UNB v Association of University of New Brunswick Teachers -, 2023 NBKB 020

Citation: UNB v Association of University of New Brunswick Teachers - 2023 NBKB 020 COURT FILE NO: FM-1-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: THE UNIVERSITY OF NEW BRUNSWICK -and- ASSOCIATION OF UNIVERSITY OF NEW BRUNSWICK TEACHERS Dates of Hearing: September 6, 2022 Date of Decision: February 27, 2023 Before: Mr. Justice E. Thomas Christie Representation of Parties at Hearing: Clarence L. Bennett, K.C.

Solicitor for the University of New Brunswick Jo ël Michaud, K.C. , Solicitor for the Association of University of New Brunswick Teachers Christie, J. I. INTRODUCTION [ 1 ] In June 2018, Dr. Dalkir, a faculty member in the Economics Department at the University of New Brunswick (UNB), applied for promotion to the rank of Full Professor. There is an extensive candidate evaluation process set out in the collective agreement between UNB and the Association of University of New Brunswick Teachers (AUNBT) to assist in identifying candidates worthy of such a promotion.

The process has various stages of candidate consideration culminating with a recommendation to the President of the University made by a three-member panel of UNB Vice-Presidents. As it appears the practice goes, this recommendation from the Vice- Presidents becomes the disposition of the candidate’s application. At the conclusion of the process considering Dr. Dalkir’s application, his promotion was not recommended by the Vice-Presidents. His application was effectively at an end. AUNBT filed a grievance on Dr.

Dalkir’s behalf. [ 2 ] Following a hearing on the grievance, a three-person arbitration Board rendered its reasons for decision on October 8, 2021. The written reasons exceeded 400 pages in length. The Board was not unanimous. Nevertheless, by majority, it determined that the grievance should be upheld and declared that Dr. Dalkir be promoted to the rank of Full Professor. [ 3 ] UNB seeks judicial review of the Board’s decision. The Notice of Application relies on two primary grounds which I summarize as follows: i. The Board, in assessing the reasonableness of UNB’s determination of Dr.

Dalkir’s application to become a full professor, relied

upon an understanding of reasonableness as identified in Canada (Attorney General) v. Vavilov , 2019 SCC 65 , which, UNB says, is not the proper understanding of reasonableness that the Board should have been using to assess UNB’s decision. ii. The Board, acted outside of its authority, and contrary to the provisions of the University of New Brunswick Act , S.N.B. 1984, c. 40 , in declaring Dr. Dalkir’s rank of Full Professor. [ 4 ] It is to be noted, that UNB made no representations before the Board with respect to any limits on its remedial authority as raised by issue (ii) of its Application.

Thus, it raises the issue of remedy before this court for the first time. II. OVERVIEW [ 5 ] The process leading to promotion to full professor is comprehensive and set out in the collective agreement.

Article 25D.05 identifies that promotion is premised on two components. First, the candidate must demonstrate a continuing high level of competence and achievement in the candidate’s area of expertise. Second, the candidate must have an acceptable record of service. On this second point, UNB agrees that Dr. Dalkir meets this criterion.

It was the demonstrated high level of competence in his area of expertise that was the point at issue leading to the matter coming before the arbitration Board. [ 6 ] In its reasons, the Board set out the various applicable provisions of the collective agreement dealing with promotion. It took ten pages of the Board’s reasons to do so. I do not plan on repeating that process given that the task before me is limited to assessing whether the Board applied the proper test to determine if UNB’s decision was reasonable. It is not about whether UNB misapplied a specific provision of the collective agreement.

Nevertheless, the parties, in their written briefs, summarized the process of promotion by identifying the various steps. Those steps are as follows. [ 7 ] First, three external assessors are identified who are, amongst other characteristics, recognized national/international experts in the candidate’s area of expertise. This independent and anonymous panel assesses the application and considers whether the candidate would be suitable for promotion based on the identified criteria noted above. In Dr.

