Saskatchewan Regional Council of Carpenters, Drywall, Millwrights and Allied Workers et al. v. Communication, Energy and Paperworkers Union of Canada et al., 2012 SKQB 375

• Jurisdiction: Saskatchewan
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Judge: Keene, J.
• Citation: 2012 SKQB 375,(2012), 406 Sask.R. 32 (QB)
• Date: 13 September 2012
• Subject Matter: LABOUR LAW,ADMINISTRATIVE LAW

CJA v. CEPU (2012), 406 Sask.R. 32 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. SE.080

In The Matter Of an Application pursuant to Part 52 of the Queen's Bench Rules to set aside the Decision of the Saskatchewan Labour Relations Board dated 27 September 2010, 10 January 2011 and 22 July 2011

Saskatchewan Regional Council of Carpenters, Drywall, Millwrights and Allied Workers, the United Brotherhood of Carpenters and Joiners of America, Local 1985, and the United Brotherhood of Carpenters and Joiners of America (Millwrights Union, Local 1021) and Local 01 Saskatchewan of the International Union of Bricklayers & Allied Craftworkers and its parent organization the International Union of Bricklayers & Allied Craftworkers (BAC) (applicants) v. Communication, Energy and Paperworkers Union of Canada, J.V.D. Mill Services Inc., and Saskatchewan Labour Relations Board (respondents)

(2011 Q.B.G. No. 1790; 2012 SKQB 375)

Indexed As: Saskatchewan Regional Council of Carpenters, Drywall, Millwrights and Allied Workers et al. v. Communication, Energy and Paperworkers Union of Canada et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Keene, J.

September 13, 2012.

Summary:

The Communications, Energy and Paperworkers Union (CEP) applied for certification as bargaining agent for J.V.D. Mill Services, excluding office, sales managers and supervisors. Other trade unions applied for intervenor status. The Labour Relations Board granted public intervenor status to some of the trade unions, but limited to presenting argument (no evidence). Following a hearing on the merits, the Board allowed CEP's certification application. The trade unions applied for the Board to reconsider its two decisions. The LRB denied reconsideration. The trade unions sought judicial review of all three decisions. At issue was (1) the standard of review; (2) the admissibility of affidavit evidence; (3) whether the trade unions had standing to bring the judicial review application; (4) whether the application should be dismissed for undue delay; and (5) whether the intervenor decision, the decision on the merits and the reconsideration decision should be set aside, quashed or remitted.

The Saskatchewan Court of Queen's Bench dismissed the application on the ground that the trade unions lacked standing under rule 655 to apply for judicial review. The court provisionally determined that the application would have also been dismissed under rule 675 for undue delay and because there were no reviewable concerns arising out of any of the three decisions.

Administrative Law - Topic 3306

Judicial review - General - Bars - Delay - A union (CEP) applied for certification as bargaining agent for a group of employees - Other trade unions applied for intervenor status - The Labour Relations Board granted public intervenor status to some of the trade unions, limited to presenting argument - The Board allowed CEP's certification application - The trade unions applied for the Board to reconsider its two decisions - The LRB denied reconsideration - The trade unions sought judicial review of all three decisions - The Saskatchewan Court of Queen's Bench dismissed the application for lack of status (rule 658), but would also have dismissed it for undue delay under rule 675 - The trade unions did not seek reconsideration or judicial review of the intervenor decision before the certification hearing, the final decision on certification or the reconsideration decision - It was not a reasonable explanation for the delay for the trade unions to say that they need not challenge the intervenor decision until after the Board's final decision - The court stated that "to wait until after the certification hearing had been held, the receipt of the Final Decision and then a reconsideration hearing was heard and determined, is at the very least detrimental to good administration" - If the application were allowed, everyone would be put several years back to the beginning of the certification application, which would result in significant expense and frustration to the respondents, which was a hardship to be avoided - See paragraphs 40 to 47.

