Ben Ratelband

The union appealed from a Divisional Court judgment quashing a labour board decision that judges' secretaries were not excluded from bargaining-unit membership by the conflict-of-interest provision in the governing statute.

The Court of Appeal held that the core issue was a labour relations question within the Board's specialized jurisdiction, not a freestanding constitutional question, although judicial independence formed part of the context.

Applying a patent unreasonableness standard to the Board's ultimate decision, the court found the Board's conclusion was not patently unreasonable.

The appeal was allowed, the Divisional Court order was set aside, and the judicial review application was dismissed, with no costs.

The appellant Crown appealed a refusal by the motions judge to withdraw her prior decision dismissing a stay motion in an employment-related proceeding brought by a former Crown employee.

The Court of Appeal held that a reasonable apprehension of bias arose because the motions judge was herself pursuing ongoing employment-related litigation against the Crown while adjudicating a similar claim advanced against the same party.

Applying the governing bias principles, the court found that a disqualifying interest is broader than pecuniary or proprietary interest and includes some relevant interest in the subject matter.

The appearance of impartiality was compromised, both orders were set aside, and the stay motion was remitted to be reheard by a different judge.

No costs were awarded.

In a labour appeal from a Divisional Court order quashing an arbitration award, the appellant union argued that the arbitration board had adequately resolved the retroactivity issue arising from the repeal of a statutory provision governing appointment to a provincial schools authority.

The majority of the Court of Appeal held that determination of retroactivity was essential to disposition of the grievance and that the board failed to address all relevant considerations.

The appeal was therefore dismissed and the matter remained remitted to the board for redetermination of retroactivity.

A dissent would have found the board's reasons, read as a whole, sufficient to decide the issue and would have reinstated the award.