Dalkir’s case, all were satisfied of his meeting the criteria. [ 8 ] Second, is a Level 1 Committee comprised of members of the candidate’s Department. This committee assesses the candidate, and in Dr. Dalkir’s case, seven out of the ten members recommended that his promotion move forward, being satisfied he met the criteria. [ 9 ] Third, the Chair of the Department makes a separate recommendation of their own. In this case, the Chair did not recommend Dr.

Dalkir’s promotion. [ 10 ] Fourth, a Faculty of Arts Assessment Committee considers the application for promotion in relation to the applicable criteria and also considers the candidate in relation to any other faculty who may be seeking promotion. This Committee took no issue with Dr. Dalkir’s qualification for promotion. [ 11 ] Fifth, the Dean of the Faculty of Arts considers the candidate’s application and, in Dr.

Dalkir’s case, recommended against promotion. [ 12 ] Sixth, a panel consisting of the Vice-President (Research), Vice-President (Academic) and the Vice-President (Saint John Campus), consider the request for promotion. This group’s purpose is to recommend or not recommend the candidate to the President. This committee, over the period of two weeks in their

schedule set aside to consider promotion requests, could review many applications, all of which come with voluminous filings. Each of the present parties expressed regret that this final stage of the process appears to be, by necessity given the numbers of applicants and the time permitted to assess, somewhat of a

summary process. [ 13 ] At each of the steps, the candidate is entitled to make representations in rebuttal to any negative recommendations. Ultimately, should a candidate be unsatisfied with the decision of the Vice-Presidents’ Committee, the grievance process is available as set out at art. 41.29 of the collective agreement which provides as follows: When dealing with grievances involving procedural irregularity, if the Arbitration Board finds that procedures established in this

Collective Agreement have not been complied with, it may direct that the matter be considered again by the appropriate person or committee in accordance with the terms of this Collective Agreement unless the Arbitration Board considers such reconsideration inappropriate.

Where, by the terms of this Collective Agreement, judgment or discretion is to be exercised by the University of New Brunswick or any person or committee, the Arbitration Board shall not substitute its own judgment for that already made unless it finds the judgment or discretion to have been exercised in an arbitrary or unreasonable manner. [emphasis added] [ 14 ] In this case, it is accepted that the decision to promote is one that requires judgement and/or discretion.

As stated in art. 41.29, an arbitration board can only intervene if it concludes that UNB exercised its judgement or discretion in an arbitrary or unreasonable manner. In the present case, it was determined by the Board that UNB acted in an unreasonable manner. There was no argument that UNB acted arbitrarily. The Board, having determined UNB acted unreasonably, directed that Dr. Dalkir be promoted to the rank of Full Professor. III. ARGUMENT [ 15 ] The substance of UNB’s argument is that the Board relied too heavily on ‘unreasonableness’ as that term is understood from Canada (Attorney General) v.

Vavilov , 2019 SCC 65 . UNB argues that ‘unreasonableness’, as it ought to apply in the context of labour arbitration board hearings, is not the ‘unreasonableness’ applicable in the judicial review context. In these reasons, I use ‘reasonableness’ and ‘unreasonableness’ interchangeably as the context dictates. [ 16 ] AUNTB is of the view that, to argue that there is a material difference between the meaning of unreasonableness in collective bargaining arbitration, and the use of that term in the context of judicial review, is a distinction with no meaning. [ 17 ] In

Section 7 of its reasons, the Board discusses the definition of unreasonableness. It begins by examining the use of that term in Vavilov . The Board also considered other authorities. Seven pages of the Board’s reasons are dedicated to describing unreasonableness. It then summarized the principles that should be considered.

