CJA v. Graham Constr., 2008 SKCA 67

• Jurisdiction: Saskatchewan
• Judge: Cameron, Lane and Jackson, JJ.A.
• Neutral Citation: 2008 SKCA 67
• Court: Court of Appeal (Saskatchewan)
• Date: 05 February 2007
• Citation: 2008 SKCA 67,(2008), 311 Sask.R. 1 (CA),296 DLR (4th) 622,[2008] 8 WWR 421,71 Admin LR (4th) 259,[2008] SJ No 319 (QL),311 Sask R 1,(2008), 311 SaskR 1 (CA),296 D.L.R. (4th) 622,311 SaskR 1,311 Sask.R. 1,[2008] S.J. No 319 (QL)

CJA v. Graham Constr. (2008), 311 Sask.R. 1 (CA)

    428 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. MY.034

United Brotherhood of Carpenters and Joiners of America, Local 1985; Construction & General Workers, Local 890, Construction & General Workers, Local 180; International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771; International Union and Operating Engineers, Local 870; Hoisting, Portable and Stationary Operative Plasterers & Cement Masons International Association, Local 222 (appellants) v. Graham Construction and Engineering Ltd.; Graham Construction and Engineering (1985) Ltd.; BFI Constructors Ltd., Banff Labour Services Ltd.; Jasper Labour Services Ltd., Banff Financial Co. Inc.; Peter Ballantyne Construction Ltd., Points North Construction Ltd.; Graham Industrial Constructors Ltd.; Graham Industrial Services Ltd. (respondents) and The Saskatchewan Labour Relations Board (respondent)

(No. 1300; 2008 SKCA 67)

Indexed As: United Brotherhood of Carpenters and Joiners of America, Local 1985 et al. v. Graham Construction and Engineering Ltd. et al.

Saskatchewan Court of Appeal

Cameron, Lane and Jackson, JJ.A.

May 22, 2008.

Summary:

Six unions applied to the Saskatchewan Labour Relations Board for: (a) an order pursuant to s. 5(d) of the Trade Union Act (TUA) declaring that Graham Construction and Engineering (1985) Ltd. (Graham 1985) had committed an unfair labour practice or otherwise violated the TUA; (b) an order requiring Graham 1985 to refrain from violating the TUA and rectify any violation pursuant to s. 5(e); (c) an order requiring Graham 1985 to comply with the union security requirements of s. 36 of the TUA; (d) an order under s. 37 of the TUA declaring that Graham 1985 was a successor to Graham Construction and Engineering Ltd. (Graham Engineering); and (e) an order under s. 18 of the Construction Industry Labour Relations Act 1992 declaring that Graham 1985 and other companies were common employers. Graham 1985 defended on the basis that the unions had abandoned the right to bargain collectively. The Board heard the successorship and abandonment issues first. The Board found that Graham 1985 was a successor to Graham Engineering. However, the Board refused to make an order of successorship because it found that the unions had abandoned their collective bargaining rights as against Graham 1985. The unions applied for judicial review, seeking to quash the Board's finding of abandonment. On a preliminary application, the unions sought to include in the record some 3000 pages of transcript and six boxes of exhibits.

The Saskatchewan Court of Queen's Bench, in a decision reported at 268 Sask.R. 141, determined that the record constituted the pleadings, the decision and the reasons, and refused to expand it to include the transcript and exhibits.

The Saskatchewan Court of Queen's Bench, in a decision reported at 278 Sask.R. 283, dismissed the main application for judicial review. The unions appealed from the judgment which declined to expand the record and from the judgment which dismissed their judicial review application.

The Saskatchewan Court of Appeal, Cameron, J.A., dissenting, allowed the appeal from both decisions. The Board's decision finding abandonment was quashed.

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - Six unions applied to quash a decision of the Saskatchewan Labour Relations Board - The two principal issues were: (i) did the Board have the authority to order that a union had abandoned its collective bargaining rights; and (ii) under what circumstances could bargaining rights be declared to be abandoned, or in other words, what was the legal content of the doctrine of abandonment - A third question was whether the Board's application of the law to the facts was reasonable - The unions attempted to cast the first issue, as to whether the Board had the authority to find abandonment, as a jurisdictional one so as to attract a correctness standard of review - The Saskatchewan Court of Appeal, held that "Keeping in mind the caution against labelling too readily something as jurisdictional, in my view this is not a jurisdictional question but a question of legislative interpretation" - The court concluded that on all of the questions under consideration the standard of review was reasonableness - See paragraphs 36 to 45.

