Service Employees International Union - West (SEIU-West) Appellant (Respondent) v. Saskatchewan Health Authority, 2020 SKCA 113

Court of Appeal for Saskatchewan Docket: CACV3528 Citation: Service Employees International Union - West v Saskatchewan Health Authority , 2020 SKCA 113 Date: 2020-10-06 Between: Service Employees International Union - West (SEIU-West) Appellant (Respondent) And Saskatchewan Health Authority Respondent (Applicant) And Catherine Zuck, Q.C. Non-Party (Respondent) Before: Richards C.J.S., Leurer and Barrington-Foote JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Chief Justice Richards In dissent: The Honourable Mr.

Justice Barrington-Foote On appeal from: Saskatoon, 2019 SKQB 282 Appeal heard: April 20, 2020 Counsel: Heather Jensen for the Appellant Paul Clemens for the Respondent Leurer J.A. I. Introduction [ 1 ] This appeal arises out of a labour dispute between Service Employees International Union – West [Union] and Saskatchewan Health Authority [SHA]. The Union successfully grieved the refusal of SHA to award job positions to two of its members: Service Employees International Union West v Saskatchewan Health Authority (13 May 2019) Saskatoon (Arbitrator: Catherine M.

Zuck, Q.C.) [ Award ]. [ 2 ] SHA was unhappy with the Award and applied successfully to a Queen’s Bench judge to quash it: Saskatchewan Health Authority v Service Employees International Union-West , 2019 SKQB 282 [ Chambers Decision ]. [ 3 ] The Union now appeals the Chambers Decision . I would allow the Union’s appeal and set aside the order quashing the Award . My reasons follow. II. Background A. The Collective Agreement [ 4 ] The Union represents healthcare workers employed by SHA.

The collective agreement in force between the parties at the relevant time [Collective Agreement] applied to numerous different health care worker positions at many different health care facilities. One of the positions defined in the Collective Agreement was that of continuing care assistant [CCA]. One of the health care facilities was Goodwill Manor located in Duck Lake.

[ 5 ] Three sets of provisions found in the Collective Agreement feature prominently in the dispute between the parties. [ 6 ]

Article 11 is titled “Vacancies and New Positions”. Within

Article 11: (

a) section 11.01 contains the parties’ agreement to use the “Provincial Job Descriptions established through the Provincial Joint Job Evaluation and/or the Maintenance Plan”; (

b) section 11.03(

a) requires job postings to include certain information, including the “[r]equired qualifications” to fill the position; (

c) section 11.03(

c) creates an obligation on SHA to repost a position and consider candidates who do not have the “requisite or equivalent qualifications” in certain circumstances:

c) Should the Employer be unsuccessful in obtaining applicants with the Provincial Job Description requisite or equivalent qualifications, and, as per LOU #22 re: [Joint Job Evaluation] Implementation Issues

b) v) intends to accept applicants without the requisite or equivalent qualifications, the Employer shall repost the position in the same job classification indicating that applicants without the requisite or equivalent qualifications shall be considered for the position. Such position shall be filled in accordance with

Article 11. (

d) section 11.05 is entitled “Filling of Vacancies”. It states, in part: New positions or vacancies shall be filled on the basis of Regional Health Authority Seniority provided that the applicant possesses the necessary qualifications required to fill the position and the ability to perform the work.

a) Bidding of Vacancies … iv) The vacancy shall be awarded to the senior applicant who possesses the necessary qualifications required to fill the position and the ability to perform the work. [ 7 ] Letter of Understanding #2 [LOU #2], between a predecessor of SHA and the Union, titled “Re: Continuing Care Assistant”, addresses the qualification of persons employed as, or to be hired as, CCAs.

It states: Effective October 3, 2003, all employees who were placed in Provincial Job #22 the Special Care Aide/Home Health Aide job classification and who were not graduates of either the SIAST Special Care Aide Program or the SIAST Home Health Aide Program or an equivalent as of October 3, 2003, were deemed to possess these qualifications. Such employees shall continue to be deemed qualified until their employment is terminated from within the Health Care Provider Units in the Province of Saskatchewan.

Should it be necessary to hire a Continuing Care Assistant who is not a graduate of the current SIAST Continuing Care Assistant Program/formerly SIAST Special Care Aide/Home Health Aide Program or equivalent, the Employer will give preference to bargaining unit members. Such employees will be required to become qualified within two (2) years at his/her own expense. The Employer shall advise all employees in writing of such requirement, and shall forward a copy of such notification to SEIU-West.

An Employee will need to demonstrate an on-going participation in the program or process, at a minimum of every (6) months. Where such employee has actively pursued these educational requirements and has failed to complete same within the two (2) year period, the parties agree that the employee shall be afforded the opportunity to apply for an extension based upon their extenuating circumstances.

Should an employee fail to become qualified within the two (2) year period and an extension is either not granted or applied for, the parties agree that such employee shall be removed from the Continuing Care Assistant classification and be allowed access to hours of work in an alternate non- nursing department and/or classification in accordance with

Article 11.10

c) iii). (Emphasis in original) [ 8 ] Letter of Understanding #22 [LOU #22], between a predecessor of SHA and several unions, titled “Re: Implementation Issues – Provider Group Joint Job Evaluation”, addresses the implementation of the results of a Provider Group Joint Job Evaluation Plan. LOU #22 states: The Parties agree to the principles of Equal Pay for Work of Equal Value, and will not knowingly undermine the Joint Job Evaluation Program. a.

The Parties agree that implementation of the results of the Provider Group Joint Job Evaluation Plan, was based upon both the October 3, 2003 Memorandum of Agreement and the Implementation Agreement dated April 5, 2004. The Parties agree that such Agreements shall remain in place. b. The parties agree that all equivalencies established as of October 3, 2003 where an employee was grandfathered with the qualifications equivalent to the classification in which they were placed, shall be continued.

It is further agreed that where all such equivalencies are transferable they shall be transferable within all Provincial Job Descriptions for all Provider Group Unions. Such grandfathering shall continue until the employee terminates from all employer(s). The Parties recognize that the qualifications on the Provincial Job Descriptions were established for rating purposes and reflect the required educational training but should not be used to discriminate against current employees who have previously performed the work and/or have the seniority and ability sufficient to perform the work.

For the purposes of implementing this paragraph the following principles shall be used for the establishment of qualification equivalencies: i. Where certification and/or licensing can be obtained through gaining necessary experience, the attainment of the certification and/or license shall be deemed to be the equivalent of successful completion of education, e.g. power engineer can be certified and licensed by completing the required amount of “firing time” and successfully passing the government examinations.

ii. Where past practice demonstrates that an individual with sufficient directly related previous experience can satisfactorily perform the job, then this directly related experience hours/years in the ratio of 2 to 1 for hours/years of education shall be deemed to be equivalent. The directly related experience has to be within a specified period of time e.g. 2 years directly related experience would equal 1 year of education within the last five years preceding the application for the job. iii. Where the job has specific qualification requirements and an individual has held the job through having the requisite qualification(

s) or the equivalent qualification(

s) after October 3, 2003, the individual shall be deemed to have the qualification(

s) and the qualification(

s) may be transferable with the individual to other jobs that have the same qualification(s). iv. Should the qualification(

s) change on the Provincial Job Description, the employee will be deemed to have the equivalent qualification(

s) and the qualification(

s) may be transferable with the individual to other jobs that have the same qualification(s). v. Where an individual without the qualification(

s) or the equivalent experience is hired into, or awarded a position, he/she shall be expected to perform the majority of duties within the time period for on-the-job training as specified within the Rating Rationale documentation. As a condition of maintaining employment in this position and classification, the individual will need to demonstrate they have embarked on/enrolled in a program or process that will result in he/she obtaining the qualifications in the specified period of time.

