Saskatchewan (Environment) v SGEU, 2018 SKCA 96

Court of Appeal for Saskatchewan Docket: CACV2995 Citation: Saskatchewan (Environment) v SGEU, 2018 SKCA 96Date: 2018-11-27 Between:The Government of Saskatchewan Ministry of EnvironmentApplicant (Respondent (Applicant))AndThe Saskatchewan Government and General Employees’ UnionRespondent (Appellant (Respondent))Before: Jackson J.A. (in Chambers)Disposition: Application allowed (orally)On Application From: 2018 SKCA 48, ReginaApplication Heard: November 27, 2018Counsel: Jared Biden and Dipo Ziwa (student-at-law) for the Appellant Greg Fingas for the Respondent Jackson J.A. I.

Introduction [1] The Government of Saskatchewan [Saskatchewan] has applied to the Supreme Court of Canada for leave to appeal thisCourt’s decision in Saskatchewan and General Employees’ Union v Saskatchewan (Environment), 2018 SKCA 48, 292 LAC (4th) 337[SK Firefighters]. [2] Saskatchewan now applies, in Chambers, for an order pursuant to s. 65.1(1) of the Supreme Court Act, RSC 1985, c S-26,directing a stay of execution of SK Firefighters, pending a decision from the Supreme Court on its leave application, and, if leave isgranted, until a final decision is rendered.

Similar applications have been made recently to this Court: Blass v University of ReginaFaculty Association, 2011 SKCA 48, 371 Sask R 158; and 6517633 Canada Ltd. v Richardson International Limited, 2016 SKCA 138. Iwill not repeat the analysis undertaken in those decisions, but rely upon them to inform the exercise of my discretion in the particularcircumstances of this case. II.

Preliminary Issue [3] As a preliminary matter, the respondent, the Saskatchewan Government and General Employees’ Union [Union], resists theimposition of a stay of SK Firefighters on the basis “there is nothing to stay”, relying on such authorities as SGEU v Saskatchewan(Environment), 2017 SKCA 31, which, in turn, relied upon the classic case of Mayrand v Mayrand (1982), (SK CA),20 Sask R 263 (CA) [Mayrand].

In Mayrand, Bayda C.J.S. wrote as follows: “The Rule does not impose a general stay of proceedingsbringing to a halt all proceedings in the action as would an order of a court directing a stay of all proceedings.

The Rule imposes a stay ofonly one proceeding: the execution of the judgment appealed from” (at para 5). [4] In my respectful view, however, those decisions have limited application to the matter before me as they consider the liftingof a stay under Rule 15 of The Court of Appeal Rules: see Nova Scotia (Minister of Community Services) v B.F.; 2003 NSCA 125, 219NSR (2d) 67; and Bessette v Attorney General of British Columbia, 2018 BCCA 59, [2018] 10 WWR 625. [5] This application is governed by Supreme Court jurisprudence pertaining to s. 65.1(1) of the Supreme Court Act.

Thatjurisprudence has considerably enlarged the stay powers of a single judge or a court considering whether a stay should be granted unders. 65.1.

That point is made plain in RJR–MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311 at329 [RJR–MacDonald], where Sopinka and Cory JJ., for the Court, wrote the following (at 329): We are of the view that the Court is empowered, pursuant to both s. 65.1 and r. 27 [now Rule 62 of the Rules of the Supreme Court ofCanada, SOR/2002-156], not only to grant a stay of execution and of proceedings in the traditional sense, but also to make any order thatpreserves matters between the parties in a state that will prevent prejudice as far as possible pending resolution by the Court of thecontroversy, so as to enable the Court to render a meaningful and effective judgment.

The Court must be able to intervene not onlyagainst the direct dictates of the judgment but also against its effects. (Emphasis added) [6] In M & D Farm Limited v Manitoba Agricultural Credit Corporation, (SCC), [1998] 1 SCR 1074 [FarmLimited], Binnie J. confirmed that s. 65.1 of the Supreme Court Act expanded the jurisdiction of a single judge and confers “a very broadjurisdiction in respect of interim relief on the Court, or a judge thereof” (at para 5). In Farm Limited, Binnie J., sitting in Chambers,ordered injunctive relief so as to prevent the disposition of land that had already vested in the respondent.

