British Columbia Teachers' Federation (Greater Victoria Teachers' Association) Petitioner v. British Columbia Public School Employers' Association, 2015 BCSC 1081

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: B.C. Teachers' Federation v. B.C. Public School Employers' Assoc., 2015 BCSC 1081 Date: 20150624 Docket: S150660 Registry: Vancouver Between: British Columbia Teachers' Federation (Greater Victoria Teachers' Association) Petitioner And British Columbia Public School Employers' Association British Columbia Labour Relations Board Respondents Before: The Honourable Mr. Justice Myers Reasons for Judgment Counsel for the Petitioner: Diane MacDonald Robyn P.M. Trask Counsel for Employers' Association: Sari T.A. Wiens Counsel for Labour Relations Board: David W.

Garner Place and Dates of Hearing: Vancouver, B.C. May 28-29, 2015 Place and Date of Judgment: Vancouver, B.C. June 24, 2015 [ 1 ] This is a judicial review of a B.C. Labour Relations Board reconsideration decision made under s. 141 of the Labour Relations Code , R.S.B.C. 1996, c. 244. The dispute between the parties has had a long procedural history: in addition to two decisions of an arbitrator and two decisions of the Board, the matter has been considered by the Court of Appeal twice. An issue in this judicial review is the

interpretation of the Court of Appeal's rulings. [ 2 ] The dispute between the parties relates to the failure of the respondent employer to provide credit for pregnancy or parental leave taken by teachers, as required by s. 56(3) of the Employment Standards Act , R.S.B.C. 1996, c. 113 (the " ESA "). The subject of the decision under review relates to the remedy for that breach.

In turn, that involves the interplay between the ESA and a clause in the governing collective agreement requiring that a grievance be filed within 30 days of the alleged violation. [ 3 ] The decision under review is indexed as Greater Victoria School District No. 61 (Re) , BCLRB No. B205/2014. I. Background and procedural history [ 4 ] The petitioner British Columbia Teachers' Federation is the provincial bargaining agent for teachers in all public school boards.

The respondent British Columbia Public School Employers' Association is the provincial bargaining agent representing all public school boards in the province. I will refer to the petitioner as the union and the respondent as the employer. [ 5 ] Under the collective agreement teachers are paid based on their placement on a grid. There are two components to the grid: categories based on a teacher's level of education and 10 steps based on years of experience. A teacher is entitled to move up one step on the grid (in his or her category) for each year of experience to a maximum of 10 steps. [ 6 ]

Part 6 of the ESA contains requirements for the granting of leaves by an employer for its employees, including pregnancy and parental leaves. Section 56(3) provides: The employee is entitled to all increases in wages and benefits the employee would have been entitled to had the leave not been taken or the attendance as a juror not been required. The ESA came into force in November 1995.

[ 7 ] The employer did not credit teachers for time taken for pregnancy or parental leave; in other words, a teacher who took a leave did not advance on the salary grid as he or she would have done had leave not been taken. On October 2, 2009 the union filed a grievance claiming the increments teachers ought to have been credited with from the time the ESA was enacted. The grievance was filed under the 2006-2011 collective agreement.

The collective agreement provided a time limit for the filing of grievances: The grievance must be raised within thirty (30) working days of the alleged violation, or within thirty (30) working days of the party becoming reasonably aware of the alleged violation. [ 8 ] The employer denied the grievance and it was referred to arbitration. Prior to the arbitration, the employer changed its practice on a without prejudice basis effective September 1, 2010.

At that time the employer recalculated increments for any teachers who were on a pregnancy or parental leave as of April 1, 2009 and has paid salaries in accordance with the new increments from September 1, 2010 for any teacher who took a leave on or after April 1, 2009. In other words, no adjustments were made for leaves taken from 1995 to 2009. [ 9 ] The arbitration hearing took place in June 2012. John Orr was the arbitrator. [ 10 ] The union sought two remedies. The first was to have all affected teachers placed on the correct grid-line after being credited with leaves taken from 1995.

The second was retroactive payment for what teachers were underpaid as a result of not being on the correct grid-line, either from 1995, or in the alternative from the start of the then current collective agreement or in the further alternative from 30 working days prior to the date of the grievance. [ 11 ] The employer agreed with the union that the grievance was a continuing one and that the arbitrator had jurisdiction over the grievance. The employer argued that s. 56(3) of the ESA did not apply to the crediting of experience for increment purposes.

