Docket: 1932 Canadian Union of Public Employees, Local 59 Appellant (Applicant) - v. -, 2011 SKCA 148

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 148 Date: 20111206 Between: Docket: 1932 Canadian Union of Public Employees, Local 59 Appellant (Applicant) - and - City of Saskatoon and Saskatchewan Labour Relations Board Respondents (Respondents) Coram: Vancise, Smith and Caldwell JJ.A. Counsel: Peter J. Barnacle and Crystal Norbeck for the Appellant

Patricia J. Warwick for the Respondent City of Saskatoon Appeal: From: 2010 SKQB 116 Heard: December 9, 2010 Disposition: Appeal dismissed Written Reasons: December 6, 2011 By: The Honourable Mr. Justice Vancise In Concurrence: The Honourable Mr. Justice Caldwell In Dissent: The Honourable Madam Justice Smith Vancise J.A. I.

Introduction [ 1 ] The Canadian Union of Public Employees, Local 59 (“CUPE”) and the City of Saskatoon (the “City”) agreed during contract negotiations in 2001 to establish a joint job evaluation plan for the purposes of undertaking the reclassification and review of the job descriptions for all positions within the scope of the collective bargaining agreement (the “CBA”) and to determine revised pay scales for such positions. [ 2 ] The negotiations resulted in agreement to commence the Job Evaluation Plan (“JEP”).

In order to accomplish that, certain amendments were made to the CBA to provide for implementation of those job revisions. The amendments to the CBA were made and all steps required to complete the JEP and revise the pay scales were set in motion resulting in an agreement (the agreement) to be implemented on January 1, 2008. [ 3 ] The JEP was implemented on January 1, 2008, as agreed, and retroactive payments exceeding three million dollars were paid to employees covered by the CBA.

Subsequent to the implementation of the JEP, CUPE filed a grievance contending that the City had failed to make payments in accordance with the agreement. The City rejected the grievance. It took the position that CUPE had repudiated the agreement and bargained in bad faith. The City also contended that the initiation of the grievance and the position taken by CUPE simply confirmed the repudiation of the agreement. [ 4 ] The City subsequently filed an application for an unfair labour practice (“ULP”) against CUPE pursuant to s. 2 (

b) of The Trade Union Act , R.S.S. 1978, c. T-17 (the “ Act ”) for failing to bargain in good faith. CUPE challenged the jurisdiction of the Labour Relations Board to hear the proceedings by reason that the issue was one involving the

interpretation and application of the CBA and, as a result, was within the exclusive jurisdiction of an arbitrator pursuant to s. 25 of the Act . [ 5 ] The Board found it had jurisdiction, refused to defer the issue to the arbitrator and found CUPE committed an ULP and ordered certain remedial actions. [ 6 ] CUPE sought judicial review unsuccessfully and it is from that unsuccessful application that the matter is brought before this Court. II. Facts [ 7 ] The facts are fully set out in the decision of the Board and are not seriously in dispute.

For ease of reference, however, I will summarize the salient features of the actions taken by the parties which led to the grievance and subsequent application by the City for a finding that CUPE was guilty of an ULP. [ 8 ] CUPE is the certified bargaining agent for in scope employees of the City and had negotiated a number of collective bargaining

agreements over the years. The last collective bargaining agreement negotiated by the parties covered the period January 1, 2007 to December 31, 2009. [ 9 ] During the negotiations between the parties for renewal of the CBA in 2001, they agreed to establish a job classification review process (“JEP”). In order to accomplish that, certain amendments were made to the CBA in which the general terms of the JEP were set out including certain obligations of the employer with respect to the payment of the JEP and in the development and implementation of the JEP.

The development and implementation took longer than anticipated for a number of reasons, none of which are important for our purposes, and it was not until January 1, 2008 that the JEP was implemented. [ 10 ] Prior to the implementation of the JEP, a number of significant changes to the CBA were required. CUPE’s membership was required to select from two options regarding reclassification requests and appeals which were outstanding under the old classification review system at the time. Option one entailed resolving all such requests prior to starting the JEP.

