United Brotherhood of Carpenters and Joiners of America, Local 1325 v. J.V. Driver Installations Ltd. et al., 2004 ABQB 915

• Judge: Bielby, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: September 14, 2004
• Citations: 2004 ABQB 915;(2004), 378 A.R. 1 (QB)

CJA v. J.V. Driver Installations (2004), 378 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. DE.102

In The Matter Of the Labour Relations Code, R.S.A. 2000, Chapter L-1

And In The Matter Of Decisions of the Labour Relations Board dated July 31, 2003 and April 16, 2004, both chaired by Deborah Howes, Vice-Chair

The United Brotherhood of Carpenters and Joiners of America, Local 1325 (applicant) v. J.V. Driver Installations Ltd. and Christian Labour Association of Canada (respondents) and Alberta Labour Relations Board (respondent) and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146 (respondent)

(0303 15637; 0403 09643; 2004 ABQB 915)

Indexed As: United Brotherhood of Carpenters and Joiners of America, Local 1325 v. J.V. Driver Installations Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Bielby, J.

December 10, 2004.

Summary:

The Labour Relations Board (LRB) dismissed a union's application for certification as the bargaining agent for a group of employees of J.V. Driver Installations Ltd. because the application was made outside the "open period" under the existing collective agreement. In a second decision, the LRB refused to reopen the hearing into the first matter to receive new evidence which the union wished to tender. The union applied for judicial review of the LRB's decisions.

The Alberta Court of Queen's Bench dismissed the application. The court held that the LRB made a patently unreasonable decision when it determined that the certification application failed because it was made outside of the "open period". However, no relief ensued because the certification application was doomed for other reasons.

Administrative Law - Topic 571

The hearing and decision - Decisions of the tribunal - Academic or moot matters - [See Courts - Topic 2286 ].

Administrative Law - Topic 3351

Judicial review - General - Practice - Intervenors - General - [See first Labour Law - Topic 646 ].

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - A union applied for judicial review of a decision of the Labour Relations Board (LRB), which dismissed its application for certification as the bargaining agent for a group of employees - The respondents argued that the application should not be heard because the applicant no longer had the required support among the affected employees to launch a certification application - The Alberta Court of Queen's Bench held that it would exercise its discretion to hear the matter, notwithstanding the possibility that the result might be moot - Ongoing issues remained between the parties - A ruling on a point of law which might assist the LRB in resolving future conflicts involving similar facts or parties justified the exercise of discretion - See paragraphs 127 to 135.

Labour Law - Topic 527

Labour relations boards and judicial review - Powers of board - To compel production of witnesses and documents - During a hearing before it, the Labour Relations Board (LRB) denied a union's request for production of three letters from the employer's lawyers - The LRB held that solicitor/client privilege had been waived, but it considered that the potential harm arising from disclosure would outweigh any possible relevance or benefit and permitting use of the letters would "likely increase the animosity and level of litigation between the parties" - The LRB suggested that further reasons might be forthcoming on the issue - In its final decision, the LRB commented that as a result of the employer's voluntary production of two of the letters, it would not issue further reasons for its decision on that issue - The Alberta Court of Queen's Bench found no breach of natural justice or procedural fairness arising from the LRB's decision on the production issue - The LRB was not bound by the same rules of evidence as a court (Labour Relations Code, s. 14(5)) - The LRB's discretion to determine admissibility extended beyond issues of relevance - It was entitled to apply considerations of procedural expediency - The LRB's misapprehension that the production issue was resolved with the production of two of the letters did not change the adequacy of the reasons it gave declining production - See paragraphs 105 to 112.

Labour Law - Topic 646

Labour relations boards and judicial review - Natural justice - Denial of - Bias - What constitutes - A union applied for judicial review of a decision of the Labour Relations Board (LRB) which dismissed its application for certification as the bargaining agent for a group of employees - The union argued that the LRB acted improperly and created a reasonable apprehension of bias by permitting certain employers to participate as interveners while refusing the same privilege to other unions and labour-based organizations - The union argued that the LRB's decision had potential wide-ranging implications for future labour relations in the construction industry and the unions and labour-based organizations therefore had an indirect interest in the proceedings - The Alberta Court of Queen's Bench found no apprehension of bias - The LRB's choice of those with a direct interest in the result over those which had an indirect interest was not patently unreasonable, unreasonable or incorrect - See paragraphs 120 to 126.

Labour Law - Topic 646

Labour relations boards and judicial review - Natural justice - Denial of - Bias - What constitutes - A hearing on a certification application before the Labour Relations Board (LRB) concluded - The union applied to reopen the hearing to present new evidence - The LRB dismissed that application, indicating that reasons for that decision would be included it is final reasons on the merits - However, no such reasons were included in its decision dismissing the certification application - The union applied for judicial review of that decision - Months later, after counsel for the LRB raised the issue, the LRB issued written reasons for its decision refusing to reopen the hearing - The union complained that it was not given notice of counsel for the LRB raising the issue, nor given an opportunity to make submissions - The union also argued that the release of the reasons after the commencement of the judicial review application gave rise to an apprehension of bias as the LRB appeared to be acting defensively in the face of a challenge to its decision, and the reasons therefore carried the impression of partiality - The Alberta Court of Queen's Bench found no breach of natural justice or apprehension of bias - See paragraphs 113 to 119.

Labour Law - Topic 655

Labour relations boards and judicial review - Natural justice - Denial of - Evidence - General - [See Labour Law - Topic 527 ].

Labour Law - Topic 830

Labour relations boards and judicial review - Procedure - Decision - General (incl. sufficiency of) - [See Labour Law - Topic 527 and second Labour Law - Topic 646 ].

