of the individuals who have been denied pay equity adjustments and the amounts owed to them, which requests remaining essentially unanswered, the Employer’s conduct continues to violate the applicable articles of the collective agreement and provisions of the Pay equity Act, 2009 . [ 30 ] The grievance requested that the Employer comply with the Collective Agreement and its obligations under the Pay Equity Act, 2009 by making, without delay, pay equity adjustment payments to all entitled Union members. [ 31 ] On June 19, 2019, the Employer responded to the grievance as follows: This is in response to your Step Two Union grievance in which you claim Treasury Board (the “Employer”) violated and continues to violate articles 1.03, 3.01 and 33.02(

a) of the collective agreement between Treasury Board and the Canadian Union of Public Employees, Local 2745 (the “Collective Agreement” as well as sections 3, 4(1), 7, 16 and the definition of “employee” of the Pay Equity Act , SNB 2009, c P- 5.05 (the “ Act ”), by failing to make equity adjustment payments to all members of Local 2745 who the bargaining agent alleges are entitled to such payments. It is the Employer’s position that both parties voluntarily entered into the agreement dated July 21, 2016 (the “Agreement”) wherein it was determined that retroactivity for pay equity adjustments would be processed in accordance with

article 33.02 of the Collective Agreement. This Agreement complies with the spirit and the intent of the Act . The obligation to implement pay equity rests equally on the Employer and the bargaining agent. This obligation is codified in paragraph 12(1) (

c) of the Act which provides that throughout the process of the implementation of pay equity, an employer and the bargaining agents…shall “ bargain in good faith with each other, making every reasonable effort to reach agreement respecting the implementation of the pay equity process .” The Employer maintains that the Agreement complies with the obligation set out in paragraph 12 (1) (

c) of the Act . The Agreement addresses an element of the implementation of the pay equity process and constitutes an outcome of the parties’ legislated duty to negotiate in good faith. Furthermore, the Act does not specifically address the matter of retroactivity. The purpose of

the Act is to ensure that pay equity be implemented collectively at the job certification classification level rather than compensating persons on an individual basis. The Employer has adjusted the job classification level and is therefore in compliance with the Act .

Finally, the Employer has made reasonable steps to inform current and former employees of the pay equity results in two ways: (1) a news release on the Government of New Brunswick website on June 16, 2016 and (2) a joint newsletter with the bargaining agent released in July/August 2016 indicating the pay equity results and confirming the effective retroactivity date.

For the above noted reasons, it is the Employer’s position that there has been no violation of the Collective Agreement or the Act ; and therefore, the grievance is denied. [ 32 ] The notion that pay equity adjustments are not subject to collective bargaining was confirmed in an email dated October 28, 2016, from the negotiator for the Employer at the time, and through uncontradicted testimony at the adjudication hearing. H. Procedural history

(1) The Adjudication Decision [ 33 ] The grievance hearing was held virtually on February 10, 2021, before the adjudicator. Three witnesses were called: Josée Bryar (on behalf of the Union) as well as Paméla Boulay and Amy Beswarick (on behalf of the Employer). [ 34 ] At the conclusion of the hearing, the parties were requested to provide written submissions on the matters in dispute, which they did on February 18, 2021.

The Adjudication Decision was rendered on March 30, 2021. [ 35 ] In his decision, following careful analysis, the adjudicator rejected the Employer’s preliminary objection to the timeliness of the Union’s grievance and referral to adjudication. [ 36 ] The purpose of the grievance was summarized by the Union in its post-hearing submissions, as reproduced by the adjudicator, as follows: In

summary, the Union seeks an award that declares the Joint

Interpretation of

Article 33.02 unenforceable and would give all employees Pay Equity adjustments who were denied those adjustments from the period of April 1, 2012, until the date their employment ceased with the Employer. [ 37 ] In the adjudicator’s view, the grievance was “essentially about a claim by the Union that the Employer had failed to comply with the Collective Agreement and its legal obligations under the PEA by failing to make equity adjustment payments to all members of the Union who were entitled to such payments.” [ 38 ] The adjudicator found, as a fact, that “at all material times to the grievance the parties were dealing with two issues: one being the usual business of negotiating a collective agreement, and the other dealing with the obligations created under the PEA .” He also found both parties acknowledged that pay equity adjustments were not subject to collective bargaining, while general economic increases were. [ 39 ] Relying on Eastern Bakery Ltd. v.

Bakery, Confectionery and Tobacco Workers International Union (BCTS), Local 381 , [1990] N.J. No. 230 (QL) , and Nova Services Ltd. v. Newfoundland Association of Public Employees (NAPE) , [1992] N.J. No. 266 (QL) , the adjudicator found the JIA did form part of the Collective Agreement. His finding was supported by “a plain reading of the JIA, the factual context in which it was agreed to and the multiple references therein to the

interpretation and application of

Article 33.02 of the Collective Agreement.” As such, he determined the JIA “reflects the clear understanding of the parties regarding retroactive wage payments to casual employees.”

[ 40 ] However, the adjudicator ruled that, where the provisions of the Collective Agreement, which includes the JIA, conflicted with the PEA , the PEA prevailed. In support of his conclusion, he cited

Article 1.03 of the Collective Agreement: 1.03 Future Legislation Where any provision of this Agreement conflicts with the provisions of any public statute or regulation of the province, the provisions of the public statute or regulation shall prevail.

In the event that any law passed by the Legislature of the Province, applying to employees covered by this Agreement, renders null and void any provisions of this Agreement, the remaining provisions of the Agreement shall remain in effect for the term of this Agreement, and the Parties to this Agreement shall negotiate a mutually agreeable provision to be substituted for the provision so rendered null and void.

In the event no agreement can be reached, the Parties may submit the matter to Adjudication, or the chairman of the Public Service Labour Relations Board as outlined in the Public Service Labour Relations Act . [ 41 ] The adjudicator determined the PEA and its General Regulation prescribe the beginning of pay adjustments to be April 1, 2012. Section 10(2) of the PEA prohibits an employer from implementing pay adjustments other than “in accordance with the regulations” under the Act .

Section 3(1) of the General Regulation requires an employer to “start to make pay adjustments under the Act on April 1, 2012, unless an extension has been granted under

section 14 of the Act .”