Option two involved tabling all outstanding requests for dealing with them through the JEP. The membership voted for option two and it was incorporated into the CBA. Option two reads as follows:

Article 20. Classification Review 20.1 All reclassifications, or the creation of new positions of a nature not already classified in this Agreement, shall be the subject of prior negotiation and agreement by the parties hereto. 20.2 If agreement cannot be reached on the wage, the dispute shall be submitted to arbitration in accordance with the arbitration procedure as outlined in

Article 12 of this Agreement. 20.3 For the term of this Agreement, and subject to mutual agreement thereafter, the Letter of Understanding regarding new or reclassified positions shall apply. 20.4 Articles 20.1, 20.2, and 20.3 shall be suspended effective July 10, 2001 . Effective August 1, 2001, the Employer shall provide into a reserve account the sum of $150,000 for the 2001 calendar year, and an additional $150,000 per year on January 2 each year, for a maximum of ten (10) consecutive years. This fund will be used to implement a new job evaluation plan.

In addition, any employees in a classification which decreases in pay grade as a result of job evaluation will continue to receive general economic increases negotiated, for as long as they continue to hold that position, or for the first three (3) years after the implementation of the job evaluation plan, whichever occurs first.

After three (3) years, no general economic increases are to be applied to downward classification decisions. [ 11 ] As of July 10, 2001, there were a number of outstanding Position Analysis Questionnaires (“PAQ”) which were, in effect, postponed or suspended pending the implementation of the JEP. [ 12 ] The significance of this is that, under the old reclassification process, the filing of a single PAQ would, if successful, have triggered retroactive payments for all employees in the position for which the PAQ was filed.

And further, all employees that were hired into the classification after the PAQ was filed would also be reclassified. Under the amendment, the process for dealing with PAQs was dealt with by Memorandum of Agreement (“MOA”) between the parties signed July 10, 2001. The purpose of the MOA was to amend

Article 20 of the then CBA by the addition of Articles 20.4 and 20.5 to provide for a new method to deal with the PAQs and the method of funding by the employer. As noted, CUPE elected to proceed under

Article 20.4 as set out above. [ 13 ] Discussions were held concerning who was included in the retroactivity list. Those discussions took place in November through December 2005 with a view to targeting the implementation in January 2006. That did not happen because of a shortfall in revenue available to implement the JEP at that time.

In December 2007, the parties agreed upon and signed a retroactivity list which was used to make the retroactive wage payments when the JEP was implemented in January 2008. [ 14 ] The JEP was implemented on January 1, 2008 and retroactive wage payments totaling in excess of three million dollars were paid to all those individuals who were named on the original PAQ at the time of its filing, plus any other employees who were in the position on the date the PAQ was filed and whose reclassification request or appeal was tabled to be dealt with under the JEP. [ 15 ] Upon implementation of the JEP, retroactive wage payments were not made in accordance with the parties’ old classification review system, but rather in accordance with the new system as set forth in

Article 20.4. [ 16 ] Prior to the implementation of the JEP, the agreement regarding retroactive wage payments was confirmed by CUPE in a newsletter to the membership dated December 2007. At no time prior to the implementation of the JEP did CUPE’s President, Matt Baraniecki, or any member of the CUPE Steering Committee, voice any objection to the basis of retroactive wage payments being made under the JEP.

[17] On December 18, Judy Schlechte, the City’s Director of Human Resources, sent an email to Mr. Baraniecki, in his capacity asCUPE President, attaching a MOA relating to the job implementation and requesting that he review it and get back to her. Having heardnothing further, and after implementation of the JEP, she emailed Mr. Baraniecki on January 17 to inquire about the execution of theMOA. He informed her on January 18 that CUPE would not sign it and all matters dealing with “this,” presumably the matters dealtwith in the MOA, are stated in

Article 20. Prior to sending the MOA, Ms. Schlechte, as noted above, had been assured that no furtherdocumentation or consultation with the membership was necessary and the City argues it was on this basis that the JEP wasimplemented. [18] At a brief meeting on April 7, 2008, Mr. Baraniecki, who was still CUPE President, gave Ms. Schlechte a “heads up” that he wasrequesting a meeting with the Mayor over the job evaluation retroactivity issue in order to bring the issue forward or else he would riskan application by CUPE membership for a failure of the duty of fair representation against him and the vice-president. [19] CUPE filed a grievance on April 16, 2008 alleging the City had breached

