Docket: CACV2389 The City of Saskatoon Appellant - v. -, 2013 SKCA 132

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 132 Date: 2013-12-10 Between: Docket: CACV2389 The City of Saskatoon Appellant - and - Amalgamated Transit Union, Local No. 615, Stewart Kelly Read, Saskatchewan Labour Relations Board Respondents Coram: Richards C.J.S., Lane and Caldwell JJ.A. Counsel: Christine Bogad for the appellant Gary Bainbridge for the respondent, Amalgamated Transit Union, Local No. 615 Appeal: From: Q.B.G. No. 1777 of 2012, J.C. of Saskatoon Heard: October 9, 2013 Disposition: Appeal dismissed

Written Reasons: December 10, 2013 By: The Honourable Chief Justice Richards In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Caldwell Richards C.J.S.

I. introduction [ 1 ] The issue in this appeal is whether, on finding a breach of the duty of fair representation, the Saskatchewan Labour Relations Board (the “Board”) has the authority to refer a grievance to arbitration with a direction that the time limits contained in the governing collective agreement be waived. [ 2 ] Stewart Read alleged that the Amalgamated Transit Union, Local No. 615 (the “Union”) had failed to represent him properly in the prosecution of a grievance against his employer the City of Saskatoon. The Board found in Mr.

Read’s favour and ordered that his grievance proceed to arbitration and that the time limits relating to the grievance procedure be waived. The City filed a judicial review application challenging the Board’s authority to make an order of this sort. Its application was rejected by the Court of Queen’s Bench. [ 3 ] The City now asks that the Queen’s Bench decision be set aside. It says the Chambers judge erred in his assessment of the scope of the Board’s remedial authority. [ 4 ] I conclude, for the reasons set out below, that the City’s arguments must fail.

The Board’s authority to make orders of the sort in issue here can be found in s. 5 (e)(ii) of The Trade Union Act , R.S.S. 1978, c. T-17 (the “ Act ”). II. background [ 5 ] The Union is the collective bargaining agent for employees in the City’s Transit Services Branch. [ 6 ] In 2009, Mr. Read was a probationary employee working as a bus driver. As such, he was a member of the Union. [ 7 ] On August 19, 2009, Mr. Read arrived late for work. His supervisor observed that his eyes were glossy and that he smelled of alcohol. Mr.

Read was determined to be unfit for work and sent home. [ 8 ] After a disciplinary investigation, the City concluded that Mr. Read was not a suitable employee. His employment was terminated on August 25, 2009. [ 9 ] The Union filed a grievance on Mr. Read’s behalf. It claimed that he had been unjustly fired and sought full redress. The grievance was received by the City on August 28, 2009. [ 10 ]

Article A18 of the collective agreement between the Union and the City sets out a four-step grievance procedure. Step four is of particular relevance to this appeal. It reads as follows: Grievances unresolved at Step Three may, within forty-five (45) calendar days of receipt of the City Manager’s decision, be referred to arbitration or City Council; otherwise, the grievance shall be considered resolved.

Where a grievance is referred to City Council, the Union may, within forty-five (45) calendar days of receipt of City Council’s decision, refer the grievance to arbitration; otherwise, the grievance shall be considered resolved. [emphasis added] [ 11 ] The grievance progressed through the prescribed procedure and, at each of the first three steps, the Union was unsuccessful. At step four, City Council also denied the grievance. This occurred on May 25, 2010. As a result, the 45-day period for referring the grievance to arbitration, as prescribed by

Article A18 of the collective agreement, would have expired on July 9, 2010. [ 12 ] On October 20, 2010, the Union membership met to discuss the grievance. On the recommendation of the Union executive, the members voted 48 to two in favour of proceeding to arbitration. [ 13 ] Another general membership meeting was held by the Union on December 15, 2010. A vote conducted at that time was 24 to six in favour of taking the grievance to arbitration. However, another motion was then passed “to table the motion [referring the grievance to arbitration] until the Jan. 2011 meeting and inform Bro.