Section 14 of the PEA permits an employer or a bargaining agent to apply to the Director of the Pay Equity Bureau for an extension of not more than three months. Since, as he observed, there was no evidence before him that the Employer had received an extension of time, the adjudicator found the Employer was to begin making pay adjustments to entitled employees on April 1, 2012. [ 42 ] He examined the

definitions of “employee” under the PEA and the PSLRA and determined the PEA would not allow “a different application of pay equity adjustments for employees subject to the collective bargaining regime under the PSLRA and those who, for whatever reason, have not the benefit of representation by a bargaining agent.” He thus allowed the grievance and ordered the Employer to “make pay equity adjustments to those employees who were denied those adjustments from the period of April 1, 2012, until the date their employment ceased with the Employer.”

(2) The Judicial Review Decision [ 43 ] On judicial review, the application judge held the Adjudication Decision was unreasonable, being both internally irrational and “untenable in light of the relevant factual and legal constraints that bear on it.” Her decision turned on the adjudicator’s failure to address ss. 13(3) and (4) of the PEA and s. 4 of the General Regulation .

She did not address the other issues raised by the parties. [ 44 ] The judge’s analysis focused on the Employer’s requirement, under s. 13(3) of the PEA , to “determine the proportionate share of the amount of the pay adjustments to be allocated to the female-dominated classifications and how it is to be allocated among [those] classifications.” She found a Letter of Agreement signed by the parties had been provided to Cabinet for a decision in accordance with s. 13(3) . [ 45 ] Noting “the details of this decision” by Cabinet were “nowhere in the Record” before her, she nevertheless found “[i]t appear[ed] that Cabinet did come to a decision on the ‘timing and flow’ of the amount of pay equity adjustments to be allocated and how the amount would be allocated.” In her view, “Cabinet’s decision” was a “critical fact” relevant to the issue before the adjudicator, and he ignored its significance and relevance.

She thought the Union’s complaint was directed at the wrong issue. She found “the real complaint here could only be that the Employer somehow violated the Pay Equity Act ” because “[t]he collective agreement cannot grant to employees pay equity adjustments in violation of the Cabinet decision in this regard.” She explained: While the Pay Equity Act provides that Cabinet’s decision on pay equity share and allocation is automatically included in any collective agreements in existence or negotiated during the pay equity implementation process, this cannot alter Cabinet’s decision on pay equity.

This is mandated by s. 13(4) of the Act and s. 4 of Regulation 2010-54.

[ 46 ] The application judge interpreted the adjudicator’s analysis of the PEA as being detached from his final decision and found it was unreasonable for him to have come to his decision “without considering if this would be in violation of Cabinet’s own decision in this regard.” The judge determined that, by examining issues that were peripheral, not relevant to the issue before him, and not raised by the parties, such as the Collective Agreement and the JIA, the adjudicator had “veered off track.” She thought “[p]erhaps the Adjudicator was motivated to view the matter from the lens of the collective agreement, as is the source of his jurisdictional authority.” [ 47 ] The application judge believed the adjudicator was led astray by the same source of confusion that had originally trapped the parties: the fusing together of the pay equity process with the collective bargaining process “by applying the pay equity adjustments to the collective agreement wage tables.” [ 48 ] According to her

interpretation of the PEA “[t]he Employer is not required to negotiate how the pay adjustments are allocated as the Employer is simply required to comply with the decision of Cabinet in this regard,” and “the Union is not granted any authority to agree or not to agree with the Employer’s decision on the amount or the allocation after the parties reach an agreement on the inequities.” She noted that the adjudicator “appeared to be motivated by a lack of fairness for certain employees who were left out of the payments, but fairness is not the issue,” and that “[t]he legislation and the Employer’s decision in relation thereto should dictate the outcome.” Accordingly, she allowed the application for judicial review, quashed the Adjudication Decision and remitted the matter back to adjudication.

III. Grounds of Appeal [ 49 ] The Union maintains the reviewing judge erred in law, or in mixed fact and law, by: 1) applying the incorrect standard of review, or by misapplying the appropriate standard of review to the Adjudication Decision; 2) failing to appreciate the distinction between his Majesty the King as represented by Treasury Board and His Majesty the King as represented by Executive Council (or Cabinet) in the context of the PEA ; and 3) making findings of fact in the absence of evidence. IV.

Standard of Review [ 50 ] When faced with appeals from judicial review decisions, appellate courts must decide whether the lower court identified the appropriate standard of review and applied that standard correctly. To do so, the appellate court must “step into the shoes of the lower court” and focus on the administrative decision using the appropriate standard of review (see Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 , at paras. 45-46 ; Ayangma v. Université de Moncton, Moncton Campus et al. , 2019 NBCA 73 , [2019] N.B.J.

No. 292 (QL) , at para. 14 ). [ 51 ] Before the reviewing judge , both parties agreed the appropriate standard of review applicable to the Adjudication Decision was reasonableness, as set out in Vavilov . She agreed. Because she correctly identified the applicable standard of review, the issue on appeal turns on the manner in which it was applied, or rather misapplied, to the circumstances of this case. V. Analysis A. Deference and Vavilov principles generally [ 52 ] In Vavilov , the Supreme Court clarified the law of judicial review and adopted a revised framework for

determining the standard of review where a court reviews the merits of an administrative decision.

The Supreme Court established a presumption that reasonableness is the applicable standard in all cases and stated that an administrative tribunal’s expertise remains a relevant consideration in conducting reasonableness review. [ 53 ] Judicial review on a reasonableness standard “finds its starting point in judicial restraint and respects the distinct role of administrative decision makers.” A reviewing court’s role is to “ review ,” and it is therefore required to show deference to the decision of an administrative tribunal.

In so doing, it must refrain from deciding the issue itself (emphasis in original; Vavilov , at paras. 75 and 83-85 ). [ 54 ] Reviewing courts should only intervene in matters “where it is truly necessary to do so to safeguard the legality, rationality and fairness of the administrative process.” The focus should therefore not be “on the conclusion the court itself would have reached in the administrative decision maker’s place” ( Vavilov , at paras. 13 and 15 ). [ 55 ] Deference to the specialized knowledge and expertise of administrative tribunals was affirmed in Vavilov , where the Supreme Court again emphasized that an administrative decision may be reasonable despite being “puzzling or counterintuitive” to generalists (para. 93). [ 56 ] Adjudicators appointed under the PSLRA are deemed to possess an institutional expertise in labour matters, and deference is owed to their interpretative rulings, including interpretative decisions involving a statute which is closely connected to their functions (see Her Majesty the Queen as represented by the Board of Management on behalf of the Department of Natural Resources v.

