United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction Ltd. et al.,

JurisdictionNew Brunswick
JudgeTurnbull, Larlee and Robertson, JJ.A.
Neutral Citation2002 NBCA 27
Date15 November 2001
CourtCourt of Appeal (New Brunswick)

CJA v. Bransen Constr. Ltd. (2002), 249 N.B.R.(2d) 93 (CA);

    249 R.N.-B.(2e) 93; 648 A.P.R. 93

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [2002] N.B.R.(2d) TBEd. AP.013

United Brotherhood of Carpenters and Joiners of America, Local 1386 (respondent/appellant) v. Bransen Construction Ltd. (applicant/respondent) and Labour and Employment Board (intervener)

(124/01/CA; 2002 NBCA 27)

Indexed As: United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction Ltd. et al.

New Brunswick Court of Appeal

Turnbull, Larlee and Robertson, JJ.A.

March 28, 2002.

Summary:

A construction industry trade union sought to be certified as the bargaining agent for a craft unit consisting of an employer's two carpenters. The employer opposed the ap­pli­cation on the basis that it normally oper­ated with only one carpenter and that the sec­ond's employment would end when an existing project was completed. The Labour and Employment Board allowed the certifi­cation application. On the same date, the employ­er's project ended and it laid off the second carpenter. The Board dismissed the employ­er's application to have the certifi­cation order revoked. The employer applied for judicial review.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision not reported in this series of reports, allowed the application and quashed the Board's deci­sion. The union appealed. The Board sought to make written submissions and appear at the hearing of the appeal, claiming standing as of right. The Board was directed to pro­ceed by motion to be heard immediately before commencement of the appeal hearing.

The New Brunswick Court of Appeal held that the Board lacked standing as of right, but granted it intervener status. The court allowed the appeal, set aside the decision of the motions judge and reinstated the Board's decision.

Administrative Law - Topic 3202

Judicial review - General - Scope or stan­dard of review - An employer sought judicial review of a Labour and Employ­ment Board's decision - The New Bruns­wick Court of Appeal held that the review standard was patent unreasonableness - The court stated that it would have reached the same conclusion if the employer had not framed the issue in terms of a jurisdic­tional question - "This is because the fac­tors to be applied when assessing whether the legislature intended that the tribunal have the jurisdiction to make certain de­ter­minations are also applied when decid­ing whether the legislature intended that the tribunal's decisions would be accorded deference. On reflection, it may be that the notion of jurisdictional error, in the narrow sense of that word, has been overtaken or subsumed by the pragmatic and functional approach as restated in the subsequent jurisprudence governing the standard of review issue ... To the extent that true jurisdictional questions involve the inter­pretation of a tribunal's enabling statute, and most do, it makes little sense to per­petuate the Bibeault [S.C.C.] analysis. It merely raises the expectations of counsel who need to avoid the application of the deference doctrine if their client is to succeed. The bottom line is that if you have an interpretative issue that involves the application of a specialized tribunal's expertise, and that interpretative decision is protected by a privative clause, the re­view­ing court must grant deference to that decision. In these circumstances, it makes no difference whether the interpretative issue is classified as jurisdictional or not." - See paragraph 49.

Administrative Law - Topic 3202

Judicial review - General - Scope or stan­dard of review - A union sought to be certified as the bargaining agent for a craft unit consisting of an employer's two car­penters - The employer opposed the ap­pli­cation on the basis that it normally oper­ated with one carpenter and that the sec­ond's employment would end when the current project was completed - In allow­ing the application, the Labour and Em­ployment Board concluded that ss. 13 and 40 of the Industrial Relations Act enabled it to assess employee numbers as of the date of the application for purposes of determining the existence of a bargain­ing unit and its appropriateness - On the same date, the employer's project and the second carpenter's employment ended - The em­ployer sought judicial review - The New Brunswick Court of Appeal applied the pragmatic and functional analysis and held that the legislature intended that the Board possess the jurisdiction to determine if a unit of employees was appropriate for collective bargaining and to select the date at which numbers in a proposed bargaining unit would be calculated - In reaching this conclusion the court considered that the Board was an expert tribunal whose deci­sions were protected by a full privative clause and that the issue fell within its expertise - Accordingly, the review stan­dard was patent unreasonableness - See paragraphs 38 to 49.

