Action No. 0003-06344
IN THE COURT OF QUEEN'S BENCH OF ALBERTA
JUDICIAL DISTRICT OF EDMONTON
IN THE MATTER OF THE LABOUR RELATIONS CODE
S.A. 1988, C. L-1.2
AND IN THE MATTER OF A RECONSIDERATION AWARD
DATED THE 3rd DAY OF MARCH, 2000
BETWEEN:
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 955Applicant
- and -
VERTEX CONSTRUCTION SERVICES LTD., CONSTRUCTION WORKERS
UNION, LOCAL NO. 65, and ALBERTA LABOUR RELATIONS BOARD
Respondents
_______________________________________________________
REASONS FOR JUDGMENT
of the
HONOURABLE MR. JUSTICE T.D. CLACKSON
_______________________________________________________
APPEARANCES:
Mr. Murray D. McGown, Q.C.
McGown Johnson
for the Applicant
Mr. David J. Ross, Q.C.
McLennan Ross
for the Vertex Construction Services Ltd.
Ms. Nancy Schlesinger
Alberta Labour Relations Board
for the Alberta Labour Relations Board
1. INTRODUCTION AND FACTS
A. Introduction
[1] This is an application for judicial review of a decision of the Alberta Labour Relations Board (Board ). A
reconsideration decision by the Board of a previous Board decision is challenged. The reconsidered decision related to an application for the certification of a bargaining agent pursuant to the Alberta Labour Relations Code, SA 1988, c. L-1.2 (Code). For the reasons which follow, the application for review fails.
B. Facts
[2] The applicant, the International Union of Operating Engineers, Local 955 (Union), applied to the respondent, Board to be certified as the bargaining agent for a unit of construction operating engineers employed by T.R.E. Technical Corporation Ltd. (T.R.E.). This application was made on January 22, 1998. The application was dismissed by the Board because the Union lacked the requisite support from the employees of the proposed unit.
[3] On February 4, 1998, 763823 Alberta Ltd. changed its name to Vertex Construction Services Ltd. (Vertex). On February 2, 1998 Vertex purchased the shares of T.R.E. At around that time, "the day-to-day activities of T.R.E. were transferred de facto to Vertex". The two companies amalgamated on April 14, 1998.
[4] In an effort to avoid multiple applications for certification by various building trade unions, Vertex contacted the Christian Labour Association of Canada (Clac). The collective agreement was concluded between Clac and Vertex on January 27, 1998, even though Clac did not have any authority from the employees it expected to represent and bind to the agreement. That agreement was subject to the affected employees ratifying Clac's representation and the deal it had struck with Vertex.
[5] On March 30, 1998, the Union made application to the Board to be certified as bargaining agent for a unit of operating engineers of Vertex. That application was hotly contested and proceeded to a hearing before a panel of the Board, chaired by Mr. Blair. That Board panel came to the conclusion that, the Clac collective agreement was not a bar to the March 30, 1998 application by the Union ( the Blair decision). That Board also concluded:
a. That Vertex was the successor of T.R.E.
b. That the day to day activities of T.R.E. were transferred defacto to Vertex.
c. That notwithstanding Section 44 of the Code, Section 55 of the Code had no application because the Union's application in relation to T.R.E. was not the same or substantially the same as its application for Vertex. Section 55 provides:
55 Notwithstanding anything in this Act, if an application for(a) certification as a bargaining agent,
(b) revocation of the certification of a bargaining agent,
(c) a declaration that a bargaining agent is no longer entitled to bargain collectively,
(d) registration of an employers' organization, or
(e) cancellation of the registration certificate of an employers' organization,
has been refused by the Board or withdrawn by the applicant, the applicant shall not, without the consent of the Board, make the same or substantially the same application until after the expiration of 90 days from the date of the withdrawal or refusal.
d. That the Union's application could and should proceed.
[6] Vertex and Clac contested the Board's conclusion and requested a review of the Blair decision pursuant to
Section 11(4) of the Code and the Board's Bulletin #6 which provide:11(4) The Board has exclusive jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any manner before it and the action or decision of the Board thereon is final and conclusive for all purposes, but the Board may, at any time, whether or not an application has commenced under section 18 (2), reconsider any decision, order, directive, declaration or ruling made by it and vary, revoke or affirm the decision, order, directive, declaration or ruling.
INFORMATION BULLETIN #6
1. Reasons for ReconsiderationThe circumstances prompting reconsideration include cases where:
- correction of substantial errors of fact or errors of law is necessary.