Pinder and New Brunswick Union of Public and Private Employees , 2012 NBCA 60 , 391 N.B.R. (2d) 110 , at para. 8 ). Furthermore, in the authoritative text Canadian Labour Arbitration , 5th ed., authors Brown and Beatty assert that adjudicators may be called on to resolve technical and legal questions about pay equity issues (at para. 8:1). B. Applying Vavilov [ 57 ] In Vavilov , the Supreme Court cautioned against a disguised correctness review.

The reviewing court must not ask what decision it would have made, attempt to ascertain the range of possible conclusions, conduct a de novo analysis or seek to determine the correct solution to the problem (at para. 83). [ 58 ] The reviewing court must instead focus on the decision actually made and consider whether the decision as a whole, including both the rationale and the outcome, is reasonable ( Vavilov , at paras. 15 and 83 ).

Judicial review, and more specifically reasonableness review, is not a “line-by-line treasure hunt for error.” Furthermore, reviewing courts must not make their own “yardstick” and then use that yardstick to measure what the administrative decision maker did ( Vavilov , at paras. 83 and 102 ). [ 59 ] According to Vavilov , the written reasons given by administrative decision makers “must not be assessed against a standard of perfection,” and reviewing courts cannot expect them “to deploy the same array of legal techniques that might be expected of a lawyer or judge.” Even if reasons do not include all the arguments, statutory provisions, jurisprudence, or other details the reviewing judge would have preferred, that on its own does not form a sufficient basis to set the decision aside.

Administrative tribunals are not required to engage in a formalistic statutory

interpretation exercise in every case. Reviewing courts must remain acutely aware that “administrative justice” will not always look like “judicial justice” ( Vavilov , at paras. 91-92 and 119 ). [ 60 ] Reviewing courts should therefore not insist on the sort of express, lengthy and detailed reasons that, if asked to do the job themselves, they might have provided ( Vavilov , at paras. 91-94 ). To so insist could subvert the Legislature’s intention that administrative processes be timely, efficient and effective. [ 61 ] Vavilov directs that, when considering matters of statutory

interpretation, a reviewing court “should generally pause before definitively pronouncing upon the

interpretation of a provision entrusted to an administrative decision maker.” The Supreme Court also cautions that “the reviewing court does not undertake a de novo analysis of the question or ‘ask itself what the correct decision would have been’” ( Vavilov , at paras. 116 and 124 , citing Law Society of New Brunswick v. Ryan , 2003 SCC 20 , [2003] 1 S.C.R. 247 , at para. 50 ). [ 62 ] A failure to cite specific provisions of legislation is not a fatal flaw. Where an administrative tribunal has not provided explicit reasons for interpreting a provision in a particular way, the reviewing court should attempt to discern the

interpretation adopted from the record and determine whether it is reasonable ( Vavilov , at para. 123 ).

[ 63 ] Therefore, administrative reasons on central issues do not always need to be explicit. They can be implied. Looking at the entire record, the reviewing court must be sure, from explicit words in reasons or from implicit or implied aspects of the record or both, that the administrative decision maker was alive to the key issues, including issues of statutory

interpretation, and reached a decision on them (see Zeifmans LLP v. Canada , 2022 FCA 160 , [2022] F.C.J. No. 1373 (QL) , at para. 10 ). [ 64 ] Very recently, the Court of Appeal for Ontario in Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1 , 2022 ONCA 780 , [2022] O.J. No. 4983 (QL) , applied the Vavilov framework to a labour dispute. That case involved an appeal of a reviewing court’s ruling that quashed three decisions of the Ontario Labour Relations Board (“OLRB”).

The Court of Appeal’s application of the reasonableness standard of review is instructive for the present appeal. In particular, the court wrote: The Supreme Court affirmed in Vavilov that reviewing courts must not interfere with a tribunal's factual findings absent exceptional circumstances, and should refrain from reweighing and reassessing the evidence considered by the decision maker (para. 125). It explained that many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings apply equally in the context of judicial review.

The Board did not make the above-noted findings that the Divisional Court made about Mr. Turkiewicz’s personal circumstances. There were no exceptional circumstances justifying the Divisional Court’s departure from the general prohibition against reassessing evidence. Therefore, the Divisional Court erred in making those findings and in relying on them in concluding the OLRB Decisions were unreasonable. [paras. 101-102] [ 65 ] The same can be said of its decision in the companion case, Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975 , 2022 ONCA 779 , [2022] O.J.

No. 4984 (QL) . [ 66 ] In Bricklayers and Enercare , the Court of Appeal allowed the appeals and set aside the decisions on review on the basis that the reviewing courts breached the Vavilov dictates by misapplying the reasonableness standard and finding that the OLRB’s decisions were unreasonable. C. Grounds of appeal raised by the Union [ 67 ] I will now address the grounds of appeal raised by the Union, though in a different order, and explain how the reviewing judge erred in applying the reasonableness standard to the Adjudication Decision.

(1) Did the reviewing judge err in law, or in mixed fact and law, by misapplying the appropriate standard of review to the Adjudication Decision? [ 68 ] Although she correctly identified reasonableness as the standard of review, with respect, the reviewing judge committed an error by failing to adhere to the Vavilov framework when applying the standard.

The judge exhibited neither the requisite deference to the Adjudication Decision, nor respect for the adjudicator’s specialized expertise as an adjudicator appointed under the PSLRA . [ 69 ] Vavilov requires that a reviewing court applying reasonableness “adopt a posture of restraint” (para. 24) that denotes respect for the Legislature’s choice “to delegate certain matters to non-judicial decision makers through statute” (para. 26) and for the expertise of administrative decision makers and their specialized function (paras. 27-28). [ 70 ] In the present case, the reviewing judge was required to defer to the adjudicator, who was best placed to provide an

interpretation reflecting his statutory mandate and the context in which he operated. The notion that administrative tribunals hold the “interpretative upper hand” under a reasonableness review was articulated by the Supreme Court in McLean v. British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 S.C.R. 895 , and thus reviewing courts must “defer to any reasonable

interpretation adopted by an administrative decision maker, even if other reasonable

interpretations may exist” (emphasis in original; para. 40).

