The Province of New Brunswick (the “Employer”) appealed the decision of the Court of Queen’s Bench quashing the interim decision of the New Brunswick Labour and Employment Board (the “Board”) designating Teachers’ Assistants employed by the public schools as “essential employees”. In allowing the appeal, the Court of Appeal found that the Board’s interim decision was not patently unreasonable as the legislation at issue was subject to an interpretation that would allow for two possible conclusions, and the Board had the right to choose the interpretation it preferred.

Administrative law – Labour law – Collective agreements – Essential employees – Schools – Teachers’ assistants – Decisions of administrative tribunals – Labour and employment boards – Statutory interpretation – Legislation – Judicial review – Compliance with legislation – Evidence – Standard of review – Patent unreasonableness

Canadian Union of Public Employees, Local 2745 v. New Brunswick (Board of Management), [2004] N.B.J. No. 110, New Brunswick Court of Appeal, March 25, 2004, Ryan, Larlee and Robertson JJ.A.

The Canadian Union of Public Employees, Local 2745 (the “Union”), became the certified bargaining agent for bargaining units including employees in various school districts. The Student Attendant and Teachers’ Assistant classifications were included within the Union bargaining unit. The Employer applied for the designation of certain Teachers’ Assistants employed in the public schools as “essential” employees pursuant to section 43.1 of the Public Service Labour Relations Act, R.S.N.B. 1973, c.P-25. This section provides that the Employer may notify the bargaining agent that the Employer considers certain services provided by the bargaining unit to be “essential in the interests of the health, safety or security of the public”.

The Union did not agree with the designation of the Teachers’ Assistants as essential employees and a hearing was conducted before the Board. The Board ruled on an interim basis that the Employer’s request for the designation should be granted. The Union brought on an application for a judicial review and the reviewing judge found the Board’s interim decision to be “patently unreasonable”. The Employer appealed that decision.

Both parties agreed that patent unreasonableness was the appropriate standard of review. The Court of Appeal reviewed the decision of the Supreme Court of Canada in Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487 where the following test was provided:

… was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review?

In this case, the court reviewed the evidence before the Board and noted that this evidence established that both Student Attendants, who are assigned to individual students, and Teachers’ Assistants, who are assigned to the classroom, have responsibilities involving the health, safety or security of certain students. The Board also noted in its decision that all students have the right to attend if schools remain open in the event of a strike, and that section 43.1 of the Act provided a method by which the Employer could ensure that the health, safety or security issues of the exceptional students are protected while they are attending school. The Court of Appeal did not accept arguments by the Union that the Board was bound by its prior decisions with respect to whether or not providing education was an essential service. The court held that section 43.1 was subject to an interpretation that would allow for two possible conclusions and the Board had the right to choose the one it preferred. The interpretation could be rationally supported by a construction that the relevant legislation could bear and, consequently, the interim decision of the Board was not patently unreasonable. In the result, the appeal was allowed with costs to the Employer.

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