2013 NBCA 71, 2013 NBCA 71

COURT OF APPEAL OF NEW BRUNSWICK 113-12-CA TRENT TAIT APPELLANT TRENT TAIT APPELANT - and - - et - Her Majesty the Queen in Right of the Province ofNew Brunswick, as represented by Board ofManagement on behalf of AMBULANCE NB RESPONDENT SA MAJESTÉ LA REINE du chef de la Province duNouveau-Brunswick, représentée par le Conseil degestion, pour Ambulance Nouveau-Brunswick INTIMÉE Tait v. Her Majesty the Queen in Right of theProvince of New Brunswick, as represented by Boardof Management on behalf of Ambulance NB, 2013NBCA 71 Tait c.

Sa Majesté la Reine du chef de la Province duNouveau-Brunswick, représentée par le Conseil degestion, pour Ambulance Nouveau-Brunswick, 2013NBCA 71 CORAM: The Honourable Justice Robertson The Honourable Justice Quigg The Honourable Justice Green CORAM : l’honorable juge Robertson l’honorable juge Quigg l’honorable juge Green Appeal from a decision of the Court of Queen’sBench: July 19, 2012 Appel d’une décision de la Cour du Banc de la Reine: le 19 juillet 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 240 Décision frappée d’appel : 2012 NBQB 240 , 2012 NBBR 240 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: November 1, 2013 Appel entendu : le 1er novembre 2013 Judgment rendered: December 12, 2013 Jugement rendu : le 12 décembre 2013

Reasons for judgment by: The Honourable Justice Robertson Motifs de jugement : l’honorable juge Robertson Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Green Counsel at hearing: For the appellant: Julian C. Williams For the respondent: Keith Mullin Avocats à l’audience : Pour l’appelant : Julian C. Williams Pour l’intimée : Keith Mullin THE COURT The appeal is dismissed with costs of $2,500.

The judgment of the Court was delivered by ROBERTSON, J.A. [ 1 ] At all relevant times, the appellant was a unionized employee whose terms and conditions of employment were governed by a Collective Agreement and a Memorandum of Agreement entered into by the respondent employer and the Canadian Union of Public Employees, Local 4848. On July 11, 2011, the appellant’s employment was terminated. The Union alleged that the appellant/grievor had been dismissed without just cause.

The employer raised a preliminary objection to the arbitrability of the grievance on the basis the grievor was a probationary employee and under the terms of the two agreements he was without recourse to the grievance and adjudication provisions of the Collective Agreement. The adjudicator upheld the preliminary objection and dismissed the grievance. His decision is reported at [2012] N.B.L.A.A. No. 8. [ 2 ] The appellant employee, without the representation of his Union, sought judicial review of the adjudicator’s decision. The application was heard on July 12, 2012 and dismissed on July 19, 2012.

In a decision reported at 2012 NBQB 240 , 391 N.B.R. (2d) 262, the application judge held the appellant lacked the requisite standing to bring the application for judicial review and, alternatively, the adjudicator’s decision met the threshold review standard of reasonableness. In my view, the

application judge did not err in concluding that the appellant lacked the requisite standing to bring the application for judicial review.Accordingly, it is unnecessary to deal with the determination that the adjudicator’s decision was reasonable. [3] In brief, the appellant was represented by his Union during the hearing which resulted in thedecision under review and it is within the discretion of that Union to decide whether judicial review should be pursued. Accordingly, theappellant lacked the requisite standing to bring the application.

This issue was canvassed in the application judge’s reasons for decisionat paragraphs 12 to 16. Included in his analysis is the law as stated in Noël v. Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2S.C.R. 207, and, in particular, the following paragraphs taken from the Supreme Court’s decision: Given the day-to-day reality of managing collective agreements, the

interpretation of arbitration awards, and the abundance of litigationin this area, a union cannot be placed under a duty to challenge each and every arbitration award at the behest of the employee inquestion on the ground of unreasonableness of the decision, even in dismissal cases. The rule is that the employer and the union areentitled to the stability that results from s. 101 L.C., which provides: “The arbitration award is without appeal, binds the parties and,where such is the case, any employee concerned...”.

Judicial review must therefore not be seen as a routine way of challenging awards oras a right of appeal. Accordingly, even in discipline and dismissal cases, the normal process provided by the Act ends with arbitration.That process represents the normal and exclusive method of resolving the conflicts that arise in the course of administering collectiveagreements, including disciplinary action. In fact, this Court gave strong support for the principle of exclusivity and finality in Weber v.Ontario Hydro, (SCC), [1995] 2 S.C.R. 929, at pp. 956-957 and 959, per McLachlin J.