Article 20 of the CBA and requested that retroactive wagepayments be made in accordance with the old classification review system and not the system set forth in

Article 20.4 of the CBA asmodified. [20] The grievance was rejected by the City manager. Subsequent to the rejection of the grievance, the City filed an ULP alleging thatCUPE reneged and/or repudiated the agreement reached between the parties and was therefore guilty of bargaining in bad faith pursuantto the relevant provisions of the Act. [21] On the hearing before the Board, two issues were dealt with: (1) whether the issue was one involving the

interpretation andapplication of the CBA and was therefore within the exclusive jurisdiction of an arbitrator, by reason that arbitration had been requestedby CUPE under the provisions of the CBA; and, (2) whether, by failing to bargain in good faith, CUPE was guilty of an ULP. [22] The Board rejected CUPE’s request that the matter be deferred and referred to an arbitrator and, after a hearing, found CUPE guiltyof an ULP for failing to bargain in good faith. [23] CUPE sought judicial review of that decision which was unsuccessful. III.

Standard of Review [24] The Supreme Court of Canada has recently re-examined the standard of judicial review in Dunsmuir v. New Brunswick, 2008 SCC9, [2008] 1 S.C.R. 190. The Supreme Court of Canada combined “reasonableness simpliciter” and “patent unreasonableness” into areasonableness standard. [25] The majority noted that the presence of a privative clause gives rise to a strong indication of review pursuant to a reasonablenessstandard.

That is, however, tempered by the fact that issues of jurisdiction must, by reason of the court’s constitutional supervising role,be viewed on a standard of correctness. [26] In matters of fact, discretion or policy and where matters of fact and law are involved, deference will usually apply. [27] When a statutory tribunal is interpreting its own statute, the majority stated: [54] Guidance with regard to the questions that will be reviewed on a reasonableness standard can be found in the existing case law.Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which itwill have particular familiarity: Canadian Broadcasting Corp. v.

Canada (Labour Relations Board), (SCC), [1995] 1S.C.R. 157, at para. 48; Toronto (City) Board of Education v. O.S.S.T.F., District 15, (SCC), [1997] 1 S.C.R. 487, atpara. 39. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of ageneral common law or civil law rule in relation to a specific statutory context: Toronto (City) v. C.U.P.E., at para. 72. Adjudication inlabour law remains a good example of the relevance of this approach. The case law has moved away considerably from the strictposition evidenced in McLeod v.

Egan, (SCC), [1975] 1 S.C.R. 517, where it was held that an administrative decisionmaker will always risk having its

interpretation of an external statute set aside upon judicial review.

[28] The standard of review applicable to the review of the lower court’s decision is correctness. In Dr. Q v. College of Physicians andSurgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, Chief Justice McLachlin stated: 43 The Court of Appeal stated that "[t]he standard that we must apply in assessing the judgment of Madam Justice Koenigsberg iswhether in her re-weighing of the evidence she was clearly wrong" (para. 25). This is not the appropriate test at the secondary appellatelevel.

The role of the Court of Appeal was to determine whether the reviewing judge had chosen and applied the correct standard ofreview, and in the event she had not, to assess the administrative body's decision in light of the correct standard of review,reasonableness. At this stage in the analysis, the Court of Appeal is dealing with appellate review of a subordinate court, not judicialreview of an administrative decision. As such, the normal rules of appellate review of lower courts as articulated in Housen [v.Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235] apply.

The question of the right standard to select and apply is one of law and,therefore, must be answered correctly by a reviewing judge. The Court of Appeal erred by affording deference where none was due. Thus, no deference is owed to the decision of the reviewing court. IV. Relevant Statutory Provisions of the Act [29] Sections 2(

b) and 2(d): 2 In this Act: . . . (b) “bargaining collectively” means negotiating in good faith with a view to the conclusion of a collective bargaining agreement, ora renewal or revision of a bargaining agreement, the embodiment in writing or writings of the terms of agreement arrived at innegotiations or required to be inserted in a collective bargaining agreement by this Act, the execution by or on behalf of the parties ofsuch agreement, and the negotiating from time to time for the settlement of disputes and grievances of employees covered by theagreement or represented by a trade union representing the majority of employees in an appropriate unit; . . . (d) “collective bargaining agreement” means an agreement in writing or writings between an employer and a trade union settingforth the terms and conditions of employment or containing provisions in regard to rates of pay, hours of work or other workingconditions of employees; [30] Section 11(2)(c): 11(2) It shall be an unfair labour practice for any employee, trade union or any other person: . . . (

c) to fail or refuse to bargain collectively with the employer in respect of employees in an appropriate unit where a majority of theemployees have selected or designated the trade union as their representative for the purpose of bargaining collectively; [31]