As well, the individual will need to demonstrate an ongoing participation in the program or process, at a minimum of every 6 months. Should the individual not meet the condition above, he/she shall revert to casual status in a classification that the individual is qualified for and as negotiated by the parties (SEIU-West, SGEU) or re-employment list (CUPE) (this shall not be considered a lay-off) as negotiated by the parties. B. The grievance [ 9 ] Candice Gardippie and Lindsay Seesequasis are employees of SHA and members of the Union.

In 2017, each was a casually employed CCA, although neither held one of the qualifications contemplated in LOU #2 [CCA Certificate]. This appeal arises because their applications for positions as permanent full-time CCAs were passed over in favour of candidates who held a CCA Certificate. [ 10 ] Ms. Gardippie was hired into a permanent casual CCA position at the Goodwill Manor facility in June 2016, pursuant to LOU #2. Consistent with the terms of LOU #2, Ms.

Gardippie’s letter of appointment included a requirement that she obtain a CCA Certificate within two years: This employment offer is conditional upon: • successful completion of the Saskatchewan Polytechnic Continuing Care Assistant Certificate or equivalent, at your own expense by June 13, 2018 (2 years after start date), as per the SEIU/SAHO Collective Agreement Letter of Understanding #2. Should you fail to complete this training by the specified date, you may apply to your Manager for an extension based on your personal circumstances.

Your request will be reviewed by your Manager and a Consultant from Human Resources and approval will be at the discretion of the Saskatoon Health Region. Should an extension not be granted, you will be removed from all positions requiring the Continuing Care Assistant certificate. If you do not own any other positions, you will be placed on an unpaid leave of absence for up to one year to allow you the opportunity to seek alternate work within the Saskatoon Health Region, which meets your qualifications.

If, at the end of one year, you have not obtained a position, your employment with the Saskatoon Health Region will be terminated. [ 11 ] Ms. Seesequasis was first hired at Goodwill Manor in 2008 as a casual food service worker. She worked in various positions at that facility as well as others for the predecessor of SHA, including as a CCA. The arbitrator found that Ms.

Seesequasis had taken the CCA Certificate course in 2009, but did not obtain the CCA Certificate “because, although she did the required practicum work, she lost the proof that those hours were done and she was therefore denied a CCA Certificate” ( Award at para 28). So far as concerns the issues in this appeal, Ms. Seesequasis was hired into a permanent casual position as a CCA in February 2017 pursuant to LOU #2. Her appointment letter mirrored Ms.

Gardippie’s, although the time for her completion of the required CCA Certificate course was indicated to be February 21, 2019. [ 12 ] In September 2017, Goodwill Manor posted three separate permanent full-time CCA positions. Each posting contained the following identical statement: Required Qualifications – Continuing Care Assistant certificate. … Notice to Applicants – Letter of Understanding #2 regarding individuals without qualifications may be applicable. [ 13 ] Ms. Gardippie and Ms. Seesequasis each applied for all three positions.

SHA determined that neither met the “necessary qualifications” for the positions because they did not possess a CCA Certificate. Each of the positions was awarded to an individual who had less seniority but held a CCA Certificate. [ 14 ] As is common, the Collective Agreement established a procedure for the resolution of disputes culminating in arbitration. Ms. Gardippie’s grievance was filed on September 24, 2017, and Ms. Seesequasis’ grievance was filed on November 23, 2017.

The Union and SHA agreed that the grievances would be heard together and the arbitrator should prepare one award dealing with both matters. The parties also agreed that the hearing would be bifurcated. Specifically, it was agreed that the arbitrator would first rule on whether the Collective Agreement was breached when Ms. Gardippie and Ms. Seesequasis were denied the positions. If the arbitrator concluded that a breach occurred, she would retain jurisdiction to determine an appropriate remedy. [ 15 ] The Union’s position was that Ms. Gardippie and Ms.

Seesequasis were both in the situation described in paragraph (b)(

v) of LOU #22. The proposition was that once they were conditionally hired into their permanent casual CCA positions, each “should be considered for all purposes the same as a CCA who has the CCA Certificate” ( Award at para 46). On this basis, the Union said, Ms. Gardippie and Ms. Seesequasis met the “necessary qualifications” requirement set out in s. 11.05 to be entitled to the posted permanent

full-time CCA positions on a seniority basis. [16] SHA’s basic position was that LOU #22 had nothing to do with establishing qualifications for the CCA position. Instead, itsaid, qualifications for the CCA position were defined by LOU #2 which allowed it “to hire a junior CCA with a CCA Certificate over asenior employee (including one in the CCA Classification) without a CCA Certificate” (at para 40). Because Ms. Gardippie and Ms.Seesequasis did not have a CCA Certificate, SHA said, they did not have the “necessary qualifications” to meet the seniority hiringrequirement. C.

The Award [17] The arbitrator posed and answered four questions. The first question related to the “scope” of her review of SHA’s hiringdecisions (at para 84). SHA had argued that its actions could only be questioned if it was “acting arbitrarily, unreasonably or in bad faith”or was “using qualifications as a guise for defeating employee rights under the Collective Agreement” (at para 76).

The arbitratordisagreed, concluding that her task was to determine whether SHA “correctly established the qualifications required according to theCollective Agreement” (at para 84, emphasis added). [18] The second question was as to the “correct

interpretation of the Collective Agreement” (at para 85). The arbitrator observed thatto answer this question she had to “determine what the words of Article[s] 2.01, 11.05 and LOU #2 and LOU #22 mean, and then, applythat

interpretation to the facts of this case”. For this purpose, she applied “the modern approach to

interpretation of collective agreements”,which she identified as requiring that the words of a collective agreement “be read in their entire context, in their grammatical and ordinarysense, harmoniously with the scheme of the agreement, its object, and the intention of the parties” (at para 85, quoting Communication,Energy and Paperworks Union, Local 777 v Imperial Oil Strathcona Refinery (Policy Grievance) (2004), (AB GAA),130 LAC (4th) 239 (Alta) at para 40 [Imperial Oil]).

After conducting an analysis divided into headings that were structured around herexplanation of this “modern approach”, the arbitrator answered the second question as follows: 116. Therefore: • upon reading the Collective Agreement and considering its entire context, and • reading the words of

Article 11.05, LOU #2 and LOU #22 in their entire context, in their grammatical and ordinary meaning and givingmeaning to all words used, • and reading the words harmoniously with the scheme of the agreement, its object and the intention of the parties it is the Board’s decision the Collective Agreement requires the Employer, when filling a CCA position, to consider both thequalifications as set out in the Provincial Job Description and/or the equivalent qualifications as established in LOU #22 when it isconsidering whether an “applicant possesses the necessary qualifications required to fill the position and the ability to perform the work.” [19] The third question was whether SHA had correctly assessed the grievors’ applications.

The arbitrator held that SHA “did notcorrectly assess the Grievors according to the Collective Agreement when it ignored their equivalent qualifications and gave the positionsto applicants with less seniority” (at para 123). [20] The fourth question was what “disposition” was appropriate. The arbitrator concluded that, although the question of remedywas reserved, the “grievance of each Grievor succeeds” (at para 124). D. The Chambers Decision [21] SHA applied to quash the Award.

Its stated grounds ran to over seven pages of its originating application. [22] The Chambers judge noted that the parties agreed that he should apply the reasonableness standard when reviewing the Award.At paragraph 18, he turned to the following statement from Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir], asproviding the “essence” of that standard: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range ofacceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned withwhether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [23] The Chambers judge reviewed the Award in detail and summarized his understanding of the arbitrator’s reasons.

