Halifax Employers Association v International Longshoremen's Association

Halifax Employers Association v International Longshoremen's Association Court Supreme Court Date 2003-07-02 Citation 2003 NSSC 234 Docket SH 195413 Judge/Registrar/Adjudicator MacDonald, J. Michael (Honourable Associate Chief Justice) (SC) Document Type Decision Relations Library Sheet - Halifax Employers Association v International Longshoremen's Association - 2003 NSSC 234 - 2003-07-02 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Halifax Employers Association v International Longshoremen’s Association et. al. 2003 NSSC 234 Date: July 2, 2003 Docket: S.H. 195413 Registry: Halifax, NS IN THE MATTER OF: The Canada Labour Code, R.S.C. 1985, c.L-2 IN THE MATTER OF: An application by Halifax Employers Association for an Order in the nature of certiorari to Quash the Award of Peter E. Darby dated February 6, 2003 Between: HALIFAX EMPLOYERS ASSOCIATION Applicant v. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 269 AND PETER E. DARBY Respondents Judge: The Honourable Associate Chief Justice Michael MacDonald Heard: In Chambers July 2, in Halifax, Nova Scotia Decision: December 3, 2003 Counsel: Brian Johnston, Q.C. for the Applicant Halifax Employers Association Ronald A. Pink, Q.C. for the Respondent International Longshoremen’s Association, Local 269 [1] The Applicant Employer, by way of certiorari, seeks to quash an arbitrator’s decision to reinstate a dismissed employee. BACKGROUND [2] The Halifax Employers Association (“HEA”) is a designated Canada Labour Code representative for various employers engaged in longshoring within the Port of Halifax. As such it is a party to a collective agreement with the Respondent International Longshoreman’s Association Local 269 (“ The Union”). [3] Longshoreman Michael Cleary had been a member of the Union since 1991; having worked as a longshoreman at the Port since the late 1980's. In the Fall of 1998, Mr. Cleary, while intoxicated, had a physical confrontation with a supervisor. This resulted in his dismissal. [4] Subsequently, Mr. Cleary acknowledged having a substance abuse problem and, with the Union’s help, managed to secure reinstatement under the strict terms of a “last chance” agreement [Return pages 89-90]. These terms included abstinence from alcohol and non-prescriptive drugs, voluntary blood and urine testing and a five year probationary period. Any breach of this “last chance” agreement would result in Mr. Cleary’s dismissal. He returned to work on this basis in June of 1999. In September of 1999, he tested positive for cocaine and was dismissed several days later. This dismissal forms the basis of the Application before me. [5] Under the applicable collective agreement, the Union had only four days to grieve this dismissal. However the grievance was not presented until October of 2001; some two years after the event. That however did not end the matter. Under the governing Canada Labour Code, an arbitrator can, in appropriate circumstances, extend the time for filing the grievance. S. 60(1.1) provides: 60(1.1) The arbitrator or arbitration board may extend the time for taking any step in the grievance process or arbitration procedure set out in a collective agreement, even after the expiration of the time, if the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension. [6] The matter, in fact, proceeded to arbitration in the Fall of 2002 before Arbitrator Peter Darby. The learned Arbitrator faced two issues. First he had to determine whether or not to grant the extension under s. 60(1.1). If he decided to allow the matter to go forward, he would then have to consider the grievance on its merits. Arbitrator Darby rendered his decision on February 6, 2003. He decided in the Union’s favour on both issues. Mr. Cleary was ordered to be reinstated on strict conditions that essentially amounted to a second “last chance” agreement. ISSUES [7] HEA maintains that Arbitrator Darby committed reviewable error not only in granting the s. 60(1.1) relief, but also in allowing the grievance on its merits. In considering these issues, I will also assess the appropriate level of deference owed to Arbitrator Darby. ANALYSIS The S. 60(1.1) Relief The Appropriate Level of Deference [8] The Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 directs reviewing courts to undertake a “pragmatic and functional approach” when determining the level of deference owed to an administrative tribunal. In doing so I should take the following four factors into consideration: a. the existence of any privative clauses; b. the tribunal’s expertise; c. the purpose of the Act as a whole and the provision in particular; d. the “nature of the problem”; is it a question of law or fact? [9] In addressing these criteria, I note that Arbitrator Darby acted under the Canada Labour Code, and as such is protected by a privative clause. S. 58(1) provides: 58. (1) Every order or decision of an arbitrator or arbitration