Beginning at page 134 the Board writes: To summarize, the Supreme Court of Canada in Re Vavilov and its other relevant decisions, such as Re Dunsmuir , as reviewed above, as well as the other jurisprudence reviewed above, stated that a decision will be considered unreasonable in accordance with the following principles: - To be reasonable, a decision must be based on reasoning that is both rational and logical ( Re Vavilov , paragraph 102 ); - A reasonable decision must be justified in light of the legal and factual constraints that bear on the decision ( Re Vavilov , paragraph 105 ); - Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers ; ( Re Vavilov , paragraph 105 ); - A reasonableness review is not a line-by-line treasure hunt for error ( Re Vavilov , paragraph 102 ); - To be reasonable, the reviewing court must be able to trace the decision makers reasoning without encountering any fatal flaws in the overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived’ ( Re Vavilov , paragraph 102 ); - A decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis ( Re Vavilov , paragraph 103 ); - A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided ( Re Vavilov , paragraph 84 ); - The focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome ( Re Vavilov , paragraph 83 ); - It is not enough for the outcome of a decision to be justifiable.

Where reasons for decision are required, the decision must also be justified, by way of those reasons , by the decision maker to those to whom the decision applies ( Re Vavilov , paragraph 86 ); - An otherwise reasonable outcome cannot stand if it was reached on an improper basis ( Re Vavilov , paragraph 86 ); - In the assessment of whether a decision is reasonable, reasons that ‘simply repeat statutory language, summarize arguments made, and then state a preemptory conclusion’ will rarely assist a reviewing court in understanding the rationale underlying a decision and ‘are no substitute for statements of fact, analysis, inference and judgement’ ( Re Vavilov , paragraph 104 );

- A reviewing court must ultimately be satisfied that the decision maker’s reasoning ‘adds up’ (Re Vavilov, paragraph 104); - A process loses its reasonableness when consideration is given to factors irrelevant to the question or ignore or diminish thesignificance of factors relevant to the essential question (British Columbia (Workers Compensation Board) (Young grievance); [1989,B.C.C.A.A.A. No. 593] - A decision loses its reasonableness if it fails to properly interpret and apply the relevant criteria in accordance with thecollective agreement (University of British Columbia – Rucker) [ ] [Bold text is found in the original] [18] There was no issue that the Board’s

summary of the Vavilov principles was accurate, and I accept that the Board considered(amongst other authorities) the Vavilov characteristics in its reasonableness analysis. However, does that shift its reasons and decisionfrom the presumed state of reasonableness into an error that must be corrected on judicial review? UNB says it does. [19] UNB argues that the standard understanding of unreasonableness in collective agreement arbitration has, essentially, been set bypast arbitral jurisprudence.

If the Board in the present matter has departed from that standard, UNB argues its decision then becomessubject to review. To capture the point more succinctly, UNB writes at par. 52 of its brief: “If the Board has departed from theestablished understanding of that standard, the Board’s decision will be unreasonable”. UNB relies on United Food and CommercialWorkers Canada Union, Local 401 v. Sobey’s-Safeway Operations (Provincial), 2019 ABCA 175. In that case, the court identifies thatthe role of an arbitrator is not the same as that of a reviewing court – each serve different purposes.

At paras. 13-14 of Sobey’s-Safeway,is found the following articulation of this position: [13] The second area of confusion raised by this appeal is the arbitrator’s use of the term “reasonableness” when evaluating a dismissalfor just cause. “Reasonableness” pervades the legal tests. Here, the arbitrator had to consider the reasonableness of a variety of employerdecisions including whether the policy was a reasonable exercise of management rights, which is assessed by considering thereasonableness of the policy itself.

Reasonableness is also the standard of review that the reviewing court will apply when it judiciallyreviews these arbitral decisions. [14] While it would be tempting to conclude, as Safeway suggests, that reasonableness plays a consistent role across these numerouslegal tests and denotes deference to the employer in all circumstances, a review of the arbitral awards and case law suggests that themeaning of reasonableness within the arbitration context differs depending on the circumstances. This is in stark contrast toreasonableness as a standard of review in the judicial review context, as set out above.

