QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 467 Date: 2010 12 20 Docket: Q.B.G. No. 1827 of 2010 Judicial Centre: Saskatoon BETWEEN: SEIU-West and Barbara Cape on behalf of SEIU-West and its members, and CYPRESS REGIONAL HEALTH AUTHORITY, FIVE HILLS REGIONAL HEALTH AUTHORITY, HEARTLAND REGIONAL HEALTH AUTHORITY and SASKATOON REGIONAL HEALTH AUTHORITY, Counsel: Drew S. Plaxton and Andrea Rohrke, student-at-law, for the plaintiffs Evert Van Olst and Kevin W. Zimmerman, for Saskatoon Regional Health Authority Michael J. Phillips and Dale K. Hallson, for the defendants, Cypress, Five Hills and Heartland JUDGMENT KOCH J. December 20, 2010 [1] The plaintiff union, SEIU-West, represents approximately 11,000 health care workers employed by the four defendant regional health authorities and their affiliates. The plaintiff, Barbara Cape, is the president of SEIU-West. [2] The current collective bargaining agreement (CBA) covers the period April 1, 2008 to March 31, 2012. tentative agreement was reached on August 13, 2010 and ratified by the union membership on September 16, 2010. However the formal CBA, very lengthy and complex document, was not signed until October 25, 2010. As the CBA provides for wage adjustments going back to April 1, 2008, it requires substantial lump-sum adjustment payment for many of the employees. Collective bargaining and payroll administration is carried out on behalf of the defendants by Saskatchewan Health Care Association (known as SAHO). Understandably compiling the lump-sum retroactive payments is complex. Many of the affected employees served in different capacities at different times for different participating employer entities at different wage scales. The compilation of the entitlement of each affected employee is elaborate and must be done by well-trained personnel. Similar situations have arisen on previous occasions. Retroactive adjustments have always been treated as income in the calendar year in which they are paid even though they are earned at least partially in previous calendar years. The parties have found this to be acceptable and it has had the approval of Canada Revenue Agency (CRA). [3] Unfortunately new problem has arisen with regard to the retroactive adjustment payments arising from the current CBA. Previous agreements have always been finalized earlier in the calendar year, so there has never been an occasion where the retroactive payments could not be made before the end of the calendar year in which the new CBA was signed. Except in the case of one irrelevant exception the retroactive payments have always been made about 12 weeks after the signing of new CBA. In the present circumstances detailed agenda for the steps involved in the compilation process has been determined on behalf of the employer and disclosed to the plaintiffs. Credibly in my view it provides for projected payment date of January 21, 2011, significantly beyond the end of the 2010 calendar year. [4] This has important implications for some of the employees, specifically those whose retirement occurs in 2010, 2011 and 2015. Retirement pensions are based on the employee’s income in the last four full calendar years leading up to retirement. What this means for an employee retiring in 2010, barring creative solution arrived at by negotiation with the concurrence of CRA, is that the retroactive payment does not form part of the retiree’s 2010 income. The retiring employee’s pension is accordingly reduced. In the case of persons retiring in 2011, the only way for the retiree to avoid pension reduction will be to retire at the calendar year-end, even if the employee prefers an earlier date. What if the employee reaches the contractual age limit before the calendar year-end? [5] The CBA includes customary provisions for grievance/arbitration processes to deal with problems such as this. The submission of such issues to grievance/arbitration is supported by s. 25 of The Trade Union Act, R.S.S. 1978, c. T-17. In the case of Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] S.C.R. 929, the Supreme Court has determined that in such circumstances the courts must decline jurisdiction in favour of the grievance arbitration process. The Supreme Court expressly rejected what had come to be known as the concurrent jurisdiction model and also the overlapping jurisdiction model. have addressed this issue in some detail in Eckel v. Saskatoon (City), 2009 SKQB 287 (CanLII). Nothing in the submissions of counsel on this occasion, or in intervening jurisprudence of which am aware, makes it necessary for me to do so again. [6] The Weber principle notwithstanding, the present plaintiffs have commenced an action seeking an order of the court to require the defendants to pay the retroactive adjustment payments within the present calendar year. They are applying