He thenturned to SHA’s grounds for arguing that the Award was unreasonable. [24] SHA had argued that the Award was unreasonable in how it dealt with the application of LOU #22 (at paras 25–27), thegrievors’ circumstances (at paras 28–36), the grievors’ ability to perform the work (at paras 37–39), the arbitrator’s consideration of pastpractice (at paras 40–41), the arbitrator’s consideration of estoppel (at paras 42–43), and the arbitrator’s consideration of managementrights (at para 44).

The Chambers judge rejected these arguments because he interpreted Law Society of New Brunswick v Ryan, 2003SCC 20 at para 56, [2003] 1 SCR 247, as meaning that “the review of a tribunal’s decision for reasonableness is not a review of eachelement of the decision or of each step of the process leading to the decision. Rather, the review is of the tribunal’s ultimate decision”(Chambers Decision at para 27). [25] However, the Chambers judge accepted two of the bases upon which SHA sought to quash the Award.

[ 26 ] SHA had argued that “the arbitrator’s decision is unreasonable because she failed to apply established arbitral precedent such as Prince Albert Parkland Regional Health Authority v Canadian Union of Public Employees Local 4777 (30 April 2008) [(Arbitrators: Wally Matkowski, Tim Hobbins, and Alex Lenko), [ Prince Albert Parkland ]]” (at para 47) or, alternatively, the Award was “unreasonable because the arbitrator did not explain her failure to follow established arbitral precedent” (at para 48).

The Chambers judge explained that “[w]hen there truly is an established rule in arbitral decisions – to the point where the participants in the area understand something to be the accepted rule – an arbitrator generally is bound to follow the rule or to explain why he or she is not following it” (at para 49). He concluded that such a rule existed that was applicable and the Award was unreasonable because the arbitrator failed to explain why she did not follow it here: [51] Particularly with reference to the discussion by Ronald M.

Snyder, Collective Agreement Arbitration in Canada , 6th ed (Toronto: LexisNexis, 2017) at paras 16.36-16.39, I am satisfied that the rule outlined in Prince Albert Parkland (that “qualifications” are different from “ability”) constitutes established arbitral precedent. The arbitrator did not follow this arbitral precedent, and she did not address it and explain her reason for not following it. Consequently the decision is unreasonable. The health authority is left wondering why the generally understood rule did not apply in this case.

The lack of explanation means that the decision is not justified, not transparent and not intelligible. [ 27 ] Second, the Chambers judge concluded that the Award did not fall within the range of possible acceptable outcomes which were defensible in respect of the facts and the law: Effect of the decision on a contractual provision [52] To fall into the realm of reasonableness, a decision must be justified, transparent and intelligible, as I have just discussed.

As well, it must fall within the range of acceptable and rational conclusions that are defensible in respect of the facts and the law. [53] Here the essence of the [Award] is that ability to perform the work is equivalent to possessing the necessary qualifications. That decision effectively renders nugatory the part of LOU #2 that requires a conditional employee to obtain the CCA certificate. Similarly, it renders nugatory that part of

article 11.05 that makes the precedence of seniority dependent on the employee, who is able to perform the work, also having the necessary qualifications. The [Award] eliminates the difference between “necessary qualification” and “ability to perform the work”, making them both “ability to perform the work”. [54] The qualification required in LOU #2, being the CCA certificate, was agreed to between the health authority and the union. It is an express contractual provision.

In the absence of an explanation for doing so, a decision that would render nugatory an express contractual provision does not fall within the range of acceptable and rational conclusions that are defensible in respect of the facts and the law. The facts (the express contractual agreement) demand that the contractual provisions have effect, if possible, and the law (as reviewed by the arbitrator) encourages contractual provisions to be interpreted so as to give them meaning. (Emphasis in original) [ 28 ] In the result, the Chambers judge quashed the Award . III.

Issues [ 29 ] On an appeal from a judicial review decision, this Court’s role is to ask itself whether the reviewing judge identified the appropriate standard of review and applied it correctly: Dr. Q. v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at para 43 , [2003] 1 SCR 226 [ Dr. Q. ] and Agraira v Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 at paras 45–47 , [2013] 2 SCR 559 [ Agraira ].

In this case, the parties had agreed the applicable standard of review was reasonableness. [ 30 ] The Chambers judge did not have the benefit of Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , 441 DLR (4th) 1 [ Vavilov ], which was decided after the Chambers Decision . In this appeal, both parties point to Vavilov as justifying their respective positions, but neither suggests that it changed the applicability of the reasonableness standard of review.

The issues in this appeal therefore relate to whether the Chambers judge correctly applied the reasonableness standard when he decided to quash the Award . [ 31 ] Against this background, in my respectful view, the Union’s appeal is appropriately decided by answering four questions: (

a) Did the Chambers judge correctly interpret the Award ? (

b) Did the Chambers judge correctly conclude that the Award was unreasonable because of the arbitrator’s failure to explain why she did not follow arbitral precedent? (

c) Did the Chambers judge correctly conclude that the Award rendered “nugatory” both s. 11.05 and LOU #2? (

d) Was the Award unreasonable for reasons other than those found by the Chambers judge? IV. Analysis A. Did the Chambers judge correctly interpret the Award ? [ 32 ] A reasonableness review begins with an understanding of the reasons given by the tribunal whose decision is subject to review. In Vavilov , the Supreme Court of Canada contrasted a reasonableness review from one conducted according to a correctness standard: [12] … Reasonableness review is methodologically distinct from correctness review . It is informed by the need to respect the

legislature’s choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court.

In order to fulfill Dunsmuir ‘s promise to protect “the legality, the reasonableness and the fairness of the administrative process and its outcomes”, reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions : para. 28. (Emphasis added) [ 33 ] The Supreme Court also emphasized that “ the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome” (at para 83).

The Court expanded on the importance of the reasons given by the tribunal: [84] As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first.

A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion : see Dunsmuir , at para. 48 , quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286. [85] Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable .

As we will explain in greater detail below, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision. [86] Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir , at paras. 47-49 .

In Dunsmuir , this Court explicitly stated that the court conducting a reasonableness review is concerned with “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”: para. 47. Reasonableness, according to Dunsmuir , “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: ibid .

In short, it is not enough for the outcome of a decision to be justifiable . Where reasons for a decision are required, the decision must also be justified , by way of those reasons, by the decision maker to those to whom the decision applies.

While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis . (Italicized emphasis in original; Underlined emphasis added) [ 34 ] Later, the Supreme Court emphasized that “ close attention must be paid to a decision maker’s written reasons and that they must be read holistically and contextually” ( at para 97). [ 35 ] I refer to these passages from Vavilov to emphasize that if a reviewing court does not proceed with a correct understanding of the reasons given by the tribunal whose decision is under review, the review itself is likely to be flawed. [ 36 ] Both parties and the arbitrator proceeded on the basis that s. 11.05 only required that preference be given to candidates with seniority who possessed the “necessary qualifications”.

In this case, central to the Chambers Decision was the idea that, for the purposes of applying s. 11.05, the arbitrator had equated “qualifications” with “ability”. The first error identified by the Chambers judge centered on the arbitrator’s failure to follow, or explain why she did not follow, “the rule … that ‘qualifications’ are different from ‘ability ’ ” (at para 51). In relation to the second error he found, the Chambers judge characterized the “essence” of the arbitrator’s decision to be “that ability to perform the work is equivalent to possessing the necessary qualifications” (at para 53).