[7] An administrative panel of the Board chaired by Mr. Lucas dismissed the application of Clac for reconsideration, but concluded that:
In our view, the arguments outlined by Vertex, based on the stated inconsistencies in the Board's earlier decision, may be capable of establishing grounds for reconsideration. Accordingly we direct that this application be referred on to a reconsideration panel for further hearing upon the merits of the application.
[8] The reconsideration panel was duly constituted, again chaired by Mr. Lucas, and on notice to the parties, the panel heard not only the application to reconsider but also proceeded to reconsider the disputed portion of the Blair decision.
[9] The Lucas panel concluded in effect, that the Blair panel, having found Vertex to have been successor to T.R.E., had to conclude that the Union's application of March 30, 1998 was the same or substantially similar to its application of January 22, 1998. The Lucas panel of the Board concluded that the Blair decision that Section 55 did not bar the Union's subsequent application constituted an error of law (the Lucas decision).
[10] In result, the Lucas panel in a 2 to 1 decision rescinded the certification of the Union.
[11] The Union now seeks judicial review of the Lucas decision. Specifically, the Union seeks to have me quash the decision of the Board as made by the Lucas panel and restore the decision of the Board as made by the Blair panel. That remedy, and the alternative remedies sought require consideration of the appropriate standard of review and consideration of the Lucas decision in the context of the appropriate standard of review.
II. STANDARD OF REVIEW
[12] In any application for judicial review, the first step is to determine the basis on which the impugned decision is to be considered. The appropriate review framework is determined by reference to:
a) the nature of any privative clause protecting the tribunal's proceedings,
b) the expertise of the tribunal,
c) the purpose of the Act as a whole and the particular provision in issue,
d) the nature of the problem the tribunal was called upon to determine.
(Pushpanathan v . Canada (Minister of Citizenship and Immigration) , [1998] 1 S.C.R. 982)
[13] The objective of the analysis is to discover what degree of deference the Legislature expected the reviewing Court to show to the particular impugned decision.
A. Privative Clause
[14] The Code provides two different privative clauses which have some degree of overlap. I have previously set out Section 11 (4). Section 18 (1) and (2) provide as follows:18(1) Subject to subsection (2), no decision, order, directive, declaration, ruling or proceeding of the Board shall be questioned or reviewed in any court by application for judicial review or otherwise, and no order shall be made or process entered or proceedings taken in any court, whether by way of injunction, declaratory judgment, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.
(2) A decision, order, directive, declaration, ruling or proceeding of the Board may be questioned or reviewed by way of an application for judicial review seeking an order in the nature of certiorari or mandamus if the originating notice is filed with the Court and served on the Board no later than 30 days afer the date of the decision, order, directive, declaration, ruling or proceeding, or reasons in respect thereof, whichever is later.
[15] The applicant argues that Section 18(2) limits the breadth and scope of Section 11(4) and Section 18(1). The applicant says Section 18(2) must be read as providing in effect a right of appeal or an invitation to appeal.
[16] That novel argument is not persuasive. It is clear to me that the Legislature intended that the directions, orders, decisions and actions of the Board would be shown a very high degree of deference by any Court asked to review them. Section 18(2) is not an invitation. It is a procedural guide to assist the parties in knowing what is to be done and when it is to be done in the event a judicial review application is brought on.
[17] Furthermore, previous decisions on the appropriate degree of deference be shown to a particular tribunal
protected by a privative clause are likely to be extremely persuasive. Courts of all levels have been asked to
consider privative clauses protecting Labour Relations Board activities which are similar to the clauses here in issue. Those Courts have consistently concluded that the fulsome nature of Labour Relations privative clauses lead inexorably to the inference that the Legislature intended deference.
B. Expertise
[18] I am of a similar view with respect to the expertise of Labour Relations Boards. It is clear and has been clearly found on many prior occasions that Labour Relations Boards are bodies of considerable expertise. As such the inescapable inference is that Courts called upon to review the actions of such experts should be extremely deferential.
[19] The suggestion that the expertise of the Board is not proven misses the compelling argument that the statutory scheme clearly requires and contemplates expertise. There may be individual Board members with less experience or ability than others, but that is not the business of a reviewing Court. The issue is whether the Legislature established a body which is marked by expertise. If expertise fairly characterizes the tribunal in question, then it is appropriate to infer that the Legislature intended the Court to defer to that tribunal. Again, Labour Relations Boards have been consistently labelled as expert and as a result their decisions are treated deferentially. International Longshoremen's and Warehousemen's Union, Ship and Dock Foreman, Local 514 v. Prince Rupert Grain Ltd. , [1996] 2 S.C.R. 432.
C. Purpose of the Act as a Whole and the Provisions in Particular
[20] My focus at this stage of the analysis has to be upon Section 11(4) and Bulletin #6 and Section 55.
