J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 52 Date: 20040414 Between: Docket: 473 Health Sciences Association of Saskatchewan (Applicant) Appellant and Saskatchewan Association of Health Organizations (Respondent) Respondent Coram: Tallis, Gerwing Sherstobitoff JJ.A. Counsel: Neil R. McLeod, Q.C. for the Appellant Leah Schatz for the Respondent Appeal: From: QB 2412/01, J.C. of Saskatoon Heard: April 14, 2004 Disposition: Dismissed (orally) Written Reasons: April 14, 2004 By: The Honourable Madam Justice Gerwing In Concurrence: The Honourable Mr. Justice Tallis The Honourable Mr. Justice Sherstobitoff GERWING J.A. (orally) [1] This is an appeal from a dismissal of an application to quash the decision of Arbitrator Ish interpreting an agreement entered into between the appellant and respondent. [2] The judgment centered on clause governing retroactivity of pay: NOTE ON RETROACTIVITY All employees on staff at September 3, 1999 shall be eligible for retroactive wage adjustments based on all paid hours with any employer. Employees who have retired from any employer during the term of the agreement shall be eligible for retroactive wage adjustments based on all paid hours up to and including the date of retirement. [Collective Agreement January 1, 1998 to March 31, 2001 at p. 67] The respondent suggested, and the arbitrator accepted, that the phrase “any employer” referred to the employer for whom the employee was working on September 3, 1999. On the other hand, the appellant had argued that the employee was entitled to retroactive pay from every employer for whom he had worked during the period. [3] The arbitrator found the phrase in question to be ambiguous and outlined the reasons why each of the competing interpretations might be chosen. He then concluded, in his ratio, as follows: As result of these competing aids to interpretation, do not find that the phrase “any employer”, in the context of this collective agreement, is an unambiguous one. am unable to resolve the ambiguity by reference to the evidence of negotiation history, which was minimal and, in my view, not persuasive. As result, am left in the position of an equal balance between the competing interpretations, which would lead me to the conclusion that the grievance fails because the burden is placed upon the union to convince the arbitrator on balance of probabilities that its interpretation is the correct one. Alternatively, the other provisions of the collective agreement would suggest that total provincialism was not intended by the parties, also lead one to the determination that the grievance fails because the balance has shifted in favour of the employer’s argument. On either view, have come to the conclusion that the union has not met the burden of proof placed upon it on the balance of probabilities test. Therefore, in conclusion, the grievance is dismissed. [Award of Arbitrator Dan Ish, Q.C., July 4, 2001 at p. 5] [4] We note that if the arbitrator was of the view, in the first portion of the paragraph, that analysis of one clause, using one tool, extrinsic evidence, and onus would have been sufficient ratio to support his conclusion he was in error and indeed patently unreasonable error. This is an incorrect proposition of law. [5] However, he then went on, in the alternative, to rely on the other provisions of the agreement; that is, he used one of the appropriate, and, indeed, first tools of statutory interpretation for an ambiguous phrase, that is to interpret it in the context of the entire agreement. [6] For this alternate ratio we agree with the conclusion of the chamber judge in the Court of Queen’s Bench. That is, this interpretation was a possible interpretation as evidenced by the earlier analysis of Arbitrator Ish. While it may not be the one that any of us would have chosen had we been given his choices at first instance, it is a possible interpretation on the analysis, legal and grammatical, of the entire agreement, and accordingly we cannot find that it is patently unreasonable. Accordingly, the appeal is dismissed with costs in the usual way on double Column V.
This was an appeal from a dismissal of an application to quash the decision the arbitrator interpreting an agreement entered into between the appellant and the respondent. HELD: The appeal was dismissed. The interpretation of the arbitrator was a possible interpretation on a legal and grammatical analysis of the entire agreement, and was not patently unreasonable.