Common to both statements is the Chambers judge’s conclusion that the arbitrator equated the idea of “ability” with “necessary qualifications”, as the latter term is used in s. 11.05 of the Collective Agreement. [ 37 ] The Union contends that the Chambers judge “misread the Arbitrator’s reasons when he concluded that the Arbitrator conflated ‘ability to do the work’ and ‘qualifications’”. In my respectful view, the Union’s criticism of the Chambers Decision is valid. [ 38 ] I would begin by noting that the arbitrator herself identified the essence or substance of her Award .

At the beginning of the Award , after dealing with preliminary matters, the arbitrator stated her conclusion on the

interpretation question (item (

b) under the “Issues” heading at page 2): … It is the Board’s decision that the correct

interpretation of the Collective Agreement requires the Employer, when filling a CCA position, to consider both the qualifications as set out in the Provincial Job Description and/or the equivalent qualifications as established in LOU #22 when it is considering whether an “applicant possesses the necessary qualifications required to fill the position and the ability to perform the work.” (Emphasis added) [ 39 ] Similarly, near the end of the Award , at paragraph 116, which I have previously quoted in full, the Arbitrator summarized her conclusion relating to the proper

interpretation of the Collective Agreement by stating that “the Collective Agreement requires the Employer, when filling a CCA position, to consider both the qualifications as set out in the Provincial Job Description and/or the equivalent qualifications as established in LOU #22 when it is considering whether an ‘applicant possesses the necessary qualifications required to fill the position and the ability to perform the work’” (emphasis added). [ 40 ] As I understand these passages, the arbitrator was expressing the view that a candidate could claim to have the “necessary qualifications” for a position and, therefore, an entitlement to a position based on seniority, if she or he either met the qualifications as set out in the Provincial Job Description or could claim equivalent qualifications as established in LOU #22.

In this regard, the arbitrator was pointing to the language found in paragraph (

b) of LOU #22, which refers to “qualification equivalencies”. In each of paragraphs 88, 101 and 116 of the Award , the arbitrator set out her understanding that, for a candidate to claim a position on the basis of seniority, that candidate must demonstrate both that she or he has the qualifications required for the position and the ability to fulfil the job requirements.

Therefore, the essence of the Award was that “necessary qualifications” for the purposes of s. 11.05 might be established pursuant to LOU #2 or LOU #22. It was not the notion that the “ ability to perform the work is equivalent to possessing the necessary qualifications” ( Chambers Decision at para 53). [ 41 ] In her detailed reasons, the arbitrator explained her conclusion that “necessary qualifications” could be established pursuant to either LOU #2 or LOU #22.

There were two key steps in her reasoning. [ 42 ] The first step was the arbitrator’s conclusion that “necessary qualifications”, as that phrase is used in s. 11.05, encompasses equivalent qualifications. She reasoned as follows: 92. However,

Article 11.03 (

c) uses the phrase “Provincial Job Description requisite or equivalent qualifications” several times and directs what the Employer should do if it is “unsuccessful in obtaining applicants with the Provincial Job Description requisite or equivalent qualifications”.

Article 11.03 (

a) states that the posting shall include the “Required qualifications”.

Article 11.05 states the position shall be filled on the basis of seniority provided the applicant possesses the “necessary qualifications required to fill the position”. In order for

Article 11.03 (a), (

c) and

Article 11.05 to all make sense together, “required qualifications” and “necessary qualifications required to fill the position” and “Provincial Job Description requisite or equivalent qualifications” must all have the same meaning. As “Provincial Job Description requisite or equivalent qualifications” as used in

Article 11.03 is the test for when the Employer is successful or “unsuccessful” in filling a position, it is the Board’s decision that all three phrases mean “Provincial Job Description requisite or equivalent qualifications”. … [ 43 ] SHA points out that s. 11.05 “does not include the phraseology ‘requisite or equivalent qualifications’”. However, the arbitrator clearly outlined her reasons for concluding that “necessary qualifications” must bear the same meaning as the phrases used in ss. 11.03(

a) and (c), which embrace the idea of equivalency. In doing so, she accounted for the contractual language in a way that followed an internally coherent and rational chain of logic. In this regard, the arbitrator reasoned that her

interpretation “gives a purpose to LOU #22 which sets out the principles to determine equivalent qualifications”, adding that there “would be no reason to do this if equivalent qualifications were not part of the job selection process” (at para 92). She reasoned that the “interpretation is supported by LOU #22 where the parties agreed that the qualification on the Provincial Job Description should not be used to discriminate against current employees who have previously performed the work … and to implement this principle, ‘qualification equivalencies’ as established by LOU #22 are applicable” (at para 93). She also explained how LOU #22 in general, and LOU #22(b)(

v) in particular, had application (at paras 96–98). I will return to discuss the arbitrator’s reasoning on these points in the context considering SHA’s challenge to the reasonableness of this conclusion. [ 44 ] The second step in the arbitrator’s reasoning was her explanation for why LOU #22 establishes Ms. Gardippie’s and Ms. Seesequasis’ equivalent qualifications: 119. Paragraph v. [of LOU #22] establishes an equivalent qualification where an employee demonstrates they have embarked on a process to obtain the educational qualification in a specific period of time.

LOU #2 further defines this as two years to obtain a Continuing Care Certificate. Both Grievors were hired as Continuing Care Assistants with this condition and they were still within their 2 year period . They must have satisfactorily demonstrated their on-going participation in the process as the Employer had not removed either Grievor from the Continuing Care Assistant classification at the time they applied for the postings in issue.

Thus, both Grievors possessed the qualification equivalency for a Continuing Care Assistant. [ 45 ] According to the arbitrator’s reasoning, an “equivalent qualification” was established by the fact that the employee had “embarked on a process to obtain the educational qualification in a specific period of time”. On the facts, the arbitrator concluded that this condition was met by both Ms. Gardippie and Ms.

Seesequasis as they had been “hired as Continuing Care Assistants with this condition and they were still within their 2 year period” and must have “satisfactorily demonstrated their on-going participation in the process as the Employer had not removed either Grievor from the Continuing Care Assistant classification at the time they applied for the postings in issue” (at para 119).

Therefore, in my respectful view, the arbitrator’s detailed reasoning comports with the conclusions she expressed at both the beginning and end of the Award. [ 46 ] In short, the arbitrator did not conflate ability with either “qualifications” or “necessary qualifications”. Instead, she treated the two as separate requirements that must be met before a candidate could lay claim to a position based on seniority. [ 47 ] To be clear, at several junctions in the Award , the arbitrator did comment on the demonstrated ability of Ms. Gardippie and Ms. Seesequasis to carry out the CCA function.

The arbitrator found, as fact, that both Ms. Gardippie and Ms. Seesequasis were “always able to satisfactorily perform the duties of a Continuing Care Assistant at Goodwill Manor at any time she was working in that position” (referring to Ms. Gardippie at para 23 and to Ms. Seesequasis at para 35). The arbitrator also found it relevant that SHA had a practice of hiring as CCAs persons who did not hold the CCA Certificate. In this context, she noted: 115.

The other context that the Board considered in making its decision was the testimony of the Employer’s witness and the statement in the Collective Agreement that from time to time it has been necessary to fill Continuing Care Assistant positions with applicants who do not have the Continuing Care Assistant Certificate. Especially in the smaller centres, there are not always applicants who have the Certificate yet the work needs to be done for the residents of the long term care facility. This was even the case when both Grievors were initially hired as Continuing Care Assistants.

The reality was that there can be a shortage of persons with the Continuing Care Assistant Certificate. While the Employer argued that the issue was about safe patient care and that the co-worker nurses and CCAs wanted to work with “qualified” CCAs, there was no evidence that the CCA Certificate was necessary in order to do the job properly . The Employer hires Continuing Care Assistants without the CCA Certificate, presumably often enough that parties needed to negotiate Collective Agreement provisions dealing with that realitiy [ sic ].