In the alternative, the employer argued that there could be no remedy for leaves taken more than 30 days prior to the grievance being filed. The employer argued that because it had already calculated increments for any teacher who had taken a leave from April 2009 onwards (six months preceding the date of the grievance) there was no basis for any further award. [ 12 ] The arbitrator issued his award in August 2012. He denied the grievance, finding that the term "increase in wages" in s. 56(3) of the ESA did not include salary grid increases earned through work experience.

Consequently, he did not make any findings with regard to the appropriate remedy. [ 13 ] The union appealed to the Court of Appeal under s. 100 of the Labour Code .

Sections 99-100 of the Code set out the respective appeal jurisdiction of the Board and the Court of Appeal: Appeal jurisdiction of Labour Relations Board 99(1) On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that (

a) a party to the arbitration has been or is likely to be denied a fair hearing, or (

b) the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations.

(2) An application to the board under subsection (1) must be made in accordance with the regulations. Appeal jurisdiction of Court of Appeal 100 On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99 (1). I set these sections out because they are germane to the

interpretation of the Court of Appeal's rulings. [ 14 ] In April 2013 the Court of Appeal allowed the appeal: British Columbia Teachers' Federation v. British Columbia School Employers' Association , 2013 BCCA 179 . At the outset the Court summarised the ruling of the arbitrator: [3] The arbitrator denied the grievance. He held that while s. 56(3) of the ESA requires an employer to pay all increases in wages attached to an employee's position while the employee is on leave under

Part 6 of the ESA , this did not include increments earned through actual teaching experience. [ 15 ] The Court of Appeal disagreed: [33] On the ordinary and plain meaning of the words in s. 56(3) , an employee on leave is entitled, upon his or her return, to any increase in wages to which he or she would have been entitled had the leave not been taken. If, by continuing to work, an employee would have received an increase in wages through a credit of an incremental step, then the employee is entitled to the same increase if he or she took leave under

Part 6 of the ESA rather than continued to work. If the employee had not taken the leave, he or she would have continued working and would have received an increase in wages through a credit of an incremental step. … [36] The wording of s. 56(3) is that the employee is entitled to all increases in wages he or she would have received had the leave not been taken. The

interpretation given to the

section by the arbitrator resulted in a "reading down" of the wording to have the meaning that the employee is entitled to some of the increases in wages he or she would have received had the leave not been taken. There is no

principled basis for giving the

section this narrow

interpretation. [emphasis in original] [ 16 ] The Court of Appeal remitted the matter back to the arbitrator. [ 17 ] Pursuant to the remittal, the arbitrator issued a "Supplementary Award" on June 1, 2013: British Columbia School Employers' Assn. v. British Columbia Teachers' Federation (Scale Placement Grievance) , [2013] BCCAAA No. 172.

He declined to award back- wages beyond 30 days prior to the filing of the grievance. [ 18 ] He did, however, agree with the union that the teachers who had taken pregnancy or parental leave from the time of the enactment of the ESA (September 1, 2009) should be put on the grid-line they would have been on had the leave been properly taken into account at the time. [ 19 ] The employer appealed that reward to the Court of Appeal under s. 100 of the Code .

The Court of Appeal held that it did not have jurisdiction because the matter fell within s. 99 of the Code rather than s. 100: British Columbia School Employers' Assn. v. British Columbia Teachers' Federation , 2014 BCCA 110 . [ 20 ] The matter then proceeded to a review by the Board under s. 99. On July 4, 2014 the Board released its decision dismissing the employer's application for review. The Board concluded that the employer had "not established grounds for review pursuant to

Section 99 of the Code" and was "not persuaded that this is a case for the Board to interfere with the remedial discretion exercised by the Arbitrator": Greater Victoria School District No. 61 (Re) , BCLRB No. B129/2014. [ 21 ] The employer applied for a reconsideration of that decision by the Board under s. 141 of the Code . (Reviews are heard by a three-member panel.) The review panel reversed the decision, with one dissenting opinion: Greater Victoria School District No. 61 (Re) , BCLRB No. B205/2014. It is this decision that is the subject of this judicial review. II. Standard of Review [ 22 ] The Board is subject to the Administrative Tribunals Act , S.B.C. 2004, c. 45. Section 58(2) (

a) of the Act mandates the standard of patent unreasonableness because the Board is an "expert tribunal" and the decision is in relation to a finding of fact, law or exercise of a discretion in respect of a matter over which it has exclusive jurisdiction. Although I say below that some aspects of the review panel's decision meet the higher standard of correctness, it should not be taken to mean that that is the applicable standard of review. III. The Key Decisions in further detail A. Supplemental Award [ 23 ] The arbitrator characterised the issue he had to deal with as one of remedy (para. 13).

