Administrative law – Decisions of administrative tribunals – Labour and employment boards – Arbitration Board – Labour law – Collective agreements – Arbitration – Benefits – Judicial review – Natural justice – Procedural requirements and fairness – Failure to provide reasons – Standard of review – Reasonableness simpliciter – Correctness
Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board),  S.C.J. No. 62, 2011 SCC 62, Supreme Court of Canada, December 15, 2011, McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ.
The Newfoundland and Labrador Nurses’ Union (the “Union”) disputed an arbitrator’s award which involved the calculation of vacation benefits. The issue the arbitrator had to decide was whether time as a casual employee should be credited toward annual leave entitlement if that employee became permanent. In his decision, the arbitrator concluded that it was not to be included in calculating the length of vacation entitlement. On judicial review, the arbitrator’s reasons were found to be insufficient and therefore unreasonable and the decision was set aside. The decision of the Chambers judge was overturned by the Court of Appeal. The Union appealed to the Supreme Court of Canada.
The Court reviewed its decision in Dunsmuir v. New Brunswick, 2008 SCC 9 in discussing the issue of potential deficiencies in the reasons provided by the arbitrator and whether or not such deficiencies should fall within the standard of review analysis. The Court noted that Dunsmuir had confirmed that in determining whether a decision is reasonable, the inquiry for a reviewing court is about “justification, transparency and intelligibility”. This represents a “respectful appreciation” that a wide range of specialized decision-makers render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist. The Court noted that Dunsmuir does not stand for the proposition that “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses – one for the reasons and a separate one for the result. The Court noted that the reasons must be read together with the outcome to ensure that they serve the purpose of showing whether the result falls within a range of possible outcomes. The reasons are not required to include all arguments or details a reviewing judge would have preferred. Provided the reasons allowing the reviewing court to understand why the tribunal made its decision and permits it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
The duty to provide reasons is a question of procedural fairness to which a correctness standard applies: Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817. However, that does not necessarily mean that all issues relating to the sufficiency of reasons relate to the duty of procedural fairness. The Court agreed that it is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where reasons are required, there is nothing to review. However, where, as in this case, there are reasons, there is no such breach. Any challenge to the reasoning/result of the reasons should be made within the reasonableness analysis. The Court noted that it was an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons fall under the category of a breach of duty of procedural fairness and are subject to a correctness review.
In this case, the arbitrator was called upon to engage in a simple interpretive exercise: Were casual employees entitled, under the collective agreement, to accumulate time towards vacation entitlements? The reasons showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes. The Court dismissed the appeal with costs.
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