Administrative Law - Topic 3221

Judicial review - General - Unreasonable­ness of decision attacked - An employer sought judicial review of a labour tribu­nal's decision - The New Brunswick Court of Appeal, in applying the review standard of patent unreasonableness, stressed that the issue was not whether the tribunal had adopted a rational solution, but whether its interpretation was one that could be ration­ally supported on a construction that the relevant legislation could bear - Labour tribunals were no different than courts when called on to interpret legisla­tion - The objective was to identify the legisla­ture's intent by reference to accepted inter­pretation principles - Thus, every tribunal had to ask itself whether the con­struction that it wished to place on a pro­vision of its enabling statute was rationally supported from an interpretative and not just a policy perspective - Often the inter­pretation prin­ciples will be of no assistance - If the provision in question is sufficient­ly am­biguous to admit of two possible construc­tions, the tribunal may adopt the one that best promotes the legislation's objectives as seen from the tribunal's per­spective - See paragraph 59.

Administrative Law - Topic 3347

Judicial review - General - Practice - Par­ties (incl. standing) - The Labour and Employment Board allowed a certification application - The employer successfully applied for judicial review - The union appealed - The Board claimed standing as of right - The New Brunswick Court of Appeal stated that the decision under attack involved a "lis inter partes" i.e. the tribu­nal's decision was being challenged by one party and defended by another - By con­trast, in some tribunal settings there was no one to defend the tribunal's deci­sion other than the tribunal or the Attorney General acting on its behalf - In such cases, no one should question the right of the tribunal to participate as a party to any review pro­ceedings - However, the same did not hold true where an independent tribunal was asked to rule on the respect­ive rights of two opposing parties - See paragraph 9.

Administrative Law - Topic 3347

Judicial review - General - Practice - Par­ties (incl. standing) - The Labour and Employment Board allowed a certification application - The employer successfully sought judicial review - The union ap­pealed - The Board claimed standing as of right where it was served with the judi­cial review application or notice of appeal (Court of Queen's Bench Rules 62.06(3)(a) and 69.05(1)(b)) - The Board relied on s. 1 of the Judicature Act which defined "party" as including "every person served with notice of, or attending any proceed­ing, although not named in the record." - The New Brunswick Court of Appeal held that mere service on a tribunal was an insufficient basis on which to maintain that it was a party thereto - The court cau­tioned that the Judicature Act's definition of "party" embraced two conditions pre­ced­ent - First, the person had to be served with notice of the review proceed­ing and, sec­ond, he or she must not have been named in the record - See paragraphs 10 to 12.

Administrative Law - Topic 3347

Judicial review - General - Practice - Par­ties (incl. standing) - The New Bruns­wick Court of Appeal set out guidelines for deciding whether to grant a tribunal inter­vener status and made observations in support of the guidelines - See paragraphs 13 to 36 - The court stated that "in sum­mary, a tribunal seeking intervener status must persuade the court that: the case is of precedential significance; the tribunal can contribute to the proceedings in a way not reasonably expected of the parties; and the principle of impartiality can and will be respected. Written submissions that address the merits of the decision do not offend this principle, except those intended to bootstrap tribunal reasons that are material­ly deficient. Oral submissions that respond only to questions posed by the reviewing court, or are of brief duration, qualify as non-aggressive participation that respect the principle of impartiality." - See para­graph 36.

Administrative Law - Topic 3347

Judicial review - General - Practice - Par­ties (incl. standing) - A union sought to be certified as the bargaining agent for a craft unit consisting of an employer's two car­penters - The employer opposed the ap­plication on the basis that it normally operated with one carpenter and that the second's employment would end when the current project was completed - The La­bour and Employment Board allowed the certification application - On the same date, the employer's project and the second carpenter's employment ended - On judi­cial review, a motions judge quashed the certification - The union appealed - The New Brunswick Court of Appeal granted the Board intervener status - The Board's written submissions were helpful and amplified that contained within its judg­ment - This was not a case of "bootstrap­ping" - Because of its specialized jurisdic­tion and expertise, the Board had some­thing to contribute, beyond that expected of the parties - See paragraph 37.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See both Adminis­trative Law - Topic 3202 ].

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - General - Standard of review - [See both Administrative Law - Topic 3202 and Administrative Law - Topic 3221 ].