There was absolutely no evidence that Continuing Care Assistants without the CCA Certificate, and in particular, the Grievors, were any less capable, less safe or could not do all the CCA work compared to those with the Continuing Care Assistant Certificate . This context supports the Boards [ sic ]

interpretation that the hiring of Continuing Care Assistants should be on the basis of the CCA Certificate qualification and/or equivalent qualification as established by LOU #22 . (Emphasis added)

[ 48 ] As I read these passages, the arbitrator was not equating an ability to perform work with the idea of “necessary qualifications”. Instead, she was simply explaining why the parties might have agreed to qualification equivalencies. [ 49 ] In a similar vein, the arbitrator concluded her analysis on the question of

interpretation of the Collective Agreement by stating: c. Testing the

Interpretation 121. This is a plausible and reasonable

interpretation and this

interpretation is acceptable in the sense that it is within the bounds of acceptability of the parties and the legal values of fairness and reasonableness. In LOU #2 and #22, the parties clearly agreed a CCA job is one that can be done for at least 2 years without the formal educational requirement of a CCA Certificate, although it is preferable to have one. The Employer has at least hired the two Grievors and its witness without CCA Certificates and there was no evidence that those three were not functioning in the CCA Job as well as any other CCA employed by the Employer .

The Employer calls the Grievors for casual hours replacing CCAs with CCA Certificates. It does not appear to differentiate between CCAs with and without CCA Certificates in work assignments . After doing the job for 2 years, it makes sense to the Board that the Grievors should have the same right as the other CCAs to increase their hours by using their seniority to win a posting. (Emphasis added) [ 50 ] In my respectful view, this passage from the Award can only be understood as the arbitrator’s application of the last step in the “modern approach” to

interpretation of collective agreements that she had adopted. In this regard, the arbitrator had quoted a lengthy passage from Imperial Oil , which invited an approach to

interpretation consisting of the following steps: (

a) to consider the entire context of the collective agreement; (

b) to read the words of the collective agreement in their entire context and in their grammatical and ordinary meaning; and (

c) to read the words of the collective agreement harmoniously, with the scheme of the agreement, with the object of the agreement and with the intention of the parties. According to Imperial Oil , as quoted by the arbitrator at paragraph 85, there is also a final step to this “modern approach”: Testing the

interpretation [47] Once an

interpretation is settled upon, it should be tested by asking these questions: - is the

interpretation plausible - is it reasonable? - is the

interpretation effective - does it answer the question within the bounds of the collective agreement? - is the

interpretation acceptable in the sense that it is within the bounds of acceptability for the parties and legal values of fairness and reasonableness? [ 51 ] The arbitrator organized the Award in accordance with the approach suggested by Imperial Oil . Neither party challenged the arbitrator’s adoption of this “modern approach”. I therefore proceed on the basis that its use by the arbitrator was reasonable in the context of this case. [ 52 ] By paragraph 121 of the Award , the arbitrator had reached a conclusion as to the proper

interpretation of the Collective Agreement, including that “necessary qualifications” under s. 11.05 may be found within the “equivalent qualifications” set out in LOU #22. In paragraph 121, the arbitrator was “testing” that

interpretation. In short, the arbitrator was simply explaining why the

interpretation she had given to the Collective Agreement “added up” or made sense. Therefore, I see nothing in this paragraph that confuses ability with a requirement to hold a qualification in order to assert hiring preference based on seniority. [ 53 ] For all these reasons, in my respectful view, the Chambers judge erred when he conducted his review of the Award on the understanding that the arbitrator had equated the idea of “ability” with “necessary qualifications”, as the latter phrase is used in s. 11.05 of the Collective Agreement.

The Chambers judge’s error in this regard does not mean that the Union is entitled to succeed in its appeal. It does, however, cut away the principal leg on which much of the Chambers Decision stands. B. Did the Chambers judge correctly conclude that the Award was unreasonable because of the arbitrator’s failure to explain why she did not follow arbitral precedent? [ 54 ] The first reason given by the Chambers judge for quashing the Award was the arbitrator’s failure to follow arbitral precedent that established a distinction between qualifications and ability, or to explain why that precedent was not followed.

He stated that he was “satisfied that the rule outlined in Prince Albert Parkland (that ‘qualifications’ are different from ‘ability’) constitutes established arbitral precedent” (emphasis added).

He reasoned that the Award was unreasonable because the arbitrator “did not follow this arbitral precedent, and she did not address it and explain her reason for not following it” (at para 51). [ 55 ] However, as I have explained, the arbitrator had recognized that for an applicant to claim a position based on seniority, that applicant must show that she or he possesses both the qualifications and the ability to fulfil the job functions.

Once it is recognized that the arbitrator did not equate ability with qualifications, the first basis for the Chambers judge’s determination that the Award was unreasonable falls away. There would be no reason for the arbitrator to have followed the rule “that ‘qualifications’ are different than ‘ability’” or to explain why she did not follow this rule because she did not equate the two. C.

Did the Chambers judge correctly conclude that the Award rendered “nugatory” both s. 11.05 and LOU #2 ? [ 56 ] The second reason given by the Chambers judge for quashing the Award was that it rendered “nugatory” both s. 11.05 and

LOU #2. The Chambers judge observed that, according to Dunsmuir , a decision may be unreasonable if it does not fall “ within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (at para 30, quoting Dunsmuir at para 47 ). After reintroducing this aspect of the Dunsmuir standard at paragraph 52 of the Chambers Decision , the Chambers judge continued: [53] Here the essence of the arbitrator’s decision is that ability to perform the work is equivalent to possessing the necessary qualifications.

That decision effectively renders nugatory the part of LOU #2 that requires a conditional employee to obtain the CCA certificate. Similarly, it renders nugatory that part of

article 11.05 that makes the precedence of seniority dependent on the employee, who is able to perform the work, also having the necessary qualifications. The arbitrator’s decision eliminates the difference between “necessary qualification” and “ability to perform the work”, making them both “ability to perform the work”. [54] The qualification required in LOU #2, being the CCA certificate, was agreed to between the health authority and the union. It is an express contractual provision.

In the absence of an explanation for doing so, a decision that would render nugatory an express contractual provision does not fall within the range of acceptable and rational conclusions that are defensible in respect of the facts and the law.

The facts (the express contractual agreement) demand that the contractual provisions have effect, if possible, and the law (as reviewed by the arbitrator) encourages contractual provisions to be interpreted so as to give them meaning. (Emphasis in original) [ 57 ] The Court in Vavilov emphasized that, when a court reviews the substance of a tribunal decision for its reasonableness, the focus must be on the reasons given by the tribunal: [85] Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable.

As we will explain in greater detail below, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker . The reasonableness standard requires that a reviewing court defer to such a decision. [86] Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir , at paras. 47-49 .

In Dunsmuir , this Court explicitly stated that the court conducting a reasonableness review is concerned with “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”: para. 47. Reasonableness, according to Dunsmuir , “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: ibid .

In short, it is not enough for the outcome of a decision to be justifiable . Where reasons for a decision are required, the decision must also be justified , by way of those reasons, by the decision maker to those to whom the decision applies.

While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning , an otherwise reasonable outcome also cannot stand if it was reached on an improper basis. (Italicized emphasis in original; underlined emphasis added) [ 58 ] The Supreme Court also directed the reviewing court to assess “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision ” (at para 99, emphasis added). [ 59 ] Here, the principal constraint that the arbitrator was required to respect was the language of the Collective Agreement.