board is final and shall not be questioned or reviewed in any court. (2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an arbitrator or arbitration board in any of his or its proceedings under this Part. [10] As well, Arbitrator Darby is an expert in the area of labour relations which is the subject matter covered by the Act. In this issue, his role was to interpret s. 60(1.1) dealing with the extension of time limits prescribed in the collective agreement. This involved a consideration of mixed law and fact. [11] All this makes it clear that Arbitrator Darby is owed a high level of deference. His decision to extend the time limits should not be disturbed unless it is seen to be patently unreasonable. In other words to set his ruling aside, it is not enough for me to determine what I would have done in the circumstances. It is not even enough for me to conclude that the learned Arbitrator’s decision was simply unreasonable. It must be more than that. It must be obviously and seriously flawed. While Courts have made many attempts to explain the meaning of patently unreasonable, two recent judgements of the Supreme Court of Canada are particularly apt when considering the nature of the issue at Bar. [12] In Law Society of New Brunswick v. Ryan, [2003] S.C.C. 20, when comparing the standard of patently unreasonable to reasonableness simpliciter the Supreme Court of Canada beginning at paragraph 52 summarized several of its recent decisions: 52. The standard of reasonableness simpliciter is also very different from the more deferential standard of patent unreasonableness. In Southam, supra, at paras. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted “in the immediacy or obviousness of the defect”. Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as “clearly irrational” or “evidently not in accordance with reason” (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at pp. 963-64, per Cory J.; Centre communautaire juridique de l’Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84 at paras. 9-12, per Gonthier, J.). A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand. 53 A decision may be unreasonable without being patently unreasonable when the defect in the decision is less obvious and might not be discovered after “significant searching or testing” (Southam, supra, at paras. 57). Explaining the defect may require a detailed exposition to show that there are no lines of reasoning supporting the decision which could reasonably lead that tribunal to reach the decision it did. [13] Most recently is the Supreme Court’s decision in Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 [2003], S.C.J. No. 42. Beginning at paragraph 17, Iacobucci, J. for the majority explained the rational for applying the patently unreasonable test when reviewing arbitration awards: 17 This high degree of curial deference to the decisions of arbitration boards is necessary to maintain the integrity of the grievance arbitration process. As Cory J. wrote in Toronto Board of Education, supra, at paras. 36, "the whole purpose of a system of grievance arbitration is to secure prompt, final and binding settlement of disputes arising out of the interpretation or application of collective agreements and the disciplinary actions taken by an employer". This is a basic requirement for peace and harmony in industrial relations, which is important both to the parties and to society as a whole. The protective clause found in s. 48(1) of the LRA is the legislative recognition that the basic nature of labour disputes requires their prompt and final resolution by expert tribunals. 18 The patent unreasonableness standard is a very high standard that will not easily be met. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paras. 57, the Court described the difference between an unreasonable and patently unreasonable decision in the following terms: The difference . . . lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. As Cory J. observed in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 963, "[i]n the Shorter Oxford English Dictionary 'patently', an adverb, is defined as 'openly, evidently, clearly'". This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem. . . . . But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident. [Emphasis added.] Was the Decision to Extend the Time Limits Patently Unreasonable? [14] In applying this exacting standard and after carefully reviewing the record, I find that the learned Arbitrator’s decision to extend the time limits is seriously flawed. In fact,I find with greatest respect, that it is flawed to the point of being patently unreasonable. I have reached this conclusion for the following reasons: [15] In essence, I find that Arbitrator Darby’s decision was patently unreasonable because his entire approach to this case was flawed, and this led him down the wrong path. Basically the learned Arbitrator had two distinct tasks before him. Firstly, he had the preliminary