CanMar Contracting Ltd. v. Labourers International Union of North America, Local 615 et al., (2016) 374 N.S.R.(2d) 217 (CA)

• Judge: MacDonald, C.J.N.S., Fichaud and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: March 16, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 374 N.S.R.(2d) 217 (CA);2016 NSCA 40

CanMar Contracting v. LIUNA (2016), 374 N.S.R.(2d) 217 (CA);

    1178 A.P.R. 217

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. MY.047

Labourers International Union of North America, Local 615 (appellant) v. CanMar Contracting Ltd., Labour Board (Nova Scotia), Sean Patrick McSween, Carlos Lopez and George Panteleios (respondents)

(CA 441370; 2016 NSCA 40)

Indexed As: CanMar Contracting Ltd. v. Labourers International Union of North America, Local 615 et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Fichaud and Bryson, JJ.A.

May 31, 2016.

Summary:

Local 615 of the Labourers International Union applied to the Labour Board to be certified for a unit of labourers employed by CanMar Contracting Ltd. CanMar claimed that membership cards signed by some employees did not represent their true wishes. The Board held that, without an intervention by the employees whose wishes were questioned, CanMar had no standing to challenge the cards. Following its established policy, the Board considered the wishes of employees who were on site performing labourers' work on the day of the union's application for certification. Thus, the views of two employees (Lopez and Panteleios), on leave that day, were not counted. The Board found that Local 615 had supplied membership evidence of over 50% of the employees in the appropriate unit, and certified Local 615 without a vote under Part II of the Trade Union Act. The certification was effective as of April 1, 2014, a date shortly after the application for certification had been filed. CanMar applied for judicial review.

The Nova Scotia Supreme Court, in a decision reported at (2015), 357 N.S.R.(2d) 303; 1127 A.P.R. 303, set aside the Board's certification order. The Court concluded that: (1) the Board's ruling on CanMar's standing was procedurally unfair and unreasonable, and (2) the Board's failure to consider the wishes of the employees on leave was unreasonable. Local 615 appealed from both conclusions. CanMar cross-appealed, asserting that the Board's backdating of the certification was unreasonable. The two employees on leave submitted that the Board's failure to consider their wishes offended the values of the Charter and was disproportionate under the "Doré principles".

The Nova Scotia Court of Appeal allowed Local 615's appeal, overturned the decision of the Supreme Court and restored the Board's preliminary (ruling on standing) and final decisions. The Court dismissed CanMar's cross appeal, and dismissed the ground of the Notice of Contention by Lopez and Panteleios.

Civil Rights - Topic 2144.1

Freedom of association - Limitations on - Collective bargaining and employer or employee groups - [See fourth Labour Law - Topic 4154 ].

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - General - Application - Administrative law (incl. boards, tribunals and Crown corporations) - [See fourth Labour Law - Topic 4154 ].

Labour Law - Topic 802

Labour relations boards and judicial review - Procedure - Effect of rules or practice adopted by board - The appellant union applied to the Nova Scotia Labour Board to be certified for a unit of labourers - Following its established policy, the Board considered the wishes of employees who were on site performing labourers' work on the day of the union's application for certification (the "date of application rule") - In the result, the views of two employees, on leave that day, were not counted - The Nova Scotia Court of Appeal stated that "[t]he date of application rule is a permissible policy or practice to effectuate the objectives of the Trade Union Act. It is consistent with the words, context and scheme of the statute, and the Legislature's objectives with Part II. The policy decision to frame the rule as the Board has done, instead of a variant, either version being reasonable, is for the Board, not the court." - See paragraph 104.

Labour Law - Topic 4154

Unions - Certification - Appropriate bargaining unit - Judicial review of board determination - Local 615 applied to the Nova Scotia Labour Board to be certified for a unit of labourers employed by CanMar - CanMar claimed that membership cards signed at a restaurant where alcohol was consumed by some employees did not represent their true wishes, and asked the Board to dismiss the application (Trade Union Act, s. 25(11)) - The Board ruled that, without an intervention by those employees, CanMar had no standing to challenge the cards (the preliminary decision) - The reviewing judge described the issue as procedural fairness, with no standard of review - He set aside the Board's denial of standing as procedurally unfair - Local 615 appealed - The Nova Scotia Court of Appeal held that the judge erred in his characterization of the issue, his application of procedural fairness and the standard of review - "The judge set aside the Preliminary Decision. This requires the application of a standard of review to the Board's Preliminary Decision. Given that the topic involved the Board's core function of managing a certification application, the standard is reasonableness." - The Board's ruling was a permissible outcome, and was reasonable - The Board exercised its discretion with reference to two policies of labour relations: (1) the choice whether to support a union was personal to the employee, and was not seconded to the employer; and (2) union membership cards signed during a certification process were for the Board's use, not the employer's eyes - "These policies are reasonably consistent with the wording, context, scheme and objectives of the Trade Union Act. The Board applied the policies to guide the exercise of its discretion under s. 25(11)." - See paragraphs 37 to 63.