Kelly Read of the meeting so he would be able to attend and state his case.” [ 14 ] It appears another Union member had indicated that Mr. Read had been late on occasions other than August 19, 2009. At a meeting held on January 11, 2011, Mr. Read said there was no proof of these allegations and the Vice-President of the Union indicated

that the City was concerned only with the August 19, 2009 incident. Nonetheless, a motion to rescind the earlier motion to send the grievance to arbitration was passed by a vote of 16 to 13. III. proceedings at the board [ 15 ] On March 7, 2011, Mr. Read filed a duty of fair representation complaint against the Union. He said false information had led the Union membership to decide not to send the grievance to arbitration. [ 16 ] The complaint was based on s. 25.1 of the Act .

It reads as follows: 25.1 Every employee has the right to be fairly represented in grievance or rights arbitration proceedings under a collective bargaining agreement by the trade union certified to represent his bargaining unit in a manner that is not arbitrary, discriminatory or in bad faith. [ 17 ] The City was named as a respondent in Mr. Read’s complaint but it chose not to be involved in the Board proceedings and, as a result, took no position on the matter and presented no evidence. [ 18 ] The Board found in Mr. Read’s favour.

It observed that the Union’s decision to leave the grievance question in the hands of the general membership had been improper. In this regard, it quoted at length from Gordon W. Johnson v. Amalgamated Transit Union, Local No. 588 , [1997] Sask. L.R.B.R. 19, a Board decision concerning a situation where decisions relating to the submission of grievances to arbitration had gone to a meeting of the membership. The Board emphasized the following passage from p. 44 of the Johnson decision: Mr.

McCormick and the other members of the executive took what steps they could to ensure that the members of the bargaining unit were properly briefed prior to the vote, and that they understood that the executive was in favour of proceeding to arbitration.

The mechanism of the vote among the entire group of employees, many of whom had not participated in the discussion at the membership meeting, and some of whom may not have been in possession of any information beyond what was on the notice, was, in our opinion, inherently arbitrary as a means of making a decision about the fate of an individual employee, however useful it might be as a means of obtaining direction about issues of more general significance. [ 19 ] The Board then said that those comments were “as appropriate now as they were then and must guide the decision in this case.” It went on to conclude its analysis as follows: [21] In this case, the Union executive had made a reasoned determination, based on legal advice, to proceed to arbitration.

At the hearing, they repeated their desire to have continued to have pressed on to arbitration, but which decision they felt they were prevented from doing by the membership’s reconsideration of the original decision to proceed. [22] As noted above, the decision by the Union membership not to proceed with the submission to arbitration, as was the original decision by the membership to proceed, was inherently arbitrary. For these reasons, the application is allowed. [ 20 ] The Board referred the grievance to arbitration and provided that any time limits in the collective agreement were waived.

It said this: [23] The Board hereby orders: 1. That the grievance filed by the Union concerning the dismissal of the Applicant is hereby referred to arbitration in accordance with the provisions of the collective bargaining agreement. Any time limitations contained within the collective bargaining agreement are hereby waived, extended or abridged as necessary to allow the grievance to be processed to arbitration; [ 21 ] The City then asked the Board to reconsider its ruling.

It argued that the Board had not had the jurisdiction to refer the grievance to arbitration or to waive the time limits found in the collective agreement. [ 22 ] The Board dismissed the application to reconsider by noting that, in sending the grievance to arbitration, it had followed a longstanding policy grounded in authority found in ss. 5 (

e) and 42 of the Act . It said there had been nothing novel in the orders it had made and concluded there was no need to refine, expand upon or otherwise change those orders. IV. PROCEEDINGS IN THE COURT OF QUEEN’S BENCH [ 23 ] The City brought a judicial review application in the Court of Queen’s Bench aimed at quashing both the Board’s original order and its decision not to reconsider the original order. The Chambers judge employed the reasonableness standard of review.

He upheld the Board’s decision by writing as follows: [12] The question is whether or not the decision of the LRB in its original decision to waive the time period in the CBA was reasonable in allowing the grievance to proceed to arbitration. Relying on the law as quoted herein, the decision of the LRB was

reasonable in deciding that the individual complainant was denied his right to fair and reasonable representation. The ordering that the matter proceed to arbitration was a reasonable decision. [13] If the grievance had proceeded within the time parameters as required by the CBA, the City would have been in the same position it is now. The City was advised as to the date of the hearing and was allowed to appear to make representations.