s. 60(1.1) application seeking an extension to file the grievance. If he decided to grant this relief, he then had to decide the grievance on its merits. Yet Arbitrator Darby essentially decided the grievance on its merits before concluding the preliminary time extension issue. Specifically, on the merits, he felt that the “last chance” agreement could not be used to dismiss Mr. Cleary because it offended existing federal human rights legislation. Then, having found this strong case on the merits, Arbitrator Darby felt compelled to extend the time limits so this meritorious grievance could go forward. With respect, this approach is contrary to both (a) the relevant case law, and (b) the true legislative purpose of s. 60(1.1): The Relevant Caselaw [16] The leading and oft quoted case dealing with applications of this nature is Re Greater Niagara General Hospital and Ontario Nurses’ Association (1981), 1 L.A.C. (3) 1 (Schiff). It sets out six criteria to be considered by an arbitrator facing an extension application. Indeed Arbitrator Darby, in his decision, referred to this case and these same criteria. At paragraph 13 of his decision, Arbitrator Darby said: 13. The Union argues, and on this the Employer does not disagree, that the six (6) factors outlined in Re Greater Niagara General Hospital and Ontario Nurses’ Association (1981), 1 L.A.C. (3d) 1(Schiff) are the considerations I ought to apply our facts to in deciding whether the Union has met the requirements set out in Section 60(1.1) of the Code, that there be “reasonable grounds for the extension” of time and thus to relieve against untimeliness pursuant to Section 60(1.1) of the Code, (supra, paragraph 2). These factors are: (i) The nature of the grievance (ii) Whether the delay occurred initially in launching the grievance or at some later stage. (iii) Whether the Grievor was responsible for the delay. (iv) The reasons for the delay. (v) The length of the delay. (vi) Whether the Employer could reasonably have assumed the grievance had been abandoned. [17] Furthermore after considering these six factors Arbitrator Darby felt compelled to deny the extension (but for the human rights issue). At paragraph 21, he notes: Thus, the seriousness of the Second Termination to the Grievor and the expectation any employer would hold of a rapid-response grievance being filed if the Union intended any action, and apart from the human rights aspect to this matter, I would have no choice but to refuse to relieve against the mandatory time limits under Article 11.02(a) of the Agreement because, on balance, there would not be reasonable grounds for so doing. [Emphasis added] [18] Yet Arbitrator Darby overrode these six established criteria because he thought the dismissal was unjust. In other words, he felt the grievor had a strong case on the merits, and this somehow represented a seventh overriding factor. Again at paragraph 21, he concluded: However, overriding all of these six (6) factors in my opinion, is the fact that, under the L.D. Agmt, Cleary was discriminated against because of his disability. [Emphasis added] [19] There is no common law support for superimposing this seventh overriding factor. Granted the nature of the grievance is an important factor. In fact it is the first one listed in Greater Niagara, supra. Arbitrator Darby quite properly emphasized this when he observed at paragraph 14: 14. The Grievance was filed against the Second Termination of October 5, 1999. Industrial capital punishment is the most serious response to employee “misconduct” in any employer’s arsenal. It often has serious mid and long-term consequences to the discharged employee that go well beyond the initial shock, embarrassment, and financial woes of a dismissal in that the very fact of discharge for cause makes potential employers hesitate to hire that person. This factor weighs heavily, in my opinion, in favour of the Grievor. [20] Having made this observation, he was nonetheless prepared to deny the extension but for his feelings about the merits. Yet a distinction must be made between the nature of the grievance and the merits of the grievance. The former is a recognized criterion; the latter is not. For example in Greater Niagara, supra the Board in commenting on the nature of the grievance made no reference to the merits of the case at that preliminary juncture. I refer to this decision at page 4: The grievance here is not so serious as one challenging discharge, a factor of considerable importance in Becker Milk and some other awards. Nevertheless the monetary amount at stake – sick-leave indemnity for some five and a half weeks – and the question of contract interpretation are far from trivial. As for the latter, it is clear from the evidence that both the union and the hospital were and remain interested in having the question resolved, undoubtedly to avoid similar disputes likely to arise in the future. [21] Furthermore, at paragraph 13 of his decision, Arbitrator