Administrative Law - Topic 5060

Judicial review - Certiorari - The record - What constitutes the "record" - Six unions applied to quash a decision of the Saskatchewan Labour Relations Board - The unions sought to include in the record some 3000 pages of transcript and six boxes of exhibits - The chambers judge determined that the record constituted the pleadings, the decision and the reasons, and refused to expand it to include the transcript and exhibits - The unions appealed - The Saskatchewan Court of Appeal stated that the law governing the issue had changed since the appeal was first argued - As a result of the decision in Hartwig (Stonechild, Re) (Sask. C.A.), the court now recognized the right of participants in judicial review proceedings to bring forward the record that was before the administrative decision-maker - In the result, the appeal from the chambers judge's decision was allowed - See paragraphs 2 and 34 to 35.

Labour Law - Topic 406

Labour relations boards and judicial review - Boards - General - Whether board bound by its prior decisions - [See Labour Law - Topic 4905 ].

Labour Law - Topic 448

Labour relations boards and judicial review - Boards - Jurisdiction - Successor rights and obligations - Six unions applied to the Saskatchewan Labour Relations Board, seeking, inter alia, an order under s. 37 of the Trade Union Act (TUA) declaring that Graham Construction and Engineering (1985) Ltd. (Graham 1985) was a successor to Graham Construction and Engineering Ltd. (Graham Engineering) - The Board found that Graham 1985 was a successor to Graham Engineering - However, the Board refused to make an order of successorship because it found that the unions had abandoned their collective bargaining rights as against Graham 1985 - The unions applied to quash the Board's finding of abandonment - The Saskatchewan Court of Appeal held that the Board's implicit decision that it had the authority to find that the unions had abandoned their right to bargain collectively under s. 37 was reasonable - The court stated that "The question of whether a union, because of its inactivity, no longer represents employees in the bargaining unit is a reasonable consideration when deciding whether one company is the successor to another. It is foreseeable that a board would consider whether a union continues to represent the employees of the company for which the union was certified. In addition to the assertion of power under s. 37, the Board has the explicit powers conferred by s. 42 of the TUA ... The statutory base, combined with the Board's almost exclusive authority and supervisory role in relation to certification orders, and a union's duty to promote actively the bargaining rights it acquires under such order, leads one to the conclusion that the Board has the authority to declare that a union has abandoned the right to bargain collectively - at least in this context under s. 37" - See paragraphs 47 to 53.

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - Standard of review - [See Administrative Law - Topic 3210 ].

Labour Law - Topic 4904

Unions - Successor rights and obligations - Jurisdiction - [See Labour Law - Topic 448 ].

Labour Law - Topic 4905

Unions - Successor rights and obligations - Effect of abandonment of collective bargaining rights - Six unions applied to the Saskatchewan Labour Relations Board, seeking, inter alia, an order under s. 37 of the Trade Union Act declaring that Graham Construction and Engineering (1985) Ltd. (Graham 1985) was a successor to Graham Construction and Engineering Ltd. (Graham Engineering) - The Board found that Graham 1985 was a successor to Graham Engineering - However, the Board refused to make an order of successorship because it found that the unions had abandoned their collective bargaining rights as against Graham 1985 - The unions applied to quash the Board's finding of abandonment - The Saskatchewan Court of Appeal held that the Board's decision that the unions abandoned the right to bargain collectively did not respect the past jurisprudence of the Board and was unreasonable - It was unreasonable to say that the unions, which held a province-wide agreement in the construction industry, had abandoned their right to bargain collectively when Graham 1985 had never had any employees and it insisted throughout that it was not bound by any collective agreement - See paragraphs 54 to 109.

Cases Noticed:

Hartwig v. Saskatoon City Police Association - see Stonechild, Re.

Hartwig v. Saskatchewan (Inquiry into Matters Relating to the Death of Stonechild, Commissioner) - see Stonechild, Re.

Stonechild, Re, [2007] 10 W.W.R. 689; 304 Sask.R. 1; 413 W.A.C. 1; 284 D.L.R.(4th) 268; 2007 SKCA 74, folld. [para. 2].