Had the City felt that the grievance did not have merit to proceed to arbitration, it was certainly at liberty to exercise its right in an attempt to convince the LRB that the grievance was without merit and, therefore, did not justify proceeding further to arbitration. Alternatively, the City could have attempted to establish to the satisfaction of the LRB how the delay would have been prejudicial to the City. It chose not to do so and, as a result, the matter has been ordered to proceed to arbitration. [14] Proceeding to arbitration does not necessarily determine that the grievance was justified.

This is up to the arbitrator to decide. The only matter that was dealt with by the LRB was the waiving of the time limit. If the arbitrator wishes to do so, he may order costs against the Union as a result of their failure to provide fair representation, or he may dismiss the grievance in its entirety. [15] The City has not convinced the Court that the decision of the LRB to allow the grievance to proceed to arbitration was to be reviewed on a standard or ( sic ) correctness nor that the decision was not reasonable.

The LRB decision was not an infringement upon the rights of the City to have the issue heard by an arbitrator as required under the terms of the CBA. Waiving the time limit in the CBA was something that has occurred previously in decisions of the LRB and is not in any way incorrect, unreasonable, prejudicial or out of the ordinary for the LRB to ensure preservation of the rights of each party. V. ANALYSIS [ 24 ] The City objects to the Board’s decision and says the Chambers judge erred in sustaining it.

It stresses that, although blameless in this whole matter, it is now being forced back into the grievance process with at least the risk of an unfavourable ruling on the horizon. The City says the Act should not be read in a way that, in effect, allows the Union to escape any liability or consequences for its failures in representing its members. It also emphasizes the need for certainty in its collective bargaining relationship with the Union and asks how certainty is possible if, after a time limit prescribed in the collective agreement has expired, a grievance can be revived.

The City submits that the Board should not have put Mr. Read’s grievance back on the rails and suggests that, if there was a breach of the Union’s duty to provide fair representation to Mr. Read, the Board should have awarded damages against the Union. [ 25 ] I begin the analysis of the City’s position by underlining that the Board found the authority to make its remedial order in ss. 5 (e) (ii) and 42 of the Act . Therefore, in the end, this appeal turns on the meaning of those two provisions. They read as follows: 5 The board may make orders: … (

e) requiring any person to do any of the following: (

i) to refrain from violations of this Act or from engaging in any unfair labour practice; (ii) subject to

section 5.1, to do any thing for the purpose of rectifying a violation of this Act , the regulations or a decision of the board; 42 The board shall exercise such powers and perform such duties as are conferred or imposed on it by this Act , or as may be incidental to the attainment of the objects of this Act including, without limiting the generality of the foregoing, the making of orders requiring compliance with the provisions of this Act, with any regulations made under this Act or with any decision in respect of any matter before the board. [ 26 ] There was nothing unusual in the Board’s decision to refer the grievance to arbitration with a proviso that the time limits contained in the collective agreement be waived.

It is self-evident that, unless limitation periods are dealt with in this way, an employee’s victory in a case like this one would be entirely hollow. This is because, having obliged the union to finally move forward with the grievance, the employee would be faced by a winning argument on behalf of the employer to the effect that the grievance was out of time and not arbitrable. All of this was explained by Board Chairperson Gray in Re K.H. , [1998] Sask. L.R.B.R. 76 at pp. 85-86: In all instances of a finding of a breach of the duty of fair representation, the union has compromised the grievance of the employee.

The union may have failed to file the grievance within the time frame set out in a collective agreement or failed to process the grievance in accordance with the procedures set out in the collective agreement. It may have settled the grievance or withdrawn the grievance, as it did in the present case.

In normal circumstances, the employer could successfully raise preliminary objections to the jurisdiction of a board of arbitration to hear and determine the grievance based on the union’s non-compliance with the provisions of the collective agreement, or legal doctrines such as laches, settlement, abandonment and the like. …In this instance, the Order will require the Union and Employer to refer the grievances to arbitration without challenging the jurisdiction of the arbitration board to hear and determine the grievances on their merits due to conduct on the part of the Union that constituted a breach of its duty to fairly represent K.H.

