Administrative law – Employment law – Classification – Labour law – Pensions – Eligibility – Decisions of administrative tribunals – Labour and Employment Boards – Employee classification – Judicial review – Jurisdiction – Compliance with legislation – Privative clauses – Standard of review – Reasonableness simpliciter – Correctness
Saint John (City) Pension Board v. New Brunswick (Superintendent of Pensions),  N.B.J. No. 255, New Brunswick Court of Appeal, June 22, 2006, J.A. Daigle, A. Deschênes and J.T. Robertson JJ.A.
The Appellant Transit Union was the bargaining agent for employees of the St. John Transit Commission. The Transit Commission was a body responsible for providing public transportation and was subject to the authority of City Council. City employees were members of a pension plan; however, Transit Commission employees had no pension plan. The Transit Union applied to the Superintendent of Pensions for a determination as to whether members of the Transit Union were City employees and, therefore, eligible for membership in the City’s pension plan, notwithstanding the fact that they were Transit Commission employees.
Section 29 of the Pension Benefits Act authorised the Superintendent to decide whether an employee is a member of a class of employees for whom a pension plan is maintained. However, that section did not address whether the Superintendent was entitled to decide whether a worker is an employee of a particular employer. The Superintendent replied that he lacked the jurisdiction to rule on the employment status issue.
The Superintendent’s ruling was referred to the Labour and Employment Board, which held that the authority of the Superintendent to determine employment status was incidental to his jurisdiction to determine whether individuals belonged to a class of employees for whom a pension plan has been established. The Board also addressed and rejected the Transit Union’s submission that the Board possessed an original jurisdiction to decide the employment status issue under s. 97(1) of the Act.
On judicial review of the Board’s decision, the reviewing judge held that the Board’s interpretative decision was judged on the correctness standard of review. This finding was made for two principal reasons. First, as the Board’s constitutive statute did not require the appointment of legally-trained persons, it was found that the Board lacked a “relative expertise” when it came to the task of statutory interpretation. Second, although the Board’s decisions were protected by a privative clause, that clause prescribed two exceptions, namely determinations involving a “denial of natural justice” or an “excess of jurisdiction”. The reviewing judge held that the interpretation of s. 29 involved a question of jurisdiction and, therefore, the privative clause did not apply. The reviewing judge went on to hold that the Board had erred in its interpretation of s. 29 and that, as the Superintendent lacks the jurisdiction to decide the employment status issue, so too does the Board.
On appeal to the Court of Appeal the court had to decide whether the Labour and Employment Board possessed relative expertise in interpreting a statute other than the Industrial Relations Act and the Public Service Labour Relations Act. The Court noted that the Board was the designated appeals tribunal under four other statutes, including the Pension Benefits Act.
The Court of Appeal concluded that Board decisions rendered outside the traditional labour context are owed deference. This view was supported by the Supreme Court of Canada’s decision in Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services),  3 S.C.R. 152. That case also involved the interpretation of pension benefits legislation within a tribunal structure similar to that in place in New Brunswick. While the Supreme Court concluded that correctness was the proper standard of review, Monsanto was distinguishable. The Ontario legislation dictated that the Tribunal’s decisions were subject to a right of appeal to the Divisional Court. In New Brunswick, the Board’s decisions are protected by the two privative clauses outlined in ss. 97(1) and (2) of the Pension Benefits Act (the “exclusive jurisdiction” and the “no certiorari” clauses). Neither exception applied in the context of the Board’s interpretative ruling regarding s. 29 of the Pension Benefits Act. It was not the Board’s jurisdiction that was being questioned, but rather the jurisdiction of the Superintendent. The Court concluded that the Board’s interpretative ruling was owed deference on the standard of reasonableness simpliciter.
Applying the reasonableness standard, the Court concluded that there was no basis for interference with the Board’s decision. In the result, the appeal of the reviewing judge’s decision to set aside the Board’s decision was allowed. The employment status issue would be remitted to the Superintendent of Pensions for a determination.
To stay current with the new case law and emerging legal issues in this area, subscribe here.