This point emerges from Dunsmuir , referenced in the passage just quoted from Vavilov : [74] The

interpretation of the law is always contextual. The law does not operate in a vacuum. The adjudicator was required to take into account the legal context in which he was to apply the law. The employment relationship between the parties in this case was governed by private law. The contractual terms of employment could not reasonably be ignored. That is made clear by s. 20 of the Civil Service Act [SNB 1984, c C-5.1 ]. Under the ordinary rules of contract, the employer is entitled to discharge an employee for cause, with notice or with pay in lieu of notice.

Where the employer chooses to exercise its right to discharge with reasonable notice or pay in lieu thereof, the employer is not required to assert cause for discharge. The grievance process cannot have the effect of changing the terms of the contract of employment. The respondent chose to exercise its right to terminate without alleging cause in this case. By giving the [ Public Service Labour Relations Act , RSNB 1973, c P-25 ] an

interpretation that allowed him to inquire into the reasons for discharge where the employer had the right not to provide — or even have — such reasons, the adjudicator adopted a reasoning process that was fundamentally inconsistent with the employment contract and, thus, fatally flawed.

For this reason, the decision does not fall within the range of acceptable outcomes that are defensible in respect of the facts and the law. [ 60 ] It was, therefore, appropriate for the Chambers judge to look to the Collective Agreement as providing a constraint on the arbitrator’s decision-making and to consider if the arbitrator’s reasons were internally coherent and provided a rational chain of analysis that was justified in light of the express terms of the Collective Agreement.

In this regard, I will consider separately the arbitrator’s reasoning in relation to s. 11.05 and LOU #2. [ 61 ] With respect to s. 11.05, the Chambers judge stated that the Award rendered nugatory the part of the provision “that makes the precedence of seniority dependent on the employee, who is able to perform the work, also having the necessary qualifications” and “eliminates the difference between ‘necessary qualification’ and ‘ability to perform the work’, making them both ‘ability to perform the work’” (at para 53, emphasis in original).

This aspect of the Chambers Decision contains the same flaw as that which undermined the conclusion the arbitrator had failed to follow arbitral precedent. For the reasons I have already given, the Award did not conflate ability with qualifications. Instead, the arbitrator treated them as separate requirements to be met by an applicant claiming a seniority-based job entitlement. Importantly, the arbitrator justified her

interpretation by accounting for the language of the Collective Agreement. Her reasoning, which I have already reviewed, was both transparent and intelligible in this regard. In my respectful view, the Chambers judge erred by concluding that the arbitrator had rendered s. 11.05 “nugatory”. [ 62 ] The Chambers judge also concluded that the Award rendered nugatory “the part of LOU #2 that requires a conditional employee to obtain the CCA certificate” (at para 53). However, the arbitrator quite clearly contemplated that persons who established

entitlement to a position pursuant to s. 11.05 would remain subject to this obligation when she held that a person hired into a position wassubject to removal from the position if she or he did not obtain a CCA Certificate: 120. As neither Grievor possessed the qualification of “Continuing Care Assistant certificate”, LOU #2 applies. It was necessaryaccording to the Collective Agreement to hire two Continuing Care Assistants without the CCA Certificate because they were the seniorapplicants with the qualifications/equivalent qualifications.

They now must obtain the CCA Certificate within 2 years and all the details ofthe second paragraph of LOU #2 apply. [63] The Award therefore does not render nugatory “the part of LOU #2 that requires a conditional employee to obtain the CCAcertificate” (at para 53) as claimed by the Chambers judge.

Instead, the arbitrator has explained how LOU #22 could be used to establishequivalency, and therefore qualification, pursuant to s. 11.05, while respecting the requirement that persons occupying the CCA positioneventually obtain the CCA Certificate. [64] In my respectful view, therefore, the Chambers judge erred in finding the Award to be unreasonable on the second of the twobases he identified for quashing it. D.

Was the Award unreasonable for reasons other than those found by theChambers judge? [65] Although I agree with the Union’s position that the reasons given by the Chambers judge do not justify his conclusion that theAward was unreasonable, this does not mean that it is entitled to succeed in its appeal. In this regard, SHA mounts several arguments thatgo beyond those accepted by the Chambers judge as to why the Award was unreasonable and should be quashed. I will consider thesearguments in turn. 1.

Applicability of LOU #22 [66] SHA advances several arguments relating to the applicability of LOU#22. [67] SHA begins its argument with the proposition that “explicit or implicit in the Learned Chambers Judge’s reasoning is thecorrect assertion that LOU #2 is a complete codification on specifically how CCAs are to become qualified to meet the requirements ofArticle 11.05” and that the Award is unreasonable on this basis. I cannot accept this

interpretation of the Chambers Decision. TheChambers judge separately considered, and rejected, SHA’s argument on this point: [25] The health authority asserts that LOU #22 is inapplicable because the two LOUs are completely at odds. The health authority saysthat the reference, in LOU #22, to qualification equivalence is expressly contradicted by the provisions of LOU #2. LOU #2, says thehealth authority, provides that under no circumstance (aside from the defined grandfathered employees) can a CCA obtain a deemedequivalency. In fact, LOU #2 does not say that.

LOU #2 does specify the deemed qualifications of those grandfathered employees. It doesgo on to specify the required qualifications of other employees, including those hired before they obtain the certificate (conditional CCAs).LOU #2 does not, however, say that under no circumstance could a CCA obtain a deemed equivalency. [26] In any event, the arbitrator considered the health authority’s argument that LOU #22 is inapplicable because it is at odds withLOU #2. She concluded that the two LOUs can be read together.

They are not inconsistent, she found, and general principles ofinterpretation encourage finding consistency rather than exclusion in contractual provisions (para. 97). [68] However, it nonetheless remains open to the SHA to challenge the reasonableness of the Award based on the arbitrator’sconclusion that both LOU #2 and LOU #22 have application to this situation. [69] In keeping with Vavilov, the assessment of the reasonableness of the arbitrator’s conclusion that both LOU #2 and LOU #22can apply depends on whether that conclusion “is based on an internally coherent and rational chain of analysis and that is justified inrelation to the facts and law that constrain the decision maker” (at para 85).

Here, as pointed out by the Chambers judge, the arbitrator setout her reasons for concluding that either LOU #2 or LOU #22 might be used to provide a basis for an applicant to show that she or hepossesses the “necessary qualifications” to be able to claim a position based on seniority: 96. The Employer’s position was that LOU #2 is the only LOU that can be considered for Continuing Care Assistants and therefore,LOU #22 does not apply to Continuing Care Assistants.

This means there is no “equivalent qualification” for Continuing Care Assistantsand a successful applicant must have the qualification of a CCA Certificate. If it is necessary to hire someone who does not have the CCACertificate, the person must obtain one within basically 2 years. In this case, there were applicants junior to the Grievors who had theCCA Certificate. Therefore, according to LOU #2, the Employer acted correctly; it was not necessary to hire a person who did not havethe CCA Certificate because it had applicants who did. 97.

The Board disagrees with the Employer’s position that LOU #22 does not apply to Continuing Care Assistants. There is nolanguage at all that supports this position. It has been clearly established that all provisions of a Collective Agreement are presumed tohave meaning and not to be in conflict. As long as overlapping provisions such as LOU #2 and LOU #22 can both apply, it is presumedthey were both meant to apply.

A specific provision will only be interpreted to exclude the general provision dealing with the same subjectmatter only if there is a conflict between the two provisions or there is convincing evidence that the more specific provision was meant bythe parties to be exhaustive and exclude the general provision. See, for example, Reference re Broadcasting Act, S.C. 1991 (Canada), 2012SCC 68, Hillis Oil & Sales Ltd. v. Wynn’s Canada Ltd. (SCC), [1986] 1 SCR 57, BG Checo International Ltd. v. BritishColumbia Hydro & Power Authority (SCC), [1993] 1 SCR 12, United Food and Commercial Workers’ Union, Local401 v.

