Capital District Health Authority v. Nova Scotia Government and General Employees Union

Capital District Health Authority v. Nova Scotia Government and General Employees Union Court Court of Appeal Date 2006-07-07 Citation 2006 NSCA 85 Docket CA 261813 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice); Fichaud, Joel E. (Honourable Justice) (CA); Hamilton, M. Jill (Honourable Justice) Document Type Decision Relations Library Sheet - Capital District Health Authority v. Nova Scotia Government and General Employees Union - 2006 NSCA 85 - 2006-07-07 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Capital District Health Authority v. Nova Scotia Government and General Employees Union, 2006 NSCA 85 Date: 20060707 Docket: CA 261813 Registry: Halifax Between: The Capital District Health Authority Appellant v. The Nova Scotia Government and General Employees Union Respondent Judges: Cromwell, Hamilton and Fichaud, JJ.A. Appeal Heard: June 5, 2006, in Halifax, Nova Scotia Held: Appeal allowed per reasons for judgment of Cromwell, J.A.; Hamilton and Fichaud, JJ.A. concurring. Counsel: Eric Durnford, Q.C. and Nancy Barteaux, for the appellant Raymond Larkin, Q.C. and Heather Totten, for the respondent Reasons for judgment: I. INTRODUCTION AND ISSUES: [1] This appeal illustrates the tension between two important goals of adjudication: finality and effectiveness. The goal of finality is served by the rule that once a tribunal has finally decided a matter, it has no further power to act. This rule is often identified by its Latin name, functus officio. Finality, however, is not an absolute value, and so the functus officio rule is mitigated in certain circumstances in order to serve the goal of effectiveness. For example, a tribunal may amend its decision where it has made an error in expressing its “manifest intent.” The appeal turns on how the competing goals of finality and effectiveness play out in the particular circumstances of this case. [2] The appellant employer and the respondent union set up an interest arbitration board. Its job was to determine various issues including the employees’ rates of pay for the next 3 years. The board issued an award, but the parties could not agree on how to implement the part dealing with the “catch-up ” component of the wage increase. The board issued a supplemental award to resolve the difficulty. The union, however, objected to it doing so, relying on the principle of functus officio. The board had no further authority to address the “catch-up” issue because, said the union, the board had finally decided the matter in its first award. [3] This contention prevailed in Supreme Court chambers when the union applied to quash the relevant part of the supplemental award. MacAdam, J. applied the correctness standard of review and found that the board had been wrong to deal further with the “catch-up” issue. That part of the supplemental award was quashed. [4] The employer appeals saying the judge erred in two respects: first, by applying the wrong standard of review; and second, by finding that the board had made a reviewable error. [5] In my respectful view, both of these arguments are sound. The judge applied the wrong standard of review: he ought to have reviewed the board’s decision for reasonableness, not correctness. Applying that standard, the board did not make a reviewable error. The board was entitled to deal further with the “catch-up” issue in its supplemental award because it reasonably concluded that the language of the main award had failed to give effect to its manifest intent on that issue. [6] I would allow the appeal, set aside the judge’s order and restore the relevant portion of the board’s supplemental award. II. FACTS AND DECISIONS: [7] To outline the factual context of the appeal, I must first set out some background about the parties and the agreement they reached to submit certain matters to binding arbitration. I will then turn to the three decisions issued by the interest arbitration board – its main award, its decision that it had jurisdiction to address certain implementational issues which arose from the main award and its supplementary award dealing with those issues. I will conclude my review of the facts with a brief outline of the judge’s reasons for quashing part of the supplemental award. A. The Parties and Their Arbitration Agreement: [8] The Capital District Health Authority (“CDHA”) and The Nova Scotia Government Employees Union (“the Union”) are parties to the Healthcare Collective Agreement (“the Collective Agreement”). It governs the working conditions of approximately 3,100 Union healthcare employees at CDHA. [9] In the fall of 2003, the collective agreement was to expire and so the parties agreed to resolve any outstanding collective bargaining disputes by binding interest arbitration (“the Arbitration Agreement”). They agreed that an arbitration board was to render an award on “all outstanding issues between the parties thereby concluding a collective agreement”. The Arbitration Agreement also provided that the board could set its own procedures, give procedural directions and act on evidence whether or not it would be admissible in court. [10] In addition to the provisions of the Arbitration Agreement, the Nova Scotia Arbitration Act, R.S.N.S. 1989, c. 19 (“the Act”) governed the parties’ agreement to use binding arbitration for this round of collective