As a result, to conflate these two contexts and toapply the reasonableness standard from one to the other is to make a fatal error. [emphasis added] [20] Recall that the test to be applied by the Board in the present matter, pursuant to art. 41.29 of the collective agreement, was todetermine if UNB’s judgement and discretion had “been exercised in an arbitrary or unreasonable manner”. It was not, for instance, toensure that the employer’s decision fell within an acceptable range of outcomes (an expression formerly used as part of a judicial reviewanalysis).

Of course, in the present case, it would have been difficult for the Board to examine the question from the ‘range of outcomes’approach as there were only two options open to the UNB regarding Dr. Dalkir – ‘yes’ to promotion or ‘no’. Nevertheless, UNB arguesthat it was an error of the Board to fall into a Vavilov reasonableness analysis and not, as it should have, applied its own independentexpertise to the very question before it. [21] In Association of Justice Counsel v.

Canada (Attorney General), 2017 SCC 55 the court framed the question faced by thearbitrator of first instance as a matter of determining if the employer’s decision to implement a stand-by system for its lawyers,“represented a reasonable and fair exercise of management rights” (para. 22). To answer that question, the court rejected reliance on thereasonableness test as understood to include examining the ‘range of possible outcomes’ approach.

At paras. 23-28 the followingassessment is made: [23] Before this Court, the respondent argued that when answering this question the adjudicator’s role was to decide whether theemployer’s mandatory standby directive was within the range of possible, reasonable choices that have a supportable relationship withthe employer’s operational needs. [24] I do not find this a helpful articulation of the arbitrator’s task.

The well-established approach to determining whether a policy thataffects employees is a reasonable exercise of management rights is the “balancing of interests” assessment, as set out in the leadingarbitral decision KVP, and recently endorsed by this Court in Irving (para. 27, quoting the intervener the Alberta Federation of Labour): Determining reasonableness requires labour arbitrators to apply their labour relations expertise, consider all of the surroundingcircumstances, and determine whether the employer’s policy strikes a reasonable balance.

Assessing the reasonableness of an employer’spolicy can include assessing such things as the nature of the employer’s interests, any less intrusive means available to address the

employer’s concerns, and the policy’s impact on employees. [25] Although, in this instant case, the adjudicator did not mention Irving or KVP explicitly in his decision, he applied this balancingof interests approach. He reasoned that he was required to assess, on the one hand, the lawyers’ terms of work, as defined in thecollective agreement, and the effect of the directive on their personal lives and, on the other hand, the employer’s objective and approachto meeting this objective. [26] In contrast, the respondent relies on a single arbitral decision, United Nurses of Alberta v.

Alberta Health Services, (Alta.), at p. 12, for its proposed approach. In that decision, the labour arbitrator ruled that, as long as a management policy “iswithin a range of possible choices and has a supportable relationship to the business objectives, the arbitrator is not empowered tosubstitute his or her views for what management has in fact done” (p. 13).

In the oral hearing before this Court, counsel for therespondent conceded that he was not aware of any other arbitral decisions that have followed this authority. [27] In my view, the United Nurses of Alberta approach is problematic, as it imports the judicial review reasonableness inquiry intothe labour arbitrator’s task of assessing the exercise of management rights. This conflates the distinct roles that arbitrators and reviewingcourts play in the context of labour grievances.

It also runs counter to this Court’s recent endorsement in Irving of the KVP test.Furthermore, the arbitrator’s statements in United Nurses of Alberta appear to have been directed solely at determining whether anexercise of management rights was reasonable.

Here, the language of clause 5.02 of the collective agreement also required theadjudicator to decide whether the directive was a fair exercise of management rights that had been made in good faith. [28] Thus, I am satisfied that in following the well-established balancing of interests approach, the adjudicator applied the appropriateanalytical framework to assess the exercise of management rights under this collective agreement. [emphasis added] [22] As the court further stated at para. 32: The adjudicator’s task was to draw on his specialized labour expertise and consider whether, in this particular context, the balance struckby the directive was reasonable (Irving, at para. 27). [23] In the present case, UNB argues that the Board overly focused on the Vavilov understanding of reasonableness and ignored therealities facing the committee of Vice- Presidents.