That approach is also intendedto discourage challenges that are collateral to disputes which, as a general rule, will be definitively disposed of under the procedure foradministering collective agreements. While judicial review by the superior courts is an important principle, it cannot allow employees tojeopardize this expectation of stability in labour relations in a situation where there is union representation.

Allowing an employee to takeaction against a decision made by his or her union, by applying for judicial review where he or she believes that the arbitration awardwas unreasonable, would offend the union’s exclusive right of representation and the legislative intent regarding the finality of thearbitration process, and would jeopardize the effectiveness and speed of the arbitration process. Recognition of this kind of right to challenge an arbitration award would necessarily offend the fundamental principles governingrelations with the employer where there is a right of exclusive collective representation.

In a case where the arbitration process has beencarried out, in accordance with the collective agreement, the employer is entitled to expect that a grievance that has been disposed of bythe arbitrator will, as a rule, be disposed of permanently, and that the arbitration process will not be exposed to challenges that arelaunched without any control being exercised by its union interlocutor.

As a general rule, the proper performance by the employer of theduty to negotiate and apply collective agreements must carry with it an assurance of stability in terms of the conditions of employment inits company. [paras. 62 and 63] [Emphasis added.] [4] The law is clear. As a general rule, when a union unsuccessfully grieves the discipline ordischarge of a member of the bargaining unit, and the Union decides not to seek judicial review of the unfavourable arbitral award, themember will be denied the requisite standing.

This understanding of the law flows naturally from the realization that the union andemployer are the parties to the collective agreement and that individual employees have no independent contractual status: see GeorgeW. Adams, Canadian Labour Law, 2 ed., looseleaf (Aurora, Ont.: Canada Law Book, 1993), at 4.1660. [5] The law recognizes three exceptions to the rule. They are conveniently set out in Yee v. TrentUniversity, 2010 ONSC 3307, [2010] O.J.

No. 2697 (QL): However, the case law has identified three exceptional situations in which an individual may have standing to pursue arbitration orjudicial review: where the collective agreement confers a right on the individual to pursue a matter to arbitration, where the union takes aposition adverse in interest to the employee, and where the union’s representation of the employee has been so deficient that theemployee should be given a right to pursue judicial review (Re Hoogendoorn and Greening Metal Products (1967), (SCC), 65 D.L.R. (2d) 641 (S.C.C.); Singh v. Laurentian University, [1991] O.J. No. 526 (Div.

Ct.); Yashin v. National Hockey League(2000), (ON SC), 192 D.L.R. (4th) 747 (Ont. S.C.J.) at paras. 20-21). [para. 8] [6] The appellant seized on the third exception identified above, that is to say, “inadequaterepresentation” on the part of the Union. In that regard, the observations of George Adams are apposite:

4.1690 Beyond such stark cases where the union’s conflict in interest is clear by the position taken, courts have not precluded that sufficient adversity to support an employee’s standing might be bound on the union’s conduct throughout the grievance and arbitration process. Such arguments in favour of granting an employee standing tend to rest on an allegation of inadequate representation, including such issues as alleged bias, conflict of interest or disputes over the manner in which the union’s case was conducted.

However, given that the union normally has carriage of a grievance and that differences of opinion on how a case should be conducted commonly arise, courts have not readily granted standing to individual employees who claim to have been poorly represented.

Further, subject to the already noted question of limitations on remedy, labour relations statutes generally grant labour boards exclusive jurisdiction to adjudicate complaints of inadequate representation. [ 7 ] The appellant now maintains that the Union’s representation of the appellant was “so deficient” that he should be granted the requisite standing to challenge the merits of the adjudicator’s decision.

At paragraph 21 of his submission the appellant argues: The Union failed to bring to the attention of the Adjudicator current judicial authority to the effect that an employer must act fairly and with reasonable diligence in determining a probationary employee’s suitability and that if just cause is not shown, the employee is entitled to proper notice or payment in lieu thereof. [ 8 ] The short answer to the appellant’s argument is that the case law cited in support of the submission has no application to the case at hand. The cases involve actions for wrongful dismissal.

In any event, the fact that a union did not advance an argument that the employee deems relevant is not a sufficient basis on which to acquire standing based on an allegation of “inadequate representation”. Were the law otherwise, the rule denying standing to unionized employees who seek judicial review of an adjudicator’s decision, without the imprimatur of the union, would be without work. [ 9 ] For these reasons, the appeal is dismissed with costs of $2,500. ____________________________________ J.T. ROBERTSON, J.A. WE CONCUR: ___________________________________ KATHLEEN A.

QUIGG, J.A. ____________________________________ BRADLEY V. GREEN, J.A.