Darby referred to three cases that have applied the Greater Niagara criteria. They are Consolidated Fastfrate Inc. v. Teamsters, Local 938, [2001] C.L.A.D. No. 638, Re Laidlaw Transit Ltd. and CUPE Local 2151 (2000), 93 L.A.C. (4th) 386 (Devlin), and Public Service Alliance of Canada v. Hamlet of Gjoa Hanen, [2001] C.L.A.C. No. 321 (Joliffe). None of these cases considered the merits when applying the six criteria. In fact, in at least one post Greater Niagara decision, an arbitration board has confirmed that the merits ought not be considered during a preliminary application to extend time limits. In Re Queensway General Hospital and Ontario Nurses’ Association (1996), 57 L.A.C. (4th) 194 the Board observed beginning at page 203: What has to be examined in each case is whether there are reasonable grounds for extending the time limits...Obviously, in this preliminary award, we are not making any findings about the propriety of the employer’s actions or the [page 204] merits of the grievance. [22] I am not suggesting that the discrimination issue was irrelevant to the merits of the grievance. In fact, in Parry Sound, supra the Supreme Court highlighted the benefits of arming labour arbitrators with the ability to enforce human rights legislation. Beginning at paragraph 50, Iacobucci J. for the majority highlighted the policies’ considerations behind this approach. 50 In respect of policy considerations, I first note that granting arbitrators the authority to enforce the substantive rights and obligations of human rights and other employment-related statutes advances the stated purposes of the LRA, which include promoting the expeditious resolution of workplace disputes. As this Court has repeatedly recognized, the prompt, final and binding resolution of workplace disputes is of fundamental importance, both to the parties and to society as a whole. See for example Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768, at p. 781; Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, at p. 489; and Toronto Board of Education, supra, at paras. 36. It is essential that there exist a means of providing speedy decisions by experts in the field who are sensitive to the workplace environment, and which can be considered by both sides to be final and binding... 52 Granting arbitrators the authority to enforce the substantive rights and obligations of human rights and other employment-related statutes has the additional advantage of bolstering human rights protection. [23] Therefore, while the issue of discrimination was fully within Arbitrator Darby’s authority when he turned to the merits in the second part of his judgement, he should not have considered it as an “overriding” factor in the preliminary s. 60(1.1) Application. The Legislative Intent of S. 60(1.1) [24] As stated, Professor Darby’s approach to this Application is contrary to the legislative purpose of s. 60(1.1). Simply put this provision allows grievances that would otherwise be out of time to, nonetheless, proceed in appropriate circumstances. It is appropriate to grant this relief when there are “reasonable grounds” and when the responding party “would not be unduly prejudiced”. It is an obvious attempt to balance two competing goals. On the one hand we strive for timely, fair and efficient justice in the field of labour relations (and in every area of the law for that matter). On the other hand, barring very good reasons, every aggrieved person is entitled to his or her “day in court”. [25] Essentially, in applications such as these we are asked to carefully explore the consequences of either allowing or denying an extension application. In other words, we are called upon to weigh the relevant prejudices to each party. The prejudice to the applying party is usually clear. If the application is denied, the applying party will lose a cause of action. That is why the nature of the grievance is important. It quantifies the loss. For example, losing the right to prosecute a wrongful dismissal claim is much more serious than losing the right to fight a suspension. The prejudice to the responding party is not always as obvious, but usually involves an examination of how the responding party’s ability to defend itself has been affected by the passage of time. The adjudicator would also likely consider the steps taken by the responding party to “get on with business” on the assumption that no claim would be forthcoming and whether the responding party consequently acted to its detriment. These considerations are basically covered in the six step approach suggested in Greater Niagara, supra. [26] In context of labour arbitrators, Brown and Beatty in Canadian Labour Arbitration (3rd Ed.) at paragraph 2:3210 described the balancing act this way: In labour-management relationships, it is usually desirable that grievances be brought within a reasonable time. Thus, even where the collective agreement does not provide for any time-limits for the filing