Such an Order is necessary in order to permit the aggrieved employee to have his grievances heard by a board of arbitration in the manner they would have been heard but for the Union's breach of its duty of fair

representation. In this instance, the grievances would not have been withdrawn and would have been referred to an arbitration board in atimely fashion…. [emphasis added] [27] This same approach has been taken in other jurisdictions. As George W. Adams notes in Canadian Labour Law, looseleaf, 2d ed.,vol. 2 (Toronto: Canada Law Book, 2013) at 13.1100: …The remedy [for a breach of the duty of fair representation] can be innovative and can affect the employer.

Where the complaintconcerns the failure to pursue a grievance to arbitration, labour boards have ordered the trade union to take the grievance to arbitrationand the employer to waive any preliminary objections to arbitration such as the issue of expired time-limits provided in the collectiveagreement. [emphasis added] [28] Similarly, Michael MacNeil et al. write as follows in Trade Union Law in Canada, looseleaf (Toronto: Canada Law Book, 2012) at7.1620-7.1630: Labour boards have indicated that the most appropriate remedial response is to augment the policy of using arbitration as the primarymeans of settling disputes between an employer and a union....

The labour board will normally prefer to have the merits of the grievancedetermined by arbitration…. Decertification or Board supervision of bargaining are not available remedies for a breach of the duty of fairrepresentation. In order to ensure that procedural niceties do not interfere with this possibility, employers are normally named as parties to the action,and are entitled to participate in the hearing, especially in giving background that will enable a determination of whether the grievancemay have had some merit.

An employer’s failure to attend a hearing will not bar the Board from ordering a remedy which may affect theemployer’s rights. Boards can order that objections to arbitrability, which may be available under the collective agreement, be waived sothat the merits of the grievance will be considered by the arbitrator. [emphasis added] [29] All of that said, the City advances a number of submissions as to why this approach is ill-founded. In dealing with thesearguments, I find it unnecessary to resolve the question of whether the standard of review applicable to the Board’s decision iscorrectness or reasonableness.

This is because, in my opinion, the Board’s decision was correct and must therefore be sustainedregardless of which standard of review is applied. [30] The City’s first argument concerns the specific meanings of ss. 5(e)(ii) and 42. With respect to s. 5(e)(ii), the City acknowledgesthe language giving the Board authority to require “any person” to do “any thing for the purpose of rectifying a violation of this Act.” However, it says this authority can only affect the parties directly involved in a dispute.

In this case, that would be the Union and Mr.Read. [31] I am not persuaded that s. 5(e)(ii) should be read quite this categorically or narrowly. The words “any person” were obviouslychosen deliberately by the Legislature. This is apparent from the fact that other parts of s. 5 use the terms “employer,” “trade union” and“employee.” For example, ss. 5(

c) and (

l) read as follows: 5 The board may make orders: … (

c) requiring an employer or a trade union representing the majority of employees in an appropriate unit to bargain collectively; … (

l) excluding from an appropriate unit of employees an employee whom the board finds, in its absolute discretion, objects; … [emphasis added] All of this suggests that the reference to “any person” in s. 5(e)(ii) was intended to give the Board a broader authority than the onedescribed by the City. And the City, after all, was named as a party to the proceedings before the Board. It was not a stranger to them. [32] It is also significant that s. 5(

e) originally provided only that the Board could make orders “requiring any person to refrain fromviolations of this Act or from engaging in any unfair labour practice.” This language, if applied to the circumstances of this case, wouldembrace only the Union. However, s. 5(

e) was amended in 1994 to include what is now s. 5(e)(ii), i.e. a power to require “any person”to do any thing for the purpose of “rectifying a violation of this Act.” See: The Trade Union Amendment Act, 1994, S.S. 1994, c. 47. This change clearly broadened the reach of s. 5(

e) and, on its face, extended that reach to include an employer in the position of the City. [33] In my opinion, s. 5(e)(ii) of the Act is, in and of itself, sufficiently broad to sustain the type of order made by the Board in this case. [34] I turn next to s. 42 of the Act. The City says that this provision does not grant any free-standing authority to the Board and, in thisregard, it relies on this Court’s decision in Burkart v. Dairy Producers Co-operative Ltd. (1990), (SK CA), 74 D.L.R.(4th) 694 (“Dairy Producers”). But, in my view, Dairy Producers does not support the City’s position in this case.

