COURT OF APPEAL FOR ONTARIO

DATE: 20000215

DOCKET: C32432

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

CATZMAN and WEILER JJ.A.:

[1] We 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.

[2] In 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.

[3] It 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.

[4] Accordingly, we would dismiss the appeal.

ABELLA J.A. (Dissenting):

[5] The 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.

[6] There 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.

[7] In 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.

[8] The 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.

[9] In 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

[10] In 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.”