Labour Law - Topic 604

Labour relations boards and judicial review - Judicial review - Jurisdiction - Provin­cial boards - Whether decision patently unrea­sonable - [See second Administra­tive Law - Topic 3202 and Administra­tive Law - Topic 3221 ].

Labour Law - Topic 4153

Unions - Certification - Appropriate bar­gaining unit - Power of board to deter­mine unit - A union sought to be certified as the bargaining agent for a craft unit consisting of an employer's two carpenters - The employer opposed the application on the basis that it normally operated with one carpenter and that the second's em­ploy­ment would end upon completion of a project - The project ended on the day of the certification hearing - The Labour and Employment Board granted certification, concluding that ss. 13 and 40 of the Indus­trial Relations Act enabled it to assess employee numbers as of the date of the application for purposes of determining the existence of a bargaining unit and its ap­propriateness - The New Brunswick Court of Appeal dismissed the employer's judi­cial review application - The Act was ambiguous - The Board adopted the inter­pretation and practice followed by labour tribunals throughout Canada - Although inflexible, that interpretation addressed the transient nature of employment in the construction industry and the need to avoid protracted labour disputes - The decision was not patently unreasonable - See para­graphs 50 to 66.

Labour Law - Topic 4154

Unions - Certification - Appropriate bar­gaining unit - Judicial review of board determination - [See second Administra­tive Law - Topic 3202 ].

Practice - Topic 233

Persons who can sue and be sued - Agen­cies of government - Administrative tri­bunals - [See first and second Adminis­trative Law - Topic 3347 ].

Practice - Topic 302

Parties - General - Party defined - [See first and second Administrative Law - Topic 3347 ].

Practice - Topic 681

Parties - Adding or substituting parties - Intervenors - Persons who may apply - [See fourth Administrative Law - Topic 3347 ].

Cases Noticed:

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 2].

Paccar of Canada Ltd. v. Canadian Asso­ci­ation of Industrial, Mechanical and Al­lied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1; 62 D.L.R.(4th) 437; 89 C.L.L.C. 14,050; [1989] 6 W.W.R. 673; 40 Admin. L.R. 181, refd to. [para. 2].

Syndicat national des employés de la com­mission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244; 35 Admin. L.R. 153, refd to. [para. 3].

Union des employés de services, local 298 v. Bibeault - see Syndicat national des employés de la commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Bibeault - see Syndicat national des em­ployés de la commission scolaire ré­gionale de l'Outaouais (CSN) v. Union des employés de service, local 298.

U.E.S. - see Union des employées de service.

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R.(3d) 417; 79 C.L.L.C. 14,209, refd to. [para. 4].

Labour Relations Board (Sask.) v. Domin­ion Fire Brick and Clay Products Ltd., [1947] S.C.R. 336, refd to. [para. 11].

Ferguson Bus Lines Ltd. v. Amalgamated Transit Union, Local 1374, [1990] 2 F.C. 586; 108 N.R. 293 (F.C.A.), refd to. [para. 18].

British Columbia Government Employees' Union v. Industrial Relations Council, [1988] B.C.J. No. 2009 (C.A.), refd to. [para. 19].

International Association of Machinists v. Genaire Ltd. and Ontario Labour Rela­tions Board (1958), 18 D.L.R.(2d) 588 (Ont. C.A.), refd to. [para. 25].

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. 25].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 33].

Universal Constructors & Engineers Ltd. v. Labour Relations Board (N.B.) (1960), 27 D.L.R.(2d) 423 (C.A.), not folld. [para. 38].

Crevier v. Quebec (Attorney General) and Aubry; Crevier v. Quebec (Attorney General) and Cofsky and Alberta (Attor­ney General), [1981] 2 S.C.R. 220; 38 N.R. 541, refd to. [para. 40].

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 44].

McLaughlin v. United Food and Commer­cial Workers International Union, Local 1288P et al. (1995), 161 N.B.R.(2d) 81; 414 A.P.R. 81 (C.A.), refd to. [para. 46].

Asbestos Corp. Société nationale de l'Amiante and Quebec (Province), Re (2001), 269 N.R. 311; 146 O.A.C. 201 (S.C.C.), not folld. [para. 48].

Trinity Western University et al. v. Col­lege of Teachers (B.C.) et al., [2001] 1 S.C.R. 772; 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161, not folld. [para. 48].

Toronto Newspaper Guild v. Globe Print­ing Co., [1953] 2 S.C.R. 18, refd to. [para. 55].