The Vice-Presidents, over the course of a two-week window, assess and determine therecommendations of approximately 40-50 applicants seeking promotion, each with a file of approximately 300 pages. It would beunrealistic, UNB asserts, to expect decisions from the Vice-Presidents to be anything more than somewhat cursory in comparison to the401-page decision of the Board.

Somehow, UNB argues, the Board in its reasons ended up wandering through the wilderness inassessing UNB’s decision and forgot to tie itself to the factual context faced by the Vice Presidents and applying its own expertise toassess the reasonableness of UNB’s rejection of Dr. Dalkir’s application. The Board should have been more alert to its required purposeof assessing UNB’s decision on a balancing of interests approach. [24] UNB also argues that it was not open to the Board to declare that Dr. Dalkir was promoted (p. 401 of the Board’s reasons).

UNBacknowledges that the collective agreement speaks of allowing the Board to substitute its own judgement if it has found UNB to haveacted in an arbitrary or unreasonable manner. However, it argues that the provisions of the University of New Brunswick Act, S.N.B.1984, c. 40, vests the sole power of promotion in the President – not the Board.

Subsection 54(2) of the Act reads as follows: 54(2) No person shall be accorded tenure, or promoted, or both, in the teaching staff of the University, or of any school of facilitythereof, except on the recommendation and with approval of the President. [25] With that said, however, s. 62 of the Act, permits the President to delegate their power: 62.

The President may delegate any of his powers, duties or functions, as he may deem advisable and prescribe conditions governing theexercise of any delegated power, duty or function, provided that, in the absence of express provision made by him, a power delegatedshall not include a power to sub-delegate. [26] UNB argues that the authority of the President to delegate certain powers, duties or functions, to others could not include therole of recommending or approving promotion. The Act represents a limit on what the Board could lawfully direct.

The most the Boardcould have done would have been to remit the matter back to the committee of Vice-Presidents. The Board had no authority to declareDr. Dalkir promoted. [27] UNB acknowledges that the issue of the Board’s remedial options was not put to the Board in the first instance. UNB did notargue before the Board that the Board would lack authority to direct Dr. Dalkir’s promotion.

While it is typically the case that anapplicant on judicial review could not raise a matter not put to the Board below, UNB argues that it is not restricted from raising it nowas it is a matter touching upon the jurisdiction of the Board. UNB relies upon various authorities on this point, including the decision of

Justice Rothstein, then of the Federal Court, in Shubenacadie Indian Band v. Canada (Human Rights Commission), (FC), [1998] 2 F.C. 198, ( ). Justice Rothstein, at para. 40, wrote that: Given that a decision of an administrative tribunal in excess of its jurisdiction “is not a decision at all”, it seems paradoxical that the same“decision” would be immunized from review where jurisdiction is never raised and the tribunal’s jurisdictions and/or theconstitutionality of its enabling legislation is assumed.

This is tantamount to saying that parties to an administrative proceeding may, bywaiver or acquiescence, confer jurisdiction on a tribunal that was not, or could not be conferred by Parliament, and that this conferral ofauthority by the parties is unreviewable once the decision is made.

Indeed, it is not difficult to imagine a tribunal falling intojurisdictional error simply because it did not hear arguments on that issue. [28] UNB argues that if I am not convinced that the award as a whole should be quashed, it proposes that the award on remedy bequashed and remitted to the Board for reconsideration of the proper remedial options open to it. [29] AUNBT focuses on the extensive process that must be followed, pursuant to the collective agreement, to assess candidates forpromotion. The steps have been summarized above.

