Docket: CACV2506 Agrium Vanscoy Potash Operations Appellant (Applicant) - v. -, 2014 SKCA 79

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 79 Date: 2014-07-24 Between: Docket: CACV2506 Agrium Vanscoy Potash Operations Appellant (Applicant) - and - United Steel Workers Local 7552 Respondent (Respondent) - and - An Arbitration Board comprised of Francine Chad Smith (Sole Arbitrator) Respondent (Respondent) Coram: Richards C.J.S., Whitmore and Ryan-Froslie JJ.A. Counsel: Lawrence Seiferling, Q.C., for the appellant Gary Bainbridge, for the respondent

Appeal: From: 2013 SKQB 445 Heard: May 26, 2014 Disposition: Appeal dismissed Written Reasons: July 24, 2014 By: The Honourable Chief Justice Richards In Concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice Ryan-Froslie Richards C.J.S. I. introduction [ 1 ] A labour arbitrator found that the appellant, Agrium Vanscoy Potash Operations (“Agrium”), had breached the collective agreement between it and the respondent, United Steel Workers Local 7552 (the “Union”).

She then ordered a remedy for the breach even though Agrium and the Union had agreed to deal with remedies in a separate stage of the hearing. [ 2 ] Agrium brought a judicial review application. A Queen’s Bench Chambers judge found that the arbitrator had offended the audi alteram partem principle by dealing with remedies in the absence of submissions from Agrium and the Union. As a result, he quashed the remedies part of the arbitrator’s decision and remitted the remedies issue back to her. [ 3 ] Agrium submits that the Chambers judge erred in proceeding as he did.

It contends the arbitrator disqualified herself from dealing with the remedies question. In its view, the Chambers judge should have quashed the arbitrator’s decision in its entirety and referred the grievance to a new arbitrator to be dealt with afresh. [ 4 ] I conclude, for the reasons set out below, that Agrium’s appeal must be dismissed. The Chambers judge made no error in deciding to refer the remedies issue back to the arbitrator. II. background [ 5 ] Agrium owns and operates a potash mine at Vanscoy, Saskatchewan.

The Union represents workers employed by Agrium at the mine. [ 6 ] Agrium contracted with Thyssen Mining Construction of Canada Ltd. to have Thyssen perform certain “waterhole” rehabilitation work at the mine. [ 7 ] This led the Union to file a grievance alleging “contracting in, [Thyssen] doing bargaining unit work in the waterhole”. More specifically, the Union alleged that Agrium was in breach of s. 3.02 of the collective agreement.

It limits Agrium’s right to use independent contractors. [ 8 ] The Union and Agrium agreed to bifurcate the arbitration hearing, i.e. they agreed that the arbitrator should first determine the substantive question of whether there had been a breach of the collective agreement and then, if necessary and as a discrete second step, determine an appropriate remedy. [ 9 ] The first stage of the arbitration hearing was held.

The arbitrator then released a written decision wherein she concluded that neither Thyssen nor its employees had been functioning as independent contractors and that, as a result, Agrium was in breach of the collective agreement. [ 10 ] However, the arbitrator did not stop there. Notwithstanding the arrangement to deal with the grievance in two separate steps, she went on to order that Thyssen’s employees vacate the mine site. The arbitrator added that she would retain jurisdiction to address questions concerning other relief.

In this regard, she wrote as follows: [133] Should they still be at the mine, I direct the employees of Thyssen Mining in the workplace pursuant to the contract relating to the waterhole be removed from the site. In keeping with the wishes of the parties, I retain my jurisdiction to address the matter of additional relief and to hear evidence pertaining thereto.