Université du Québec à Trois-Riviéres v. Syndicat des employés professionnels de l'Université du Québec à Trois-Riviéres, [1993] 1 S.C.R. 471; 148 N.R. 209; 53 Q.A.C. 171, refd to. [para. 56].

Loch Lomond Villa Inc. v. New Bruns­wick Government Employees' Union, Local 5 (1993), 139 N.B.R.(2d) 167; 357 A.P.R. 167 (Q.B.), refd to. [para. 56].

Allsco Building Products Ltd. v. United Food and Commercial Workers Interna­tional Union, Local 1288P (2000), 223 N.B.R.(2d) 202; 572 A.P.R. 202 (C.A.), refd to. [para. 57].

Canada (Attorney General) v. Public Ser­vice Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161; 101 D.L.R.(4th) 673; 93 C.L.L.C. 14,022, refd to. [para. 57].

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; 91 C.L.L.C. 14,002; 76 D.L.R.(4th) 389; 48 Admin. L.R. 1, refd to. [para. 57].

Lester (W.W.) (1978) Ltd. - see Planet Development Corp.

Ivanhoe Inc. et al. v. United Food and Commercial Workers, Local 500 et al., [2001] 2 S.C.R. 565; 272 N.R. 201, refd to. [para. 57].

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses' Association et al., [1975] 1 S.C.R. 382, refd to. [para. 58].

Colautti Construction Ltd. v. International Union of Operating Engineers, Local 793 (1986), 86 C.L.L.C. 12,379 (Ont. Div. Ct.), refd to. [para. 64].

Statutes Noticed:

Industrial Relations Act, R.S.N.B. 1973, c. I-4, sect. 13(1) [para. 50]; sect. 40(6)(a) [para. 53].

Judicature Act, R.S.N.B. 1973, c. J-2, sect. 1 [para. 10].

Authors and Works Noticed:

Kerans, Roger P., Standards of Review Employed by Appellate Courts (1994), generally [para. 33].

Mullan, David J., Administrative Law (2001), pp. 455, 456 [para. 30].

Counsel:

Joël Michaud, for the appellant;

G. Robert Basque, Q.C., for the respon­dent;

Paul H. Blanchet, for the intervenor.

This appeal was heard on November 15, 2001, by Turnbull, Larlee and Robertson, JJ.A., of the New Brunswick Court of Ap­peal. Robertson, J.A., delivered the fol­lowing reasons for judgment of the court on March 28, 2002.

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    ...2011 BCCA 476, 344 D.L.R. (4th) 292; United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction Ltd., 2002 NBCA 27, 249 N.B.R. (2d) 93; Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.......
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    ...Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction, 2002 NBCA 27, 249 N.B.R. (2d) 93, Gemtec Limited & Robert G. Lutes v. The Queen, 2006 NBQB 439, Childs v. Desormeaux (2003), 67 O.R. (3d) 385, (C.A.), On......
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36 cases
  • Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44
    • Canada
    • Supreme Court (Canada)
    • September 25, 2015
    ...2011 BCCA 476, 344 D.L.R. (4th) 292; United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction Ltd., 2002 NBCA 27, 249 N.B.R. (2d) 93; Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.......
  • R. v. Hawkins Bros. Fisheries Ltd., (2006) 308 N.B.R.(2d) 163 (CA)
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    • New Brunswick Court of Appeal (New Brunswick)
    • November 30, 2006
    ...Inc. v. Scott et al. United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction Ltd. et al. (2002), 249 N.B.R.(2d) 93; 648 A.P.R. 93; 2002 NBCA 27, refd to. [para. 20]. Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; ......
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2 firm's commentaries
  • Court Of Appeal Summaries (November 1-5, 2021)
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    • Mondaq Canada
    • November 10, 2021
    ...Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction, 2002 NBCA 27, 249 N.B.R. (2d) 93, Gemtec Limited & Robert G. Lutes v. The Queen, 2006 NBQB 439, Childs v. Desormeaux (2003), 67 O.R. (3d) 385, (C.A.), On......
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    ...Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction, 2002 NBCA 27, 249 N.B.R. (2d) 93, Gemtec Limited & Robert G. Lutes v. The Queen, 2006 NBQB 439, Childs v. Desormeaux (2003), 67 O.R. (3d) 385, (C.A.), On......

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