He noted at para. 14 that the union was seeking to have all affected teachers placed on the correct salary scale and was also claiming the retroactive payment of wages teachers would have been paid had they been placed on the correct salary grid after returning from leave. As will be seen he treated these two issues differently. [ 24 ] The central issue was the effect of the 30-day time limit for the filing of a grievance.

The arbitrator noted the union's position that the breach was a continuing one and that a teacher's right to be on the correct grid was a vested one. [ 25 ] The employer accepted that the 30-day limit applied to the back-wages claim. It also argued that teachers should not be bumped up the grid for leaves taken more than 30 days before the grievance. [ 26 ] The arbitrator noted that the grievance was a continuing one; however, at para. 49 he noted that while this might make the dispute arbitrable, the available remedy was a different matter: 49 In British Columbia Public Service Agency v.

B.C.G.S.E.U. (Heinrich Grievance) [2010] B.C.C.A.A.A. No. 120, Arbitrator McConchie notes that the importance of a finding that a grievance is a continuing one is that the agreement's limitation period begins to run once again at the occurrence of each breach. However, he then notes as follows ( page 31 ): The catch for the grieving party, however, is that while the failure to initiate the grievance within the stipulated time from the date of its first occurrence will not render it inarbitrable, relief or damages awarded retroactively in such circumstances may be limited by the time limits.

Brown & Beatty, Canadian Labour Arbitration , 3d ed., approved in JFS Waste Management Corp ., [1999] B.C.C.A.A.A. No. 274 (Longpre). Indeed, many cases put it more strongly than that, holding that recovery by the grieving party in these circumstances will as a general rule be limited to the period of time within which it was permissible to file the grievance. In the instant case, this would be the 30 day period immediately preceding the October 25, 2006 grievance. … [citations omitted] [ 27 ] The arbitrator applied a different analysis and reached a different result for the two components of the claimed remedy.

He felt the Court of Appeal's judgment was determinative with respect to the placement on the salary grid: 32 In accordance with the decision of the Court of Appeal such increments are deemed to have been earned while the teacher was on pregnancy, maternity or parental leave as recognized under

Part 6 of the ESA . … 38 I agree with the Union that the obligation of the Employer to credit the teacher with the appropriate increments continues to the present time but would add that the obligation is a statutory one and is not subject to the limitations of the grievance procedure.

Accordingly, there is a positive duty for the Employer to ensure that every teacher, who has taken a leave under the terms of the current Collective Agreement, is credited with the applicable increment earned since July 1, 2006 and that their scale placement is adjusted accordingly. [ 28 ] With respect to the monetary remedy of back-wages, the arbitrator applied the 30-day limitation. He noted, perhaps inconsistently: 34 It is important to consider that the rights for all teachers to "increments" arise from the Collective Agreement and past collective agreements.

They do not arise from the provisions of the Employment Standards Act . The experience increments themselves are negotiated benefits that could, in theory, be negotiated out of the employment contract, varied from contract to contract or even extended beyond the current 10 year maximum. 35 The effect of the decision of the Court of Appeal is only that such increments, as they exist in the employment contract from time to time, are included within the broadly defined concept of wages and benefits that must be paid to an employee who has been on a

Part 6 leave. The returning employee is only entitled to the increase in wages and benefits (including increments) the employee would have been entitled to under the terms of the Collective Agreement. … 37 In accordance [ sic ] the Employment Standards Act the grievance procedure contained in the Collective Agreement applies for the purpose of resolving any dispute respecting the application,

interpretation or operation of Section 56(3). The grievance procedure incorporates the arbitral jurisprudence concerning the limits of an arbitrator's jurisdiction, and the temporal limits on relief. and: 76 My remedial authority to provide a monetary remedy for damages arising from the failure of the Employer to credit these increments in the past does not extend retroactively beyond the period of the Collective Agreement under which I am appointed. The monetary remedy for a failure by the Employer pay the teacher on the proper scale is limited to the time frame of the grievance. [ 29 ] The arbitrator recognised that he could, pursuant to s. 89(

e) of the Code , grant relief from the 30-day limitation. Regarding that issue, the employer argued it would suffer prejudice from any such relief, because the school board was funded on an annual basis and an order for back-pay would create an un-funded liability. The arbitrator accepted that argument (para. 84). He also noted, at para. 86, that the union, knowing of the breach, had waited some time for a test case to bring the grievance forward, which would militate against an extension of the time limit. B.