III. the queen’s bench proceedings [11] Agrium launched a judicial review application in the Court of Queen’s Bench and asked for an order setting aside the whole of thearbitrator’s decision. It based the application on contentions that the arbitrator had erred by (

a) refusing to grant Thyssen standing at thearbitration hearing, (

b) unreasonably interpreting the collective agreement, and (

c) breaching the audi alteram partem rule by ordering aremedy without giving either Agrium or the Union an opportunity to make submissions. [12] The Chambers judge rejected Agrium’s argument about Thyssen’s standing on the basis that it fell to Thyssen, not Agrium, to takeexception to the arbitrator’s ruling on this point. [13] The Chambers judge declined to deal with the argument about the

interpretation of the collective agreement on the ground that itwas not appropriate to entertain an attack on an interim arbitral decision. On this point, he cited Wal-Mart Canada Corp. v. United Foodand Commercial Workers, Local 1400, 2010 SKCA 89, 321 D.L.R. (4th) 397. [14] With respect to the audi alteram partem argument, the Chambers judge had little difficulty finding that the arbitrator should nothave dealt with the question of remedies in the absence of submissions from the Union and Agrium.

In doing so, he rejected the Union’sargument that the arbitrator’s comment at para. 133 of her decision (quoted above) was a mere “expression of opinion” and not an actualorder or decision.

This led the Chambers judge to conclude that the order requiring Thyssen’s employees to leave the site should be setaside. [15] The Chambers judge then turned to the question of whether the grievance should be returned to the arbitrator so that she could dealwith the remedies issue or whether (as contended by Agrium) the whole of her decision should be quashed and the grievance remitted toa different arbitrator to be heard again.

In deciding against Agrium on this point, the Chambers judge referred to the purpose of the newQueen’s Bench Rules as stated in Rule 1-3 and then wrote as follows: [26] …The cost of judicial process and the length of time taken for determination of individuals' rights and responsibilities impact onthe participants' availability of access to justice. This initial grievance was filed in excess of two years ago. Significant work of theirlawyers, effort on behalf of the participants and costs to the participants has ensued.

The role of this court in utilizing its rules to resolveclaims in a timely and cost effective way should be a consideration in the ultimate disposition of this application. [27] The arbitrator was originally chosen by the parties, by consent, for her knowledge and expertise in the labour arbitration field. She has made an error in ordering a remedy before the parties had an opportunity to address her on that. That order has been rectified. She still retains her skill and experience in the labour arbitration area, and I see no reason why the matter cannot be returned to her for acompletion of the process.

In the circumstances I believe that is the appropriate approach. that should be made in this case. In

summary,the order of the arbitrator contained at para. 133 of her decision is quashed, and the matter is returned to her for the purpose ofcompleting the arbitration process by hearing representations on remedy and coming to a final conclusion on that issue. [16] In the end, therefore, the Chambers judge remitted the grievance to the arbitrator so that she could deal with the question ofremedies. IV. ANALYSIS [17] Agrium submits that the Chambers judge erred by sending the issue of an appropriate remedy back to the arbitrator.

It alsocontends the Chambers judge acted improperly by relying on Queen’s Bench Rule 1-3 when that Rule had not been raised duringargument. A. The “Remitting Remedies” Issue [18] Agrium’s submission with respect to the propriety of remitting the question of remedies to the arbitrator breaks down into threesomewhat inter-related lines of argument. First, Agrium says the Chambers judge erred by assuming he could quash only a part of thearbitrator’s decision, i.e. para. 133 – the part dealing with remedies.

Second, Agrium contends that the arbitrator permanently lostjurisdiction over the whole of the grievance by offending the audi alteram partem rule. Agrium’s third argument is that the arbitrator’sdecision to order Thyssen employees off the mine site created a reasonable apprehension of her being biased in relation to the remediesissue. As a result, Agrium says the arbitrator should not have been allowed to deal further with the remedies question.

I will examineeach of these propositions in turn. [19] I begin with the suggestion that it was not open to the Chambers judge to quash only the part of the arbitrator’s decision dealingwith remedies. The sole authority cited by Agrium on this issue is Libby, McNeill & Libby of Canada Ltd. v. United Automobile,Aerospace and Agricultural Implement Workers of America (1978), (ON CA), 91 D.L.R. (3d) 281 (Ont. C.A.).