for an interlocutory mandatory injunction. In the statement of claim and in their motion the plaintiffs seek:(1) a mandatory interlocutory injunction requiring defendants to make the retroactive adjustment payments before the end of this year;(2) in the alternative, a mandatory interlocutory injunction to compel the defendants to make the payments before the end of this year on a “best approximation” basis; (3) in the further alternative, an order requiring the parties to proceed with an expedited arbitration before an arbitrator appointed by the court. [7] The defendants respond with motions to strike and dismiss the statement of claim pursuant to Rules 99 and 173 of The Queen’s Bench Rules on the ground that the essential character of the issue raised concerns the terms and conditions of employment which, in accordance with the CBA, are beyond the jurisdiction of the court. [8] will address the defendants’ motion first. If the defendants succeed the plaintiffs’ application becomes moot. [9] The plaintiffs concede that the court is without jurisdiction to determine the issue pleaded based on the CBA and the Weber principle. They contend however that the statement of claim, while it does not assert viable cause of action, can nevertheless serve as platform for the present application for interlocutory relief. [10] Historically the law is abundantly clear that the courts could not grant an interlocutory relief in the absence of claim for substantive relief. Interlocutory relief is ancillary to the substantive relief and without the latter the former cannot subsist. An interlocutory injunction is simply not cause of action and cannot stand on its own. See: Siskina (Cargo Owners) v. Distos S.A., [1979] A.C. 210 (H.L.); and Saskatchewan Joint Board Retail Wholesale and Department Store Union v. Dairy Producers Co-operative Ltd. (1990), 1990 CanLII 7774 (SK CA), 87 Sask. R. 241 (C.A.). That seemingly straightforward jurisprudence changed significantly as the result of subsequent decision of the House of Lords in the case of Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd., [1993] W.L.R. 262 (H.L.), which was followed in the Supreme Court of Canada in the case of Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] S.C.R. 495. The essential thrust of the Brotherhood case is that the residual discretionary jurisdiction of the courts of inherent jurisdiction to grant relief not available under statutory arbitration scheme is to continue to exist. As interpret Brotherhood and other cases in which it was followed, the superior courts are entitled in certain circumstances to supplement or augment the jurisdiction of other tribunals of exclusive jurisdiction. take this to mean that although the Supreme Court of Canada has clearly in Weber rejected the concepts of concurrent jurisdiction and overlapping jurisdiction the superior court continues to have some kind of parallel jurisdiction to augment the jurisdiction of alternative exclusive jurisdiction tribunals when the latter are unable for practical reasons to exercise jurisdiction or to exercise jurisdiction promptly and efficiently. [11] It appears to follow that the claim now before the court is not necessarily nullity. Although it can otherwise appropriately be struck pursuant to Rules 99 and 173 it can nevertheless subsist if only to provide platform of pleading to support an application for interlocutory relief. [12] Accordingly the defendants’ motions to strike are dismissed. [13] It then becomes necessary to determine whether the plaintiffs are entitled to mandatory injunctive relief. [14] As with all interlocutory applications for mandatory injunctive relief the plaintiffs must establish that there is strong prima facie case; secondly, that without injunctive relief there will be irreparable harm; and thirdly, that the balance of convenience between the parties as to harm arising from the relief or from the failing to grant relief favours the granting of the relief. [15] The defendants submit that, whatever the proper forum for the plaintiffs to obtain relief, the plaintiffs have not asserted a prima facie case, certainly not a strong prima facie case. The defendants contend that the plaintiffs’ claim is not based on any specific term of the CBA that the plaintiffs allege the defendants to have breached or are about to breach. There is no deadline specified in the agreement, for the retroactive payments, no positive obligation to make the payments by any particular date. Therefore there is no basis upon which the court can impose chronological deadline. It seems obvious that in the context of the myriad of detail required to finalize the CBA the parties, the plaintiff union in particular, did not consider or at least did not adequately consider, the chronological problem that was soon to emerge, and its