It was right for the Board, in face of the level of support throughout the process forDr. Dalkir’s promotion, to declare him promoted. [30] Dr. Dalkir’s consideration for promotion was not universally endorsed through all steps. The process began with assessment bythree external evaluators who were unanimous in their recommendation that Dr. Dalkir met the required level of scholarly achievementin the required categories. His candidacy was also recommended by the various lower level assessment committees. The Dean and Chairof the Department recommended against it, as did the Vice-Presidents Committee.

The Board itself was not unanimous in its ruling withthe representative of UNB dissenting, but without giving reasons. [31] I would observe at this point that the court would have benefited from an explanation from the dissenting Board member as towhy the majority decision was not appropriate. In a matter as complex as this, the expertise of all Board members should be expressed.

Iam left with no explanation as to why the dissenting Board member believed his colleagues to be in error. [32] AUNBT argues that it was appropriate for the Board to turn to Vavilov’s expression of the concept of reasonableness, forguidance. The Board was correct to rely on that understanding in its consideration of how it would apply the criteria for assessment inart. 41.29.

Deference, AUNBT asserts, is owed to the Board’s determination. [33] AUNBT argues that it is illogical for UNB to draw distinctions between what reasonableness means in the context of a Vavilovview of that concept, and the use of that term in non-Vavilov contexts.

As AUNBT wrote in its brief at para. 31: It drew from Vavilov such salutary and uncontroversial principles as the notion that a reasonable decision “must be based on reasoningthat is both rational and logical” and that there should be no “fatal flaws in its overarching logic”, as well as the well-known maximagainst engaging in a “line-by-line treasure hunt for error. [34] AUNBT notes that it would be absurd to find on judicial review a Board’s decision ‘unreasonable’ because it considered, in part,the use of that term as described in Vavilov but if a more colloquial understanding of that term was used the Board’s decision might bereasonable. [35] AUNBT also argued that UNB did not take issue with the Board’s discussion of Vavilov when the matter was being fullydiscussed with the Board during the hearing of first instance.

AUNBT asserts that UNB’s argument loses sight of the fact that while adeferential approach to the UNB’s decision should generally be encouraged, that is displaced by the Board’s determination that UNB’sdecision was unreasonable. I accept that the Board’s reasons do not indicate argument from UNB that Vavilov was ‘off limits’ in theBoard’s consideration of its task. [36] AUNBT relies on the reasons of Justice LeBel in Toronto (City) v. C.U.P. E.

Local 79, 2003 SCC 63 for the proposition that,while there may be a temptation to search widely for variations in the meaning of common words, such a route is to be avoided byremaining focused on the essential question. At para. 108, Justice LeBel reminds us of the importance of remaining focused on theessential question: 108 In the end, the essential question remains the same under both standards: [reference being made to the former standards of patentunreasonableness and reasonableness simpliciter]

[37] AUNBT argues that remaining focused on the essential question, “… means that the Vice-Presidents’ decision was unreasonable– under Vavilov or on any other meaning of the word “unreasonable”” [AUNBT brief at para. 43] [38] As for the UNB’s argument that the Board usurped the President’s authority to promote Dr.

Dalkir, a power UNB asserts islegislatively reserved to the President, AUNBT argues that it is unfair to allow UNB to raise an issue before this court that UNB chosenot to put before the Board below. [39] Furthermore, AUNBT says that the UNB Act permits the President to delegate powers ascribed to that office and that is preciselywhat the President did by signing a collective agreement that places the substantive steps in the promotion process in the hands of thoseidentified in the collective agreement (see Durham Regional Police Association v.

Durham Regional Board of Commissioners of Police, (SCC), [1982] 2 S.C.R. 709). It would, AUNBT argues, be unjust to have this court wade into those waters without firstallowing the Board to address any argument that the remedial authority of the Board, as set out in the collective agreement signed by thePresident, offends the UNB Act. IV. ANALYSIS [40] Both parties are of the view that the applicable standard on judicial review is that of reasonableness. This is so as it pertains toboth grounds cited in the Application.

