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The Portage la Prairie Teachers’ Association v The Portage la Prairie School Division, 2021 MBCA 50 (CanLII)

Date:
2021-05-14
File number:
AI20-30-09526
Citation:
The Portage la Prairie Teachers’ Association v The Portage la Prairie School Division, 2021 MBCA 50 (CanLII), <https://canlii.ca/t/jfz2x>, retrieved on 2024-03-29

Citation:   The Portage la Prairie Teachers’ Association v The                  Date:  20210514

                 Portage la Prairie School Division, 2021 MBCA 50     Docket:  AI20-30-09526

 

 

IN THE COURT OF APPEAL OF MANITOBA


 

 

Coram:

Madam Justice Holly C. Beard

 

Mr. Justice Christopher J. Mainella

 

Madam Justice Jennifer A. Pfuetzner

 

BETWEEN:

 

THE PORTAGE LA PRAIRIE

)

      G. H. Smorang, Q.C.

TEACHERS’ ASSOCIATION

)

      for the Appellant

 

)

      (via videoconference)

 

)

 

                                       (Applicant) Appellant

)

      D. A. Simpson

 

)

      for the Respondent

- and -

)

      (via videoconference)

 

)

     

THE PORTAGE LA PRAIRIE SCHOOL

)

      Appeal heard and

DIVISION

)

      Decision pronounced:

 

)

      May 7, 2021

 

)

     

                                (Respondent) Respondent

)

      Written reasons:

 

)

      May 14, 2021

 

 

COVID-19 NOTICE:  As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules, MR 555/88R, this appeal was heard remotely by videoconference.

On appeal from 2020 MBQB 93

PFUETZNER JA  (for the Court):

[1]                          The applicant appeals the reviewing judge’s order denying its application to quash the award of the arbitration board.  After hearing from counsel for the applicant, we dismissed the appeal with brief reasons to follow.  These are those reasons.

[2]                          For many years, since as early as 1971, the respondent (the Division) has had a directive (the Directive) in place that all teachers in the Division remain at school until 4:00 p.m.  The Division’s evidence is that the purpose of the Directive is for teachers to be available to supervise the departure of students; be present and available to meet with students, parents, colleagues and school administrators; engage in professional development; plan and organize for the next day’s classes; and perform other tasks required of teachers to discharge their duties.

[3]                          The applicant grieved the Directive, alleging it was unreasonable and unfair.  The majority of the arbitration board dismissed the grievance, applying the test from Winnipeg Teachers’ Association v Winnipeg School Division No 1, 1975 CanLII 181 (SCC), [1976] 2 SCR 695, to determine whether, in the absence of any express contractual or legislated term, the Directive was “a reasonably imposed implied contractual term.”  The dissenting member of the arbitration board would have allowed the grievance.

[4]                          The arbitration board found that the Directive was “related to the enterprise of education” and “in furtherance of the principal duties of a teacher.”  These findings are not in dispute.

[5]                          In assessing whether the Directive was also “seen to be fair to the teachers”, the arbitration board considered the jurisprudence, including Winnipeg Teachers’ Association and this Court’s decision in Snow Lake School District 2309 v MTS, Snow Lake Local Assn 45-4, 1987 CanLII 6886 (MB CA), 1987 CarswellMan 196 (CA), as well as prior arbitral awards, and adopted a contextual approach.

[6]                          The arbitration board identified four factors that are relevant to the reasonableness of a practice such as the one set out in the Directive.  They are the history of the practice, the expectations of the community, whether the practice was voluntary or involuntary and the quantitative amount of time involved.

[7]                          Considering these and other relevant circumstances, the arbitration board concluded that the Directive was fair and reasonable, based upon “[t]he long history of the practice within [the] Division without objection”, “[w]hether voluntary or not, [the] [D]irective has become the practice in the Division for many years”, “that there is likely an expectation within the community”, the unique circumstances in the Division, and that the Directive requires teachers to be in schools only “shortly beyond the instructional day”.

[8]                          The applicant sought judicial review of the award of the arbitration board.  Applying Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, the reviewing judge found that the award was “reasonable, because it [was] justified, transparent and intelligible” (at para 43).

Analysis

[9]                          On appeal, our task is to determine whether the reviewing judge identified the correct standard of review and whether she applied that standard correctly (see Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at para 43; and Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras 46-47).  Here, there is no dispute that the reviewing judge properly identified reasonableness as the standard of review.

[10]                     The applicant submits that the reviewing judge erred in her application of the reasonableness standard in that she failed to find that the arbitration board’s interpretation of Winnipeg Teachers’ Association and Snow Lake was unreasonable and she failed to find that the arbitration board made unreasonable assessments of the evidence.  In our view, there is no merit to these arguments. 

[11]                     In Snow Lake, O’Sullivan JA, referring to Winnipeg Teachers’ Association, wrote (at para 8):

 

. . .  [W]hat Laskin C.J.C. has said should be accepted as a statement of law of Manitoba in regard to employment contracts generally, and that what must be decided is whether the duties sought to be assigned by an employer are reasonable incidents of the employer/employee relationship in all the circumstances of the case.

 

[emphasis added]

 

[12]                     O’Sullivan JA considered the types of factors that could be considered in the determination of fairness (at para 14):

 

. . .  In determining what is reasonable in the circumstances, no doubt an arbitration board may take into account matters such as the history of teaching in this province [and] the practices that have grown up not only in this school but elsewhere in the province . . ..  . . .

 

[13]                     The factors described in Snow Lake are not a closed list, and the assessment of a directive for fairness requires all relevant factors to be considered.  We reject the principal submission of the applicant that Winnipeg Teachers’ Association and Snow Lake prohibit the consideration of the history of a mandatory directive (as opposed to one related to services that were originally voluntary) in the contextual analysis of fairness and reasonableness. 

[14]                     The applicant’s other arguments regarding the assessment of the evidence are simply an invitation to this Court to reweigh the factors that were considered and weighed by the arbitration board and subsequently reviewed by the reviewing judge.  This is not our role.

[15]                     In our view, the majority of the arbitration board properly interpreted the jurisprudence, turned its mind to the correct test, considered all of the relevant factors and provided thorough and highly cogent reasons. 

[16]                     The reviewing judge properly acknowledged the expertise of labour arbitrators (see para 42) and correctly applied the reasonableness standard.  Under Vavilov, a reasonableness review looks at the rationality of the reasons as a wholenot in a piecemeal fashion.  The reviewing judge followed this approach and made no error in doing so.

[17]                     There is no basis for appellate intervention.  For these reasons, we dismissed the appeal with costs.

 

                                                           JA

                                                                              JA

                                                                              JA