The judgment under appealcould be considered spent, i.e., nothing remained of the judgment to stay, but the respondent could dispose of the land, making recoverydifficult if not impossible. In Baier v Alberta, 2006 SCC 38, [2006] 2 SCR 311 [Baier], Rothstein J., sitting as the rota judge, also

confirmed that “this Court has adopted an expansive

interpretation of s. 65.1(1) of the Supreme Court Act” (at para 12), when he orderedthe stay of a judgment that had the effect of disqualifying school board employees from carrying out their terms as school trustees. If thestay had not been granted, the trustees would have been required to step down pending the resolution of their appeal.

In Baier, as inFarm Limited, there was nothing executory in the judgment under appeal to stay. [7] Based on this jurisprudence, I conclude that an appellate court has the authority to order a stay under s. 65.1 the SupremeCourt Act in circumstances when the appellate court might not otherwise be able to do so under the strict terms of its own stay powers. [8] In this instance, Saskatchewan (Environment) v SGEU, at para 111 (Sask LA) [Award Decision],declared that a government’s program contravened The Saskatchewan Human Rights Code, SS 1979, c S-24.1, as it is discriminatory andnot a bona fide occupational requirement, because the fitness protocol has a potential discriminatory adverse impact on females and oldermales (at para 111).

The arbitrator was not empowered by the parties to make any order other than a declaratory one; but, as a result ofthe Award Decision, Saskatchewan is obligated to make some decision, and potentially take some step, regarding how to comply withthe Award Decision. By making this application, Saskatchewan asks this Court to “intervene not only against the direct dictates of thejudgment but also against its effects” so as to relieve it from any obligation under the Award Decision, pending resolution in the SupremeCourt.

Applying RJR–MacDonald, and the other cited Supreme Court decisions, I have the jurisdiction to consider Saskatchewan’sapplication and the authority to grant the relief it has requested. [9] Having resolved this preliminary issue in favour of Saskatchewan, I will now consider whether I should exercise mydiscretion to grant a stay. III. Should the Stay Be Granted? [10] RJR–MacDonald sets out the factors that should be considered in a matter such as this (at 334): (

a) the seriousness of the question to be considered on appeal; (

b) the irreparable harm the applicant would suffer if the application were refused; and (

c) the greater harm on either the applicant or the respondent, on the balance of convenience, which is a consideration of allrelevant factors. [11] In assessing these matters, I have considered the guidance provided by Mosaic Potash Esterhazy Limited Partnership v PotashCorporation of Saskatchewan Inc., 2011 SKCA 120, [2013] 2 WWR 637 [Mosaic]. A. Serious Question to Be Considered [12] Saskatchewan has applied for leave to the Supreme Court and raised the same issues that preoccupied an arbitrator in alengthy hearing and have now been considered by the Court of Queen’s Bench and this Court.

While this Court allowed the appeal, andtherefore rejected Saskatchewan’s arguments, it does not change the significance of the issues. It would ill behoove this Court to findSaskatchewan’s arguments to be without merit solely on the basis of an analysis that Saskatchewan seeks to challenge. Thus, I concludeSaskatchewan meets the necessary threshold. B. Irreparable Harm [13] Saskatchewan submits, in its supporting brief of law, that it will incur significant cost and inconvenience if the stay is notgranted.

Saskatchewan indicates that time is of the essence as Type 1 wildland firefighters receive recall letters, and physical fitnesstraining schedules, in January of every year. They must have advance knowledge of what fitness protocol they will be required to follow,so they can train effectively.

According to this evidence, Saskatchewan must have a clear fitness protocol in place by January of 2019 forthe upcoming firefighting season. [14] The Union contests this assessment of the situation, saying that Saskatchewan has at least three options available to it, whichwould not result in significant cost or inconvenience.

First, the Union asserts that it would be a simple matter to change how the fitnesscomponent is evaluated and how the “cut score” is applied (the cut score is a term defined at length in SK Firefighters) so as to complywith the Award Decision. [15] Second, the Union submits Saskatchewan could continue using the current fitness protocol (called the WFX-Fit test), with thepresent cut score, and accommodate any employee whose failure does not reflect a considered assessment as to the particular employee’sability to perform the work.