Labour Law - Topic 2563

Unions - Members' rights or liabilities - Right to change unions - The Alberta Court of Queen's Bench stated that since the Labour Relations Code provided that employees had the right to change unions during the final two months of operation of a collective agreement, a collateral effect of early termination of a collective agreement might be to shorten or remove that "open period" - However, the shortening or removal of the open period could only occur by an informed act of approval by the affected employees - Therefore, while the commencement of a successor collective agreement might trigger the early termination of its predecessor, without informed employee consent it would not have the effect of an early closing of an open period - Employees remained able to take steps to change unions during the final two months in which the collective agreement was originally to operate - Employee ratification of a successor collective agreement would remove the right to change unions only where those employees received advance notice of such a consequence - A "hiring hall dispatch" of a first employee was not sufficient to constitute a waiver of the open period - See paragraphs 2 to 5 and 52 to 81.

Labour Law - Topic 6067

Industrial relations - Collective agreement - General - Ratification - [See Labour Law - Topic 2563 ].

Labour Law - Topic 6429

Industrial relations - Collective agreement - Interpretation - Commencement, duration and extension - Rights following termination - [See Labour Law - Topic 2563 ].

Labour Law - Topic 6461

Industrial relations - Collective agreement - Interpretation - Expiry or termination - General - Section 183 of the Labour Relations Code provided that "a collective agreement entered into by a party to whom this Part applies shall provide for the expiry of the agreement on April 30 calculated biennially from April 30, 1989" - Section 183 was located in Part 3 of the Code entitled "Construction Industry Labour Relations" - The Alberta Court of Queen's Bench held that collective agreements made with employers who were not members of registered employers' organizations were exempt from the Code requirement that collective agreements end on April 30 of alternate years - See paragraphs 7 and 89 to 103.

Cases Noticed:

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, consd. [para. 28].

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, appld. [para. 31].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College (2004), 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1 (S.C.C.), consd. [para. 31].

Alberta v. Labour Relations Board (Alta.) et al. (2002), 293 A.R. 251; 257 W.A.C. 251 (C.A.), refd to. [para. 33].

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. 37].

VIA Rail Canada Inc. v. Cairns et al. (2004), 321 N.R. 201 (F.C.A.), refd to. [para. 43].

Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al. (2004), 348 A.R. 361; 321 W.A.C. 361 (C.A.), refd to. [para. 44].

Alberta Union of Provincial Employees v. Provincial Health Authorities (Alta.) et al. (2004), 368 A.R. 225; 2004 ABQB 591, refd to. [para. 45].

Alberta Union of Provincial Employees v. International Union of Operating Engineers, Local 955 et al. (2004), 370 A.R. 334; 2004 ABQB 635, refd to. [para. 46].

Midwest General Contractors Ltd., Re, [2000] Alta. L.R.B.R. 86, refd to. [para. 66].

Canadian Health Care Guild v. Canadian Union of Public Employees, Local 11588 and Capital Care Group, [1998] Alta. L.R.B.R. 316, consd. [para. 74].

Alberta Union of Provincial Employees v. Canadian Union of Public Employees, Local 875 et al. (2003) 345 A.R. 7; 2003 ABQB 999, consd. [para. 75].

Westbrook Electrical Services Ltd. v. Construction Workers Association Locals 63 and 65, [1991] Alta. L.R.B.R. 56, consd. [para. 93].

Building Trades Council v. TNL Industrial Contractors Ltd. and Ledcor Industries et al. - see Alberta & N.W.T. (District of MacKenzie) Building and Construction Trades Council on Behalf of its Affiliated Local Unions v. Ledcor Industries Ltd. et al.

Alberta & N.W.T. (District of MacKenzie) Building and Construction Trades Council on Behalf of its Affiliated Local Unions v. Ledcor Industries Ltd. et al., [1996] Alta. L.R.B.R. 497, affd. [1996] A.R. Uned. 686 (Q.B.), affd. [2001] A.R. Uned. 14 (C.A.) leave to appeal refused (2001), 275 N.R. 388 (S.C.C.), refd to. [para. 98].

Gallagher v. Hotel Employees and Restaurant Employees International Union, Local 47 (1994), 155 A.R. 260; 73 W.A.C. 260 (C.A.), refd to. [para. 110].

Fenske et al. v. Alberta (Minister of Environment) et al. (2002), 303 A.R. 356; 273 W.A.C. 356 (C.A.), refd to. [para. 125].

Cook v. Alberta (Minister of Environmental Protection) (2001), 293 A.R. 237; 257 W.A.C. 237 (C.A.), refd to. [para. 125].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 128].

Sheet Metal Workers' International Association, Local Union No. 8 v. Sheet Metal Contractors Association of Alberta, [1988] Alta. L.R.B.R. 326, dist. [para. 133].

Statutes Noticed:

Labour Relations Code, R.S.A. 2000, c. L-1, sect. 14(5) [para. 109]; sect. 37(2) [para. 54]; sect. 183 [para. 89].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 195, 209 [para. 72].

Counsel:

Yvon Seveny and J. Robert W. Blair for the applicant, The United Brotherhood of Carpenters and Joiners of America, Local 1325;

David J. Ross, Q.C., and Thomas W.R. Ross, for the respondent, J.V. Driver Installations Ltd.;

Daniel J. McDonald, Q.C., and Richard F. Steele, for the respondent, Christian Labour Association of Canada;

Shawn McLeod, for the respondent, Alberta Labour Relations Board;

P. Daryl Wilson, for the interveners, Pyramid Electric and Westbrook Electric.

This application was heard on September 14, 2004, before Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 10, 2004.