bargaining. Section 5(h) of the Act provides that the Arbitration Agreement is deemed to include a provision that the arbitration board’s award is “final and binding” on the parties unless a contrary intention is expressed in the Arbitration Agreement. None is. Section 10 of the Act empowers the arbitration board to “... correct ... any clerical mistake or error arising from an accidental slip or omission.” B. The Board’s First Award: [11] The parties could not reach agreement on a number of items during collective bargaining and, as provided for in their Arbitration Agreement, they referred their outstanding issues to arbitration. The primary unresolved issue was the level of wage increases to be awarded. The parties agreed on a three person arbitration board comprised of William Kaplan, Chair, John Plowman, Employer Nominee and James Hayes, Union Nominee. After holding hearings in the spring of 2004, the board issued its first award later that summer. The Employer Nominee dissented and the Union nominee filed an addendum. [12] The majority award, authored by the chair, accepted that the union had made out a case for a “catch-up” economic adjustment. The majority was guided by the operating principle that “... these bargaining unit employees employed by the leading health care employer in Atlantic Canada could reasonably expect, in free collective bargaining, that their compensation should be located at the forefront of wages paid for equivalent work performed in Atlantic Canada and in the middle of the Canadian ‘pack’”. (emphasis in the original). (AB 139) The award also recognized that this principle might be difficult to apply for a number of reasons. If applied strictly, this principle would require increases in hourly rates of some classifications of approximately 15% and 25%. Such increases would simply not be possible given that they had to be “... tempered by an appreciation of fiscal realities in Nova Scotia, Atlantic Canada and the rest of the country.” Other classifications, by way of contrast, would require either modest or no adjustments. For others, it would be difficult to find proper comparable classifications. The majority described its catch-up award in these terms: “The ‘catch-up’ awarded here is modest and capped. There is no windfall for anyone.” [13] The award provided that the bargaining unit was to receive three across the board (“ATB”) economic increases of 2.9% each, effective November 1, 2003, November 1, 2004 and November 1, 2005. It also provided that the classifications which were not already the highest paid in Atlantic Canada were to receive three additional “catch-up” adjustments of 2.1% each, effective May 1, 2004, May 1, 2005 and May 1, 2006. [14] Consistent with the majority’s description of the catch-up adjustment as “capped”, the award provided that in certain circumstances, catch-up would not be awarded. As this is critical language to the dispute between the parties on appeal, I will quote it: ... The Board has also determined that there will be cases where a “catch-up” adjustment should not be made: it will not be awarded to any classification where the rate for a CDHA classification is already leading in Atlantic Canada as of October 31, 2003. [i.e., the day before the new collective agreement came into force] Moreover, if as a result of any catch up award, the classification moves to the top, none of the future staggered catch-ups will be awarded. (emphasis added) ... All rates of pay shall be increased by the following percentages on the dates indicated: November 1, 2003 2.9% May 1, 2004 2.1% November 1, 2004 2.9% May 1, 2005 2.1% November 1, 2005 2.9% May 1, 2006 2.1% Where, as of October 31, 2003, and thereafter in the case of classifications that move to the top as a result of implementation of one of the staggered catch-ups, the employer can demonstrate that the hourly wage rate for any classification ranks highest already in Atlantic Canada for equivalent classifications in the region, the awarded May increases shall not be award.... (Emphasis added) [15] The board’s use of the phrases which I have emphasized in this quotation suggest that the ATB increases were not to be taken into account in determining eligibility for “catch-up”: it was only if the classification moved to the top “as a result of” a catch-up adjustment (and therefore presumably not simply as a result of an ATB increase) that subsequent catch-up adjustments would be denied. Whether those phrases accurately expressed the board’s intent is the key issue underlying the appeal. C. The Board’s Supplemental Award: [16] After the release of its initial award, the parties could not agree on a number of implementation issues including some relating to the catch-up adjustments. CDHA asked the Board to resolve these differences. The Union questioned the board’s jurisdiction to do so. It submitted legal arguments to the Board arguing that it was functus officio on the matters it had already decided and that CDHA was attempting to have the Board alter the award. [17] The Board decided it had jurisdiction to deal with all the issues raised by the CDHA, including eligibility for the May 1, 2005 and May 1, 2006 catch-up adjustments. In the letter setting out its decision, the Board stated: Having carefully considered the arbitration agreement, the written submissions of the parties, and the submissions made by counsel during