Section 18(l): 18 The board has, for any matter before it, the power: … (

l) to defer deciding any matter if the board considers that the matter could be resolved by arbitration or an alternative method ofresolution; [32]

Section 25: 25(1) All differences between the parties to a collective bargaining agreement or persons bound by the collective bargaining agreementor on whose behalf the collective bargaining agreement was entered into respecting its meaning, application or alleged violation,including a question as to whether a matter is arbitrable, are to be settled by arbitration after exhausting any grievance procedureestablished by the collective bargaining agreement. V. Analysis [33] The preliminary issue before the Board on the ULP application, filed pursuant to s. 11(2) of the Act, was whether the Board should,pursuant to s. 18(

l) of the Act, defer to the arbitrator appointed under the terms of the CBA to hear the grievance. CUPE argues that ithad not repudiated the agreement, but was requesting an

interpretation of the relevant clauses of the CBA with respect to the obligationof the City to pay retroactive wages in accordance with the old agreement.

[34] The City argues that the filing of the grievance was the crystallization of CUPE’s repudiation of the agreement. CUPE relies onthe principles laid down by the Supreme Court of Canada in Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929.[1] The City argues the application is not a question of the

interpretation of the CBA, but rather whether CUPE repudiated an agreementalready reached and implemented thereby committing an ULP over which the Board had exclusive jurisdiction. The Board denied theapplication for deferral and found that there were two distinct issues to be decided: (1) the ULP dealing with whether CUPE had bargained in bad faith regarding the JEP and retroactivity; and, (2) the grievance which pertains to the

interpretation of the CBA. [35] In so finding, the Board was careful to note that it did not intend to and indeed did not usurp the authority of the arbitrator providedfor under s. 25.1 of the Act. [36] The Board noted it had exclusive jurisdiction to decide the ULP pursuant to ss. 2(

b) and (

d) and 11(2)(

c) and that CUPE had failedto establish the criteria set out in U.F.C.W., Local 1400 v. Saskatchewan (Labour Relations Board) (1992), (SK CA),95 D.L.R. (4th) 541 (Sask.

C.A.), which would permit it to exercise its discretion under s. 18(1) of the Act to defer the matter to thearbitrator. [37] The Board then considered the ULP and found there were two aspects to that application: (1) the conduct of CUPE regarding the repudiation of the agreement; and, (2) the failure of CUPE to sign the MOA. [38] The Board found that CUPE had failed to bargain in good faith by recanting its agreement and resiling from its previous positionand had committed an ULP (see paras. 66 and 67). [39] As to the second issue, the Board found the refusal to execute the MOA was a breach of the duty to bargain in good faith (seeparas. 68 and 70). [40] CUPE applied for judicial review of the decision of the Board.

It alleged the Board committed jurisdictional error in making theorder that it did with respect to the MOA and erred in failing to defer the matter to an arbitrator thereby usurping the function of anarbitrator appointed pursuant to s. 25(1) of the Act. As well, it erred in generally making findings and orders that are neither correct norreasonable by reason that they are not in accordance with the evidence, and finally, erred in finding that CUPE had committed an ULP. [41] Mr. Justice Allbright dismissed the application for judicial review.

He set out the issues as identified by the applicant CUPE asfollows: The Board erred in (

a) failing to find that it should defer the determination of the issues in dispute to the arbitration proceeding previouslyinitiated; (

b) finding that the retroactivity list and MOA of December 2007 constituted an agreement upon which to base the ULP; and, (

c) finding that CUPE committed an ULP. [42] The Chambers judge found the standard of review on the issue of the exclusive jurisdiction of the Board under ss. 2(

b) and (

d) and11(2)(

c) was correctness and the standard of review for the balance of the issues was reasonableness and dismissed the application. There is no dispute by the parties on the standard of judicial review.