Real Canadian Superstore [2008], 172 LAC (4th) 289, Brown and Beatty, Canadian Labour Arbitration, 4th Ed., Para. 4:2120.There is no conflict and no such convincing evidence in this case. 98. It is the Board’s decision that both LOU #2 and LOU #22 apply to Continuing Care Assistants for the following additional reasons.

• In the first place, LOU #2 is silent with respect to LOU #22 (

a) so there is no conflict between the two LOUs in this regard. • Both LOUs say the same thing about the grandfathering of qualifications for employees working on October 3, 2003. LOU #2 merely names the specific SIAST Programs while LOU #22 uses the more general “qualifications equivalent to the classification in which they were placed”. There is no conflict between these two provisions. • LOU #2 is silent with respect to the principles to be used for the establishment of qualification equivalencies contained in LOU #22 (

b) i, ii, iii and iv. There is therefore no conflict in this regard between the two LOUs and therefore, no reason why LOU #22 (

b) i, ii, iii and iv would not apply to Continuing Care Assistants. Nothing in LOU #2 can be interpreted to mean that qualification equivalencies cannot be established for Continuing Care Assistants. Rather, the parties[’] agreement in LOU #22 that the qualifications in the Provincial Job Description should not be used to discriminate against employees who are doing the work without the qualification precisely applies to Continuing Care Assistants and the Continuing Care Assistant Certification. • LOU #2 repeats LOU #22 (

b) v. but specifically refers to Continuing Care Assistants. In this case, the second paragraph of LOU #2 specifically referring to Continuing Care Assistants does not displace the more general LOU #22 (

b) v., it just provides further clarification for that specific classification. [ 70 ] SHA observes that the arbitrator “acknowledged that LOU #2 was a specific provision applicable to CCAs and that LOU #22 was a general provision”.

It says that she “did not provide a full appreciation of the law” when she found that a specific provision will only be interpreted to exclude the general provision dealing with the same subject matter if there is a conflict between the two provisions or there is convincing evidence that the more specific provision was meant by the parties to be exhaustive and exclude the general provision.

It refers to Donald Brown and David Beatty’s Canadian Labour Arbitration , loose-leaf (Rel 2020-3, May 2020) 5th ed, vol 1 (Toronto: Thomson Reuters, 2019) at 4:2120 as providing the applicable statement of law: Another related general guide to

interpretation is that in construing a collective agreement, it should be presumed that all of the words used were intended to have some meaning. As well, it is to be presumed that they were not intended to be in conflict. However, if the only permissible construction leads to that result, resolution of the resulting conflict may be made by applying the following presumptions: special or specific provisions will prevail over general provisions … (Emphasis in SHA’s factum) [ 71 ] However, this passage does not assist SHA, since the rule it adopts is contingent upon the existence of conflict in the first place.

The point made by the arbitrator was that there was no conflict because both LOU #2 and LOU #22 had their own purpose and could be read to apply in appropriate circumstances. After providing her explanation for why “necessary qualifications”, as that phrase is used in s. 11.05, encompasses equivalent qualifications, she explained how this fit harmoniously with LOU #22 and LOU #2: 92. … This

interpretation also gives a purpose to LOU #22 which sets out the principles to determine equivalent qualifications. There would be no reason to do this if equivalent qualifications were not part of the job selection process. Thus, according to the Collective Agreement, the qualification required for filling the positions in issue in this Grievance was the “Continuing Care Assistant certificate or equivalent qualification”. 93. This

interpretation is supported by LOU #22 where the parties agreed that the qualification on the Provincial Job Description should not be used to discriminate against current employees who have previously performed the work and/or have the seniority and ability sufficient to perform the work, and to implement this principle, “qualification equivalencies” as established by LOU #22 are applicable. 94. Therefore, the Continuing Care Assistant Certificate should not be used to discriminate against current CCA employees such as the Grievors.

They should have been assessed as to whether they had an “equivalent qualification”. 95. LOU #2 applies to Continuing Care Assistants and firstly states that Employees in the Continuing Care Assistant classification as at October 3, 2003 are deemed to be a graduate of the Special Care Aide Program which is the same as LOU #22 but names the specific program.

Similarly, it also is similar to Paragraph v. of LOU #22 but it names the specific program in which the employee must be enrolled and sets out 2 years as the time limit, unless extended. [ 72 ] In my respectful view, through this reasoning, the arbitrator justified her conclusion with intelligible and transparent reasoning grounded in the language of the Collective Agreement. [ 73 ] SHA further argues that LOU #22(b)(ii) and (iii) show an incongruity with LOU #2, because LOU #22 “suggests that past work experience can displace the need for the required education to allow any employee to become qualified”, while LOU #2 “always requires the education credential to become qualified, for a CCA ” (emphasis in original).

The Award is said to be unreasonable because “the Arbitrator did not undertake to reconcile these provisions”. However, this argument ignores what the arbitrator did. She held that, even if a candidate could claim a position based on a deemed qualification established by LOU #22, she or he “must obtain the CCA Certificate within 2 years and all the details of the second paragraph of LOU #22 apply” ( Award at para 120).

Simply put, the arbitrator reasoned on the basis that the incongruity identified by SHA does not exist because candidates in the grievors’ position would be required to obtain the CCA Certificate. [ 74 ] SHA also points out that (b)(

v) of LOU #22, which was relied on by the arbitrator to establish that Ms. Gardippie and Ms. Seesequasis had equivalent qualifications, required that the employee “demonstrate an active participation in an [education] program, at a minimum of every 6 months”. SHA says that this was ignored by the arbitrator because neither grievor was enrolled in the CCA program during the relevant time period and “[a]s such, neither was deemed as qualified or eligible to be hired under the Postings”.

This point was addressed by the arbitrator in paragraph 119 of the Award (previously quoted in full), when she reasoned that the grievors “must have satisfactorily demonstrated their on-going participation in the process as the Employer had not removed either Grievor from the Continuing Care Assistant classification at the time they applied for the postings in issue”.

SHA’s says that this is not a sufficient answer because, in its view, only LOU #2 applied and, it says, LOU #2 does not contain a “stand-alone ability to remove a CCA just because she or he is not actively enrolled/participating in getting the education credential every 6 months”. However, LOU #2 does state that an

employee hired as a CCA without a CCA Certificate “will need to demonstrate an on-going participation in the program or process, at aminimum of every (6) months”. It is not at all clear to me that the arbitrator was asked to consider whether this provision entitled SHA toremove an employee who was making no effort to attain a CCA Certificate before the expiration of two years post-hiring.

I am, therefore,not prepared to conclude that the Award is unreasonable for failing to address this argument. [75] Finally, under this head, SHA argues, in the alternative, that even if the arbitrator’s decision that LOU #22 is applicable is notunreasonable, her further conclusion that it could support these grievors’ claim to equivalency was unreasonable.

The proposition is thatthe arbitrator’s statement that “after doing the job for 2 years, it makes sense to the Board that the Grievors should have the same right asother CCAs to increase their hours by using seniority to win a posting” (Award at para 121), is “factually wrong”, as the grievors had notworked for two years as a CCA at the time of the posting. [76] SHA points out that the arbitrator correctly described Ms. Gardippie’s employment history earlier in the Award (at paras 11–23).

Even if it is somehow assumed that this was forgotten by the arbitrator by paragraph 121 of the Award, it cannot be said that her errorhad any meaningful impact on her reasoning. As stated in Vavilov: [102] To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respectmay lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt forerror”: Irving Pulp & Paper, at para. 54, citing Newfoundland Nurses, at para. 14.