the conference call, a majority of the Board, with Mr. Hayes dissenting, is of the view that the Board has always had jurisdiction and, pursuant to governing authorities such as Chandler, we possess a continuing jurisdiction with respect to the implementation of our award and all of the implementation issues put before us as those issues relate, directly or indirectly, to the determination of wage rates, the central matter we decided. As has been observed, the Board adopted a novel approach with respect to the determination of wage rates and as implementation issues have arisen in giving effect to the Board’s award, it is our view that we must deal with those issues. [18] At the renewed hearing, the Union reiterated its view that CDHA was asking the Board to change its award with respect to eligibility for the May 1, 2005 and May 1, 2006 catch-up adjustments. It followed, in the Union’s view, that the Board had no authority to do so because it was functus officio. [19] The parties’ disagreement concerned whether the ATB adjustments should be taken into account in order to determine whether a classification was eligible for catch-up in the second and third years of the contract. As noted earlier, the union’s position was that this issue had clearly been resolved by the board’s main award: the board’s uses of the phrase “as a result of” made it clear that only catch-up adjustments were relevant to the question of whether a classification had reached the top of the pay rate and was therefore not eligible for subsequent catch-up adjustments. [20] After a hearing, the board issued its supplemental award, part of which addressed eligibility for catch-up. The board found that it had not expressed its intent clearly in the main award and that it had not intended that the ATB adjustments should be ignored for determining eligibility for catch-up adjustments in years two and three. The board’s reasons for this conclusion are critical for the purposes of the appeal and I will therefore quote the relevant passage in full: 7. With respect to eligibility for the next two catch-up adjustments, it is our view, albeit perhaps not as clearly set out in the award as it might have been, that once a classification reaches the top rate in Atlantic Canada it is no longer eligible for further catch-up payments. The clear and overriding purpose of the award was to ensure that employees of this employer were paid the highest rate in Atlantic Canada. The objective was not to create any windfalls and that would be the result of on-going catch-up payments once the top rate was achieved. Put another way, once a classification, through both the ATB and catch-up reaches the top rate, it is no longer eligible for further catch-up (although continues throughout the term to be eligible for the scheduled ATB). Should the rate fall behind the top Atlantic Canada rate during the term of the award, however, another catch-up payment would then be made to bring it back to or towards the top rate. (Emphasis added) D. Judicial Review of the Board’s Supplemental Award: [21] The union applied to MacAdam, J. in Supreme Court chambers to set aside the portion of the board’s supplemental award which dealt with eligibility for catch-up. The judge did not address the pragmatic and functional approach to determining the applicable standard of review. Instead, he held that the question was one of the board’s jurisdiction and that, accordingly, the applicable standard of review was correctness. He then applied the principles of functus officio and concluded that the board had made a final determination about eligibility for catch-up adjustments in its original award. It followed, in the judge’s view, that the board had no authority to address the matter further in its supplemental award. He said: ... The initial Award clearly did not require the taking into account of the economic increases in determining eligibility for the two subsequent catch-up adjustments. The Supplemental Award, on the other hand, attempted to incorporate the economic increases into the determination of eligibility. There is no indication of a “careless mistake or error arising from an accidental slip or omission” such as to make Section 10 of the Act applicable. In the present instance, the Board made its decision in August and in its Supplemental Award amended that decision to change the criteria of eligibility for the subsequent two catch-ups. The Board was functus. III. ANALYSIS: A. Overview: [22] The principle of functus officio holds that a tribunal cannot revisit a matter which it has finally decided. However, there are some exceptions. One is that a tribunal can revisit a matter if that is necessary to give effect to its “manifest intent”. To apply this exception, one must determine what the “manifest intent” was and then whether the impugned language gave effect to that intent. [23] Whether or not the principle of functus officio prevented the board from acting further in this case turns on the answer to one question: whether the disputed language in the board’s main award gave effect to its manifest intent about eligibility for catch-up increases. Although the answer to this question defines the limits of the board’s authority to act, the question itself is one of mixed fact and law on which the board is entitled to some deference. Its decision on this point should be reviewed for reasonableness. It is also my view that the board reasonably decided that the language of its first award did not give effect to its manifest intent in relation to catch-up eligibility. It therefore made no reviewable error in addressing that issue in its supplemental award. [24] I will first address why I conclude that the applicable standard of review is reasonableness rather than correctness. I will then set out my reasons for concluding that the board’s decision was reasonable. B. Standard of Review: 1. The Role of the Court on Appeal: [25] Our first task on appeal is to determine whether the chambers judge applied the appropriate standard of review and, if he did not, to apply that standard to the tribunal’s decision: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paras. 