Casino Nova Scotia/Casino Nouvelle Ecosse v. Nova Scotia (Labour Relations Board),

• Jurisdiction: Nova Scotia
• Judge: Oland, Hamilton and Fichaud, JJ.A.
• Neutral Citation: 2009 NSCA 4
• Citation: (2009), 273 N.S.R.(2d) 370 (CA),2009 NSCA 4,307 DLR (4th) 99,[2009] NSJ No 21 (QL),273 NSR (2d) 370,273 N.S.R.(2d) 370,[2009] NS.J. No 21 (QL),307 D.L.R. (4th) 99,(2009), 273 NSR(2d) 370 (CA),273 NSR(2d) 370
• Date: 05 December 2008
• Court: Court of Appeal of Nova Scotia (Canada)

Casino N.S. v. LRB (2009), 273 N.S.R.(2d) 370 (CA);

    872 A.P.R. 370

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JA.048

Casino Nova Scotia/Casino Nouvelle Ecosse (appellant) v. Nova Scotia Labour Relations Board and Service Employees International Union, Local 902 (respondents)

(CA 298319; 2009 NSCA 4)

Indexed As: Casino Nova Scotia v. Labour Relations Board (N.S.) et al.

Nova Scotia Court of Appeal

Oland, Hamilton and Fichaud, JJ.A.

January 21, 2009.

Summary:

The applicant applied for judicial review of a decision of the Labour Relations Board, which certified the respondent union as bargaining agent for a bargaining unit consisting of full time and part time employees in the applicant's security department.

The Nova Scotia Supreme Court, in a decision reported at 268 N.S.R.(2d) 54; 857 A.P.R. 54, dismissed the application. The applicant appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Administrative Law - Topic 3221

Judicial review - General - Unreasonableness of decision attacked (incl. reasonableness simpliciter) - The Nova Scotia Court of Appeal stated that "[i]n applying reasonableness, the court examines the tribunal's decision, first for process to identify a justifiable, intelligible and transparent reasoning path to the tribunal's conclusion, then second and substantively to determine whether the tribunal's conclusion lies within the range of acceptable outcomes. Several of the [applicant]'s submissions apparently assume that the 'intelligibility' and 'justification' attributed by Dunsmuir [S.C.C. 2008] to the first step allow the reviewing court to analyze whether the tribunal's decision is wrong. I disagree with that assumption. 'Intelligibility' and 'justification' are not correctness stowaways crouching in the reasonableness standard. Justification, transparency and intelligibility relate to process [...] They mean that the reviewing court can understand why the tribunal made its decision, and that the tribunal's reasons afford the raw material for the reviewing court to perform its second function of assessing whether or not the Board's conclusion inhabits the range of acceptable outcomes [...] Under the second step, the court assesses the outcome's acceptability, in respect of the facts and law, through the lens of deference to the tribunal's 'expertise or field sensitivity to the imperatives or nuances of the legislative regime.' This respects the legislators' decision to leave certain choices within the tribunal's ambit, constrained by the boundary of reasonableness [...]" - See paragraphs 29 to 31.

Labour Law - Topic 4154

Unions - Certification - Appropriate bargaining unit - Judicial review of board determination - [See Labour Law - Topic 4601 ].

Labour Law - Topic 4160

Unions - Certification - Appropriate bargaining unit - Exclusions - General - The applicant applied for judicial review of a decision of the Labour Relations Board, which certified the respondent union as bargaining agent for a bargaining unit consisting of full time and part time employees in the applicant's security department - The applicant asserted that dual-rate security supervisors should have been excluded from the unit - The reviewing judge dismissed the application - The Nova Scotia Court of Appeal dismissed an appeal - The Board's decision to include these employees in the unit was based on factual findings - The Board's analysis was logical and the result, while it might not represent the only defensible conclusion which might have been reached, followed a line of analysis reasonably supporting the decision - See paragraphs 45 to 49.

Labour Law - Topic 4167

Unions - Certification - Appropriate bargaining unit - Security personnel - The applicant applied for judicial review of a decision of the Labour Relations Board, which certified the respondent union as bargaining agent for a bargaining unit consisting of full time and part time employees in the applicant's security department - The applicant asserted that the unit applied for was not appropriate for collective bargaining because the same union was already certified to represent a larger group of the applicant's employees - The reviewing judge dismissed the application - The Board's decision was reasonable - The Board recognized that the union had already been certified to represent the general unit of the applicant's employees and assessed the evidence and considered the applicant's arguments - The Board found that there was no evidence to support submissions that a conflict would arise because a larger bargaining unit might exert an improper influence, or that the security officers' loyalty to fellow union members might interfere with their duty to the employer - Further, the Board also reasonably determined that it was doubtful that it had the authority to refuse an application based on the identity of the union, suggesting that once the conditions required for certification set out in s. 25(8) of the Trade Union Act were met, the Board could not refuse certification - The Nova Scotia Court of Appeal dismissed an appeal - The reviewing judge made no error - See paragraphs 50 to 58.