[ 71 ] The reviewing judge makes no reference, either explicitly or implicitly, to the necessity for deference. Rather than assessing whether the adjudicator’s

interpretation fell within a range of acceptability or defensibility, she undertook her own independent analysis of the PEA and provided her own statutory

interpretation or appreciation of s. 13. [ 72 ] In doing so, the reviewing judge committed an error by adopting her own

interpretation of the PEA and measuring it against the adjudicator’s

interpretation, deeming the adjudicator’s

interpretation unreasonable because it did not conform to her preferred

interpretation. She thus effectively succumbed to the temptation against which the Supreme Court cautioned in Vavilov and, the following day, in Canada Post Corp. v. Canadian Union of Postal Workers , 2019 SCC 67 , [2019] 4 S.C.R. 900 : The administrative decision maker “holds the interpretative upper hand” ( McLean v. British Columbia (Securities Commission) , 2013 SCC 67 , [2013] 3 S.C.R. 895 , at para. 40 ). When reviewing a question of statutory

interpretation, a reviewing court should not conduct a de novo

interpretation, nor attempt to determine a range of reasonable

interpretations against which to compare the

interpretation of the decision maker. “[A]s reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did” ( Delios v. Canada (Attorney General) , 2015 FCA 117 , 100 Admin. L.R. (5th) 301 , at para. 28 , quoted in Vavilov , at para. 83 ). The reviewing court does not “ask itself what the correct decision would have been” ( Law Society of New Brunswick v. Ryan , 2003 SCC 20 , [2003] 1 S.C.R. 247 , at para. 50 , quoted in Vavilov , at para. 116 ).

These reminders are particularly important given how “easy [it is] for a reviewing court to slide from the reasonableness standard into the arena of correctness when dealing with an interpretative issue that raises a pure question of law” ( New Brunswick Liquor Corp. v. Small , 2012 NBCA 53 , 390 N.B.R. (2d) 203 , at para. 30 ). [para. 40] [ 73 ] I agree with the Union that the reviewing judge provided her own

interpretation of the PEA ’s statutory scheme and substituted it for that of the adjudicator. Her reinterpretation of the PEA as hinging primarily on a “Cabinet decision” is evident in several paragraphs of her decision (paras. 25, 27, 35, 38, 40-41, and 43). [ 74 ] This approach is contrary to Vavilov where, in matters of statutory

interpretation, the Supreme Court warns that “a court should generally pause before definitively pronouncing upon the

interpretation of a provision entrusted to an administrative decision maker” (para. 124). It is well established in jurisprudence that predates Vavilov that administrative decision makers are owed deference in their

interpretation of their “home” statute or statutes closely connected to their function. It was not open to the reviewing judge to engage in her own

interpretation of the PEA , a statute closely connected to the area of the adjudicator’s expertise (see O’Halloran , at para. 44). [ 75 ] The reviewing judge complains the adjudicator does not “reference” s. 13(3) of the PEA “in his analysis section.” Later, she also finds fault with the adjudicator’s “failure to address” ss. 13(3) and (4) of the PEA and s. 4 of the General Regulation . That view formed the basis on which she set aside the Adjudication Decision.

Contrary to the Vavilov instructions, she assessed the Adjudication Decision against a standard of perfection or, at the very least, against her own notion of “judicial justice.” [ 76 ] In his reasons, the adjudicator “referenced” and “addressed” s. 13 generally and recognized the Employer’s obligation to make pay equity adjustments: On September 18, 2015, pursuant to

section 13 of the PEA , the Employer and representatives of the Union entered into an agreement identifying those classifications in which pay inequities existed. That then left the Employer to proceed with payment of pay equity adjustments. [ 77 ] As previously stated, administrative tribunals are not required to include all arguments or statutory provisions in their reasons. By referring to s. 13(3) early in his reasons and to the related testimony of one of the Employer’s witnesses, the adjudicator was clearly alive to this issue: Ms.

Beswarick testified that the results of the pay equity implementation process were provided to Treasury Board (Board of Management) for a decision on the proportionate share of the amount of the pay adjustments to be allocated and how the amount would be allocated among the female-dominated classifications; as she put it “the timing and flow” of adjustments, pursuant to subsection 13(3) of the Act . On or about June or July 2016, Ms.

Beswarick met with Theresa McCallister, Provincial President, CUPE Local 2745, and Marilyn MacCormack, Provincial Recording Secretary, CUPE Local 2745 and delivered Government’s decision on the “timing and flow” of the

amount of the pay equity adjustments to be allocated and how the amount would be allocated. This concluded the pay equity implementation process for this group. [ 78 ] As for s. 13(4) of the PEA , the adjudicator referred to it twice in his reasons.

He later interpreted that provision and applied it to the facts, when he confirmed the provisions of the Collective Agreement, inclusive of the JIA, did not prevail over the PEA . [ 79 ] By recognizing that all eligible members should receive the retroactive pay equity adjustments to which they were entitled, the adjudicator also ensured that such adjustments were made in a “fair, equitable and nondiscriminatory manner,” as required by s. 4 of the General Regulation . [ 80 ] Regarding pay equity adjustments respecting “the employer’s determinations referred to in subsection 13(3) of the Act ,” the Adjudication Decision does not interfere with the Employer’s ability to decide the “timing and flow” of the pay equity adjustments.

The parties had mutually agreed on the pay equity inequities and the retroactive effect of the adjustments to April 1, 2012. Regarding the retroactive adjustments, and based on the parties’ agreement that identified pay inequities, it was still up to the Employer to decide the amount to be paid at a time (i.e. increments) and the time required to close the pay equity gap.

What s. 13(3) does not change, however, are the inequities identified by agreement in s. 13(2) that require correction, nor does that provision state some “employees,” within the meaning of the PEA , may be excluded from the payment of pay equity adjustments. [ 81 ] As a further illustration of the reviewing judge’s misapplication of the reasonableness standard, she stated: “The legislation and the Employer’s decision in relation thereto should dictate the outcome.” The reviewing judge ’s focus was evidently not on the Adjudication Decision or the adjudicator’s expertise, but rather on the conclusion she would have reached in the adjudicator’s place. [ 82 ] Reasonableness review requires courts to begin their inquiry with the reasons of the decision maker, putting them first, and “seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion” ( Vavilov , at para. 84 ).

The reviewing court “must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable” ( Vavilov , at para. 99 ). [ 83 ] Deference is an essential component of this process. Exercising proper deference can reveal that “an apparent shortcoming in the [decision maker’s] reasons is not, in fact, a failure of justification, intelligibility or transparency” ( Vavilov , at para. 94 ). [ 84 ] Respectfully, I find the reviewing judge failed to abide by these instructions in her consideration of the adjudicator’s reasoning process.