43 - 44. [26] The judge found that correctness was the appropriate standard because the issue went to the arbitration board’s jurisdiction. The appellant says he erred by failing to apply the pragmatic and functional approach to his determination of the applicable standard of review and in concluding that the standard was correctness rather than patent unreasonableness. The respondent does not attempt to support the judge’s clearly erroneous failure to apply the pragmatic and functional approach. It submits, however, that the judge was nonetheless right to conclude that correctness is the applicable standard of review. 2. Applying the Pragmatic and Functional Approach: [27] The pragmatic and functional approach requires an examination and weighing of four contextual factors: the presence, absence and wording of any privative clause or statutory mechanism for review; the expertise of the tribunal; the purpose of the statutes in issue as a whole and the provisions in issue in particular; and, the nature of the problem. [28] The parties are not far apart on the impact of some of these factors. They agree that the ‘final and binding’ clauses which apply here suggest deference: see Arbitration Act R.S., c. 19, s. 5(h) and Arbitration Agreement, clause 7. In my view, the final and binding clauses in the context of this interest arbitration board provide a strong signal of deference. [29] The parties are also in substantial agreement about some basic points in relation to the purpose of the relevant statute, the particular provisions in issue and the relative expertise of the arbitrator. [30] The purpose of an interest arbitration under the Arbitration Act is to empower the board to make a legally binding collective agreement for the parties on the issues submitted to it: Arbitration Agreement, clause 10. The parties agree, I think rightly, that this purpose suggests considerable deference. Similarly, there is no dispute that the arbitration board should be considered an expert tribunal in relation to labour relations and concluding collective agreements and this, too, favours deference to its decisions in those areas. [31] Where the parties disagree is with respect to the nature of the problem addressed by the board and how its relative expertise relates to that problem. [32] The appellant says that the problem addressed by the board was whether the issues it resolved in its supplementary award were implementation issues that fell within its reservation of jurisdiction “with respect to the implementation of [the] award.”: decision of the chair. This, according to the appellant, is either a question of fact or, at the most, a mixed question of fact and law. The appellant further submits that this issue falls squarely within the expertise of the board. The result, according to the appellant, is that the applicable standard of review should be patent unreasonableness. [33] The respondent sees things very differently. It submits that the issue is whether the board had exhausted its jurisdiction when it issued its main award. This, says the respondent, is a highly generalized question of law about the scope and limits of the principles of functus officio. Moreover, this legal question related to the board’s jurisdiction to undertake the inquiry which led to the supplemental award. Citing ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board), [2006] S.C.J. No. 4 (Q.L.) and Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, the respondent submits that questions of general law, of statutory interpretation and relating to the limits of the board’s powers do not fall within the board’s expertise and that on these matters, the courts have greater relative expertise than the board. It follows, submits the respondent, that the appropriate standard of review is correctness. [34] In my respectful view, the submissions of both parties somewhat miss the mark. The problem facing the board required the application of the general principles of functus officio to the particular facts of this case. For reasons I will develop, this is a mixed question of fact and law. Provided the board did not make some error in legal principle, on which, in my view, it had to be correct, its application of proper principles to the facts should be reviewed for reasonableness. 