unfortunate implications. The plaintiffs have not persuaded me that there is a strong prime facie case. There may well be, as contended on behalf of the plaintiffs, a serious issue to be arbitrated but for the purposes of the present application I find that it is not adequately framed in the pleadings and in the evidence before me to meet the applicable test. [16] I accept that there might be irreparable harm for some employees, an example of which was provided to me in the evidence submitted on behalf of the plaintiffs. In general terms though the losses which, individual employees may incur should easily be covered by damages. Indeed note that in the grievance filed concurrently on behalf of the plaintiff union there is claim for damages on behalf of the affected employees. do however take note of the submission that it may be difficult to quantify, for the purposes of assessing damages, the monetary value to some of the 2011 retirees of imposing practical limits on their choices of dates on which to retire. [17] If the case cannot be resolved on the foregoing criteria, must resort to an assessment of the balance of convenience. In this regard the defendants have provided abundant evidence that in practical terms the imposition of a deadline less than two weeks from now cannot conceivably be met. The plaintiffs have presented evidence to the contrary but it is obvious they are quite unable from their perspective to assess the degree to which mandatory chronological relief will be beyond the ability of the defendants to comply with and fulfil. [18] Although it is not essential to my decision, should comment on the concern expressed on behalf of the plaintiffs as to an undertaking as to damages which might be required in support of an interim or interlocutory mandatory injunction. Had seen fit to grant the injunctive relief do not believe that such an undertaking would have been required. do not believe the defendants to have contended otherwise. [19] I find that it is not appropriate for me to grant an injunction requiring the defendants to make the required retroactive assessment payments before the end of 2010. Neither do I see any reasonable prospect of a solution to the problem by making payments on a “best approximation” of entitlement. That is viable solution to the problem. am not persuaded that it can be done by an earlier time than fully compiled payments. In the long run the results of such solution are likely to be troublesome and chaotic. [20] As to the alternative of directing an expedited arbitration and appointing an arbitrator to conduct it, I am of the view that I am without jurisdiction to do that. More particularly, if the court were to encroach on the arbitration process in the way that has been proposed by the plaintiffs the result would be inconsistent with the determination of the Supreme Court in the Weber case that the model of overlapping jurisdiction is no longer to be followed. [21] The defendants’ motion is dismissed. The plaintiffs’ motion is dismissed. appreciate the thorough research and able submissions of counsel. will entertain submissions as to costs if counsel so request.
Employees were entitled to wage adjustments under the collective bargaining agreement. The plaintiff union brought an application for an interlocutory injunction requiring the defendant to pay employees who were retiring in 2010 their wage adjustments in the current calendar year. This was an issue because it would affect pensions and retirement dates. In the alternative, the union argued the employer should pay the entitlements before the year end on a 'best approximation' basis or be required to proceed to an expedited arbitration. The defendant brought a motion to strike or dismiss the plaintiff's motion under Queen's Bench Rules 99 and 173 on the basis that the issues raised were terms and conditions of the employment contract and outside the jurisdiction of the Court according to the terms of the collective bargaining agreement. HELD: The defendant's application was dismissed because the Court has residual discretionary jurisdiction to grant relief not available under a statutory arbitration scheme. The plaintiff's application for an injunction was also dismissed. While there may be a serious issue to be tried, the pleadings do not set forth a strong prima facie case. While there might be some irreparable harm to some employees, in general terms the losses can be dealt with through damages. It would be impossible for the defendant to meet a deadline two weeks away because of the complexity of the calculations. It is not appropriate to grant an injunction requiring the defendant to make payment before the end of 2010 and it is not reasonable to make payments based on best approximation. The Court has no jurisdiction to force arbitration on the parties.