[ 43 ] Justice Allbright held the decision not to defer to the Board of Arbitration was discretionary and, as such, reviewable on a standard of reasonableness. He then found the decision not to defer reasonable by reason that the Board had properly identified and considered the issue, and reasonably exercised its discretion. He agreed with the finding of the Board that the grievance and the ULP are two discreet complaints each made by a different party (see paras. 55-60). [ 44 ] The Chambers judge also found CUPE had violated its duty to bargain in good faith.

He noted that the Board was fixed with deciding and making a finding of fact on the issue of whether the City and CUPE had reached an agreement and if so, whether CUPE’s conduct amounted to a repudiation of the agreement resulting in an ULP. In his opinion, the finding by the Board that CUPE had committed an ULP was not unreasonable both as to the findings of fact and the application of the facts to the law. [ 45 ] The Chambers judge also rejected CUPE’s contention that the Board erred in ordering CUPE to sign the MOA and that such order was void as being beyond the Board’s jurisdiction.

Failure to Defer to Arbitration [ 46 ] CUPE contends that the Chambers judge erred in failing to find the Board erred in not deferring the ULP pursuant to s. 18(1) , pending a decision by the arbitrator appointed on the

interpretation of the CBA and the MOA. It argues the Board misapplied the law and acted without jurisdiction by usurping the exclusive jurisdiction conferred by s. 25(1) of the Act on a collective agreement arbitrator to interpret and apply the CBA. [ 47 ] The law in this issue is clear, jurisdiction depends on whether the dispute in its essential character arises from the

interpretation, application, administration or violation of the CBA (see Weber v. Ontario Hydro , supra ). [ 48 ] In Weber , the Supreme Court of Canada adopted the “exclusive jurisdiction model” of grievance arbitration with respect to the division of jurisdiction between courts and labour arbitration. In deciding the jurisdiction issue, it is necessary to determine the essential character or nature of the dispute, that is, whether it is in its essential character an

interpretation, application or violation of the CBA (see para. 52 of Weber ). [ 49 ] Madam Justice McLachlin summarized the exclusive jurisdiction model in Weber as follows: 58 To summarize, the exclusive jurisdiction model gives full credit to the language of s. 45(1) of the Labour Relations Act . It accords with this Court's approach in St. Anne Nackawic . It satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions. … [ 50 ]

Section 25 (

l) of the Act is essentially the same as s. 48(1) , formerly s. 45(1) , of the Ontario Labour Relations Act, 1995 , S.O. 1995, c. 1, Sch. A which was considered by the Supreme Court of Canada in Weber . [ 51 ] CUPE contends the Board did not perform the necessary inquiry to determine the essential character of the dispute and indicated it had not sufficient evidence to do so. CUPE argued the issue in its essential character is the

interpretation of

Article 20 of the CBA. The dispute reduces itself to whether CUPE repudiated the agreement or is it a dispute over the

interpretation of CUPE’s rights under

Article 20 of the CBA. In CUPE’s submission, the grievance involves the

interpretation of the CBA and is the same subject matter of the labour practice that was filed by the City. [ 52 ] The City, on the other hand, denied that the filing of the grievance was the basis for the ULP. It argues that the grievance was simply symptomatic and a confirmation of the repudiation of the agreement reached by the parties on the JEP.

The issue before the Board was to determine whether the parties reached an agreement and whether the repudiation was a contravention of the Act , that is, a failing to bargain in good faith and therefore an ULP. [ 53 ] For the Board to consider the ULP, the subject matter before the Board and the subject matter before the arbitrator had to be separate and distinct. If they were the same subject matter, the same issue, then, pursuant to s. 25(1) of the Act , the arbitrator had exclusive jurisdiction to determine the issue.

[54] In the City’s submission, the issue is not how the agreement between the parties should be interpreted but rather whether there wasan agreement between the parties which CUPE refused to honour. [55] As noted above[2], the Board found there were two distinct issues: (

a) The unfair labour practice as to whether the Union has bargained in bad faith regarding the Job Evaluation and theretroactivity issue. This issue is important as it appears to be impacting on the fundamental labour relations relationship between theparties, which is a mature relationship, one which the Board would seek to restore and preserve; and (

b) The grievance which relates to the

interpretation of the agreement. The problem appears to relate to what the agreement isor was and what is to be interpreted. [56] The Board exercised its discretion pursuant to s. 18(1) of the Act to refuse to defer to the Board of Arbitration. It pointed out that itdid so by reason that the facts in this case did not meet the criteria set out in U.F.C.W., Local 1400 v. Saskatchewan (Labour RelationsBoard), supra. [57] The Board then concluded that CUPE had committed an ULP by repudiating the agreement reached on retroactive pay.