[21] It is clear that the Code addresses and balances many competing personal, organizational and economic
interests in a fashion which will encourage certainty and labour peace. It is also clear that the power to reconsider
contained in Section 11(4) provides the Board with the authority and opportunity to right a wrong rather than await a Court's views on the subject. The intent of Section 11(4) is obvious; the Legislature would prefer the expert and timely attention of the Board to that of a Court.
[22] Bulletin #6 is a Board generated limitation on its authority to reconsider. The Bulletin represents a balance
between certainty and finality on the one hand and fairness and accuracy on the other. How many of us would like to be in the position to undo that which unexpectedly has gone wrong. That is the power granted to the Board by
Section 11(4) and limited by the Board's Bulletin #6. As a rule that power gets exercised in a dispute between
specific parties and resolves a specific issue between them. However, in this case the power was exercised to settle the proper interpretation of a section of the Code. As a result, the issue had ramifications beyond the specific interests of this employer and this union.
[23] Section 55 provides a limitation upon the activities of both a union and an employer. It represents a balance of competing interests between unions and employers and promotes labour peace.
[24] In my view, the power to reconsider, the appropriate circumstances to exercise that power, and the
interpretation of Section 55 involve the balancing of broad interests. Accordingly, the Board's decision to reconsider and its reconsideration decision are entitled to deference.
D. The Nature of the Problem
[25] In circumstances where the impugned decision was predominantly dependent upon findings of fact, deference is usually extended to the decision. That is because having heard and seen the witnesses and being responsible for determining what evidence is credible, the fact finding tribunal is in a much better position to differentiate fact from fiction.
[26] However, this case is not about fact. The facts found by the Blair panel were not contested on reconsideration. The reconsideration was solely concerned with the proper interpretation of Section 55 of the Code. The reconsideration related entirely to a question of law as to the appropriate treatment of successive applications for certification.
[27] Where review of a decision on a legal issue is sought, the usual standard applied would be correctness. That is, either the tribunal was correct or it erred. No deference is shown. However, in circumstances where the impugned decision involves the exercise of a discretion possessed by the tribunal, deference is usually shown to the tribunal's discretionary action.
[28] The applicant argued that the Lucas panel was engaged in interpreting Section 55, and that is a matter of law. In my view the applicant is right. The proper application of Section 55 is a question of law. Therefore the Lucas decision on that matter is not particularly deserving of deference.
[29] The applicant also argued that there was no substantial error of law in the Blair decision which justified the
Lucas panel's exercise of the Board's discretion to reconsider. Therefore, there was no basis for the Board to
reconsider. I disagree with the applicant. The Board exercised a discretion and an exercise of discretion is deserving of deference.
E. Conclusion
[30] The foregoing analysis leads me to conclude that the Legislature intended that a reviewing Court would be slow to interfere with the Board's decision to reconsider a previous Board decision. Every factor weighs against
interference unless the decision is patently unreasonable.
[31] I have also concluded that considerable deference to the Board's interpretation of Section 55 is appropriate even though interpreting that provision is a matter of law. Section 55 addresses interests of stability, labour peace and certainty, all matters which have an impact on more than this employer and this union. Section 55 has a poly-centric scope. The Board has expertise and that expertise is necessary to the proper administration of labour relations activities in the Province. Finally, the privative clause here is full. All of those factors require a reviewing Court to show the Board's interpretation of Section 55 considerable deference.
[32] However, I am not convinced that it is necessary to show that the Board acted in a patently unreasonable
fashion in its interpretation of s. 55. On the scale suggested by the Supreme Court of Canada in Pushpanathan ,
supra where correctness marks the least degree of deference and patent unreasonableness marks the highest degree of deference, it is my view that the appropriate degree of deference is reasonableness. That is, was the Board's interpretation of Section 55 one that that Section could reasonably bear?
III. THE REVIEW
A. The Exercise of Discretion
[33] The applicant argues that the Board has limited its discretion to review its decisions, orders and certificates by Bulletin #6. In particular the bullet "correction of substantial errors of fact or errors of law is necessary" is relied upon by the applicant. The applicant argues that the quoted bullet means the Board will not engage in reconsideration unless there are substantial errors of law. The applicant argues that the word "substantial" must modify the words "errors of law". In support of that position, the applicant points to a number of Board and Court decisions where that phrasing is used. However none of the authors of the authorities to which I was referred, directed their attention to the actual meaning of the quoted phrase. In each instance, the adjective "substantial" was used without any analysis of why what had occurred was more than a simple error. None of the authorities determined that more than simple error was necessary.