I do not read theBoard’s decision as saying that s. 42, on its own, could ground the decision made in response to Mr. Read’s complaint.

[35] Dairy Producers concerned the validity of an interim injunction. RWDSU asked the Board to issue a declaration that DairyProducers was committing an unfair labour practice and to make an order requiring it to refrain from so acting. The Board denied thisrequest and RWDSU filed a statement of claim in the Court of Queen’s Bench alleging that Dairy Producers’ actions amounted to anunfair labour practice. It also immediately sought an interim injunction.

A Chambers judge granted the injunction and the case came tothis Court on the question of whether the judge had been wrong to award the injunction in light of the comprehensive collectivebargaining scheme found in the Act. The majority of the Court (Cameron J.A. with Gerwing J.A. concurring) struck the RWDSU’sstatement of claim and set aside the injunction on the basis that the Legislature had intended to invest the Board with exclusivejurisdiction over such matters. [36] In considering s. 42, the Court did not say that it added nothing to the Board’s list of powers as set out in s. 5.

Rather, reflectingwhat the Supreme Court of Canada had said in Syndicat des employés de production du Québec v. Canada Labour Relations Board, (SCC), [1984] 2 S.C.R. 412, the Court warned against reading s. 42 in a way that would (a) “render any of the Board’s s. 5powers unnecessary,” (

b) confer “practically unlimited” power on the Board to do effectively anything consistent with achieving theobjects of the Act, or (

c) bestow on the Board an autonomous or principal power as distinct from a merely incidental or collateral power. As a bottom line, the Court found that the Board did have the power to make an order restraining an unfair labour practice even thoughno power of this sort was expressly listed in s. 5 of the Act. In so deciding, it held that such an authority merely supplemented theBoard’s s. 5(

e) remedial powers thereby “enabling it to more effectively perform its duties” and attain the objects of the Act. [37] It is not entirely clear how the Board in the present case saw the relationship between ss. 5(e)(ii) and 42 or, indeed, the extent towhich it saw s. 42 as being necessary to its authority to make the order sending Mr. Read’s grievance to arbitration. However, in theend, all of this is of little consequence because, as indicated, s. 5(e)(ii) itself empowered the Board to make the order in question. [38] The City’s next argument is to the effect that the Board overlooked s. 5(

g) of the Act in making its remedial order.

Section 5(g)gives the Board the authority to award damages. It says this: 5 The board may make orders: … (

g) fixing and determining the monetary loss suffered by an employee, an employer or a trade union as a result of a violation of this Act,the regulations or a decision of the board by one or more persons, and requiring those persons to pay to that employee, employer or tradeunion the amount of the monetary loss or any portion of the monetary loss that the board considers to be appropriate; [39] In the City’s view, the Board should have visited the consequences of the failure to properly represent Mr. Read directly and onlyon the Union by making a damage award against the Union.

The City does not refer to any cases where a labour board has taken thisapproach but, notwithstanding the absence of such authority, I am not prepared to say that a damage award was not an option for theBoard. It might have been. However, I do note that, in order to make such an award, the Board would have had to have run a fullhearing to determine whether Mr. Read had been dismissed for cause. This is so because, if he was dismissed on this basis, Mr. Readwould presumably not have suffered any damages. In the circumstances, the Board did not make an error in proceeding as it did.

Inother words, I am not prepared to find that a damage award was the only remedy available to address the Union’s failure to fairlyrepresent Mr. Read. [40] The City further argues that the Board’s remedial order effectively amended the collective agreement by overriding the contractbetween it and the Union in relation to the time lines that are to be followed when pursuing a grievance. I am not persuaded by thissubmission either. It is apparent that Mr. Read’s grievance is not being referred to arbitration pursuant to the collective agreement.

Rather, it is being referred to arbitration by the Board in order to remedy a breach of the Act. The City’s argument, if it were to succeed,would effectively put the City and the Union in a position of having contracted out of the reach of the Act. That cannot be an appropriatereading of the legislation. [41] I agree with Board Chairperson Ball (as he then was) where, in Re Saskatchewan Council for Crippled Children and AdultsEmployees Union, [Feb. 1984] Sask.