However, it does not support Agrium’s position. [20] In the Libby case, the employer brought an application to the Ontario Labour Relations Board for a declaration that the union hadmade unlawful threats to call a strike. It asked for a cease and desist order. The Board found that the union had unlawfully threatened astrike but it did not issue the requested order.

In the course of its decision, the Board stated that the collective agreement was no longer ineffect as of a particular date. [21] Although the employer was largely successful before the Board, it brought judicial review proceedings seeking to quash the aspectof the Board’s reasons for decision dealing with the termination of the collective agreement. The Divisional Court granted the

application, but the matter was then appealed to the Court of Appeal for Ontario. The Court of Appeal indicated that it is not possible toset aside part of the Board’s reasons for decision while leaving its substantive decision untouched. As the Court noted, legal processesmust be taken against results, not against reasons. Accordingly, the Court set aside the Divisional Court’s ruling. [22] It can be seen, therefore, that Libby does not stand for the proposition that a court cannot quash one part of a decision and leave thebalance of the decision standing.

Rather, it stands for the proposition that it is not possible to quash reasons for decision while leavingthe decision itself intact. [23] Contrary to Agrium’s position on this issue, there are in fact a number of decisions which have set aside part of an administrativedecision. In my view, they reflect the common sense notion that it is possible to quash only one aspect of a decision if that aspect isclearly excisable from the rest of the decision.

See: Brown and Evans, Judicial Review of Administrative Action in Canada, loose-leaf,vol. 2 (Toronto: Carswell, 2013) at para. 5:2251. e onthe part of the employer to enforce a union security clause when it terminated the employment of a worker who had refused to take outmembership in the union. The arbitrator upheld the grievance and ordered the worker to sign the dues deduction form or face disciplinaryaction. However, the affected employee had not been given notice of the proceedings and therefore had not taken

part in them. Hesubsequently brought a judicial review application. [25] The Court of Appeal for Ontario held that, although one aspect of the arbitration decision should be set aside, that aspect wasexcisable from the balance of the decision. It said this at p. 185: …The operative part of the award reads as follows: ... I therefore conclude that the Company is in violation of

article 5.02 as amended and require the Company to notify the employeeHoogendoorn in writing forthwith by registered mail that he must execute and deliver to the Company a proper authorization form fordeduction of his union dues or an amount equivalent to the regular monthly dues paid by members as the case may be (enclosing suchform) within seven (7) days from the date of the post-mark date on the envelope containing the notice or be discharged from hisemployment. If Mr. Hoogendoorn fails to comply then I direct that the Company exercise its powers as an employer and discharge him.

I find no fault with the first (the long) sentence in the above-quoted direction. It requires action to be taken by the company in obedienceto its ascertained obligation under art. 5.02, and specifies the nature of the action; namely, that the applicant be notified that he mustsubmit to dues deduction or face discharge. There is no direction to the applicant in this part of the award, and I am unable to appreciatehow he can claim any special standing in the arbitration proceedings by reason thereof. The second direction in the award is, in truth, merely a spelling out of the consequences flowing from the first.

It may, however, besaid to go beyond the issues raised by the submission to arbitration. But it is, in that event, severable, and this Court has the power toorder it excised accordingly. See Northern Taxi Ltd. v. Manitoba Labour Bd. (1958), (MB KB), 18 D.L.R. (2d) 122, 27W.W.R. 12; Columbia Auto Customs Ltd. v. Labour Relations Bd. (B.C.) and International Woodworkers' of America, Local 1-417(1964), (BC SC), 48 D.L.R. (2d) 266, 50 W.W.R. 179. [emphasis added] [26] Another case on this front is Melia v. Moose Jaw Roman Catholic Separate School District No. 22 (1978), (SKKB), 91 D.L.R. (3d) 681 (Sask. Q.B.).

It concerned an interest arbitration between teachers and the school district. An award wasrendered on several issues. The school district then refused to comply with the award and the teachers commenced proceedings toenforce it. The school district defended the action on the basis that the award was unenforceable because the Board had exceeded itsjurisdiction. An issue arose as to whether offending portions of the arbitration award could be severed and Noble J. answered thatquestion in the affirmative.