As UNB notes, the question of remedy, and its potential conflict with the UNB Act, does not crossinto the established criteria for the correctness standard. This is not a case where boundaries between competing tribunals need to beaddressed, nor is there any statutorily defined standard of review and finally, there is no constitutional question or question of generallegal application at play.

I agree with the parties that reasonableness is appropriate standard – reasonableness as now understood inVavilov. [41] In para. 16 above, I summarize what the Board identified as the core elements of a reasonableness analysis as found in Vavilov. Itserves no purpose to restate those principles here. The parties took no issue with the Board’s summation of the Vavilov principles.

Iaccept that the Board correctly summarized the hallmarks of a reasonableness review applicable to the task before me. [42] Turning then to the merits of the Application pertaining to the Board’s application of reasonableness in its assessment of UNB’sdecision, UNB asserts that the Board wrongly relied on the Vavilov understanding of what makes a decision unreasonable.Reasonableness on judicial review, as informed by Vavilov, means something different than reasonableness does in the arbitrationcontext.

AUNBT argues that such distinctions cannot raise to the level of a reviewable error given that, at their core, the concepts growfrom the same root. [43] At p. 128 of its reasons the Board began its

section entitled, “Definition of Unreasonable”, in the following way: The decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65 ,[2019] S.C.J. No. 65, (hereinafter referred to as “Re Vavilov”) stated the principle that for a decision to be considered “reasonable”, itmust be “inherently coherent” and “justified in light of the legal and factual constraints that bear on the decision. [44] UNB argues that arbitral authorities do not apply the Vavilov understanding of whether an employer’s use of discretion isreasonable.

Yet, it acknowledges that there is not one uniform understanding of that concept in the arbitral jurisprudence. UNB identifiespara. 14 of Sobey’s-Safeway on this point: … a review of the arbitral awards and case law suggests that the meaning of reasonableness within the arbitration context differsdepending on the consequences. [45] In his concurring reasons in Toronto, Justice LeBel examines in depth the former approach to standards of judicial review.

Inparticular, he expresses the view that the distinction between what was then understood as patent unreasonableness and reasonablenesssimpliciter may not be as easily discernable as we thought: 103. Because patent unreasonableness and reasonableness simpliciter are both rooted in this guiding principle, it has been difficult toframe the standards as analytically, rather than merely semantically, distinct.

[ 46 ] Further, at para. 108, he wrote: 108. In the end, the essential question remains the same under both standards: was the decision of the adjudicator taken in accordance with reason? Where the answer is no, for instance because the legislation in question cannot rationally support the adjudicator’s

interpretation, the error will invalidate the decision, regardless of whether the standard applied is reasonableness simpliciter or patent unreasonableness (see D. K. Lovett, “That Curious Curial Deference Just Gets Curiouser and Curiouser — Canada (Director of Investigation and Research) v. Southam Inc. ” (1997), 55 Advocate (B.C.) 541, at p. 545).

Because the two variants of reasonableness are united at their theoretical source, the imperative for the reviewing court to intervene will turn on the conclusion that the adjudicator’s decision deviates from what falls within the ambit of the reasonable, not on “fine distinctions” between the test for patent unreasonableness and reasonableness simpliciter (see Falzon, supra , at p. 33). [ 47 ] I accept that the Board informed itself on the meaning of reasonableness by carefully identifying with the Vavilov principles. But it did not exclusively do so.

Moreover, UNB does not posit a more coherent or unified understanding of unreasonableness in the context of the present arbitration other than to focus on deference that should have been accorded to the Vice-Presidents and recognition of the constraints under which they worked.

Much in the same way that UNB argues (before this court and the Board) that the Board owed deference to the Vice-Presidents’ decision, so too am I called on to show deference to the Board. [ 48 ] UNB’s further critique of the Board’s reasons is that it called for a “ heightened emphasis on justification and responsive reasons ” (pre-hearing brief, para. 57). How does a reviewing court gauge when a ‘ heightened emphasis ’ goes too far? The Board, while undoubtedly focused on identifying with Vavilov , goes further by taking many pages to describe the nature of unreasonableness.