Labour Reports 42, and dealing with a slightly different problem, he explained as follows at pp. 46-47: In the Board’s opinion, Sections 5 and 42 of the Act taken together are wide enough to permit it to order that a grievance proceed toarbitration if and when a union breaches its duty of fair representation to a proposed grievor. Furthermore, the broad wording of Sections5 and 42 of the Act do not confine the Board to making orders only with respect to parties who violate the Act.

To be meaningful anyorder directing a review of the applicant’s dismissal would necessarily apply to the employer, who is already a party to this application. The actual procedure to be followed would depend upon the circumstances of the case. However, if a union has already demonstrated afailure to fairly represent employees in filing a grievance it would be unrealistic to expect it to be properly representative of those sameemployees in the ensuing arbitration process.

For that reason any order could be structured so that the selection of a representativenominee… If the Board should grant a remedy to the applicants in the circumstances of this case, it would not purport to amend, alter, or rectifythe Collective Bargaining Agreement between the parties in any way. The agreement, including the mechanism contained therein for theresolution of disputes, would remain intact, unchanged and binding upon the parties. The Board would simply be exercising its statutoryauthority to make orders requiring compliance with The Trade Union Act.

The remedy available to the applicants would have its originin the statute, and not in the Collective Bargaining Agreement. [emphasis added]

See also: Re Johnson , [1998] Sask. L.R.B.R. 98 at pp. 101-102. [ 42 ] The City’s next submission is that the Board’s decision usurps the exclusive authority of the arbitrator to determine the grievance filed on Mr. Read’s behalf. It says that, by proceeding as it did, the Board has prevented it from raising the question of whether the grievance is no longer arbitrable because of the Union’s failure to act with dispatch.

In this regard, it refers to s. 25(1) of the Act and the requirement that all differences between the parties to a collective agreement be settled by way of arbitration: 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. … [ 43 ] This, obviously, is a variation of the City’s argument to the effect that the Board’s order amends the collective agreement.

In my view, it cannot succeed. The Board’s order flowed from its remedial authority under the Act and not from the grievance procedure set out in the collective agreement. [ 44 ] The City also advances an argument based on s. 6 - 60(1) of The Saskatchewan Employment Act , S.S. 2013, c. S-15.1 (not yet proclaimed in force). It sets out a Board power to “extend the time for the taking of any step in the grievance procedure” when dealing with a breach of a union’s duty of fair representation.

The City says the addition of an express power in the new legislation must mean that no such power presently exists under the Act . This argument must also fail. Contrary to the City’s position, s. 6 - 60(1) can also be seen as nothing more than an attempt by the Legislature to make express that which has to date been implicit. More fundamentally, the City’s argument overlooks s. 36 of The

Interpretation Act, 1995 , S.S. 1995, c. I-11.2. It reads as follows: 36

(1) The repeal or the amendment of a provision in an enactment does not imply: (

a) a declaration that the provision was previously in force; (

b) a declaration as to the previous state of the law; or (

c) a declaration that the law pursuant to the enactment prior to the repeal or amendment was different from the law as it is pursuant to the enactment as amended.

(2) The re-enactment, revision, consolidation or amendment of a provision in an enactment does not imply an adoption of any judicial or other

interpretation of the language used in the provision or of similar language. [ 45 ] Finally, the City contends that the Chambers judge erred in upholding the authority of the Board to send the grievance to arbitration on the basis that it was the Board’s established practice to make such orders. In making this point, it refers to the following passage from the decision of the Chambers judge: [15] The City has not convinced the Court that the decision of the LRB to allow the grievance to proceed to arbitration was to be reviewed on a standard or correctness nor that the decision was not reasonable.

The LRB decision was not an infringement upon the rights of the City to have the issue heard by an arbitrator as required under the terms of the CBA. Waiving the time limit in the CBA was something that has occurred previously in decisions of the LRB and is not in any way incorrect, unreasonable, prejudicial or out of the ordinary for the LRB to ensure preservation of the rights of each party. [emphasis added] [ 46 ] I am not at all sure the Chambers judge based his decision only on the fact that the Board had made similar orders in the past. But, even if he did, this does not take the City very far.