Her criticism of the adjudicator’s analysis is unsupported by a review of the adjudicator’s reasons and illustrates a lack of attentiveness to the logic and rationale for the adjudicator’s decision. [ 85 ] The reviewing judge describes the adjudicator’s analysis of the PEA as “detached from the final decision.” A reasonableness review according to Vavilov would have revealed that the analysis of the PEA , including its purpose and definition of “employee,” the employer obligations it creates and its interaction with the Collective Agreement, naturally led the adjudicator to uphold the grievance. [ 86 ] The Supreme Court’s caution that a reviewing court should not engage in a disguised correctness review was more recently reiterated in Canada (Citizenship and Immigration) v Mason , 2021 FCA 156 , [2021] F.C.J.

No. 811 (QL) , at para. 37 . The reviewing judge’s failure to defer to the adjudicator’s

interpretation in this case was a function of her disguised correctness review. This, in itself, constitutes a reviewable error that warrants appellate intervention. [ 87 ] At its core, reasonableness review recognizes the legitimacy of multiple possible outcomes, even where they are not the court’s preferred solution (see Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2018 SCC 31 , [2018] 2 S.C.R. 230 , para. 55 ). As outlined above, the reasons of the reviewing judge reveal a “preferred solution.” As such, I conclude the reviewing judge’s decision does not reflect a proper application of reasonableness review.

(2) Did the reviewing judge err in law or mixed fact and law, when she made findings of fact in the absence of evidence?

[ 88 ] The Union submits the reviewing judge ’s reasons were primarily focused on what she described as the “decision” of Cabinet.

In fact, she referred to the “decision of Cabinet” as a “critical fact.” [ 89 ] According to the Adjudication Decision, the Employer’s decision on the “timing and flow” of the amount of the pay equity adjustments to be allocated and how the amount would be allocated was delivered to the Union “on or about June or July 2016.” As previously indicated, the reviewing judge acknowledged the decision was absent from the record. [ 90 ] The reviewing judge wrote, “The collective agreement cannot grant to employees pay equity adjustments in violation of the Cabinet decision in this regard.” This is problematic for several reasons, including: 1) there was no evidence of a decision from Cabinet, or any details thereof; and 2) even if the reviewing judge were referring to the Employer’s decision on the “timing and flow” of the adjustments, the record contained no details of that decision. [ 91 ] The reviewing judge made assumptions regarding the evidence.

More specifically, she “assum[ed] the agreement [on inequities] reflects the decision of Cabinet […].” By doing so, she not only reweighed and reassessed the evidence but also made findings of fact in the absence of evidence, all of which is contrary to the guidance given in Vavilov .

There were no exceptional circumstances at play in the Adjudication Decision to justify a reweighing of the evidence. [ 92 ] Furthermore, it is not, on its own, a legitimate basis to overturn an administrative decision simply because the reasons do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” ( Vavilov , at para. 91 , quoting Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708 , at para. 16 ).

As stated by the Federal Court of Appeal in Mason , silence on a particular point is not necessarily a “fundamental gap” in a decision maker’s reasons. A holistic and sensitive review of the Adjudication Decision could have led the reviewing judge “to find that an implicit finding must have been made” with respect to these provisions (para. 38). [ 93 ] The judge’s

interpretation of s. 13(3) of the PEA led her to assume, in the absence of any supporting evidence, a decision from Cabinet existed. Despite this lack of evidence, she not only assumed the content of the decision, but she also assumed it was contrary to the Adjudication Decision and then faulted the adjudicator on that basis. [ 94 ] Therefore, the reviewing judge erred by reweighing and reassessing evidence, making findings of fact in the absence of evidence and relying on those findings to conclude the Adjudication Decision was unreasonable.

(3) Did the reviewing judge err in law, or in mixed fact and law, by failing to appreciate the difference between His Majesty the King as represented by Treasury Board and His Majesty the King as represented by Cabinet? [ 95 ] The Union submits the reviewing judge referenced the obligations under the PEA as applying to “Cabinet” even though the PEA defines “employer” “with respect to Parts I, II and III of the Public Service” as “[His] Majesty in the right of the Province as represented by the Treasury Board ” without mention of “Cabinet” (emphasis added; s. 1). I agree. [ 96 ] In addition to an absence of the deference to the adjudicator’s

interpretation of the PEA that reasonableness review would have required, I would also agree with the Union that this conflation of the “Employer” with “Cabinet” led the reviewing judge to make interpretative statements about the PEA that are incorrect in law, essentially, that a Cabinet decision dictates the outcome of the pay equity implementation process and that an adjudicator appointed under the PSLRA is bound by such decision. These statements do not align with this Court’s

interpretation of the PEA ’s scheme and the jurisdiction of adjudicators appointed under the PSLRA over pay equity matters related to collective agreements in O’Halloran . D. Reasonableness of the Adjudication Decision (

a) Was the Adjudication Decision reasonable?

[ 97 ] I will now “step into the shoes” of the reviewing judge and review the Adjudication Decision to determine whether, in accordance with the Vavilov instructions, it is reasonable. Under Vavilov , there are two steps in the reasonableness review. The first is to focus on the actual administrative decision to see if it is rational and logical. The second is to consider whether the administrative decision is tenable given the factual and legal constraints that bore on it (see Bricklayers , at para. 62). (

i) The Adjudication Decision is rational and logical [ 98 ] According to Vavilov , a reasonable decision must be based on reasoning that is both rational and logical and devoid of any fatal flaws in its overarching logic. For the following reasons, I find the Adjudication Decision to be both rational and logical. [ 99 ] The adjudicator clearly and thoroughly identified the evidence before him and the facts upon which he relied in reaching his decision.

He also set out the respective positions of the parties. [ 100 ] The main issue before the adjudicator was a discrete one: Did the Employer fail to comply with its legal obligations under the PEA by not making retroactive pay equity adjustments to employees who were entitled to such adjustments, despite the agreements entered into by the parties? The adjudicator correctly framed the issue and answered that question in the affirmative.

He was not required to determine the extent of any pay inequities or the amount of any adjustments, nor did he. [ 101 ] In its written submission, the Union lists the relevant sections of the PEA that the adjudicator considered: • the definition of “employee” (s. 1); • the definition of “pay equity” (s. 1); • the purpose of the PEA ( s. 3 ); • the application of the PEA ( s. 4(1) ); • the Employer’s obligation to implement pay equity (s. 7); • the fact that pay equity adjustments implemented by the Employer prevail over the provisions of all relevant collective agreements ( s. 13(4) ); • the Employer’s obligation to ensure that employees affected by pay equity are informed about the implementation of the pay equity process and of the outcome of the process (s. 16); • the Employer’s obligation to start making pay equity adjustments as of April 1, 2012 (s. 3(1) of the General Regulation – PEA , 2009); and • the requirement for the pay equity process to be conducted in negotiations separate and apart from collective bargaining to renew or conclude a collective agreement (s. 12(2)). [ 102 ] The adjudicator interpreted s. 3 of the General Regulation as “establishing April 1, 2012 as the date from which the Employer was to start making pay adjustments to employees.”