Labour Law - Topic 4154

Unions - Certification - Appropriate bargaining unit - Judicial review of board determination - Local 615 applied to the Nova Scotia Labour Board to be certified for a unit of labourers employed by CanMar - The Board applied its established practice of counting only the employees who were on site performing labourers' work on the day of the union's application (the date of application rule) - As a result, the views of two employees, on leave that day, were not counted toward the ratio under s. 95(3) of the Trade Union Act - The Board disagreed with CanMar's submission that the date of application rule offended the statutory directive that the bargaining unit comprise a "community of interest" - The reviewing judge set aside the certification order, finding that the Board's analysis "appears to avoid the express legislative requirement in s. 25(14) to consider employee community of interest. It is also inconsistent with the Board's earlier decision in D.B. MacEachern's Electrical Company" - The Nova Scotia Court of Appeal held that the judge's analysis erred in both respects, and misapplied the reasonableness standard - "Here, more was involved than just the community of interest factors from s. 25(14). This was an application for certification in the construction industry, for which the criteria are adjusted by the legislative scheme in Part II. ... Under Part II, the Board's appraisal of 'community of interest' is more attenuated than for a unit under Part I. ... [T]he Board, in a series of decisions spanning forty years, has developed a policy that achieves certainty. The 'date of application rule' means that, on the day of the application for certification, the employee must be 'on site', as required by the Trade Union Act's definition of 'construction industry', and most of his site work that day must be in the craft or trade of the proposed unit. ... I respectfully disagree with the judge that the Board's use of the rule unreasonably offended the principle of 'community of interest' in s. 25(14)." - See paragraphs 64 to 100.

Labour Law - Topic 4154

Unions - Certification - Appropriate bargaining unit - Judicial review of board determination - On March 14, 2014, Local 615 applied to the Nova Scotia Labour Board to be certified as the bargaining agent for CanMar's labourers (construction industry) - Based on CanMar's statutory declaration that it had no labourers, on April 9, 2014, the Board dismissed the application, effective as of April 1, 2014 - Local 615 requested a hearing on the ground that, on March 14, 2014, CanMar did employ construction labourers, a majority of whom belonged to Local 615 - The Board conducted the hearing - On November 27, 2014, the Board overturned its earlier dismissal and granted the certification application, effective as of April 1, 2014 - The reviewing judge rejected CanMar's submission that the Board unreasonably backdated the certification - The Nova Scotia Court of Appeal held that the judge did not misapply the standard of review - The Board's conclusion that the Trade Union Act afforded it the discretion to backdate was reasonable - "The Legislature enacted the Board's discretions in ss. 96(1) and 95(3), so the Board could efficiently resolve disputes over certification in the construction industry. This means the Board's discretionary authority to grant the order includes the power to attach the conditions that are reasonably necessary to achieve an efficient resolution. Those conditions include, in appropriate circumstances, the choice of an effective date for the Board's decision." - The Board reasonably exercised that discretion - Not backdating would have delayed the certification for eight months - The employees in the unit would have been denied the benefit of collective bargaining for that period - That period was significant, given the limited life span of the project - The Board reasonably found that outcome would frustrate the objectives of the Act - See paragraphs 106 to 119.

Labour Law - Topic 4154

Unions - Certification - Appropriate bargaining unit - Judicial review of board determination - Local 615 applied to the Nova Scotia Labour Board to be certified for a unit of labourers employed by CanMar - Following its established policy, the Board considered the wishes of employees who were on site performing labourers' work on the day of the union's application (the "date of application rule") - In the result, the views of two employees (Lopez and Panteleios), on leave that day, were not counted - Lopez and Panteleios filed a Notice of Contention on the ground that, by applying the "date of application rule", the Board's decision was inconsistent with Charter values under s. 2(d) and was disproportionate under the "Doré principles" - The Nova Scotia Court of Appeal dismissed that ground - "[T]he Charter values that underlie s. 2(d) promote a robust and effective system of collective bargaining under the supervision of an independent labour relations board. Second, under Doré/Loyola, are the statutory objectives. ... The Board certified Local 615 because the Board was satisfied that a majority of the employees in the appropriate unit or constituency had signed Local 615's membership cards. This reflects majoritarianism and democracy as the Legislature contemplated in s. 95(3)(b) of the Trade Union Act. Messrs. Lopez and Panteleios were outside that constituency because of the Board's date of application rule. This rule defines the appropriate unit for the purposes of measuring union support. ... [T]hat rule conforms to the wording, context and scheme of the Trade Union Act, and the objective of the Legislature. A known empirical standard to measure union support is a component of the robust and effective system of collective bargaining in the construction industry that is contemplated by both the Charter's values under s. 2(d), and the Legislature's objective with Part II. The Board's date of application rule proportionately balances those values and objectives under Doré and Loyola." - See paragraphs 120 to 136.

Labour Law - Topic 4163

Unions - Certification - Appropriate bargaining unit - Exclusions - Lack of community of interest - [See second Labour Law - Topic 4154 ].

Counsel:

Gordon N. Forsyth, Q.C., for the appellant;

Richard M. Dunlop and Michelle Black, for the respondent, CanMar Contracting Ltd.;

Bradley Proctor, for the respondents, Sean Patrick McSween, Carlos Lopez and George Panteleios;

Edward A. Gores, Q.C., for the respondent, Labour Board (Nova Scotia) (watching).

This appeal and cross-appeal were heard on March 16, 2016, in Halifax, Nova Scotia, before MacDonald, C.J.N.S., Fichaud and Bryson, JJ.A., of the Nova Scotia Court of Appeal. In reasons written by Fichaud, J.A., the Court delivered the following judgment, dated May 31, 2016.