However, the reviewing court must be able to trace thedecision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line ofanalysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”:Ryan, at para. 55; [Canada (Director of Investigation and Research) v Southam Inc., (SCC), [1997] 1 SCR 748], at para.56. … (Emphasis added) [77] Here, it is possible to trace the arbitrator’s reasoning without encountering a fatal flaw in her overarching logic.

In this regard,the impugned statement appears in the

section of the Award when the arbitrator was testing the

interpretation she had already given to theCollective Agreement and she certainly did not hang her decision on the idea of the grievors working for two years. The arbitrator referredto LOU #2 and LOU #22 as expressing the parties’ agreement that “a CCA job is one that can be done for at least 2 years without theformal educational requirement of a CCA Certificate, although it is preferable to have one” and also to the evidence that SHA did not“differentiate between CCAs with and without CCA Certificates in work assignments” (at para 121, emphasis added). Neither of thesepoints are challenged by SHA. 2.

How the evidence was handled [78] SHA argues that the arbitrator erred by refusing to admit evidence of past practice, that is that Goodwill Manor’s practice hasalways been to hire persons with a CCA Certificate over senior individuals who did not have a certificate, and that there were previousinstances where the Union had not grieved when employees situated similarly to Ms. Gardippie and Ms. Seesequasis were deniedpositions.

SHA complains that the arbitrator inconsistently referred to the existence of ambiguity in the Collective Agreement, yet alsomade the statement that “the Board does not find one [an ambiguity] that would allow it to consider extrinsic evidence in determining theinterpretation issue” (Award at para 109).

In my respectful view, SHA takes this statement out of context. [79] Immediately before making this statement, the arbitrator summarized and paraphrased the test set out in I.A.M., Local 1740 vJohn Bertram and Sons Co. (1967), (ON LA), 18 LAC 362 (WL) (Ont) at para 13, as establishing the conditions forthe admission of this type of evidence, as follows: 108.

If an ambiguity exists, evidence of past practice is admissible and is valuable to interpret the collective agreement if the followingconditions are met: (1) there is no clear preponderance in favour of one meaning stemming from the words and structure of the collective agreement, as seenin their labour relations context; (2) one party has engaged in conduct which unambiguously is based on one meaning attributed to the relevant provision; (3) the other party has acquiesced in this conduct, a fact which is either quite clearly expressed or can be inferred from the continuance ofthe practice for a long period without objection; and (4) there is evidence that members of the union or management hierarchy who have some real responsibility for the meaning of theagreement have acquiesced in the practice.

SHA took no issue with the arbitrator’s use of this legal test. [80] In the paragraph after the statement that SHA impugns, the arbitrator stated: 110. Neither were the requirements of “past practice” met. There was no evidence that someone in the Union with the real responsibilityfor the meaning of the Collective Agreement actually knew how the Employer was interpreting the Collective Agreement with respect tothe hiring of CCAs and acquiesced in the Employer’s

interpretation. Rather, the evidence of this person … was that he always had adifferent

interpretation of the Collective Agreement. [81] Reading this part of the Award in its overall context, in my respectful view, shows that the arbitrator simply applied the test forthe admission of the evidence to the facts as she found them. Her decision on this point is transparent and intelligible, and it applied legalprinciples that SHA has accepted, or at least has not challenged. She arrived at a conclusion that was open to her. In short, the arbitrator’sdecision on this point is reasonable.

3. Other arbitral authorities [82] SHA argues that the Award is inconsistent with Prince Albert Parkland, SEIU-West v Saskatchewan Health Authority (SarahCox) (February 17, 2019) Moose Jaw (Arbitrator: Neil Robertson, Q.C.) [Cox], and Saskatoon Regional Health Authority v SEIU – West(Rains), [Rains]. SHA points out that, aside from a passing reference to these authorities when summarizing itsarguments, “there was no contemplation of the impact of these cases” in the Award.

For this reason, SHA says the Award is therebyunreasonable. [83] SHA’s suggestion that the Award was rendered unreasonable by reason of the arbitrator’s failure to address Prince AlbertParkland, Cox and Rains might have force if the Award did not address the arguments that emerge from these decisions. In this regard, Ido not give much weight to the Union’s argument that the arbitrator sufficiently dealt with these three cases when she offered the generalstatement that she had “reviewed and taken into consideration all of the authorities referenced by [SHA]” (at para 83).

However, in myrespectful view, the Award addresses the arguments SHA made based on these cases in some depth, although at times only subtly so. [84] I have already mentioned Prince Albert Parkland in the context of the Chambers judge’s contention that the arbitrator failed tofollow the rule that qualifications cannot be equated with ability and explained why that rule was not relevant in the context of thearbitrator’s reasons. Beyond this, Prince Albert Parkland is also distinguishable. In that case, the grievor had worked with the healthauthority prior to 2003 as a purchasing clerk.

Her position did not require a qualifying certificate. During this time, she successfullyapplied for a unit clerk position, but she declined the position when it was awarded to her. In 2006, there was a fresh posting of a unit clerkposition which required the certificate. The grievor applied for, but was refused, this reposted position on the ground that she did not holdthe required certificate. The Union grieved on the basis that she still had the deemed qualification under LOU #2. However, andimportantly, LOU #22 is not mentioned in the decision.

The further important distinction between these facts and those here is that,applying the arbitrator’s reasons in this case, the grievor in Prince Albert Parkland did not have equivalent qualifications at the time of theposting. Therefore, the Award does not conflict with Prince Albert Parkland, and, in my respectful view, the Award is not renderedunreasonable by virtue of the arbitrator not paying more attention to it than she did.

As explained in Vavilov: [128] Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis”([Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708], atpara. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para 16). Toimpose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlesslycompromise important values such as efficiency and access to justice.

However, a decision maker’s failure to meaningfully grapple withkey issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive tothe matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care andattention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: [Baker v.

Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 SCR 817], at para. 39. [85] SHA did not assert that the Cox and Rains decisions represented “established internal authority” (Vavilov at para 131), such thatthe arbitrator was obligated to justify her departure from them to meet the legitimate expectations of the parties. Rather, like Prince AlbertParkland, they are all recent decisions, by different arbitrators. [86] Cox dealt with the removal of a permanent full-time CCA. Like Ms. Gardippie and Ms. Seesequasis, Ms.

Cox was hired inDecember 2013 pursuant to LOU #2, subject to the condition that she obtain the CCA Certificate within two years of her hiring. Thisdeadline was extended to September 30, 2016. By September 2016, it was apparent that Ms. Cox would not be able to complete thecertification by this deadline.

On September 22, 2016, she was advised that as she would not meet the condition in her letter ofemployment, she would no longer be able to work in the CCA classification, and “[a]s per LOU #22, [she] will revert to casual status in aclassification for which [she was] qualified and capable of working” (Cox at para 81). The Union conceded that SHA “had the right toremove the Grievor from her position when it became clear she could not qualify for the CCA position” (at para 100) but claimed it couldnot take away her scheduled shifts before her qualifying period ended on September 30, 2016.

The arbitrator in Cox dismissed this claim. [87] SHA referred to Cox to make several points. Before the arbitrator in Cox, the Union had argued that SHA had erred in referringto LOU #22 in its termination letter, which it said “is concerned with equal pay for equal work and had no application” in that case (atpara 102). The arbitrator expressed his agreement with the Union’s contention that LOU #22 had “no application to the circumstances ofthis reversion” (at para 149).

In its factum, as before the arbitrator, SHA asserted that this, and other inconsistencies in positions taken bythe Union, should affect the outcome of this arbitration. [88] SHA made a similar argument in relation to Rains. That case arose out of a complaint that

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