and process of grievances, or its time-limits are merely directory, a grievance may nevertheless be dismissed or declared to be inarbitrable because of delay. However, barring a grievance from arbitration on the merits for excessive delay is not a matter which goes to the jurisdiction of the arbitrator. Rather, declining to deal with a dispute on the basis of undue delay is akin to the equitable doctrine of laches as applied in civil courts, in that a balance is sought between expedition and finality on the one hand and the fair resolution of the merits of disputes on the other. Accordingly, the decision in each case is a matter for the arbitrator to make in his or her discretion after considering any explanation for the delay and its effect in terms of prejudice to the other party. [Emphasis added] [27] In striking this balance, understandably courts are hesitant to strike claims for mere technical reasons. In fact in Parry Sound, supra, the Supreme Court confirmed this point. Beginning at paragraph 68, Iacobucci J. for the majority noted: 68 As a general rule, of course, it is important that the parties to a collective agreement comply with the procedural requirements set out therein. If a union intends to plead that the employer has breached the employee’s statutory rights, it should, as a matter of general practice, specify the statutory provision that the employer is alleged to have breached. That said, it is important to acknowledge the general consensus among arbitrators that, to the greatest extent possible, a grievance should not be won or lost on the technicality of form, but on its merits... 69...These cases reflect the view that procedural requirements should not be stringently enforced in those instances in which the employer suffers no prejudice. It is more important to resolve the factual dispute that gives rise to the grievance. [28] Parry Sound, supra dealt with the adequacy of pleadings and Iacobucci, J. ultimately concluded that because the Employer knew the case it had to meet, this procedural irregularity would not be fatal to the case. [29] In the case at Bar however we are not dealing with mere technicalities. We are dealing with a grievance that was to be filed within four days of the event. Yet it was not filed until two years later. This is a much more serious situation and it commanded a detailed analysis of the competing prejudices. [30] Aside from the employment field, courts in this Province have long recognized this balancing act in the context of civil litigation generally. The leading decision is Anderson et al. v. Co-operative Fire & Casualty Co. (1983), 149 D.L.R. (3d) 103 (S.C.T.C.). At page 113, Hallett, J. (as he then was) noted: The purpose of time limitations within which to bring actions is to see that matters are brought on expeditiously within reasonable time frames considering the nature of the claim. The purpose is not to defeat bona fide claims through a technical failure to have commenced action within a specific time period. The Legislature has obviously intended to grant some relief to sleepy or negligent litigants subject to certain safeguards, the chief of which relates to any prejudice to the defendant caused by the delay in defending the case on its merits, taking into consideration the time limitation and has provided a mechanism to resolve such inequities. [31] In the same vein, one of the more recent pronouncements from our Appeal Court is Day v. Guarantee Co. of North America (2003), 212 N.S.R. (2d) 177 (C.A.) where beginning at paragraph 57 Saunders, J.A. noted: 57 The test to strike a limitation defence requires a consideration of prejudice flowing to both the plaintiff and the defendant. This is clearly set out in s. 3(2) of the Act. 58 In deciding whether it is equitable to disallow the limitation defence, the court must have regard to all the circumstances of the case and in particular to a series of factors enumerated in s. 3(4) of the Act. 59 The relief provisions of the Act are remedial in nature and ought to be construed liberally with a view to obtaining their objective. See McGuire v. Germini (1984), 64 N.S.R. (2d) 60 (S.C.A.D.). Limitation periods are harsh instruments. The discretionary provisions of the Act are intended to afford a plaintiff relief from the strict limitation period where it is equitable to do so. The provisions of the Act balance the need for achieving justice with the need to maintain clear and cogent evidence regarding the claim. 