He wrote as follows at pp. 687-688: So the defendant school boards conclude their argument by urging the Court to find that the whole of the arbitration award, as itrelates to educational leave for teachers, is nugatory and of no effect. The difficulty with this argument is that the balance of the awardmade by the arbitrators appears to be within the terms of reference contemplated by the legislation. The question that then arises iswhether or not this is a case where the offending parts of the award can be severed from the legitimate decisions of the arbitrators.

Thelaw is set out by Lamont, J. in City of Swift Current v. Leslie et al. (1920), (SK CA), 52 D.L.R. 532 at p. 536, [1920]1 W.W.R. 467 at pp. 471-2: The rule as I understand it is, that where an award is valid as to a part thereof and void as to another part, the valid portion, if severablefrom the rest, is enforceable. In Russell on the Law of Arbitration, 18th ed. (1970), at p. 399, the following statement appears: If the arbitrator has exceeded his authority as to part of the award only, and the bad

part is clearly separable from the rest of the awardand does not affect the good part, the good part may be allowed to stand, the mere presence of superfluous matter does not invalidate anaward. This Court varied Noble J.’s decision to some extent but nonetheless still severed one aspect of the award. See: (1979), 1979

2225 (SK CA), 108 D.L.R. (3d) 113 (Sask. C.A.). [27] There are numerous other cases which have taken a similar approach. See, for example: Ross v. New Brunswick School District [28] I conclude, therefore, that the decision of the Chambers judge cannot be set aside on the basis he was not entitled to quash onlypara. 133 of the arbitrator’s decision. Paragraph 133 deals solely with the question of remedy and is clearly excisable from the balanceof her ruling.

Indeed, Agrium itself effectively acknowledged that the question of the possible breach of the collective agreement and thequestion of the remedy for any such breach were independent issues when it agreed the grievance should proceed in two separate stages. Only the arbitrator’s decision with respect to remedy was made in contravention of the audi alteram partem principle.

As a result, theChambers judge was entitled to quash only that part of her decision. [29] Agrium’s second line of attack is that, by breaching the audi alteram partem rule, the arbitrator somehow lost “jurisdiction” overthe whole of the grievance with the result that the remedy issue could not be referred back to her. Agrium cites no case or otherauthority to support this theory and, in general terms, its argument runs counter to the body of law (discussed below) holding that a courtmay refer a matter back to an administrative decision-maker for reconsideration after an original decision has been quashed.

Accordingly, in the end, I see no merit in Agrium’s argument on this point. [30] Agrium’s third submission is that, even if referring the remedies issue back to the arbitrator was (as a matter of principle) an optionopen to the Chambers judge, he nonetheless erred in taking that route because of the existence of a reasonable apprehension the arbitratorwas biased with regard to remedial matters. [31] The general contours of the governing principles in this area are well-known and well-settled.

They are to the effect that a decisionshould be set aside if there is a reasonable apprehension the decision-maker was biased in relation to the decision. All of this, of course,grows out of the rules of natural justice. See: Mullan, Administrative Law (Toronto: Irwin Law, 2001) at p. 321. As Lord Hewartfamously said in R. v.

Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256 at p. 259, “[J]ustice should not only be done, but shouldmanifestly and undoubtedly be seen to be done.” [32] There is somewhat less clarity, at least in this jurisdiction, with respect to the test to be employed in the administrative law contextfor determining if, in fact, a reasonable apprehension of bias exists in any given situation. This is because the decisions of this Courtwhich have directly considered the nature of the test have formulated it in different ways. [33] In Sask. U.F.C.W., Loc. 1400-F6 v.

Shelly Western, (SK CA), [1986] 4 W.W.R. 84, Gerwing J.A., writing forthe Court, quoted with approval the following passage from Metropolitan Properties Co. (F.G.C.), Ltd. v. Lannon, [1968] 3 All E.R. 304(C.A.), at p. 310, when she assessed whether there was an apprehension of bias in relation to the chairman of a labour arbitration board: …There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the casemay be, would, or did, favour one side unfairly at the expense of the other.