In my view, without a clearer articulation of what might encompass a reasonableness review in the arbitration context, it is difficult to find that the Board’s approach crossed a barrier. It is not as if the definition of ‘unreasonable’ fits within one universally accepted definition. It must be variable, otherwise the value of an arbitrations board’s expertise could be lost. [ 49 ] Nevertheless, I am left wondering what, is the substantive difference between reasonableness as applied by the Board and reasonableness as applied in the judicial review situation.

Undoubtedly, a Board in circumstances such as these could have given inappropriate weight to certain considerations over others. For instance, if the Board focused heavily on the characteristic of deference to an employer’s decision, to the exclusion of other considerations, then it would not be fulfilling its oversight duties.

Here, of course, the Board did not show an overemphasis on deference – it would not have needed 401 pages to show deference. [ 50 ] I am unconvinced that a material difference in reasonableness, as it is seen in Vavilov and reasonableness as seen in arbitral jurisprudence, has been shown to the degree that it warrants this court’s intervention. It could be, for the purpose of illustration, like trying to explain the differences between shades of white paint. [ 51 ] Vavilov , in part, calls for a reviewing court to show deference to the Board’s determination.

Yet, Vavilov goes further in shaping our understanding of unreasonableness and asks that reasons given be coherent, based on a balanced assessment of the evidence, be transparent and show attention to any binding authority (amongst other considerations). I am not convinced that the Board erred in this regard. [ 52 ] Furthermore, even if the Board was wrong in its application of a reasonableness assessment, it does not follow that the error is of such magnitude that the decision is to be quashed. As Vavilov reminds us that tribunals are established to resolve disputes in those fora other than courts.

It is, generally speaking, intended that they handle matters falling within their jurisdiction expertise, to the exclusion of courts. The decision of the Board was not one that was such an afront to established legal principles or went beyond its own borders, so to speak, that intervention by this court is required. [ 53 ] Finally, I want to address UNB’s argument that the Board overstepped its authority in directing the promotion of Dr. Dalkir. The premise of the argument was that the UNB Act only permitted the President to recommend promotion.

AUNBT argued that the UNB Act specifically authorized the delegation of such authority and that the President did just that by signing a collective agreement that established a comprehensive promotion process that included the authority for a Board to substitute its decision for one found to be arbitrary or unreasonable. In this case, the parties and the Board followed that process. [ 54 ] AUNBT’s argument on this point has merit. Subsection 62 of the UNB Act does achieve that purpose.

Furthermore, I am concerned with allowing UNB to advance, for the first time before this court, an argument it did not make below. It had the opportunity to do so during the Board hearing. Also, subsequent to the release of the Board’s reasons, UNB had the opportunity to return to the Board if the remedy ordered was one it felt could not be implemented. I note that the Board, at p. 401 of its reasons stated the following:

In the result, the Board allows the grievance dated October 9, 2019 advanced by AUNBT on behalf of Dr. Mehmet Dalkir. The Board remains seized in the event that a dispute arises over the implementation of the Board’s award . [emphasis added] [ 55 ] I am of the view that the Board, having retained jurisdiction over the implementation of the award, and given the potential limitation of, or conflict with, its authority under the collective agreement arising from the UNB Act , should have been the first avenue recourse for UNB to address any issues concerning the Board’s remedial authority.

To have before me the Board’s discussion of its view of any limits on its remedial authority would have been a benefit to the court. I am not of the view that, in circumstances like the present, it would serve the interests of justice to exercise the court’s discretion to quash, and order back to the Board, the issue of remedy. Nor, as noted earlier, has UNB has satisfied me that the President’s authority to delegate had not been invoked by his signature on the collective agreement. [ 56 ] In the result, the Application is dismissed.

AUNBT is entitled to costs of $2,500 plus HST and disbursements. _______________________ Justice E. Thomas Christie Court of King’s Bench of New Brunswick, Trial Division