Egg Films Inc. v. Labour Board (N.S.) et al., 2014 NSCA 33

• Judge: Saunders, Fichaud and Bryson, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 03, 2014
• Jurisdiction: Nova Scotia
• Citations: 2014 NSCA 33;(2014), 343 N.S.R.(2d) 204 (CA)

Egg Films v. Labour Bd. (2014), 343 N.S.R.(2d) 204 (CA);

    1084 A.P.R. 204

MLB headnote and full text

Temp. Cite: [2014] N.S.R.(2d) TBEd. AP.002

Egg Films Incorporated (appellant) v. The Labour Board and The International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 849 (respondents)

(CA 416865; 2014 NSCA 33)

Indexed As: Egg Films Inc. v. Labour Board (N.S.) et al.

Nova Scotia Court of Appeal

Saunders, Fichaud and Bryson, JJ.A.

April 3, 2014.

Summary:

The Nova Scotia Labour Board certified the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada as the bargaining agent for motion picture technicians employed by Egg Films. Egg Films applied for judicial review.

The Nova Scotia Supreme Court, in a judgment reported (2013), 329 N.S.R.(2d) 56; 1042 A.P.R. 56, dismissed the application. The Board's decisions were reasonable. Egg Films appealed.

The Nova Scotia Court of Appeal, Bryson, J.A., dissenting, 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 "Reasonableness is neither the mechanical acclamation of the tribunal's conclusion nor a euphemism for the reviewing court to impose its own view. The court respects the Legislature's choice of the decision maker by analysing that tribunal's reasons to determine whether the result, factually and legally, occupies the range of reasonable outcomes. The question for the court isn't - What does the judge think is correct or preferable? The question is - Was the tribunal's conclusion reasonable? If there are several reasonably permissible outcomes the tribunal, not the court, chooses among them. If there is only one and the tribunal's conclusion isn't it, the decision is set aside. The use of reasonableness, instead of correctness, generally has bite when the governing statute is ambiguous, authorizes the tribunal to exercise discretion, or invites the tribunal to weigh policy." - See paragraph 26.

Administrative Law - Topic 3221

Judicial review - General - Unreasonableness of decision attacked (incl. reasonableness simpliciter) - [See Labour Law - Topic 576 ].

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - General - Standard of review - The Nova Scotia Labour Board certified a trade union as the bargaining agent for motion picture technicians employed by Egg Films - Egg Films did short term projects, mainly ads and videos for corporations - Each time a project arose, Egg Films hired the necessary technicians, then laid them off (often the same day) - The Board found that the technicians were employees and not "independent contractors", that the proposed bargaining unit was appropriate for certification, and that certain challenges by Egg Films to the application of the Board's procedures were unfounded - Egg Films applied for judicial review, arguing that it was unreasonable for the Board to conclude that technicians employed for a single day were "employees" and that the bargaining agent proposed by the trade union was appropriate - The trial judge, applying the reasonableness standard of review, dismissed the application - Under s. 19(1)(a) of the Trade Union Act, the specialized Board's decision on whether a person was an "employee" was "final and conclusive and not open to question, or review" - Egg Films was inviting the court to re-weigh the evidence relied on to find that the technicians were "controlled" by Egg Films (i.e., employees), which was not permitted under the reasonableness standard of review - The reliance on hypothetical scenarios, policy arguments and decisions of other administrative tribunals was not consistent with the reasonableness standard of review - Even if the Board's decision was not correct, it was reasonable in the sense that the Board's reasoning path was within the range of potential rational outcomes - The Board's reasons were transparent, understandable and reasonable - The Nova Scotia Court of Appeal agreed that the Board's decision that the technicians were "employees" under s. 2(1)(k) and that the trade union was the appropriate bargaining unit was reasonable - See paragraphs 37 to 133.

Labour Law - Topic 4154

Unions - Certification - Appropriate bargaining unit - Judicial review of board determination - [See Labour Law - Topic 576 ].