The court will not enquire whether he did, in fact, favour oneside unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; andconfidence is destroyed when right-minded people go away thinking: “The judge was biased.” [34] Other decisions in the 1980s and 1990s took somewhat varying approaches. For example, in Spence v. Spencer and Prince AlbertBoard of Police Commissioners (1987), (SK CA), 53 Sask. R. 35 (C.A.), the Court quoted with approval the followingpassage from the decision of Laskin C.J.C. in Committee for Justice and Liberty v.

National Energy Board, (SCC), [1978]1 S.C.R. 369 at para. 13: .R.,that ‘a reasonable apprehension that the Judge might not act in an entirely impartial manner is ground for disqualification’), was merelyrestating what Rand, J., said in Szilard v. Szasz, (SCC), [1955] 1 D.L.R. 370, at p. 373; [1955] S.C.R. 3, at pp. 6-7, inspeaking of the ‘probability or reasoned suspicion of biased appraisal and judgment, unintended though it be’.

This test is grounded in afirm concern that there be no lack of public confidence in the impartiality of adjudicative agencies, and I think that emphasis is lent tothis concern in the present case by the fact that the National Energy Board is enjoined to have regard for the public interest. This approach was endorsed in Kruczko v. North Canadian Oils Ltd. (1989), (SK CA), 74 Sask. R. 39 (C.A.). 640: The test is whether a reasonable person would believe that there is a reasonable danger of bias or whether there would be a reasonablesuspicion of bias.

As Laskin C.J.C. stated at p. 733: "This test is grounded in a firm concern that there be no lack of public confidence inthe impartiality of adjudicative agencies . . ." [quoting from Committee for Justice and Liberty v. Canada (National Energy Board)(1976), (SCC), 68 D.L.R. (3d) 716]. Perception of a reasonable apprehension of bias is all that is required. [36] In Pasiechnyk v. Procrane Inc. (1992), (SK CA), 90 D.L.R. (4th) 344 (Sask.

C.A.), Cameron J.A. set out asomewhat different test for the reasonable apprehension of bias at p. 353: …Tribunals whose function is largely adjudicative, as is the case here, are under extensive duties of fairness, including the duty not toprejudge or be seen to have prejudged a matter before them. No "reasonably informed bystander" should be able to "reasonably perceivebias" on the part of such a tribunal. That is the test.

[37] The more recent decisions of the Court in this area have not directly or expressly examined the particulars of the test for reasonableapprehension of bias. Rather, the Court has been able to refer to and apply the concept without having to examine the precise analyticalapproach to be used in deciding whether an apprehension of bias exists or has been established. See, for example: Grabowski v. JointChiropractic Professional Review Committee (Sask.), 2000 SKCA 61, 199 Sask. R. 10 at paras. 3-4; Wal-Mart Canada Corp. v. LabourRelations Board (Sask.), 2006 SKCA 142, 289 Sask.

R. 20 at paras. 9-14; Yorkton (City) v. Yorkton Professional Fire Fighters Assn.,Local 1527, 2001 SKCA 128, 207 D.L.R. (4th) 651 at paras. 8-11 (but note the comments of Cameron J.A. at paras. 16-17); HowardJohnson Inn v. Human Rights Tribunal (Sask.), 2011 SKCA 110, 375 Sask. R. 288 at paras. 16-17; Elite Swine Inc. v. Moosomin No. 121(Rural Municipality), 2007 SKCA 38, 293 Sask. R. 167 at para. 21; and Merchant v. Law Society of Saskatchewan, 2014 SKCA 56 atpara. 107. [38] Where does all of this lead?

In light of the various and unreconciled approaches to the test for reasonable apprehension of biasfound in the Court’s decisions, it is obviously necessary to confirm the proper approach to be used in relation to this issue. [39] In my view, the starting and ending point in this regard is necessarily the version of the test for reasonable apprehension of biasformulated by de Grandpré J in Committee for Justice and Liberty v. National Energy Board, supra.

