COURT OF APPEAL FOR ONTARIO
RE: THE PROVINCIAL SCHOOLS AUTHORITY (Applicant/
Respondent in Appeal) –and– ANNE BARRETT (Respondent)
–and– THE FEDERATION OF PROVINCIAL SCHOOLS AUTHORITY
TEACHERS (Respondent/Appellant)
BEFORE: CATZMAN, WEILER and ABELLA JJ.A.
COUNSEL: Eric del Junco, for the respondent/appellant
Sunil Kapur and Ben Ratelband, for the applicant/
respondent in appeal
HEARD: February 9, 2000
On appeal from the order of the Divisional Court (Bell, Yates and
Quinn JJ.) dated May 14, 1999.
E N D O R S E M E N T
1We agree with the conclusion of the Divisional Court that
the award of the Board should be quashed and the matter remitted
to the board to determine whether the repeal of s.180(8) should
be retroactively applied to the time of the appellant’s
appointment to the respondent authority.
2In its majority opinion, the Board expressly said that “we
do not think this grievance must be determined on the issue of
retroactivity” and purported to determine the grievance on “a
plain reading of section 180(4).” In our opinion, it was
essential to the disposition of the grievance that the Board
determine the issue of retroactivity, and we agree with the
Divisional Court that the Board did not do so.
3It was suggested before us that, despite what appears above,
the majority of the board nevertheless determined the question of
retroactivity in earlier passages found in its award. In our
view, giving the award of the Board its most liberal reading, it
may be said to have addressed the presumption against
retroactivity of legislation from the perspective whether the
1993 amendment was beneficial or prejudicial, but it clearly did
not address any of the other considerations relevant to the
determination of the retroactivity question: see Driedger on the
Construction of Statutes, 3rd edition, 1994, at pages 549-550.
Whether the applicable standard of review be that of correctness
or reasonableness, we agree with the Divisional Court’s
conclusion that (if, contrary to our view, the Board failed to
determine the question of retroactivity) the award must be set
aside by reason of the Board’s failure to have regard to these
further essential elements of the retroactivity issue.
4Accordingly, we would dismiss the appeal.
5The Divisional Court erred in its perception that the Board
did not, in the majority reasons, address the issue of
retroactivity. Although the reasons do not use specific
language, such as “therefore the amendment has retrospective
application”, it is clear from the reasons as a whole that this
is exactly what has been decided. The discussion on
retrospective application in the reasons starts with the
Authority’s argument, based on the use of the word “becomes” in
s. 180(4), that the Legislature’s intent was that the provision
have prospective application only. The Board rejects this
argument and agrees with the position of the union that it would
be “illogical and unnecessary” to so interpret the effect of the
language.
6There follows in the reasons an extensive discussion citing
both parties’ arguments on how to determine whether legislation
has retrospective effect. Having earlier in the reasons dealt
with legislative intention, the reasons here consider whether the
amendment creates a duty, thereby creating a presumption against
retroactivity, or a benefit, which rebuts it. The Board’s
conclusion is that the effect of the amendment is to create a
benefit. The only purpose of engaging in this benefit/duty
analysis would have been to resolve the question of whether a
presumption for or against retroactivity existed. In concluding
that there was a benefit, the arbitrator was thereby concluding
that retroactivity applied.
7In ignoring these discussions in the reasons of the majority
and resting its decision exclusively on the words immediately
following the retroactivity analysis, the Divisional Court
inappropriately dissected and parsed the reasons instead of
looking at them as a whole.
8The Board stated near the end of its reasons: “In result,
though, we do not think this grievance must be determined on the
issue of retroactivity. The answer to the question raised by the
grievance is to be found in a plain reading of Section 180(4).”
In the context of the reasons as a whole, it is clear that this
statement was simply another way of saying: “However, whatever
our conclusion on retroactivity may be, there is an additional
way to interpret the provision.” It was not open to the
Divisional Court to ignore the rest of the reasons, apply a novel
standard of judicial review called “error in principle”, and
require the Board to re-answer a question it has already
answered.
9In my view, it was not unreasonable for the arbitrator to
reach the conclusion it did in its majority reasons. I would set
aside the decision of the Divisional Court and reinstate the
award of the Board.
CONCLUSION
10In the result, the appeal is dismissed with costs, fixed in
the amount of $2,000.
Signed: “M.A. Catzman J.A.”
“K.M. Weiler J.A.”
“R.S. Abella J.A.”