3. The nature of the question and expertise: [35] The disagreement between the parties turns mainly on the nature of the question. To explain why I think it is a question of mixed law and fact – and one towards the factual end of the spectrum of such questions – I must address three topics: the principles relating to functus officio; the nature of the board’s decision to issue the supplemental award; and, the law relating to how mixed questions of fact and law should be analysed for the purposes of determining the standard of review. (a) Functus officio: [36] Functus officio is a rule about finality: once a tribunal has completed its job, it has no further power to deal with the matter. In relation to court proceedings, the principle means that, in general, once a court has issued and entered its final judgment, the matter may only be reopened by means of appeal. To this general rule, however, there are at least two exceptions: the court may correct slips and, as well, address errors in expressing its manifest intent: Paper Machinery Ltd. v. J.O. Ross Engineering Corp., [1934] S.C.R. 186; see also Civil Procedure Rule 15.07. [37] These principles developed in the context of court decisions which are subject to full rights of appeal. The existence of these full rights of appeal fostered the view that an appeal, rather than a reopening of the case before the initial decision-maker, was generally the preferred way to address errors in the initial decision. [38] The same general principles of functus officio apply to adjudicative administrative tribunals. However, as there are generally no full rights of appeal from such tribunals, the principles in this context rest solely on the rationale of finality. This difference in the underlying rationale has led the courts to say that, in the administrative law sphere, the principles of functus officio must be applied with greater flexibility and less formalism than in relation to court orders: Chandler v Alberta Association of Architects, [1989] 2 S.C.R. 848. As Sopinka, J. put it at p. 862 of Chandler: “... Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.” [39] As mentioned, one of the well-established exceptions to the functus officio rule permits a tribunal to correct an error in expressing its “manifest intent.” This exception has been applied in the labour arbitration context: Rogers Sugar Ltd. v. United Food and Commercial Workers Union, Local 832, [1999] M.J. No. 342 (Q.L.) (Q.B.); Re Canadian Broadcasting Corp. v. Joyce (1997), 34 O.R. (3d) 493 (Gen. Div., Div Ct.). Such a power is not inconsistent, in my view, with the limitation that a tribunal may not address questions of “enforcement, interpretation or validity” of its award once final: see, e.g. Sydney v. Canadian Union of Public Employees, Local 933 (1985), 67 N.S.R. (2d) 62 (S.C.A.D.). Sopinka, J. in Chandler approved the “manifest intent” exception and, as well, recognized that a tribunal could not revisit its final decision simply because it had “...changed its mind, made an error within jurisdiction or because there ha[d] been a change of circumstances” at p. 861. He obviously saw no inconsistency between these two positions. [40] I do not think that the express power conferred by s. 10 the Act to correct “... any clerical mistake or error arising from an accidental slip or omission ...” limits the tribunal’s ability to correct errors in expressing its manifest intent. As Sopinka, J. said in Chandler at 861, the tribunal may revisit its decision “... if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd, v. J.O. Ross Engineering Corp. ...”. (emphasis added) The Ross case refers to the “manifest intent” exception and Sopinka, J. clearly conceived of that principle operating in addition to any specific statutory power. Of course, the authority to revisit may also be expressly limited by statute: see Canadian Union of Public Employees, Local 61 (Saint John Policemen’s Protective Assn.) v. Saint John (City), [1995] N.B.J. No. 575 (Q.L.) (C.A.), but there is no such express limitation here. [41] I conclude that the board was entitled to rely on the exception to functus officio which holds that a tribunal may reopen its final decision where there is an error in expressing its manifest intent: Chandler at pp. 860-862. [42] Stating this exception is one thing. Applying it is another. While I would not attempt to state exhaustively how the exception should be applied, it is safe to say that the best indication of the tribunal’s “manifest intent” will generally be found in the reasons for its initial decision. Unless some disharmony or contradiction is apparent between the allegedly erroneous choice of words and that intent, the language chosen by the tribunal in its initial decision should stand. So, for example, in Rogers Sugar, the arbitrator’s initial award had not specifically addressed the relevance of fractions of years for determination of severance pay but his award on its face appeared to take away entitlement for fractions of years which the predecessor agreement had granted. It was apparent that this could not have been his intent and he was found to have the authority to correct this error. Similarly, in Canadian National Railway Co. v. Canada (National Transportation Agency) (1989), 96 N.R. 378 (F.C.A.), the Court carefully reviewed the agency’s initial decision as a whole to determine whether the contentious language had erroneously expressed its manifest intent. The Court asked itself whether “[t]aken by themselves, these words ... [were]... out of harmony with the overriding intention that seems to be otherwise expressed ...”: at para. 20. To carry out that analysis, the initial decision must be read as a whole and in the context of the issues