The issue to be resolved, as a bottom line, is whether the Chambers judge erred in upholding the decision of the Board. It is not whether the reasoning which got him to that conclusion, in and of itself, is unimpeachable. [ 47 ] As indicated, I find that the Chambers judge correctly found that the Board had the jurisdiction to make an order of the sort in question here. VI. a final issue [ 48 ] There is a final issue that must be considered before disposing of this appeal.

It involves the question of whether, accepting that it has the jurisdiction to waive time limitations found in the collective agreement between the Union and the City, the Board should have waived all of those limitations. In other words, instead of waiving every breach of a time limitation that has occurred in these proceedings, should the Board have waived only those breaches which occurred as a result of the Union’s identified failure to satisfy its duty of fair representation, i.e. as a result of the Union taking the grievance decision to its membership?

This is potentially important because, at least in theory, the Union’s failure to refer the grievance to arbitration within 45 days of its denial by City Council might have had nothing to do with the breach of s. 25.1 found by the Board, i.e. nothing to do with allowing its membership to decide how to

handle the grievance. [ 49 ] As a matter of principle, the answer to this question about the proper scope of a remedial order in this kind of proceeding is quite self-evident. In granting relief for a breach of the duty to fairly represent a union member, the Board should remedy only such problems as have been caused by that breach. The Board itself recognized this underlying principle in Re Johnson, supra where it said, at p. 102, “When ordering the parties to proceed with the arbitration of Mr. Johnson’s grievance, the Board is attempting to put Mr.

Johnson back to the position he would have been in but for the Union’s violation of its statutory duty.” Thus, in my view, it would be both incorrect and unreasonable for the Board to waive time limitations unrelated to the relevant breach of s. 25.1 of the Act when granting relief for a union’s failure to fairly represent an employee. [ 50 ] In this case, there is something of a complication on this front.

As noted above, the City chose not to participate in the hearing before the Board and, as a result, the Board was not presented with a submission to the effect that it should not waive all of the time limitations found in the collective agreement. The Board might be forgiven, therefore, for not having thought through this point as clearly as it might have. That said, this issue was fully canvassed before this Court and it seems best to deal with it now rather than to leave it unresolved and to thereby set the stage for another judicial review application and another appeal.

There is no suggestion that any of the parties would be prejudiced by proceeding in this way. [ 51 ] For its part, the Union suggests the question of the consequences of failing to meet a time limitation for reasons unrelated to the breach of s. 25.1 is best left to the arbitrator. However, it also submits the Court should direct that the arbitrator may consider delays unrelated to the breach of the duty of fair representation only in the context of his remedial orders.

Its position is that the arbitrator should be free to have regard to such failures to meet time limitations but only in the context of identifying the appropriate relief to be granted if the grievance is resolved in Mr. Read’s favour. [ 52 ] I am reluctant to decide this issue quite so narrowly if, by making the argument that it does, the Union intends to suggest the arbitrator could not find that he or she has no jurisdiction to hear the grievance because of the Union’s delay in responding to City Council’s decision, or otherwise not meeting the timelines prescribed by the collective agreement.

It seems to me that, if the facts so warrant, this option should be open to the arbitrator. Thus, the better approach is to simply amend the Board’s order to comply with the law and then to let the arbitrator conduct the grievance proceedings accordingly. VII. conclusion [ 53 ] I conclude that the Board had the authority to make a remedial order of the kind in issue here. However, the first paragraph of the Board’s order is amended to read as follows: [23] The Board hereby orders: 1.

That the grievance filed by the Union concerning the dismissal of the Applicant is hereby referred to arbitration in accordance with the provisions of the collective bargaining agreement. Any time limitations contained within the collective bargaining agreement are hereby waived, extended or abridged as necessary to allow the grievance to be processed to arbitration but only to the extent those time limitations were not met as a result of the Union’s breach of s. 25.1 of The Trade Union Act . [ 54 ] In view of the somewhat divided results of the appeal, there will be no order with respect to costs.

DATED at the City of Regina, in the Province of Saskatchewan, this 10th day of December, A.D. 2013. “Richards C.J.S.” Richards C.J.S. I concur “Lane J.A.” Lane J.A. I concur “Caldwell J.A.” Caldwell J.A.