60 The key to assessing whether a limitation period should be struck is to compare the relative degrees of prejudice to both the plaintiff and the defendant. As noted by this court in MacCulloch, supra: [t]he weighing of the degrees of prejudice in an important and required prerequisite to any conclusion which may be reached by a court. [32] In the case at Bar the learned Arbitrator clearly failed to properly weigh the respective prejudices. In fact at paragraph 23 of his decision he felt so strongly about the merits of the grievance, he thought it may even be unnecessary to consider the issue of undue prejudice to the Employer: In light of my conclusion that the consequence of automatic dismissal set out in paragraph 10 for breaching paragraph 8, both of the L.C. Agmt., constitutes unlawful discrimination under the C.H.R. Act, this fact per se justifies my relieving against the time-limits in Article 11.02(a) of the Agreement pursuant to Section 60(1.1) of the Code. I so find. It may be, consequently, unnecessary for me to consider whether the Employer would be “unduly prejudiced” by the extension. [Emphasis Added] [33] Albeit, Arbitrator Darby did at paragraph 24 of his decision (and in other brief passing references) allude to the fact that “the evidence does not establish undue prejudice to the employer”. Yet this conclusion was not based on an analysis. It seems to stem from his misguided conclusion (at paragraph 23) that the Employer tendered no evidence to establish prejudice. Yet in its written submissions the Employer pointed to evidence that was either lost or rendered less effective by the delay. It also cited other alleged prejudice. I refer to pages 182 and 183 of the Return: However, in the alternative, if a determination is made that prejudice is required to be demonstrated, HEA submits that it would suffer substantial prejudice. In this case, considerable time passed before HEA was even made aware that there was an issue with respect to Mr. Cleary’s discharge. Records and recollections of the events of four years ago were diminished or destroyed. Further, the two year delay in grieving the matter has prevented HEA from obtaining any contemporaneous medical reports or from determining whether the use of crack cocaine by Mr. Cleary in the fall of 1999 was part of his substance abuse problem. HEA was unable to obtain a medical opinion with respect to recovery and relapse and the hardship occasioned by accommodation at the time of the discharge. As Steve Belding has testified, HEA operates in a very dynamic industry and the labour relations between the parties has focused on timely action. The evidence is that Local 269 made a decision in October 1999, but apparently not a decision that Gerry Murphy agreed with and in fact, after he was elected President he challenged that decision. To extend time limits in this case would be to throw the door open to any individual who assumes a leadership role in a union, or for that matter an Employer, to “re-think” and “re-litigate” issues. If each new President was allowed to sift through old grievances which had been dealt with by the preceding President, the impact to HEA would be severe. Conclusions on this Issue: [34] In conclusion, I find with greatest respect that Arbitrator Darby’s decision is patently unreasonable because, as stated, his entire approach to this issue was flawed. At the preliminary stage of assessing the application to extend the time limits, he delved into the merits. In so doing he concluded that Mr. Cleary’s dismissal was unjustified because it offended his statutorily based human rights. This compelled him to override the established (Greater Niagara) criteria for assessing applications of this nature. [35] In other words, he failed to balance the competing prejudices. This balancing exercise is fundamental to s. 60(1.1)’s purpose. His analysis was therefore inconsistent with the policy objective of the legislation. In this regard, the Supreme Court of Canada has in the past, placed this type of defect under the category of patently unreasonable. I refer to two recent cases. The first is Canada Safeway Ltd. v. R.W.D.S.U. Local 454, [1998] 1 S.C.R. 1079. Beginning at paragraph 64, the majority (in reviewing the definition of “patiently unreasonable” generally) noted: 64 ...There are, as well, certain specific egregious errors which are so patently unreasonable that a Board decision should be set aside. It may be helpful to review briefly the cases in which this Court has indicated that a board's decision could be found to be patently unreasonable. 65 In Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, a dangerous situation had developed in the community owing to the impasse reached between the mine workers and the employer. In the circumstances, the majority of the Court approved the exceptional solution imposed by the Canada Labour Relations Board to put an end to the dispute. However, it was noted, at p. 403: if the Board imposes a remedy which is not rationally connected to the breach and its consequences or is inconsistent with the policy objectives of the statute....its decision will in those circumstances be patently unreasonable. [Emphasis added.] [36] The second example involves a mistaken use of Ministerial discretion where the patently unreasonable test was nonetheless applied. In C.U.P.E. v. Ontario (Minister of Labour), [2003] SCC 29 Binnie J. for the majority noted at paragraph 184: Speaking