Second Court of Appeal decision [ 30 ] As I said above, the employer appealed the supplemental award to the Court of Appeal under s. 100 and the Court of Appeal decided it did not have jurisdiction because the matter fell within s. 99, which mandated a review by the Board. (These sections are set out above at para. 13.) In coming to this conclusion, at para. 9, the Court of Appeal quoted its earlier decision in Okanagan College Faculty Association v.

Okanagan College , 2013 BCCA 561 : This Court has long struggled to apply what have been called the "obtuse and notoriously brain-teasing elements" of ss. 99 and 100 of the Labour Relations Code (Chilliwack School District No. 33 v. Chilliwack Teachers' Association , 2005 BCCA 411 at para. 54 ) [ Chilliwack Teachers ].

As will become clear, part of the difficulty in interpreting these provisions stems from the direction, in s. 100 of the Labour Relations Code , that this Court has jurisdiction to review "the decision or award if the basis of the decision or award is a matter or issue of the general law not included in s. 99 (1)" (emphasis added.).

This requires this Court to identify "the basis" - or what has been variously described as the "real basis", "real substance", "main constituent", or "determinative constituent" - of arbitration awards, which may have multiple necessary parts ( Communications, Energy & Paperworkers' Union of Canada (CEP) Local 433 v. Unisource Canada Inc. , 2004 BCCA 351 at para. 25 ). [ 31 ] The Court went on to say: [17] Counsel for the appellant submits in argument that the only basis of the decision of the arbitrator concerning placement of the teachers on a scale was his

interpretation of s. 56(3) of the ESA . She submits he erred in law in such

interpretation and that this raises an issue of general law that provides an avenue of appeal to this Court. While the arbitrator made reference to this

section (which had been construed in the earlier decision of this Court), he was required to decide the scope of remedial action under the applicable collective agreement. Ultimately, he concluded against giving a full retroactive monetary award because of constraints on the award of such compensation flowing from arbitral jurisprudence. However, he did give partial effect to the legislative provision by ordering recalculation of pay scales. He did not order monetary compensation beyond 2009 for past uncredited maternity leave.

I am of the view it was within his arbitral mandate to order the recalculation and I do not consider that he was simply embarking on a legal construction of the statute. That task had already been performed in the earlier decision of this Court. C. The Board's reconsideration decision [ 32 ] I will not refer to the Board's July 4, 2014 review decision, because the role of the panel performing the reconsideration under s. 141 of the Code is to consider the matter as if it were directly reviewing the decision of the arbitrator.

I will therefore turn to the November 27, 2014 reconsideration decision. [ 33 ] At para. 8, the majority of the reconsideration panel set out what it understood as the critical issue: … We find that the issue before us is the correctness of the determination in the Award, as upheld by the Original Decision, that the

recovery of increments "is not dependant on the enforcement provisions of the collective agreement but by the application of the statute. As will be explained below, the Employment Standards Act, R.S.B.C. 1996, c. 113 (the " ESA " or "Act") has specific enforcement provisions. The question before us is whether the Act and its enforcement provisions have been complied with in the Original Decision, which upheld the Award. [ 34 ] The enforcement provisions of the ESA the review panel referred to are ss. 3(6) and 3(7). The sections provide, in part (and it should be noted that s. 56 is in

Part 6 of the ESA ): 3(6) Parts 10, 11 and 13 of this Act do not apply in relation to the enforcement of the following provisions of this Act in respect of an employee covered by a collective agreement: …

Part 6 [leaves and jury duty] ; …

(7) If a dispute arises respecting the application,

interpretation or operation of … (

b) a provision specified in subsection (6), the grievance procedure contained in the collective agreement or, if applicable, deemed to be contained in the collective agreement under section 84 (3) of the Labour Relations Code , applies for the purposes of resolving the dispute. [ 35 ] At para. 9, the reconsideration panel interpreted the first Court of Appeal decision as being "purely a determination of the meaning of Section 56(3) ". At para. 12 it noted that the parties and the arbitrator properly understood the remitted matters to concern remedy, including the issue of timeliness.