On thisissue, the Board found: [67] It was not until the City had, in good faith, and relying upon the process and agreements that the parties had made concerning howand to whom retroactive payments were to be made, that the Union recanted its position and both refused to execute the MOA proposedby the City, and took steps, through the grievance procedure to suggest an alternate

interpretation as to how the retroactive paymentsshould be made. The Union’s conduct, in so doing, was a violation of its duty to bargain in good faith. [58] It also found that the failure to sign the MOA was a breach of the duty to bargain in good faith and ordered CUPE to sign the MOA. [59] Mr. Justice Allbright rejected CUPE’s submission that the Board erred in refusing to defer as required by Weber and other casesthat followed the exclusive jurisdiction model.

He found, following Dunsmuir, that reasonableness was the appropriate standard to applyin considering the decision not to defer and that the decision not to defer did not raise a question of jurisdiction or law. In his opinion, thedecision by the Board on this issue was not unreasonable. I agree with that finding. In my opinion, the decision was not only reasonable,it was correct. [60] The second issue, that is, did the Board have jurisdiction pursuant to ss. 2(

b) and (

d) and 11(2)(

c) to decide the ULP must bedetermined on a standard of correctness. Simply stated, the Board found that the grievance and the ULP were two distinct matters thatraised different issues with the result that the Board had exclusive jurisdiction to hear and determine whether or not there was an ULP. The reviewing court stated: [53] As I have indicated, in my view, the Board correctly interpreted the applicable provision of the Act in identifying a matter ofexclusive jurisdiction on the Board’s part. The identification of that issue, because it touches directly on jurisdiction, attracts a reviewstandard of correctness. I have concluded that I am satisfied that the Board was correct in its

interpretation of its jurisdiction. However,even if the Board was incorrect, that would have little practical salutary effect for the applicant on the specific issue of the Boarddeclining to defer to the jurisdiction of an arbitrator.

If it is incorrect to conclude that the matter of the unfair labour practice wasexclusively within the jurisdiction of the Board, in any event, the Board was at least possessed of concurrent jurisdiction over the subjectmatter of the unfair labour practice complaint, and as I have identified at the outset of the analysis of the specific section, I am satisfiedthat the Board’s decision to exercise its “discretion” (if that is what in essence it was) was for the reasons which I have outlined,reasonable. [61] Mr.

Justice Allbright went on to say: [55] It is germane to note again that the dispute giving rise to the unfair labour practice application on the part of the City is not thesame dispute as is embodied within the Union’s grievance. Therefore, this is not a situation where there are clearly two alternatives(arbitration and the Board) to resolving the identical issue. Where the Board is considering whether in the exercise of its discretion, amatter should be deferred to a board of arbitration, the Saskatchewan Court of Appeal in United Food and Commercial Workers, Local1400 v.

Labour Relations Board (Sask.) and Westfair Foods Ltd. (1992), (SK CA), 105 Sask. R. 17, identified threecriteria that must be established before the Board is entitled to defer an application to a board of arbitration.

These three criteria are setforth in the following paragraph: [16] Morris Rod Weeder speaks of “an alternative remedy of the same grievance” and makes clear the principle that where a tradeunion elects both the grievance-arbitration procedure provided for in the collective agreement between the parties and an application tothe Board for an unfair labour practice order to resolve the same dispute, the Board may consider the trade union’s election to use the

grievance-arbitration procedure as a relevant factor in determining whether to dismiss the application. The case is authority for the proposition that for such an election to constitute a relevant (as opposed to an “extraneous” or “irrelevant”) consideration three preconditions must coexist: (