[ 103 ] As appropriately pointed out by the adjudicator, the definition of the term “employee” in the PEA governs where statutory rights, obligations and protections are in issue. He considered the broad definition of “employee” in the PEA , which means “a person who is employed in the Public Service” with the exception of a chief executive.

Therefore, only a chief executive is not an “employee” for the purpose and application of the PEA . [ 104 ] The adjudicator also considered the issue of whether, for the application of pay equity adjustments, the PEA distinguishes between employees who are subject to the collective bargaining regime under the PSLRA , and employees who are not represented by a bargaining agent. He found that it did not.

He also determined the General Regulation compelled the Employer to commence making adjustments on April 1, 2012, because there was no evidence that an extension had been granted. [ 105 ] The evidence on the record showed the Employer had not acted in accordance with those obligations, namely, excluding some employees from pay equity payments to which they are statutorily entitled under the PEA and its General Regulation . [ 106 ] The adjudicator held the PEA prevails over any agreement reached between the parties, including the Collective Agreement, Undertaking and JIA, all of which were considered by him.

In particular, he held the JIA reflected a “clear understanding of the parties regarding retroactive wage payments to casual employees.” He therefore disagreed with the Employer’s position that the Collective Agreement and the JIA dictated the payment of retroactive pay equity adjustments, and that the normal practice of retroactivity can be overridden by agreement of the parties. [ 107 ] The adjudicator recognized the “special character” of pay equity adjustments that distinguishes them from general economic increases.

At no point did he confuse pay equity adjustments with the payment of wages. [ 108 ] The uncontradicted evidence before the adjudicator established that some casual Union members had not received the retroactive pay equity adjustments, which were owed to them because they had been employees during the relevant period. [ 109 ] The adjudicator concluded, after considering the evidence, arguments and authorities submitted by the parties, that the Employer must make pay equity adjustments to those employees who were denied those adjustments from April 1, 2012, until the date their employment ceased with the Employer. [ 110 ] The Adjudication Decision is clear that the Employer’s act of making pay equity adjustments in accordance with the JIA, being part of the Collective Agreement, rendered the JIA in conflict with the PEA because it deprived some employees of their statutory entitlements under the PEA .

Because

Article 1.03 of the Collective Agreement states provincial legislation and regulations will prevail over conflicting provisions in the Collective Agreement, rendering these provisions “null and void,” the Employer’s obligations under the PEA and its General Regulation prevail over the JIA. [ 111 ] I find there is no flaw in the adjudicator’s logic, and his decision is entirely coherent and rational when considered together with the evidentiary record. (ii) The Adjudication Decision is tenable in light of the relevant factual and legal constraints [ 112 ] Under the Vavilov analysis, a decision is unreasonable if it is untenable, in some respect, in light of the relevant factual and legal constraints that bear on it ( see Vavilov , at para. 101 ). [ 113 ] Some of the relevant factual and legal constraints courts are encouraged to consider on reasonableness review include the governing statutory scheme; other statutes or common law; principles of statutory

interpretation; the evidence before the decision maker; the submissions of the parties; past practices and past decisions of the administrative body; and the impact of the decision on the affected individual(s). [ 114 ] The relevant governing statutory schemes in this matter are the PSLRA and the PEA . I find that the adjudicator’s analysis was not contrary to the substance of these Acts and that his

interpretation of the statutes was in accordance with s. 17 of the

Interpretation Act , R.S.N.B. 1973, c. I-13 , and the modern principles of statutory

interpretation requiring legislation and regulations

receive a large and liberal construction and

interpretation . Indeed, the adjudicator was alive to the text, context and purpose of the provisions examined. [ 115 ] For example, the adjudicator dealt with the scope of the definition of “employee” in both the PSLRA and the PEA , as well as the significance of the PEA ’s objective to confront systemic gender discrimination and the impact faced by the individuals who would be denied their statutory entitlements.

This is reflected in his findings about the special character of pay equity adjustments, and in his acknowledgement that the PSLRA was amended in 2010 to include “casuals” in the definition of “employee” following a finding in CUPE v. PNB , 2009 NBQB 164 , 350 NBR (2d) 73 , that excluding them was contrary to s. 2(

d) of the Charter . [ 116 ] I find no error in the adjudicator’s

interpretation of the PEA or its interaction with the PSLRA and the Collective Agreement. The adjudicator’s reasons show that he properly and thoroughly considered the evidence before him and identified the facts on which he relied. He also clearly and directly addressed each of the parties’ submissions. [ 117 ] The Adjudication Decision referred to the Employer’s statutory obligation to implement pay equity: The PEA also provides that the obligation of implementing pay equity lies on the Employer, whose duty, in accordance with

section 7 of the Act , it is to take “such action as may be necessary to implement pay equity” in the Public Service”. [ 118 ] As employees in the province’s public service, all members of the Union fell under the definition of “employee” under the PEA and were therefore entitled to the pay equity adjustments owed to them.

The Adjudication Decision is therefore consistent with the PEA as it effectively held that employees who were eligible for retroactive pay equity adjustments should receive those adjustments. [ 119 ] According to the record, a number of employees who were employed with the Employer and worked during the period from April 2012, to September 2016, had not received any retroactive pay equity adjustments.

It was therefore reasonable for the adjudicator to conclude, following the process and agreement reached by the parties regarding the identification of pay inequities, that they were entitled to the pay equity adjustments owed to them. [ 120 ] Nothing in the PEA specifically excludes employees from retroactive pay equity adjustments for the period they were employees of the public service.

In addition, nothing in the PEA requires employees to make a formal or written request to receive pay equity adjustments. [ 121 ] After considering the purpose of the PEA , its relevant provisions and its General Regulation , the adjudicator reasonably held the Employer failed in its obligation to implement pay equity and make pay equity adjustments to all eligible employees.