He wrote as follows at p. 394: …the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person,viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likelythan not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.” [40] This statement of the test is unquestionably authoritative.

It has been endorsed by the Supreme Court in numerous cases renderedsubsequent to the decisions of this Court which have directly examined the issue. See, for example: Wewaykum Indian Band v. Canada,2003 SCC 45, [2003] 2 S.C.R. 259 at para. 67; C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para.199; Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 at para. 26; R. v.

Burke, 2002 SCC 55, [2002] 2 S.C.R. 857 at para. 61; Baker [41] Accordingly, the test for reasonable apprehension of bias in this appeal is whether reasonable and right-minded people, apprised ofthe relevant information and viewing the matter realistically and practically, would think it more likely than not that the arbitrator wouldnot fairly decide the remedies issue remitted to her. [42] In making that assessment, it is necessary to bear in mind three other points which emerge from the case law.

The first point isthat, as is typical in the administrative law field, the question of bias is contextual and will depend, among other things, on the nature ofthe decision-maker. See: Committee for Justice and Liberty v. National Energy Board, supra at p. 395; Newfoundland Telephone Co. v.Newfoundland (Board of Commissioners of Public Utilities), (SCC), [1992] 1 S.C.R. 623 at pp. 638-639. Second, amere suspicion of bias, or a mere concern about bias, is not enough to satisfy the test. Bias must be “more likely than not” (Committeefor Justice and Liberty v. National Energy Board, supra at p. 394).

There must be “a real likelihood or probability of bias” (R. v. S.(R.D.), supra at para. 112). Third, the “reasonable person” contemplated by the test is an informed person, with knowledge of all of therelevant circumstances, including relevant traditions of integrity and impartiality. See: R. v. S. (R.D.), supra at paras. 48 and 111. [43] Having clarified the test for reasonable apprehension of bias, the next question in need of resolution here concerns how issues ofapprehension of bias play out in situations where an administrative decision must be remade or reconsidered.

On this front, the case lawdoes not suggest there is, or should be, any general prohibition against a decision-maker reconsidering a matter in relation to which anoriginal decision has been quashed. Indeed, there are many cases where decision-makers have been directed to re-determine mattersafter their decisions have been set aside for, among other things, a breach of the duty of fairness.

Brown and Evans, Judicial Review ofAdministrative Action in Canada, supra, summarizes the situation at para. 12:6310 by observing that “[g]enerally, a decision-maker mayredetermine a matter after its original decision has been set aside or declared invalid on an application for judicial review.” [44] I note that in many circumstances there will be no option but to have a decision remade by the person or agency that made it in thefirst place.

Thus, for example, if the Labour Relations Board renders a decision pursuant to its authority under The Trade Union Act andthe decision is set aside but must be remade, it is the Board which will have to take it on again. This is because only the Board is entitledto exercise the statutory authority conferred on it by The Trade Union Act. [45] But, the situation here stands on somewhat different ground. The collective agreement between Agrium and the Union requiresthat grievances be adjudicated by an arbitrator. However, the agreement does not require that grievances be adjudicated by thisarbitrator.

As Agrium and the Union have confirmed, it would be relatively straightforward for them to select another arbitrator and tothen allow the new arbitrator to either deal with the remedies issue or to re-hear the grievance from the ground up. [46] In other words, there is room for the doctrine of reasonable apprehension of bias to operate without restriction in circumstances ofthe sort in issue here. Referring the grievance to a new arbitrator would both overcome any bias problem and, at the same time, allowthe grievance to be resolved.

As a result, if there is a reasonable apprehension that the arbitrator in this case is biased in relation to thequestion of the remedy which should be awarded to the Union, then that issue should not be remitted to her. Instead, it should beremitted to a new or different arbitrator. This is not a case like Judges v.

Saskatchewan (Attorney General), (UKJCPC), [1937] 2 D.L.R. 209 (P.C.) where, of necessity, a specific decision-maker must deal with a matter even in the face of concernsabout impartiality. [47] This, of course, takes the analysis to the critical question of whether, in fact, there is a reasonable apprehension of bias in thecircumstances at hand. Agrium submits there is such an apprehension because the arbitrator, acting on her own initiative, orderedThyssen’s workers off the mine site.

