The reviewing judge did not err in dismissing the judicial review application as the adjudicator interpreted the discrimination provisions in the Applicant’s collective agreement in a way that was neither silly, bordering on the absurd, nor clearly irrational. The construction given to the discrimination provisions was rationally supported by the relevant legislation.

Administrative law – Labour law – Collective agreements – Working conditions – Human rights complaints – Discrimination – Adjudication – Judicial review – Standard of review – Patent unreasonableness

Bainbridge v. New Brunswick (Board of Management), [2005] N.B.J. No. 114, New Brunswick Court of Appeal, March 10, 2005, W.S. Turnbull, M.E.L. Larlee and J.T. Robertson JJ.A.

The Applicants were members of the New Brunswick Public Employees Association who alleged that they were discriminated against as the Respondents refused to provide them with paid parking as was provided to other employees within the same job classification as the Applicants. The evidence indicated that free parking was allocated on a random basis. An adjudicator appointed under the Public Service Labour Relations Act held that there had been no discrimination and the adjudicator’s decision was affirmed on judicial review to the Court of Queen’s Bench.

On appeal, the court held that the standard of review was that of patent unreasonableness. The question to be addressed was whether the adjudicator’s interpretation of Article 9 of the collective agreement was rationally supported by the relevant legislation. The adjudicator read Article 9.01 of the agreement in conjunction with Article 9.02. Article 9.01 was a very broad anti-discrimination clause. In Article 9.02, the parties recognized that the Human Rights Act was applicable. The adjudicator held that Article 9.02 was intended to limit the application of Article 9.01. The adjudicator was of the opinion that an extremely broad interpretation of section 9.01 that had the potential to prevent any differences in treatment of employees was not intended. The adjudicator went on to hold that there was no evidence to suggest that the employees were denied access to free parking based on their race, colour, religion, national origin, ancestry, place of origin, age, physical disability, mental disability, marital status, sexual orientation or sex. In short the adjudicator found that the differential treatment on the employer’s part in this case did not amount to discrimination.

The court noted that the adjudicator could have interpreted Article 9 of the collective agreement narrowly or broadly. The only type of discrimination that the adjudicator contemplated was in the context of the Human Rights Act. This interpretation was neither silly, bordering on the absurd, nor clearly irrational and the adjudicator gave the collective agreement a construction that could be rationally supported by the relevant legislation. The appeal was dismissed.

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