That ruling is entirely consistent with the relevant governing statutory scheme and the evidence. [ 122 ] In sum, when the Adjudication Decision is read as a whole with the degree of deference required on judicial review, the adjudicator’s reasons and outcome, which include his

interpretation and application of the PEA and its General Regulation , were reasonable under the Vavilov framework. VI. Conclusion and Disposition [ 123 ] I would allow the appeal, set aside the reviewing judge’s decision and reinstate the adjudicator’s decision. I would order the respondent to pay costs throughout, which I would fix at $4,000. Appendix “A”

Annexe « A » Pay Equity Act, 2009 , S.N.B. 2009, c. P-5.05

Definitions 1 The following

definitions apply in this Act . […] “employee” means a person who is employed in the Public Service but does not include a chief executive. […] “employer” means, with respect to Parts I, II and III of the Public Service, Her Majesty in the right of the Province as represented by the Treasury Board, and with respect to

Part IV of the Public Service, the various bodies corporate listed in that Part. […] Purpose of Act 3 The purpose of this Act is to implement pay equity within each of Parts I, II and III of the Public Service and in the case of a body corporate listed in

Part IV of the Public Service, within that organization. Application of Act 4

(1) This Act applies to employees employed in the Public Service. Loi de 2009 sur l’équité salariale , L.N.-B. 2009, c. P-5.05 Définitions 1 Les définitions qui suivent s’appliquent à la présente loi. […] « employé » Personne qui travaille au sein des services publics, mais ne s’entend pas d’un premier dirigeant. « employeur » Sa Majesté du chef de la province représentée par le Conseil du Trésor quant aux parties I, II et III de l’annexe 1 de la Loi relative aux relations de travail dans les services publics et pour ce qui est de la

partie IV de la même annexe, les différentes entités qui y sont nommées. Objet 3 La présente loi a pour objet la mise en œuvre de l’équité salariale au sein de chacune des parties I, II et III des services publics et au sein de toute organisation qui relèvent des entités nommées à la

partie IV des services publics. Champ d’application 4

(1) La présente loi s’applique aux employés qui travaillent au sein des services publics. Obligation de l’employeur quant à la mise en œuvre de l’équité salariale

Duty of employer to implement pay equity 7 An employer shall take such action as may be necessary to implement pay equity within each of Parts I, II and III of the Public Service or if the employer is a body corporate listed in

Part IV of the Public Service, within its organization. Conduct of parties during implementation process 12

(1) Throughout the process of the implementation of pay equity, an employer and bargaining agents who represent affected employees in the Public Service shall (

a) meet and determine the process to be followed by the parties with respect to the implementation of the pay equity process, (

b) disclose to each other information in their possession or control relevant to the implementation of the pay equity process, and (

c) bargain in good faith with each other, making every reasonable effort to reach agreement respecting the implementation of the pay equity process. Agreements on pay equity 13

(1) An employer and the bargaining agents affected shall jointly endeavour to reach an agreement, within the period of 12 months after the commencement of this Act , or within such longer time as may be allowed by the Director, respecting (

a) the selection of a nondiscriminatory job evaluation system, (

b) the identification of all female-dominated classifications and male-dominated classifications, and (

c) the manner in which the job evaluation 7 L’employeur doit prendre toutes les mesures nécessaires pour mettre en œuvre l’équité salariale au sein de chacune des parties I, II ou III des services publics ou de son organisation s’il s’agit d’une entité nommée à la

partie IV des services publics. Conduite des parties lors du processus de mise en œuvre de l’équité salariale 12

(1) Dans le processus de mise en œuvre de l’équité salariale, l’employeur et les agents de négociation qui représentent les employés concernés des services publics doivent faire ce qui suit :

a) se rencontrer et fixer la procédure qu’ils suivront pendant le processus de mise en œuvre de l’équité salariale;

b) communiquer l’un à l’autre les renseignements qu’ils détiennent et qui sont pertinents au processus de mise en oeuvre de l’équité salariale;

c) négocier de bonne foi, en faisant tous les efforts possibles pour aboutir à un accord concernant le processus de mise en œuvre de l’équité salariale. Accords quant à l’équité salariale 13

(1) Un employeur et les agents négociateurs concernés doivent dans les douze mois de l’entrée en vigueur de la présente loi ou un délai plus long imparti par la directrice, s’efforcer d’aboutir à un accord qui porte sur ce qui suit :

a) le choix d’un système non discriminatoire d’évaluation des postes;

b) l’identification de toutes les classifications à prédominance féminine et de toutes les classifications à prédominance masculine;

c) la manière selon laquelle le système d’évaluation des emplois doit être appliqué aux classifications à prédominance féminine et aux classifications à prédominance masculine.

system is to be applied to the female- dominated classifications and the male- dominated classifications. 13

(2) The employer and the bargaining agents shall, in accordance with the agreement and within the period of 24 months after the commencement of this Act , or within such longer time as may be allowed by the Director, (

a) apply the nondiscriminatory job evaluation system in order to determine and compare the value of the work performed by female-dominated classifications and male- dominated classifications, and (

b) endeavour to reach an agreement identifying the inequities between female- dominated classifications and male- dominated classifications performing work of equal or comparable value. 13

(3) The employer shall then determine the proportionate share of the amount of the pay adjustments to be allocated to the female- dominated classifications and how it is to be allocated among the female-dominated classifications and shall provide the bargaining agent affected with a written notice of its decision. 13

(4) The pay adjustments implemented by the employer and as reflected in the written notice prevails over the provisions of all relevant collective agreements and shall be deemed part of and be incorporated into and form part of the relevant collective agreements and of all collective agreements entered into during any stage of the implementation of pay equity. Communication with affected employees 16 An employer shall ensure that employees affected by pay equity are informed about the implementation of the pay equity process from time to time and of the outcome of the process. 13

(2) L’employeur et les agents négociateurs concernés doivent dans les vingt-quatre mois de l’entrée en vigueur de la présente loi ou dans un délai plus long imparti par la directrice, faire ce qui suit :

a) appliquer le système non discriminatoire d’évaluation des postes de façon à déterminer la valeur du travail exécuté par les classifications à prédominance féminine et à déterminer la valeur du travail exécuté par les classifications à prédominance masculine et les comparer;

b) s’efforcer de parvenir à un accord par lequel ils cernent les iniquités entre les classifications à prédominance féminine et les classifications à prédominance masculine exécutant un travail de valeur égale ou comparable. 13

(3) L’employeur détermine dès lors, la part du montant des redressements de rémunération qui revient à chacune des classifications à prédominance féminine et comment cela sera fait et en avise par écrit l’agent négociateur concerné. 13

(4) Les redressements de rémunération faits par l’employeur de la façon annoncée dans l’avis écrit ont préséance sur ce que prévoient les dispositions de toutes les conventions collectives pertinentes ou de celles intervenues à toute étape de la mise en œuvre de l’équité salariale tout en étant réputés en faire

partie intégrante. Communication aux employés concernés 16 L’employeur s’assure que le point sur le processus de mise en oeuvre de l’équité salariale ainsi que sur le résultat du processus soit fait de temps à autre et que les employés concernés en soient informés.