It suggests that, if the arbitrator was prepared to take this step, there is a reasonable apprehensionshe will not fairly adjudicate the balance of the remedial problem referred to her by the Chambers judge. [48] It cannot be said that Agrium’s position on this issue is wholly without merit. However, for my part, I am not persuaded thatreasonable and right-minded people, viewing the situation here reasonably and practically, would conclude it is more likely than not that

the arbitrator would not decide the remedies issue fairly. The arbitrator continues to be a decision-maker selected jointly by Agrium and the Union because of her expertise, experience and reputation in the labour relations field.

She may have somehow lost track of the limits of her mandate in relation to remedies but this does not automatically mean reasonable people would believe she has lost her objectivity or impartiality with respect to the remedial issues which will be presented to her by virtue of the ruling of the Chambers judge. [ 49 ] A key consideration in the assessment of the reasonableness of any apprehension of bias is the Union’s position concerning remedies. The Union advises, as it did in the Court of Queen’s Bench, that it does not, and will not, ask for Thyssen’s employees to be removed from the mine site.

This is important because it means the arbitrator will not be in the position of deciding an issue on which she has already pronounced an opinion. Rather, she will presumably be asked to decide the appropriateness of remedies such as those referred to in the Union’s correspondence of November 8, 2011: general damages; compensation for lost dues; a declaration. Significantly, the arbitrator did not rule on any of these questions in her decision and expressly left the door open to more evidence being called in relation to them.

All of this serves to significantly undermine Agrium’s concern about bias. [ 50 ] It is self-evidently true that, in general terms, the arbitrator will be inclined to award the Union a remedy or remedies of some sort. But, in the absence of any evidence suggesting something to the contrary, it would seem that any such orientation is merely something flowing naturally and necessarily from the fact that the arbitrator has already found a violation of the collective agreement. It would not seem to be an inclination rooted in a closed mind or an absence of objectivity.

In other words, and at this stage of the arbitration, a general mindset on the part of the arbitrator which favours the granting of some sort of remedy does not itself engage concerns about fairness. [ 51 ] As a result, I am not persuaded that there is a reasonable apprehension of bias in relation to the arbitrator’s adjudication of the issues referred to her by the Chambers judge.

In my assessment, Agrium has failed to establish that it is more likely than not that the arbitrator will fail to decide the remedies question fairly. [ 52 ] Thus, by way of conclusion on this part of Agrium’s arguments, I am not persuaded that the Chambers judge erred in remitting the remedies question back to the arbitrator. B. The Chambers Judge and Rule 1-3 [ 53 ] Agrium also submits that the decision of the Chambers judge should be set aside because of the reliance he placed on Queen’s Bench Rule 1-3.

Agrium’s concern on this front is that, in arriving at his conclusion, the Chambers judge made reference to the basic purpose of The Queen’s Bench Rules as stated in Rule 1-3 even though that Rule had not been referred to by either it or the Union during argument. Rule 1-3 reads as follows: 1-3

(1) The purpose of these rules is to provide a means by which claims can be justly resolved in or by a court process in a timely and cost effective way.

(2) In particular, these rules are intended to be used: (

a) to identify the real issues in dispute; (

b) to facilitate the quickest means of resolving a claim at the least expense; (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as is practicable; (

d) to oblige the parties to communicate honestly, openly and in a timely way; and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments.

(3) To achieve the purpose and intention of these rules, the parties shall, jointly and individually during an action: (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense;

(

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court; (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules; and (

d) when using publicly funded Court resources, use them effectively.