[34] The applicant argues that since the Lucas panel did not label the Blair decision on Section 55 as having been a substantial error of law, the Lucas decision to reconsider was patently unreasonable. That argument fails. I am not convinced that the word "substantial" modifies the words "errors of law". I am not convinced that the failure of the Lucas panel to use the phrase "substantial errors of law" means none existed. It follows, that the applicant has failed to establish that the Lucas panel acted in a patently unreasonable fashion.
B. The Interpretation of Section 55
[35] The applicant argued that the applications made by the Union in relation to T.R.E. and Vertex were not the
"same or similar" as those words are used in Section 55. Therefore it was unreasonable for the Lucas panel to
conclude that Section 55 applied.
[36] The Blair panel found that the " day to day activities of T.R.E. were transferred de facto to Vertex". In those circumstances, it is hardly unreasonable for the Lucas panel to conclude that Section 55 applied. The fact that on different facts a different panel of the Board came to an arguably different decision cannot preclude the Lucas interpretation. USWA Local 6034 v . Jamal Metals Inc. , [1997] Alta. L.R.B.R. 426.
[37] The applicant argued that the Lucas decision effectively sanctioned the actions of T.R.E. and Vertex and the subterfuge in which those companies engaged to avoid certification by the applicant. That argument assumes that these companies acted improperly or unlawfully, neither of which is a necessary or inexorable conclusion on the facts here. In any event the interpretation of Section 55 by the Lucas panel is perfectly reasonable. The fact that the Lucas panel's interpretation of Section 55 may have broad impact upon Labour Relations tactics is not a basis for review. It does however exemplify the poly- centric nature of Section 55 on these facts and therefore supports the need for deference.
[38] The applicant argues that in undertaking reconsideration of the Blair decision, the Lucas panel had to search for a basis to uphold that decision. That argument is not meritorious. There is nothing to limit the manner in which the Board approaches reconsideration except Section 11(4) and Bulletin #6. Neither requires that the Board search for all potential bases to uphold the reconsidered decision. It seems to me that the approach taken by the Lucas panel was perfectly reasonable.
[39] Finally, the applicant argues that the Lucas panel should have granted the applicant consent to apply for
certification notwithstanding the limitation contained in Section 55. That argument was not made to the Lucas panel and is therefore not properly made before me. However, it is clear that the Blair panel did conclude that the Board's decisions on the subject of retroactive consent were clear and clearly against the granting of such consent under Section 55. In the circumstances this argument was destined to fail if made to the Lucas panel just as it did when made to the Blair panel.
[40] In result, the Lucas panel's interpretation of Section 55 of the Code was reasonable.
IV. NATURAL JUSTICE CHALLENGES
[41] The applicant also alleges that the Lucas panel violated the principles of natural justice in two ways. Firstly the applicant argues that the Lucas panel violated the rule that " he who decides must hear". Secondly, the applicant argues that the Board breached the rules of natural justice and procedural fairness by following a procedure that allows a minority to overrule a majority.
A. He Who Decides must Hear
[42] The principle, the applicant argues, is that the ultimate decision maker must hear the evidence and
representations of the parties. That is a rule of natural justice and procedural fairness. The applicant argues that the Lucas panel was the ultimate decision maker but heard no evidence and therefore breached the principle.
[43] The fact is that the factual determinations made by the Blair panel were not in dispute at the reconsideration
hearing. That hearing proceeded on the basis of an acceptance of the facts as found and argument as to the
appropriate application of the Code and Labour Relations jurisprudence to those found facts. There is nothing in
that, that violates the principles of natural justice.
B. Minority Overruling a Majority
[44] The applicant argues that the Blair decision was the decision of three Board members whereas the Lucas
decision was the decision of two Board members as the third member of that panel dissented. Therefore, the
applicant argues that a majority of the Board favoured the Blair interpretation of Section 55, but the minority views as represented by the Lucas decision prevailed. The applicant argues that the rules of natural justice are breached when a minority overrides a majority.
[45] The frailty of the argument is obvious. The decision of the Blair panel is a decision of the Board pursuant to
Section 9 of the Code. The decision of the Board was changed by the decision of the Board as represented by the Lucas panel. At the end of the day the Board has spoken, and there is but one decision.
[46] There is nothing in that which offends basic justice or fairness. The Code provides for exactly that situation and the validity of that provision is not challenged before me. The argument fails.
V. RESULT
[47] The application for judicial review is dismissed. The respondents are entitled to their costs of this application.
HEARD on the 25th day of October, 2001.
DATED at Edmonton, Alberta this 22 nd day of November, 2001.
__________________________J.C.Q.B.A.