broadly, “the perspective” within which HLDAA was intended by the legislature to operate ... is to secure industrial peace in hospitals and nursing homes. HLDAA imposes a compulsory yet mutually tolerable procedure (if properly administered) to resolve the differences between employers and employees without disrupting patient care. In that context, appointment of an inexpert and inexperienced chairperson who is not seen as broadly acceptable in the labour relations community is a defect in approach that is both immediate and obvious. In my view, with respect, having regard to what I believe to be the legislative intent manifested in HLDAA, the Minister’s approach to the s. 6(5) appointments was patently unreasonable. [Emphasis added] [37] As in the above cases, Arbitrator Darby’s basic approach to this issue conflicted with the clear intent of s. 60(1.1). It is patently unreasonable and I set it aside. How should the Extension Application Now be Settled? [38] Now that I have set aside Arbitrator Darby’s decision to grant the extension, several supplementary issues arise. Should I rule on the extension application or should it be remitted back for arbitration? If it should be remitted back for arbitration, should it go to Arbitrator Darby or to a newly constituted Board? [39] The Employer submits that I should quash Arbitrator Darby’s decision and end the matter now by denying the s. 60(1.1) relief. Its submission is based on the following passage from paragraph 21 of Arbitrator Darby’s decision: Thus, the seriousness of the Second Termination to the Grievor and the expectation any employer would hold of a rapid-response grievance being fled if the Union intended any action, and apart from the human rights aspect to this matter, I would have no choice but to refuse to relieve against the mandatory time limits under Article 11.02(a) of the Agreement because, on alance, there would not be reasonable grounds for so doing. [Emphasis added] [40] HEA submits that, with this passage, Arbitrator Darby has acknowledged that he would have denied the Union relief but for the human rights issue. If Arbitrator Darby was wrong to consider the human rights issue at that stage, then, by his own reasoning, the extension should be denied. [41] I disagree with this approach. It would be wrong to set aside Arbitrator Darby’s decision, and then rely on that same decision to effectively end the matter. This matter was referred to arbitration and that is where it should be resolved. I decline the invitation to decide what should rightly be decided by an expert arbitration board as initially intended. [42] At the same time, I acknowledge that I have the jurisdiction to make my own determination in appropriate circumstances. I refer to Judicial Review of Administrative Action in Canada, Brown and Evans (looseleaf) section (paragraph) 5:2210: Where the error is made within jurisdiction, however, or where it involves a breach of procedural fairness, and notwithstanding that once a decision is quashed it is open to the decision-maker to proceed anew, the appropriate remedy may be to order that the matter be remitted for redetermination... Moreover, even where a court has the express power to substitute its decision for that of an agency, as in the case of an appeal from an administrative decision, the court’s lack of expertise may warrant an order remitting the matter to the agency for redetermination. [43] Nonetheless, for the reasons stated, I feel it more appropriate to have the matter remitted for arbitration. In reaching this conclusion I am following the reasoning of our then Nova Scotia Supreme Court Appeal Division in CBRT & G.W. Local 607 v. Inverness Consolidated Memorial Hospital (N.S.C.C.A.), [1987] N.S.J. No. 133. In that case the trial judge found that an arbitrator misinterpreted the collective agreement when resolving a grievance over seniority rights ([1986] N.S.J. No. 292). Despite finding this error, the trial judge nonetheless upheld the arbitrator’s decision; having decided that the arbitrator’s decision would have been the same with or without the error. The Appeal Division disagreed. At page 1 of the brief ruling, Matthews, J.A. noted: The trial judge, Mr. Justice Tidman, agreed with both counsel that the consensual arbitrator erred in his interpretation of one of the articles in contention by holding that neither the grievor nor the successful candidate was an employee under the agreement. The issue here is whether the trial judge, upon determining that error, should have remitted the matter to the arbitrator rather than proceeding, as he did, to uphold the arbitrator’s conclusion that the grievance failed. We are unanimously in agreement that the trial judge erred in not remitting the matter to the arbitrator for decision after considering all the relevant articles of the agreement. We cannot say that the arbitrator will reach a different conclusion that he did but that is for him. [44] I now turn to the