(4) Resolving a claim justly in a timely and cost effective way includes, so far as is practicable, conducting the proceeding in ways that are proportionate to: (

a) the amount involved in the proceeding; (

b) the importance of the issues in dispute; and (

c) the complexity of the proceeding. [ 54 ] After quoting the Rule, the Chambers judge observed that “[t]he role of this court in utilizing its rules to resolve claims in a timely and cost effective way should be a consideration in the ultimate disposition of this application.” He then went on to conclude that the question of remedies should be remitted to the arbitrator. He did this by writing as follows: [27] The arbitrator was originally chosen by the parties, by consent, for her knowledge and expertise in the labour arbitration field.

She has made an error in ordering a remedy before the parties had an opportunity to address her on that. That order has been rectified. She still retains her skill and experience in the labour arbitration area, and I see no reason why the matter cannot be returned to her for a completion of the process. In the circumstances I believe that is the appropriate approach that should be made in this case. In

summary, the order of the arbitrator contained at para. 133 of her decision is quashed, and the matter is returned to her for the purpose of completing the arbitration process by hearing representations on remedy and coming to a final conclusion on that issue. [ 55 ] As noted, Agrium takes exception to all of this because Rule 1-3 was neither raised nor argued at the Chambers hearing.

It says that, as a result, it was deprived of an opportunity to make submissions about how various types of orders would or would not have led to greater efficiency within the meaning of the Rules . [ 56 ] In my view, Agrium’s argument involves a considerable overstatement of the significance of what happened here. It was clear at the Chambers hearing that the Union was seeking to have the question of remedies referred back to the arbitrator so she could complete her work. None of this was in any way a surprise to Agrium and, in general terms, Agrium had every opportunity to make submissions on the point.

The Chambers judge’s reference to Rule 1-3 is not something in the nature of a wholly new line of argument or a wholly new issue which emerged only when he wrote his decision. [ 57 ] Moreover, Agrium objects only to the fact that the Chambers judge said timeliness and cost effectiveness, as per the principles outlined in Rule 1-3, were “a consideration” in the ultimate disposition of the application before him. One might have thought these factors would have been a part of the judge’s thinking whether or not they were formally spelled out in Rule 1-3.

And, of course, Agrium registers its objection to the Chambers judge’s reference to Rule 1-3 even though, given that its judicial review application was brought pursuant to The Queen’s Bench Rules , the principles cited in Rule 1-3 were necessarily applicable to the proceedings. [ 58 ] In any event, Agrium has suffered no prejudice by virtue of how things unfolded in the hands of the Chambers judge. It had a full opportunity, in this Court, to make its submissions about whether it was wise or unwise, or efficient or not efficient, to refer the remedies issue back to the arbitrator.

In my respectful view, its arguments on that front are not compelling and I conclude they would have made no difference to the thinking or analysis of the Chambers judge. [ 59 ] Accordingly, in the end, I am not persuaded by the arguments advanced by Agrium in relation to the reference made by the Chambers judge to Rule 1-3. C. A Final Point [ 60 ] I wish to add one last point. The arbitrator’s decision contemplated further argument and possibly evidence on the subject of remedies in addition to the order requiring Thyssen’s employees to quit the mine site.

As a result, it is arguable that the Chambers judge should have declined to deal with the validity of the order respecting Thyssen’s employees on the basis of the principle that interim arbitral decisions should not normally be the subject of judicial review. This, of course, is the same principle relied on by the Chambers judge in refusing to deal with Agrium’s argument about the reasonableness of the arbitrator’s decision. See: Wal-Mart Canada Corp. v. United Food and Commercial Workers, Local 1400 , supra . [ 61 ] The Union chose not to cross-appeal from the decision of the Chambers judge.

As a consequence, the issue identified above was not placed before the Court for adjudication. I do not wish to be taken as having passed judgment on this matter one way or another. My

purpose in flagging it is merely to note that it did not form part of the case presented to the Court. V. conclusion [ 62 ] I conclude, for the reasons outlined above, that Agrium’s appeal must be dismissed. The Union is entitled to costs on Column 2 of the Tariff of Costs. DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of July, A.D. 2014. “Richards C.J.S.” Richards C.J.S. I concur “Whitmore J.A.” Whitmore J.A. I concur “Ryan-Froslie J.A.” Ryan-Froslie J.A.