presented and the positions of the parties: Joyce, supra; Rogers, supra. [43] The main issue between the parties on appeal is whether the wording of two particular phrases in the award accurately or erroneously expressed the board’s manifest intent. The resolution of that issue requires an interpretation of the board’s main award, as a whole and in context, to determine what the intent of the board was. (b) Nature of the board’s decision to issue a supplemental award: [44] The board’s fundamental task was, in the words of the arbitration agreement, to “.. render an award on all outstanding issues between the parties thereby concluding a collective agreement ... . The arbitration award, in addition to matters agreed upon by the parties in collective bargaining shall constitute a collective agreement.” (emphasis added). [45] For present purposes, the issue submitted to the board was compensation. The board’s job was to settle the terms of the collective agreement of the parties on this issue. Until it had done that, the board’s job was not finished. The focus of the debate between the parties is whether, as the appellant contends, the board’s supplemental award was simply finishing its job by making more clear what had been its manifest intent in the main award or whether, as the respondent submits and the judge decided, the board in effect changed its mind and altered its initial award. [46] To determine whether it could issue a supplemental award as it did, the board had to do two things. First, it had to understand the broad legal principles of functus officio. Second, it had to interpret its initial award to determine its manifest intent. In other words, the board had to decide whether the effect of its supplemental award was to give effect to that manifest intent. [47] This question, in my view, is one of mixed law and fact. While the interpretation of a contract or a statute is a question of law, it seems highly artificial to so characterize a tribunal’s assessment of its own manifest intent. A correct statement of the legal principle, on its own, would not resolve the parties’ dispute. Their dispute was “... about whether the facts satisfy the legal tests ...” relating to functus officio and involved “... applying the law to the facts... .”: Its resolution depends on the particular intent which this board had in these circumstances. This precise issue is unlikely to arise again and the result will be of virtually no precedential value. It is almost entirely a matter of “pure application”: Director of Investigation and Research v. Southam Inc., [1997] 1 S.C.R. 748 at paras. 35 and 44. These are the hallmarks of a mixed question of law and fact. (c) How the nature of the question affects the standard of review: [48] The nature of the question affects the standard of review in two main ways. First, the more the question is concerned with matters of fact, the more deference will generally be due. Second, the nature of the question relates to how much deference is due to the tribunal on account of its expertise. The more the question lies within the core area of the tribunal’s expertise, the more deference is due to the tribunal. [49] In my view, the precise question here about whether the board could issue a supplemental award is at the fact specific end of the spectrum of questions of mixed law and fact. It is also a question which lies close to the core of the board’s expertise. These two considerations support considerable deference to the board’s resolution of this issue. [50] Generally, the more fact specific the issue and the less precedential value the result will have, the more likely a court should accord the determination a measure of deference: Dr Q, at para. 34; Nova Scotia (Department of Transportation and Public Works) v. Nova Scotia (Workers’ Compensation Appeals Tribunal) (2005), 231 N.S.R. (2d) 390; N.S.J. No. 137 (Q.L.)(C.A.). In this case, I do not think the board misstated the relevant legal principles or that some error of legal principle is apparent in the way it applied the law to the facts. The critical question is whether the board’s supplemental award gave effect to its intent manifest in the earlier main award. That seems to me to be a question at the fact intensive end of the spectrum of questions of mixed law and fact. This supports giving some deference to the board on this issue. [51] The case for deference on this issue seems particularly strong because the board had to determine its own intent. While I would not underestimate the difficulty of determining the intent of the shifting majorities which occurred in the course of the board’s two awards, the board nonetheless seems to me to be better placed than the court to do so. 4. Conclusion on Standard of Review: [52] The critical question in this case was whether the language of the main award gave effect to the board’s manifest intent. Much of the analysis of the four contextual factors supports giving the board some deference on this issue. The issue is one of mixed fact and law, central to the board’s purpose and close to the core of its labour relations expertise. However, the resolution of that question defines the limits of the board’s authority to act. This suggests that its resolution of that issue should not be afforded the highest level of deference. I would conclude, therefore, that absent some error in legal principle (either express or