The panel restated the determinative issue: 14 We find the determinative issue before us is whether the ESA mandates by statute the remedy of crediting increments back to 1995. The panel answered that question in the negative. In what may be said to be its conclusion, the panel said: 26 Sixth, Sections 3(6) and (7) of the Act expressly provide that the rights in Section 56(3) are subject to the grievance procedure enforcement mechanism under the collective agreement.

As a result, it is clear that the crediting of increments under the Act is subject to the same jurisdictional and time limits the Arbitrator noted and applied in respect to his monetary award. The approach and analysis the Arbitrator applied to the monetary portion of his Award, as set out above in paragraphs 90-91 of the Award, therefore also applies to the crediting of increments. The conclusion is that the crediting of increments under the provisions in the Act is thus also limited to "the proper scale placement from September 1, 2009 onwards". The Original Decision must be varied to that effect. IV.

Discussion [ 36 ] The first argument of the union was that the panel exceeded its jurisdiction under s. 141. I quote from its written argument: 43. To obtain leave for reconsideration under s. 141, an applicant "must demonstrate a good arguable case of sufficient merit that it may succeed on one of the established grounds for reconsideration": (

i) the original decision is inconsistent with the principles expressed or implied in the Labour Relations Code or another Act dealing with labour relations ; (ii) a party was denied natural justice; or (iii) new evidence has emerged that is likely to have a material and determinative effect on the original decision. Here, the Reconsideration Decision was not based on an established ground for reconsideration, that the original decision was "inconsistent with the principles expressed or implied in the Labour Relations Code ." 44.

The majority made a reviewable error by stating: "the determinative issue before us is whether the ESA mandates by statute the crediting of increments back to 1995". This issue was outside the review jurisdiction of the Labour Relations Board. The Court of Appeal had already determined that it was within the arbitrator's mandate to order the recalculation of experience credits; this was a matter which the Labour Relations Board should not have disturbed. … [emphasis in original] [ 37 ] This argument virtually encapsulates the union's arguments on the merits – i.e. , whether the decision was patently unreasonable.

I do not see that anything is added by characterising it as a jurisdictional matter. To put the matter another way, s. 99 provides the Board jurisdiction to consider an arbitral decision upon application of a party. The Board is then to determine whether the decision ought to be set aside on the ground that it is inconsistent with the principles of the Code or labour relations. Nothing is added by saying that the Board does not have jurisdiction to set aside a decision that is not inconsistent with those principles.

The question is simply whether the Board's decision in applying the criteria set out in s. 99 is patently unreasonable. [ 38 ] Several of the union's arguments hinge on the proposition that the Court of Appeal had already ruled that the ESA mandates the crediting back of increments to 1995. Therefore, it argues, when the Board addressed the issue, and stated that it was the determinative issue, it addressed the wrong question (and also exceeded its jurisdiction).

I do not read either of the Court of Appeal's decisions in that manner. [ 39 ] Dealing with the Court of Appeal's initial decision, the issue the Court addressed was the arbitrator's

interpretation of s. 56(3) of the ESA as not including increments that would have been earned through actual teaching experience (para. 3). It held that was incorrect and stated:

[16] In view of his conclusion, the arbitrator did not address "a number of issues in regards to the timeliness of the grievance and whether there was a continuing breach as well as issues of retroactivity and vested rights." In its concluding paragraph, the Court of Appeal remitted the matter back to the arbitrator to deal with "the other issues raised at the arbitration hearing that he did not address in his decision". It is therefore clear that the Court did not address the issue of remedy and it did not address the issue of the timeliness of the grievance, whether under the collective agreement, the ESA or otherwise. Nor can the Court of Appeal's

interpretation of s. 56(3) be said to be implicitly determinative of the issue: the timeliness of a claim is always a separate matter from the substantive right. [ 40 ] The second Court of Appeal decision also did not address the issue of remedy or time limits. The Court held that was something to be considered by the Board under a s. 99 review. It is clear from that the Court did not think the issue hinged on statutory

interpretation of the ESA , as it did the initial decision of the arbitrator. [ 41 ] Turning to the review panel's decision, I do not agree that it addressed the wrong question. The decision must be read in the context of the arbitrator's decision. That decision concluded that the monetary remedy was subject to the grievance time limit. The arbitrator applied arbitral jurisprudence to the time limit for the monetary remedy, including the effect of a continuing breach and whether he ought to exercise his discretion to provide relief from the 30-day limit.

