Sun Country Regional Health Authority Appellant (Applicant) v. Theodore Francise Koskie and The, 2017 SKCA 86

Court of Appeal for Saskatchewan Docket: CACV2999 Citation: Sun Country Regional Health Authorityv The Health Sciences Association ofSaskatchewan, 2017 SKCA 86Date: 2017-10-11Between:Sun Country Regional Health AuthorityAppellant(Applicant)AndTheodore Francise Koskie and The Health Sciences Association of SaskatchewanRespondent(Respondent)Before: Jackson, Caldwell and Schwann JJ.A.Disposition: Appeal dismissed (orally)Written reasons by: The Honourable Mr.

Justice CaldwellIn concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice SchwannOn Appeal From: QBG 2091 of 2016, ReginaAppeal Heard: October 11, 2017Counsel: Stephen D. McLellan for the Appellant Gary L.

Bainbridge for the Respondent Caldwell J.A. [1] Sun Country Regional Health Authority seeks to set aside the decision of the Chambers judge (Sun Country Regional HealthAuthority v Koskie (17 October 2016) Regina, QBG 2091/16 (Sask QB)) declining to intervene in the arbitration decision made in HealthSciences Association of Saskatchewan v Sun Country Regional Health Authority (22 February 2016), Saskatchewan Labour ArbitrationAwards (Koskie) [Arbitration Decision]). The Arbitration Decision had allowed a denial of paid sick leave grievance as against SunCountry. [2] In Dr.

Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at para 43, [2003] 1 SCR 226, McLachlinC.J. explained that the role of an appellate court in cases such as this is to determine whether the reviewing judge has chosen and appliedthe correct standard of review. No deference is owed to the reviewing judge in such appeals. If the reviewing judge has not chosen thecorrect standard, the appellate court must assess the tribunal decision in light of the correct standard of review.

If the reviewing judge haschosen the correct standard, the appellate court must ensure the reviewing judge correctly applied that standard of review: WestfairFoods Ltd. v United Food and Commercial Workers, Local 1400, 2006 SKCA 8 at paras 12–14, 263 DLR (4th) 397; Canadian Union ofPublic Employees, Local 59 v Saskatoon (City), 2014 SKCA 14 at para 22, 433 Sask R 134. [3] In this case, the parties had both submitted to the Chambers judge that the standard of reasonableness applied in his judicialreview of the Arbitration Decision.

They have each maintained that position in this Court and we agree that reasonableness is theappropriate standard of review. Indeed, we would reinforce this with reference to Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1SCR 190, where the Court reiterates the often stated view that the review of labour arbitration decisions should be approached withdeference: [68] The nature of the regime also favours the standard of reasonableness. This Court has often recognized the relative expertise oflabour arbitrators in the

interpretation of collective agreements, and counselled that the review of their decisions should be approachedwith deference: CUPE, at pp. 235-36; Canada Safeway Ltd. v. RWDSU, Local 454, (SCC), [1998] 1 S.C.R. 1079, atpara. 58; Voice Construction, at para. 22. The adjudicator in this case was, in fact, interpreting his enabling statute. Although theadjudicator was appointed on an ad hoc basis, he was selected by the mutual agreement of the parties and, at an institutional level,adjudicators acting under the PSLRA can be presumed to hold relative expertise in the

interpretation of the legislation that gives themtheir mandate, as well as related legislation that they might often encounter in the course of their functions. See Alberta Union ofProvincial Employees v. Lethbridge Community College. This factor also suggests a reasonableness standard of review. [4] On this basis, we find that the Chambers judge committed no reversible error when applying the standard of reasonablenessin his review of the Arbitration Decision.

He correctly concluded there was no basis for interference with Arbitrator Koskie’s award. [5] As the Chambers judge observed, it is clear from the Arbitration Decision that Arbitrator Koskie had full appreciation of theevidence that was before him and the context in which the grievance had arisen as well as the arguments of the parties and the relevantprovisions of the collective bargaining agreement. Arbitrator Koskie identified the legal and factual framework for his

interpretation ofthe collective bargaining agreement in the circumstances at hand. While it does not affect the reasonableness of Arbitrator Koskie’saward, we question whether the interpretive principles to apply to a collective bargaining agreement are those found in the law ofstatutory and contractual

interpretation. In particular, we note the authors of Donald J.M. Brown and David M. Beatty, Canadian LabourArbitration, loose-leaf (Rel 41, December 2014) 4th ed, vol 1 (Toronto: Canada Law Book, 2014) at para 4:2300, observe: In construing collective agreements, arbitrators look to the purpose of the particular provision in the collective agreement as an aid todetermining the meaning intended by the parties.

In this regard, they have recognized that collective agreements are not negotiated in avacuum, but rather are settled in the context of general industrial relations practices, within a specific negotiating context and against avast history of judicial and arbitral jurisprudence which will affect the parties’ expectations and understandings. In the result, arbitratorsgive effect to this general contextual climate by requiring clear statements to alter such general expectations.

[Footnotes omitted] However, since we heard no argument on this point, we leave that issue for another day. [ 6 ] While we might not endorse the

interpretational principles outlined by Arbitrator Koskie, we find his reasons support his

interpretation of the collective bargaining agreement and coherently explain why, in accordance with that

interpretation, he had allowed the grievance. That is, Arbitrator Koskie’s reasoning is intelligible and persuasive and, as the Chambers judge concluded, the arbitration award falls within the range of possible, acceptable outcomes that are defensible on the facts and law. In short, we find the Chambers judge correctly concluded that the Arbitration Decision is a reasonable decision. [ 7 ] For these reasons, we find no room for appellate intervention in this matter. The appeal is dismissed with costs to The Health Sciences Association of Saskatchewan in the usual manner.