General Regulation - Pay Equity Act, 2009 ( N.B. Reg. 2010-54 ) Beginning of pay adjustments 3

(1) In the case of Parts I, II and III of the Public Service, the employer shall start to make pay adjustments under the Act on April 1, 2012, unless an extension has been granted under

section 14 of the Act . General restrictions with respect to pay adjustments 4 Pay adjustments shall be made in a fair, equitable and nondiscriminatory manner and shall respect the employer’s determinations referred to in subsection 13(3) of the Act . Period of time over which pay adjustments may be made 6

(1) Subject to subsection (2), the employer shall make all pay adjustments during the 4 consecutive 12-month periods that follow the end of the 2011 fiscal year. 6

(2) If pay adjustments have not been completed before the end of the fourth period referred to in subsection (1), the employer may apply to the Director for one or more extensions, but the combined total of all extensions shall not exceed 6 years. Règlement général - Loi de 2009 sur l’équité salariale (Règl. du N.B. 2010-54) Début des redressements de rémunération 3

(1) S’agissant des parties I, II et III des services publics, l’employeur commence à faire les redressements de rémunération que prévoit la Loi le 1er avril 2012, à moins qu’une prolongation n’ait été accordée en vertu de l’article 14 de la Loi. Restrictions générales liées aux redressements de rémunération 4 Les redressements de rémunération sont faits de façon juste, équitable et non discriminatoire dans le respect des déterminations de l’employeur que prévoit le paragraphe 13(3) de la Loi. Délai des versements des montants des redressements de rémunération 6

(1) Sous réserve du paragraphe (2), l’employeur ne peut faire de redressements de rémunération après l’expiration de quatre délais consécutifs de douze mois qui suivent la fin de l’exercice de 2011. 6

(2) Si les redressements de rémunération ne sont pas terminés avant la fin du quatrième délai de douze mois, l’employeur peut demander à la directrice de lui accorder une ou plusieurs prolongations de délai. Les prolongations confondues de tous ces délais ne peuvent dépasser six ans. Version française de la décision de la Cour rendue par LA JUGE QUIGG I. Introduction

[1] La Cour est saisie de l’appel de la décision par laquelle une juge de la Cour du Banc du Roi, tranchant une requête en révision judiciaire, a annulé, au motif qu’elle était déraisonnable, la décision d’un arbitre nommé sous le régime de la Loi relative aux relations de travail dans les services publics , L.R.N.-B. 1973, ch. P-25 (la LRTSP) . [2] La décision de l’arbitre portait sur un grief opposant le Syndicat canadien de la fonction publique,

section locale 2745, (le syndicat) et le Conseil du Trésor, maintenant désigné [TRADUCTION] « Sa Majesté le Roi du chef de la Province du Nouveau- Brunswick, représentée par Conseil du Trésor » (l’employeur). On alléguait dans le grief que l’employeur avait violé tant la convention collective que la Loi de 2009 sur l’équité salariale , L.N.-B. 2009, ch. P-5.05 (la LÉS ), en ne procédant pas aux redressements de rémunération au

titre de l’équité salariale pour tous les membres du syndicat qui y avaient droit. [3] Ce qui rendait le différend plus complexe, c’était le fait que les parties négociaient à l’égard de deux questions distinctes, mais coïncidentes : une nouvelle convention collective et, comme le prescrivait la LÉS , la mise en œuvre des redressements de rémunération au

titre de l’équité salariale. Tel que la Cour l’a écrit dans l’arrêt O’Halloran et autres c. Conseil du Trésor , 2018 NBCA 85 , [2018] A.N.-B. n° 346 (QL) : Ironiquement, le présent litige est alimenté, dans une large mesure, par des plaintes d’iniquité, tant sur le plan procédural que sur le fond, quant à l’application de la Loi de 2009 sur l’équité salariale , L.N.-B. 2009, ch. P-5.05. [par. 1] [4] Tandis que les augmentations de salaire (que l’on appelle aussi les [TRADUCTION] « augmentations économiques générales »), y compris les augmentations rétroactives, faisaient et font toujours

partie du cadre des négociations collectives, il n’en est pas de même pour les redressements de rémunération au

titre de l’équité salariale. À la demande de l’employeur, pour des raisons que le dossier n’explique pas entièrement, les échelles de traitement dans la convention collective visaient à la fois les augmentations de salaire et les redressements de rémunération au

titre de l’équité salariale. Il en est résulté une certaine confusion entre le droit des employés aux redressements de rémunération rétroactifs au

titre de l’équité salariale, devant commencer à être faits le 1 er avril 2012 par application de la LÉS et du Règlement général – Loi de 2009 sur l’équité salariale , et le droit au paiement rétroactif des augmentations salariales négociées entre les parties. À l’issue d’une audience tenue le 10 février 2021, l’arbitre a rendu une décision par laquelle il faisait droit au grief du syndicat et ordonnait à l’employeur de payer rétroactivement des redressements de rémunération au

titre de l’équité salariale à tous les employés admissibles au

titre de la LÉS à qui on les avait refusés, et ce pour la période allant du 1 er avril 2012 jusqu’à la date de cessation de leur emploi (la décision arbitrale). [5] L’employeur a sollicité le contrôle judiciaire de la décision arbitrale, faisant valoir qu’elle était déraisonnable. La juge siégeant en révision a annulé la décision arbitrale et renvoyé l’affaire pour nouvel arbitrage.

Le syndicat interjette appel devant la Cour de la décision de la juge siégeant en révision. [6] Les questions à trancher en appel sont celles de savoir si la juge siégeant en révision : 1) a choisi la norme de contrôle appropriée et l’a appliquée correctement; 2) a tiré des conclusions de fait en l’absence de preuve; 3) a commis une erreur en ne faisant pas la distinction, pour l’application de la LÉS , entre [TRADUCTION] « Sa Majesté le Roi, représenté par le Conseil du Trésor » et [TRADUCTION] « Sa Majesté le Roi, représenté par le Cabinet ». [7] À mon avis, l’erreur générale dans la décision de la juge siégeant en révision repose sur le fait qu’elle n’a pas suivi les directives énoncées par la Cour suprême dans l’arrêt Canada (Ministre de la Citoyenneté et de l’Immigration) c.

Vavilov , 2019 CSC 65 , [2019] 4 R.C.S. 653 , quant à la façon de procéder à

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