He concluded that the 30-day limit applied and refused to exercise his discretion to provide relief. [ 42 ] The arbitrator concluded the opposite with respect to placement on the grid. This was so because he thought the Court of Appeal's decision meant that the placement on the grid was mandated by statute and was not the subject of the collective agreement enforcement provisions.

In my view, the Board was correct, and was certainly not patently unreasonable, to address this issue. [ 43 ] The Board was also correct in its conclusion that the Court of Appeal's decisions were not determinative of the issue of whether placement on the grid was subject to the 30-day grievance limit, as I concluded earlier. [ 44 ] The Court of Appeal's decision being neutral on the point, the next issue that arises is whether it was patently unreasonable for the review panel to conclude that the 30-day grievance limit applied.

The thrust of the union's position is that the employees had vested rights under s. 56(3) that could not be affected by the grievance procedure. The union says that otherwise they would have a right without a remedy. [ 45 ] I do not agree. Simply because a claim is subject to a time limit does not mean that no remedy is available; rather, the remedy must be exercised in a timely manner. Virtually every claim is subject to a legal, equitable or contractual time limit. [ 46 ] The issue here is one of statutory

interpretation. Section 3(6) and (7) of the ESA explicitly provide that the grievance procedures of the collective agreement apply. That must include the time limits of that procedure. To conclude otherwise would leave the grievance subject to no time limits at all because the ones in the ESA ( ss. 74 , 80 , 118 and 124 ) are not applicable: they only apply to complaints to the Employment Standards Branch or legal actions.

I therefore agree with the review panel on this point. [ 47 ] The union argues (at para. 67 of its written submission) that the review panel ignored the issue of the arbitrator's remedial discretion; I do not concur. The review panel agreed with the arbitrator's legal analysis and with the exercise of his discretion with respect to the monetary remedy of back-pay. It disagreed with the arbitrator's legal analysis with respect to the remedy of placing employees at the correct grid level.

Having arrived at that conclusion, the review panel then said that would be subject to the same discretionary considerations as the monetary remedy. That is not ignoring the available remedial discretion. The first conclusion was based on a correct legal premise. The second, based on that, was not a patently unreasonable conclusion or result. [ 48 ] The Board adopted the conclusion of the arbitrator with respect to the monetary remedy. Was that conclusion patently unreasonable?

In his analysis of the claim for back-pay, the arbitrator considered the relevant labour law jurisprudence regarding time limits and continuing grievances. The union points out the arbitrator relied on the line of arbitral authority following Goodyear Canada Inc. v. United Rubber Workers, Local 232 (Collective Agreement Grievance) , [1980] O.L.A.A. No. 2, and that in another decision a vice- chair of the Board noted that this may no longer be good law: Surrey School District No. 36 (Re) , BCLRB No. B231/2005 at para. 39.

However, the fact that the review panel chose to follow one line of competing authority does not make its decision patently unreasonable. [ 49 ] The union does not point to any errors in the reasoning the arbitrator applied with respect to whether he should provide relief from the time limit. Amongst other things, he took into account the financial impact an award of back-wages would have on the employer and the delay of the union in bringing the grievance once it was aware of the matters giving rise to its claim. Therefore the exercise of his discretion cannot be said to have been patently unreasonable.

I do not think it was patently unreasonable for the Board to have adopted this and applied it to the remedy of grid placement. V.

Summary & Conclusion [ 50 ] In essence, the review panel's line of reasoning was this: The Court of Appeal's decision interpreted the substantive right provided by s. 56(3) of the ESA and remitted the matter of remedy back to the arbitrator. Parts 10 and 11 of the ESA deal with enforcement and therefore remedy, but under ss. 3(6) and (7) they do not apply to the grievance procedure under a collective agreement. Therefore the collective agreement governs the enforcement of a breach of s. 56(3). That incorporates the time limits of the grievance clause which applies to both remedies.

The discretion of the arbitrator not to provide relief for the back-wage component was properly exercised and the same analysis ought to have been applied to the adjustment of the salary scale for leaves taken more than 30 days prior to the grievance. [ 51 ] For the reasons I set out above, I do not think this is patently unreasonable. Accordingly, the petition is dismissed.

"E.M. MYERS, J."