In support of this proposition, the Union points to this paragraph from the Award Decision: [109] … I do not have the authority or the ability to suggest how this dilemma might be met. In its submissions the union suggested thatusing two standard deviations from the norm rather than one might resolve the problem. Also, in the Meiorin [ (SCC),[1999] 3 SCR 3] case at paragraph 65 the Court sets out a number of questions to assist in the analysis but also can be looked to for apossible solution. I make particular reference to paragraph 65(

c) and (

d) where the Court says: [65] Some of the important questions that may be asked in the course of the analysis include:

… (

c) Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards reflective of group or individual differences and capabilities be established? (

d) Is there a way to do the job that is less discriminatory while still accomplishing the employer’s legitimate purpose? … (Italic emphasis in original) [ 16 ] Third, the Union argues that it is open to Saskatchewan to attempt to bargain the terms of any revised testing system. [ 17 ] As I weigh the arguments of the parties against the evidence, I find that Saskatchewan has met the threshold of proving irreparable harm. Dr.

Gledhill, who was one of the individual designers of the WFX-Fit testing, acknowledged that a cut score could be set with equal validity at either one or two standard deviations from the an ideal score, but, it is not a change that can be made easily without further analysis and testing. Any change in fitness testing could have far-ranging implications for Saskatchewan wildland firefighters. Such a change will apply to existing employees, who have been operating under the present system since 2012, as well as to new hires for the 2019 firefighting season.

If the Supreme Court grants leave, and allows the appeal, Saskatchewan will have changed the fitness protocol for all employees when it may not have been required to do so. In my view, the cost and effects of this change would not be calculable in damages, or, even if they are, it is unclear that the damages would be recoverable. [ 18 ] I also do not see it as an answer to say Saskatchewan can continue with the present cut score and accommodate any employee under s. 16 of The Saskatchewan Human Rights Code and, therefore, that no stay is necessary.

The arbitrator raised that possibility; but he also made it clear he was limited to declaratory relief as a remedy. I have no authority to direct Saskatchewan to take such a step or to opine on its suitability as a means of addressing the arbitrator’s finding of discrimination.

In any event, by imposing a stay, this becomes the de facto solution, but without any ramifications for either party. [ 19 ] Finally, given Saskatchewan’s evidence that the state of the testing must be known early in 2019, in order to have a system in place for the ensuing season, attempting to negotiate a change to the present fitness protocol, in the interim, is not realistic. C. Balance of Convenience [ 20 ] The Court of Queen’s Bench and this Court have taken different views as to the standard of review to apply to the Award Decision and as to the reasonableness of the decision.

This alone is a good indicator of the seriousness of the issues. The harm, as I have indicated, may not be recoverable in damages. [ 21 ] The WFX-Fit test protocol, with its present cut score, was first implemented for the 2012 firefighting season and has been in place since then. After the Award Decision was released in December of 2015, Saskatchewan successfully applied to stay the decision in the Court of Queen’s Bench (see the unreported fiat of Elson J., dated April 1, 2016). Thus, the present fitness protocol has been in place for seven firefighting seasons.

In that context, as well, I note that two firefighting seasons passed because of adjournments granted to the Union before the Award Decision was rendered, which diminishes the Union’s present arguments of urgency. It is anticipated that if a stay is imposed, one firefighting season, at most, will be affected before the Supreme Court can determine whether to grant leave.

From the Union’s submissions filed on this application, I note, too, that no employee has reported discrimination as a result of the use of the WFX-Fit test. [ 22 ] As Richards C.J.S. stated in Mosaic , the “ultimate focus of the court must always be on the justice and equity of the situation in issue” (at para 26). In considering the overall equities and justice of this application, the balance of convenience tips in favour of Saskatchewan. IV.

Fixing the Order [ 23 ] It is hereby ordered, pursuant to s. 65.1 of the Supreme Court Act , that SK Firefighters is stayed so as to preserve the status quo reflected in Saskatchewan (Environment) v Saskatchewan Government and General Employees’ Union , 2016 SKQB 336 , 16 Admin LR (6th) 248 [ QB Decision ], pending the determination of the application for leave to appeal to the Supreme Court.

The stay does not extend to the entire second sentence of paragraph 1 of the November 4, 2016, issued order (stemming from the QB Decision ), and, to the extent applicable, the sentences in paragraphs 29 and 46 of that decision beginning with the phrase “In its place …”. In the event that the application for leave is denied, this order will cease to have effect. If leave to appeal is granted, this order will remain in effect until the date of the final judgment of the Supreme Court. Each party shall bear its own costs.