Administrative Law - Topic 3345.1

Judicial review - Practice - Evidence - Trade unions sought judicial review of three Labour Relations Board decisions - At issue was the admissibility of an affidavit filed by one of the applicants - The Saskatchewan Court of Queen's Bench ruled that the affidavit was inadmissible - The governing principle was that "parties to a judicial review application should be able to put before a reviewing court all of the material which bears on the arguments they are entitled to make. ... the best course ... is to simply recognize the right of participants in judicial review proceedings to bring forward the evidence which was before the administrative decision-maker. This may be done by way of an affidavit which identifies how the evidence relates to the issues before the court and which otherwise lays the groundwork for its admission" - The court stated that "the affidavit ... attempts to provide new and to a degree, speculative evidence. I do not accept that his affidavit merely tries to show what evidence might have been called by the applicants. I appreciate that this is an attempt to support the natural justice argument, but I find the transcript evidence (particularly of course dealing with the intervenor application) adequately describes what was presented to the panel" - See paragraphs 15 to 16.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - A union (CEP) applied for certification as bargaining agent for a group of employees - Other trade unions applied for intervenor status - The Labour Relations Board granted public intervenor status to some of the trade unions, limited to presenting argument - The Board allowed CEP's certification application - The trade unions applied for the Board to reconsider its two decisions - The LRB denied reconsideration - The trade unions sought judicial review of all three decisions - The Saskatchewan Court of Queen's Bench held that the trade unions lacked status under rule 658 to seek judicial review - The trade unions, as "strangers" limited to presenting argument at the conclusion of the certification hearing, did not have a "sufficient interest" in the hearing to give them status under rule 658 - The trade unions appeared to be "mere arguers providing a generalized labour perspective" - They were not directly involved in the certification or in its outcome - See paragraphs 17 to 39.

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - Standard of review - The Communications, Energy and Paperworkers Union (CEP) applied for certification as bargaining agent for J.V.D. Mill Services, excluding office, sales managers and supervisors - Other trade unions applied for intervenor status - The Labour Relations Board granted intervenor status to some of the trade unions, but limited to presenting argument (no evidence) - Following a hearing on the merits, the Board allowed CEP's certification application - The trade unions applied for the Board to reconsider its two decisions - The LRB denied reconsideration - The trade unions sought judicial review of all three decisions - The Saskatchewan Court of Queen's Bench held that all three decisions were subject to the reasonableness standard of review - However, "when it comes to the applicable standard of review regarding issues of natural justice, procedural fairness and the duty of fairness regarding the decision of the Board the review is to be based on the standard of correctness" - See paragraphs 9 to 14.

Labour Law - Topic 4605

Unions - Certification or decertification - Judicial review - Status or standing - [See Administrative Law - Topic 3347 ].

Cases Noticed:

United Brotherhood of Carpenters and Joiners of America, Local 1985 et al. v. Graham Construction and Engineering Ltd. et al. (2008), 311 Sask.R. 1; 428 W.A.C. 1; 2008 SKCA 67, refd to. [para. 9].

United Brotherhood of Carpenters and Joiners of America, Local 1985 et al. v. Labour Relations Board (Sask.) et al. (2011), 378 Sask.R. 82; 2011 SKQB 380, refd to. [para. 11].

Stonechild, Re (2007), 304 Sask.R. 1; 413 W.A.C. 1; 2007 SKCA 74, refd to. [para. 15].

Saskatchewan Federation of Labour et al. v. Saskatchewan (Attorney General) et al. (2010), 365 Sask.R. 216; 2010 SKQB 390, refd to. [para. 28].

Henry v. Workers' Compensation Board (Sask.) (1999), 177 Sask.R. 35; 199 W.A.C. 35; 172 D.L.R.(4th) 73 (C.A.), refd to. [para. 42].

Remai Investment Corp. v. Saskatchewan Joint Board, Retail, Wholesale and Department Store Union, [1993] 3rd Quarter Sask. Labour Rep. 103 (L.R.B.), refd to. [para. 74].

Counsel:

Drew S. Plaxton, for the applicants;

Bruce Laughton, Q.C., for the respondents, Communication, Energy and Paperworkers Union of Canada;

Kevin C. Wilson, Q.C., for the respondents, J.V.D. Mill Services Inc.

This application was heard before Keene, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on September 13, 2012.