question of whether this issue should be remitted to Arbitrator Darby or another arbitrator selected by the parties. The Union suggests I remit it back to Arbitrator Darby while the Employer requests a new arbitrator. Again I turn to Judicial Review of Administrative Action in Canada, supra beginning at section (paragraph) 5:2240: 240 Remission to a Differently-Constituted Body Although a referral may be made to the same authorities who decided the matter originally, a court may order that the matter be remitted to a differently constituted panel or to a different decision-maker. Indeed, this is the usual order following a finding of bias. Similarly, where the error is an erroneous finding of fact or a natural justice error, or the conclusion is such that it indicates a risk of prejudgment, remission to a different decision-maker is appropriate... [Emphasis added] [45] Here I am concerned not about the actual risk of pre-judgement by Arbitrator Darby but the perceived risk of pre-judgement. He has already decided this issue in the Union’s favour and no doubt an objective observer would be concerned. As well, I am sure he too would feel somewhat awkward in the circumstances. For these reasons, I am directing that this issue be remitted to a different arbitrator, selected by the parties. The Decision to Reinstate [46] Because I have set aside Arbitrator Darby’s decision to grant s. 60(1.1) extension, it follows that his decision on the merits must also be vitiated. His ability to rule on the merits, in the first place, was premised on his decision to extend the time limits. Now, with that initial premise quashed, it would be wrong to allow his decision on the merits to stand. In other words, the merits may never have been considered had the preliminary application not been flawed. [47] In reaching this conclusion, I realize that in most multi-issue certiorari applications, it would be preferable for the reviewing judge to sever the relief so that only the flawed portions are quashed. I refer to Judicial Review in Labour Law, Charney and Brady (looseleaf) at section (paragraph) 17.400: A labour relations tribunal may require doing of more than one thing, or make more than one order or declaration in its final disposition of the matter before it. In such cases, some of the relief it orders may be beyond the tribunal’s jurisdiction or flow from a patently unreasonable interpretation of a collective agreement or labour relations statute. The court’s response in such cases is to sever this relief from the remainder of the award, quashing only the parts found to be unreasonable or in excess of jurisdiction. [48] However in some cases, like the one at Bar, the issues are too intertwined to be properly severed. That was acknowledged in M.S. v. The Crimes Compensation Board, [1998] A.J. No. 499 where beginning at paragraph 16, the Alberta Court of Appeal noted: 16 The Appellant enjoys a statutory right of appeal limited to questions of law and jurisdiction. This is not a case where the Appellant alleges a breach of natural justice, bias or "no jurisdiction ab initio". In such cases, this Court would be powerless to sever the "good" portions of the award from the "bad". Severance is, however, available when a valid part of an order can stand alone. Sara Blake, Administrative Law in Canada, 2d ed. (Butterworths, 1997) at p. 178, says: "If the tribunal's error affects only part of its order and the remainder of the order is valid, the entire order need not be struck down. The defective part may be quashed leaving the valid parts of the order in effect. When this is done, a court is said to "sever" the bad part from the order. Typically a tribunal's order will be severed only where the remaining order can stand on its own as a complete and enforceable order not crippled by the loss of one of its components. In determining whether the offending part is severable, a court considers the effect that the tribunal intended to achieve when issuing the order. If the order could not achieve that effect without the impugned part, it would not be severed. One may ask whether the tribunal itself, knowing that it could not include the invalid part, would have issued the order without it." [Emphasis added.] [49] In the case at Bar, Arbitrator Darby’s decision on the merits could not stand without his preliminary ruling that I have now set aside. Thus his entire ruling must be set aside. The Application for Certiorari is granted, and I direct that the entire matter remitted to a new arbitrator. Costs [50] I trust that the parties can agree on costs (which should normally follow the event). Should they be unable to do so, I will resolve the issue by written submission as follows: From Mr. Johnston by December 10th, 2003 and from Mr. Pink by December 17th, 2003. In any event, when the issue of costs is resolved, I direct Mr. Johnson to present the Order after Mr. Pink has consented to its form. Michael MacDonald Associate Chief Justice