Labour Law - Topic 4251

Unions - Certification - Employees - What constitutes an employee - The applicant applied for judicial review of a decision of the Labour Relations Board, which certified the respondent union as bargaining agent for a bargaining unit consisting of full time and part time employees in the applicant's security department - The applicant asserted that the security officers were not "employees" as defined in s. 2 of the Trade Union Act - The reviewing judge dismissed the application, finding that it was not unreasonable for the Board to find that the security officers were employees under the Act - The Nova Scotia Court of Appeal dismissed an appeal - The Board found, on the evidence, that the security officers performed no meaningful managerial functions and enjoyed no confidential capacity relating to labour relations, particularly discipline - The Board's reasoning exhibited intelligibility, transparency and justification - The decision afforded the reviewing court with the resources to assess whether or not the Board's conclusion lied within the range of acceptable outcomes - See paragraphs 32 to 44.

Labour Law - Topic 4601

Unions - Certification or decertification - Judicial review - General - Standard of - The applicant applied for judicial review of a decision of the Labour Relations Board, which certified the respondent union as bargaining agent for a bargaining unit consisting of full time and part time employees in the applicant's security department - The Nova Scotia Court of Appeal held that "As to the contextual factors, the Trade Union Act, subsections 19(1)(a) and (g) say that the Board's conclusions on employee status and definition of the bargaining unit are 'final and conclusive and not open to question, or review'. The Board is specialized in the field of labour relations. Its decisions are fact specific and informed by the Board's view of industrial relations policy. Issues of bargaining unit appropriateness and employee status are in the Board's core of expertise that the legislature intended to govern the certification process." - The appropriate standard of review was reasonableness - See paragraphs 24 to 28.

Cases Noticed:

Transair Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local #3; Re Canada Labour Relations Board, [1977] 1 S.C.R. 722; 9 N.R. 181, refd to. [para. 16].

Canadian Paperworkers Union (CPU), Local 4 v. Fraser Inc., [1985] N.B.I.R.B. No. 5 (N.B.L.R.B.), refd to. [para. 18].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 21].

Lake v. Canada (Minister of Justice) (2008), 373 N.R. 339; 236 O.A.C. 371; 2008 SCC 23, refd to. [para. 21].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201, refd to. [para. 24].

Police Association of Nova Scotia Pension Plan v. Amherst (Town) - see Amherst (Town) et al. v. Superintendent of Pensions (N.S.).

Amherst (Town) et al. v. Superintendent of Pensions (N.S.) (2008), 268 N.S.R.(2d) 339; 857 A.P.R. 339; 2008 NSCA 74, refd to. [para. 25].

International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432; 198 N.R. 99, refd to. [para. 26].

Royal Oak Mines Inc. v. Canada Labour Relations Board et al., [1996] 1 S.C.R. 369; 193 N.R. 81, refd to. [para. 26].

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [para. 26].

Granite Environmental Inc. v. Labour Relations Board (N.S.) et al. (2005), 238 N.S.R.(2d) 59; 757 A.P.R. 59; 2005 NSCA 141, refd to. [para. 26].

Nova Scotia Liquor Commission, Re (1974), 9 N.S.R.(2d) 248 (C.A.), refd to. [para. 26].

Moncton (City) v. Moncton Police Force Senior Officers' Association et al. (1991), 116 N.B.R.(2d) 158; 293 A.P.R. 158; 82 D.L.R.(4th) 112 (C.A.), refd to. [para. 26].

Director of Assessment (N.S.) v. Wolfson (2008), 273 N.S.R.(2d) 152; 872 A.P.R. 152; 2008 NSCA 120, refd to. [para. 30].

Planet Development Corp. and Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry in the United States and Canada, Local 740, [1990] 3 S.C.R. 644; 123 N.R. 241; 88 Nfld. & P.E.I.R. 15; 274 A.P.R. 15, refd to. [para. 44].

Board of Education of Toronto v. Ontario Secondary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, refd to. [para. 44].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 44].

International Association of Machinists and Aerospace Workers, District Lodge 692 v. United Brotherhood of Carpenters & Joiners of America, Local 2736 (1993), 39 B.C.A.C. 98; 64 W.A.C. 98; 110 D.L.R.(4th) 418 (B.C.C.A.), leave to appeal refused (1994), 179 N.R. 131; 53 B.C.A.C. 240; 87 W.A.C. 240 (S.C.C.), refd to. [para. 56].

New Brunswick Teachers' Federation - La Federation des Enseignants du Nouveau-Brunswick v. New Brunswick and Canadian Union of Public Employees et al. (1970), 3 N.B.R.(2d) 189; 17 D.L.R.(3d) 72 (C.A.), refd to. [para. 57].

CSAO National Inc. v. Oakville Trafalgar Memorial Hospital Association (1972), 26 D.L.R.(3d) 63 (Ont. C.A.), refd to. [para. 57].

Canadian Association of Trades and Technicians (C.A.T.T.) v. Canada (Treasury Board) et al., [1992] 2 F.C. 533; 140 N.R. 151 (F.C.A.), refd to. [para. 57].

Counsel:

Eric Durnford, Q.C., and Amy Bradbury, for the appellant;

Raymond Larkin, Q.C., and Joel Schwartz, for the respondents.

This appeal was heard on December 5, 2008, by Oland, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Fichaud, J.A., on January 21, 2009.