extractable from the way it applied the principles) on which the board had to be correct, its determination of whether the initial award gave effect to its manifest intent should be reviewed for reasonableness. In other words, the board’s determination of what it manifestly intended must be reasonably supportable by the text of its original award, read as a whole and in context. [53] The reasonableness standard of review seems to me to strike an appropriate balance between the goals of finality and effectiveness in the context of interest arbitration. Affording the board a measure of deference in relation to determining its own manifest intent will help ensure that the board is able to finish the job assigned to it. Insisting that its conclusion in this regard be reasonable, however, ensures that due weight will be given to the goal of finality. C. Was the Board’s Decision That It Could Issue a Supplementary Award Reasonable? [54] Mr. Larkin, for the union, concedes that the board’s decision meets the reasonableness standard if, contrary to his submissions, that is the appropriate standard of review. In my view, that is a proper concession. For the reasons that I will develop, I conclude that the board’s decision was reasonable. [55] When reviewing for reasonableness, the court is to determine whether the tribunal’s decision is supported by any reasons which can stand up to a somewhat probing examination: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 48. The court should not ask itself what the “correct” answer would be and provide a margin of “error” to the tribunal. There may be more than one “right” answer to many questions and “...[a]pplying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons.”: at para. 50. [56] The union’s position is based on one, straightforward point: the main award was clear that the economic increases were not to be taken into account in determining eligibility for the two subsequent catch-up adjustments. This view is supported by two phrases in the main award, the phrase “if, as a result of any catch-up award, the classification ... move[s] to the top ...” and the phrase “ ... in the case of classifications that move to the top as a result of implementation of one of the staggered catch-ups ...”. They indicate that it must be “as a result” of a catch-up adjustment (and therefore, inferentially, not as a result of an ATB adjustment) that the classification reaches the top. [57] However, the focus cannot be simply on the contentious phrase to determine the board’s manifest intent. The question is not how clear the meaning of those phrases may be in isolation, but whether they reflect the board’s manifest intent as disclosed in the award as a whole. [58] To apply the principles of functus officio, the board had to determine what its “manifest intent” had been in the main award and whether the language of the main award gave effect to that manifest intent. In my view, the board’s answers to both of these questions were reasonable: there are reasons which even after a somewhat probing examination, provide tenable support for the conclusion. [59] I turn first to the board’s conclusion as to its “manifest intent”. In its supplemental award, the board summarized its purpose in adding the catch-up component to the wage rates: “[t]he clear and overriding purpose of the award was to ensure that employees of this employer were paid the highest rate in Atlantic Canada.” This is a reasonable conclusion as to the “clear and overriding” purpose of its main award. It is supported by express and clear language in the main award; this conclusion in the supplemental award simply reiterates what was said in the main award to be the “operating principle” which “guided” the board. [60] I turn next to the question of whether the disputed language of the main award failed to give effect to this intent. As it had stated in its main award, the board repeated in its supplemental award that its “... objective was not to create any windfalls ... ”. It concluded, however, that windfalls would result if catch-up adjustments were made once the top rate was achieved. In other words, the board said that ignoring the ATB component in determining whether the pay was at the top in Atlantic Canada was inconsistent with its intent not to award windfalls for any classification. This, too, seems to me to be a reasonable conclusion. Giving a catch-up payment to a group of employees who are already at the top of the pay rates in the region could reasonably be viewed as a “windfall”, and therefore inconsistent with the board’s clearly expressed intended objective. [61] In my view, the board reasonably concluded that the language in the main award by which it described eligibility for catch-up increases did not give effect to the manifest intent of that award. Having made that finding, the board was entitled under the relevant legal principles to issue its supplemental award to clarify this issue, as it did. IV. DISPOSITION: [62] I would allow the appeal, set aside the order of the chambers judge dated 21 February, 2006 and restore part 7 of the board’s supplemental award. The appellant should have its costs, both at the first instance and on appeal fixed in total at $3,000.00 plus disbursements as agreed or taxed. Any costs paid under the order of the chambers judge should be refunded. Cromwell, J.A. Concurred in: Hamilton, J.A. Fichaud, J.A.