i) the dispute put before the Board in the application for an unfair labour practice order and the dispute intended to be resolved by the grievance arbitration procedure provided for in the collective agreement must be the same dispute; (ii) the collective agreement must make possible (i.e. empower) the resolution of the dispute by means of the grievance-arbitration procedure, and (iii) the remedy under the collective agreement must be a suitable alternative to the remedy sought in the application to the Board. … [ 62 ] Allbright J. found that the City, in filing the ULP, was not seeking an

interpretation of the CBA but a finding by the Board that there was an agreement and that CUPE by repudiating it had committed an ULP. He found that the Board had the power and the jurisdiction to deal with the allegations of an ULP and that it was not founded on the filing of the grievance. In his opinion, the Board was correct in so finding. The finding by the Board that CUPE had committed two ULPs, (1) by repudiating the agreement; and (2) by failing to sign the MOA were findings of fact and findings of mixed fact and law.

The Board found as a fact that the parties had reached an agreement on the JEP on the issue of retroactive pay and that finding is entitled to deference. There is no basis for setting aside the finding of fact on this issue by reason that it is unreasonable and not supported by the evidence. [ 63 ] On the issue of whether CUPE had committed an ULP by failing to bargain in good faith, the reviewing court found that the decision based on the evidence before it was not unreasonable. Again, I agree with that finding. The judicial review by the court viewed from the standard of correctness must be confirmed. VI.

Conclusion [ 64 ] The appeal is therefore denied and the City will have its costs on the appropriate column. DATED at the City of Regina, in the Province of Saskatchewan, this 6th day of December, A.D. 2011. ____________________________________ Vancise J.A. I concur ____________________________________ Caldwell J.A. Smith J.A. (in dissent) [ 65 ] I have had the opportunity to read the reasons of Vancise J.A.

With respect, I would come to a different result on this appeal. [ 66 ] The basic facts of this appeal are set out in my colleague’s reasons and I will not repeat them all here. [ 67 ] The issue that arises is whether the Saskatchewan Labour Relations Board erred in refusing to decline jurisdiction in relation to an unfair labour practice application on the grounds that the issue between the parties was essentially, or at the core, one of the proper

interpretation of the collective bargaining agreement between the parties and should properly be determined by the arbitrator under the collective agreement. [ 68 ] The issues in this case fell to be determined under the provisions of The Trade Union Act, 1978 , R.S.S. 1978, c. T-17 . Section 25(1) of that Act provided as follows: 25

(1) All differences between the parties to a collective bargaining agreement or persons bound by the collective bargaining agreement or on whose behalf the collective bargaining agreement was entered into respecting its meaning, application or alleged violation, including a question as to whether a matter is arbitrable, are to be settled by arbitration after exhausting any grievance procedure established by the collective bargaining agreement.

Section 18 (

l) of the Act empowered the Board to defer deciding any matter if the Board considered that the matter could be resolved by

arbitration or an alternative method of resolution. [ 69 ] Although s. 18(

l) appears to grant the Board a discretion to defer to arbitration when the dispute involves

interpretation of the collective agreement, in light of the s. 25(1), there appears to be no dispute that where the issue between the parties is in essence one of

interpretation of the collective agreement, it falls within the exclusive jurisdiction of the arbitrator. The Board was itself of this view, as is my colleague. Accordingly, the real issue is whether the issue raised by the unfair labour practice application was essentially one of interpreting the collective bargaining agreement. [ 70 ] In my respectful view, the issue between the parties in this case was clearly one of

interpretation of the memorandum of agreement signed by the parties and dated July 10, 2001, which, in

Article 20.4, dealt with the issue of what was to be done about outstanding requests for reclassification. These requests went back as far as 1997. The union members were asked to choose whether the outstanding requests should be determined prior to the end of 2001, under the old system that provided for a decision by the employer with a right of appeal to a third party arbitrator, or whether the outstanding requests would be “suspended”, not dealt with prior to the end of 2001, and no new requests accepted prior to the implementation of the new evaluation system.

The membership opted for the second option and this was incorporated into the agreement in these words: “Articles 20.1 20.2 and 20.3 shall be suspended effective July 10, 2001.” The effect of this was that outstanding requests for reclassification would not be dealt with prior to the end of 2001, and no new requests would be received.

