Administrative law – Decisions of administrative tribunals – Labour and employment boards – Arbitration Board – Labour law – Collective agreements – Benefits – Judicial review – Appeals – Compliance with legislation – Statutory interpretation – Standard of review – Correctness
British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn.,  B.C.J. No. 767, 2013 BCCA 179, British Columbia Court of Appeal, April 19, 2013, R.T.A. Low, D.F. Tysoe and D.M. Smith JJ.A.
The Greater Victoria Teachers’ Association, a local of the British Columbia Teachers’ Federation, the appellant, was a party to collective agreements with the Board of Education in School District No. 61 (Greater Victoria), a member of the British Columbia Public School Employers’ Association, the respondent. The collective agreement in issue contained a grievance procedure. The appellant filed a grievance claiming that the respondent was required to credit teachers with experience for increment purposes while on pregnancy and parental leaves under Part 6 of the Employment Standards Act, R.S.B.C. 1996, c. 113 (the “Act”). The respondent denied the grievance. The grievance went to arbitration.
The arbitrator denied the grievance. The arbitrator held that with respect to the Act “the drafters of the legislation made a distinction between the situation where employment should be deemed continuous and the remaining situations where it is only increases in the pay rates and benefit plans that are protected.” The arbitrator stated that the wording of the provisions “makes a clear distinction between the benefits that accrue to the position and those which attach to the actual experience of teaching.” The arbitrator concluded that s. 56(3) of the Act requires an employer to pay all increases in wages attached to an employee’s position while the employee is on leave under Part 6 of the Act, but this does not require the employer to grant experience increments to teachers while on pregnancy or parental leave.
The appellant appealed the arbitrator’s decision to the Court of Appeal under s. 100 of the Labour Relations Code, R.S.B.C. 1996, c. 244 (the “Code”). The respondent took the position on appeal that an appeal did not lie to the Court of Appeal, in the alternative that the standard of review to be applied was reasonableness and, in any event, the arbitrator’s decision was correct.
The court identified four issues raised on the appeal:
(1) Does an appeal from the arbitrator’s decision lie to the Court of Appeal?
(2) Is the standard of review to be applied to the arbitrator’s decision reasonableness or correctness?
(3) If the standard of review is reasonableness, was the decision reasonable?
(4) If the standard of review is correctness, was the decision correct?
(1) Forum for the appeal
The court held that on the basis of ss. 99 and 100 of the Code, an appeal lies to the Court of Appeal in these circumstances. Section 100 of the Code provides that a party affected by a decision or award of an arbitrator may appeal to the Court of Appeal if the basis of the decision or award is a matter or issue of the general law not included in s. 99(1). Section 99(1) provides for appeals to the Labour Relations Board where a party has been or is likely to be denied a fair hearing or the decision or award of the arbitrator is inconsistent with the principles expressed or implied in the Labour Relations Code or another act dealing with labour relations. The court found that the interpretation of s. 56(3) of the Act is a matter of general law because it applies to non-unionized employees as well as unionized employees and does not raise or affect any labour relations principle. Therefore, an appeal from the arbitrator’s decision does lie to the Court of Appeal.
(2) Standard of review
The court held that on the basis of its decision regarding the proper forum for the appeal, the interpretation of s. 56(3) of the Act is a question of general law and the standard of review is correctness. Section 56(3) applies to non-unionized employees as well as employees covered by collective agreements. Arbitrators appointed to deal with grievances under collective agreements do not necessarily have any special expertise in interpreting such provisions of general application.
(3) Correctness of the decision
The court held that the arbitrator’s decision was incorrect. The interpretation of s. 56(3) of the Act is a question of statutory interpretation to be considered on the basis of the modern approach to statutory interpretation. On the plain and ordinary meaning of the words in s. 56(3), an employee on leave is entitled, upon his or her return, to any increase in wages to which he or she would have been entitled had the leave not been taken. If, by continuing to work, an employee would have received an increase in wages through a credit of an incremental step, then the employee is entitled to the same increase if he or she took the leave under Part 6 of the Act rather than continuing to work.
The court held that the arbitrator erred by failing to give effect to the ordinary and plain meaning of the wording of s. 56(3) of the Act. The arbitrator did not give the wording a broad and generous interpretation; rather, the arbitrator did the opposite by giving the section a narrow interpretation that was not supported by the words read in their entire context and in their grammatical and ordinary sense. The interpretation given to the section by the arbitrator resulted in a reading down of the wording. There was no principled basis for giving the section this narrow interpretation.
The court allowed the appeal. The matter was remitted to the arbitrator to deal with other issues raised at the arbitration hearing that the arbitrator did not address in his decision.
This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at email@example.com or review his biography at http://www.harpergrey.com.
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