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, consd. [para. 3].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al., [2001] 1 S.C.R. 221; 265 N.R. 2; 140 O.A.C. 201, refd to. [para. 37].

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, refd to. [para. 41].

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 41].

Atlas Industries Ltd. v. Labour Relations Board (Sask.) et al. (1999), 177 Sask.R. 307; 199 W.A.C. 307 (C.A.), refd to. [para. 44].

Atlas Industries Ltd. v. Sheet Metal Workers' International Association, Local 296, [2006] 9 W.W.R. 587; 279 Sask.R. 236; 372 W.A.C. 236; 2006 SKCA 48, refd to. [para. 44].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 55].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 57].

International Union of Operating Engineers, Hoisting, Portable and Stationary, Local 870 v. Wappel Concrete and Construction Ltd., [1984] Sask. Lab. Rep. 33 (Lab. Rel. Bd.), consd. [para. 72].

International Brotherhood of Electrical Workers, Local 529 v. Mudjatik Thyssen Mining Joint Venture, [2000] S.L.R.B.R.D. No. 31 (Lab. Rel. Bd.), consd. [para. 78].

Domtar Inc. v. Commission d'appel en matière de lésions professionnelles et autres, [1993] 2 S.C.R. 756; 154 N.R. 104; 55 Q.A.C. 241, refd to. [para. 89].

Lévis (City) v. Fraternité des policiers de Lévis Inc. et al., [2007] 1 S.C.R. 591; 359 N.R. 199; 2007 SCC 14, refd to. [para. 138].

Canadian Broadcasting Corp. v. Syndicat des employés de production du Québec et de l'Acadie, [1984] 2 S.C.R. 412; 55 N.R. 321, refd to. [para. 139].

Canadian Pacific Airlines v. Canadian Air Lines Pilots Association, [1993] 3 S.C.R. 724; 160 N.R. 321, refd to. [para. 139].

Dayco (Canada) Ltd. v. National Automobile Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), [1993] 2 S.C.R. 230; 152 N.R. 1; 63 O.A.C. 1; 102 D.L.R.(4th) 609, refd to. [para. 139].

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, refd to. [para. 139].

Wal-Mart Canada Corp. v. Labour Relations Board (Sask.) et al. (2004), 257 Sask.R. 12; 342 W.A.C. 12; 2004 SKCA 154, refd to. [para. 139].

R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw, [1952] 1 All E.R. 122 (C.A.), refd to. [para. 145].

Burkart et al. v. Dairy Producers Co-operative Ltd. (1990), 87 Sask.R. 241; 74 D.L.R.(4th) 694 (C.A.), refd to. [para. 158].

Saskatchewan Union of Nurses v. Sherbrooke Community Centre et al. (1996), 144 Sask.R. 15; 124 W.A.C. 15 (C.A.), refd to. [para. 181].

United Brotherhood of Carpenters and Joiners of America, Local 1985 et al. v. Graham Construction and Engineering Ltd. et al. (2002), 224 Sask.R. 102; 2002 SKQB 334, refd to. [para. 181].

Statutes Noticed:

Trade Union Act, R.S.S. 1978, c. T-17, sect. 37 [para. 43].

Authors and Works Noticed:

Adams, George W., Canadian Labour Law (2nd Ed.) (2003 Looseleaf), generally [paras. 68, 71, 102, 107, 150, 162].

Charney, Richard J., and Brady, Thomas E.F., Judicial Review in Labour Law (2006 Looseleaf), generally [para. 181].

Counsel:

Drew S. Plaxton, for the appellants;

Larry F. Seiferling, Q.C., for Graham Construction (1985) Ltd.;

Larry B. LeBlanc, Q.C., for Banff Labour Services Ltd., Jasper Labour Services Ltd. and Banff Financial Co. Inc.;

Melanie Baldwin, for the Saskatchewan Labour Relations Board.

This appeal was heard on February 5, 2007, before Cameron, Lane and Jackson, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Court of Appeal was delivered on May 22, 2008, including the following reasons:

Jackson, J.A. (Lane, J.A., concurring) - see paragraphs 1 to 112;

Cameron, J.A., dissenting - see paragraphs 113 to 182.