This provision said nothing more about how the requests would eventually be dealt with. [ 71 ] Nonetheless, as is implied in the word “suspended”, it was clear that the outstanding requests would eventually be dealt with (and the parties do not differ on this point) and, indeed, a “retroactivity” list was circulated and occasionally amended to list those who would be entitled to retroactive pay, under the new job reclassifications, based upon whether they were covered by a request filed prior to July 10, 2001. [ 72 ] The issue that eventually arose between the parties was simply how to determine who was to be on the retroactivity list implicitly created by

Article 20.4. [ 73 ] Under the “old” system, in place prior to July 10, 2001, a request for reclassification could be instituted by any employee (or by the employer) by filing a document called a “Position Analysis Questionnaire”, or “PAQ”.

If the request was successful, the position of the individual who had filed the PAQ was reclassified and wage adjustments were made retroactive to the date of the filing, not only for the individual who had filed, but also for all employees in the classification when the PAQ was filed and all new employees hired into the classification after the PAQ was filed but before the reclassification was granted. [ 74 ] In the Spring of 2008, the Union took the position that the retroactivity list should therefore include all those who would have received retroactive pay under the system in place when the “suspended” PAQs were filed—i.e., not merely the individual who had filed the PAQ, but all others in the position at the time of filing, and all persons hired into the position after the filing but before the reclassification.

The Employer took the position that the retroactivity list included only those individuals who had actually filed the PAQs. [ 75 ] The July 10, 2001 memorandum of agreement did not expressly address the question of the composition of the retroactivity list. In express terms it did no more than suspend, or freeze, the reviews that were then in process while also providing that no new PAQs could be filed.

In December 2007, the employer had drafted a memorandum of agreement reflecting its position, (that only the individuals who had filed a PAQ would be entitled to retroactive pay) but this agreement was never executed by the Union. It is this document that the Board would subsequently order the Union to execute. [ 76 ] When the employer began to make retroactive payments in accordance with its position, in January, 2008, the Union objected and eventually, in April, 2008, filed a policy grievance.

The employer denied the grievance stating that it was of the opinion that the parties had reached an agreement with respect to the payment of retroactive pay and that it had made such payments in accordance with that agreement. This grievance was eventually referred to arbitration. [ 77 ] On November 6, 2008, the employer filed an unfair labour practice application with the Board, alleging that the Union had failed to bargain in good faith, and specifying, in part: (

k) Referring this grievance to arbitration flies in the face of the agreement reached between the parties respecting the New Job Evaluation Plan and retroactive wage payments and makes a mockery of the concept of bargaining in good faith. …

(

m) Attempting to arbitrate this grievance … is an example of bargaining in bad faith. [ 78 ] The Board in its decision, frankly acknowledged, at paragraph 11 of its decision, How retroactive payments were made to successful applicants for reclassification under the Old System versus how retroactive payments were made under the Job Evaluation Plan is at the heart of the dispute between the City and the Union. (AB 171a) [ 79 ] In considering the application by the Union to defer the issue to the arbitrator, the Board said this: [42] Based upon the submissions of the parties, the Board could see two (2) distinct issues: (

a) The unfair labour practice as to whether the Union has bargained in bad faith regarding the Job Evaluation and the retroactivity issue. This issue is important as it appears to be impacting on the fundamental labour relations relationship between the parties, which is a mature relationship, one which the Board would seek to restore and preserve; and (

b) The grievance which relates to the

interpretation of the agreement. The problem appears to relate to what the agreement is or was and what is to be interpreted. (AB 181a) Based on its view that these were “distinct” issues, the Board refused to defer to the arbitrator and proceeded to decide the unfair labour practice application, concluding that the Union, in pressing its view of the scope of the retroactivity list, had “recanted” the agreement reached with the employer and had therefore failed to bargain in good faith. [ 80 ] With greatest respect, it is my view that the Board’s conclusion that the question of whether the Union had “recanted” the agreement by pressing its

interpretation of it was distinct from the question of the proper

interpretation and scope of the agreement was completely incorrect and illogical. It was, in short, unreasonable. It seems quite clear that the determination that the Union had “recanted” the agreement depended entirely on a determination of what the agreement was, and what it meant. These were, essentially, precisely the same question. [ 81 ] For these reasons I would allow the appeal with costs to the appellants. DATED at the City of Regina, in the Province of Saskatchewan, this 6th day of December, A.D. 2011. ____________________________________ Smith J.A.