Labour Law - Topic 4251

Unions - Certification - Employees - What constitutes an employee - [See Labour Law - Topic 576 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 24].

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. 24].

Maritime Paper Products Ltd. v. Communications, Energy and Paperworkers' Union, Local 1520 (2009), 278 N.S.R.(2d) 381; 886 A.P.R. 381; 2009 NSCA 60, refd to. [para. 24].

Casino Nova Scotia v. Labour Relations Board (N.S.) et al. (2009), 273 N.S.R.(2d) 370; 872 A.P.R. 370; 2009 NSCA 4, refd to. [para. 24].

Cape Breton Island Building & Construction Trades Council et al. v. Nova Scotia Power Inc. et al. (2012), 322 N.S.R.(2d) 159; 1021 A.P.R. 159; 2012 NSCA 111, refd to. [para. 24].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 29].

Irving Pulp & Paper Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 30 (2013), 445 N.R. 1; 404 N.B.R.(2d) 1; 1048 A.P.R. 1; 2013 SCC 34, refd to. [para. 31].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 33].

Halifax (Regional Municipality) v. Canada (Minister of Public Works and Government Services), [2012] 2 S.C.R. 108; 431 N.R. 10; 2012 SCC 29, refd to. [para. 34].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 43].

Fraser et al. v. Ontario (Attorney General), [2011] 2 S.C.R. 3; 415 N.R. 200; 275 O.A.C. 205; 2011 SCC 20, refd to. [para. 43].

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146; 2012 SCC 12, refd to. [para. 44].

Labourers International Union of North America, Local 183 v. York Condominium Corp., [1977] O.L.R.B. Rep. 645, refd to. [para. 48].

Montreal v. Montreal Locomotive Works Ltd. et al., [1947] 1 D.L.R. 161 (P.C.), refd to. [para. 48].

Pointe-Claire (Ville) v. Syndicat des employées et l'employés professionnels -les det de bureau, section locale 57 (S.E.P.B. - U.I.E.P.B. - C.T.C. - F.T.Q.), [1997] 1 S.C.R. 1015; 211 N.R. 1, refd to. [para. 48].

Municipal Contracting Ltd. v. International Union of Operating Engineers, Local 721 and Kydd (1989), 91 N.S.R.(2d) 16; 233 A.P.R. 16 (C.A.), refd to. [para. 62].

International Alliance of Theatrical Stage Employees, Local 680 v. Power Promotional Events Inc., 2011 NSLRB 47, refd to. [para. 75].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16, refd to. [para. 85].

671122 Ontario Ltd. v. Sagaz Industries Canada Inc. et al., [2001] 2 S.C.R. 983; 274 N.R. 366; 150 O.A.C. 12; 2001 SCC 59, refd to. [para. 149].

United Association of Journeymen & Apprentices of the Plumbing, Steamfitting & Pipefitting Industry of the United States and Canada, Local 682 v. United Steel Workers of America, Local 1064 et al. (1991), 103 N.S.R.(2d) 203; 282 A.P.R. 203 (T.D.), refd to. [para. 156].

United Association of Journeymen and Apprentices of the Plumbing, Steamfitting and Pipefitting Industry of the United States and Canada, Local 682 v. United Steel Workers of America, Local 1064 et al (1992), 110 N.S.R.(2d) 123; 299 A.P.R. 123 (C.A.), refd to. [para. 156].

360 Cayer Ltée, Re, [2000] L.S.L.R.B.D. No. 2, refd to. [para. 163].

Nova Scotia Government and General Employees Union v. Parkland at the Lakes Ltd., 2011 NSLB 3, refd to. [para. 170].

Statutes Noticed:

Trade Union Act, R.S.N.S. 1989, c. 475, preamble [para. 46]; sect. 2(1)(k) [para. 39]; sect. 2(1)(x) [para. 123]; sect. 19(1)(a), sect. 19(1)(g), sect. 19(1)(h) [para. 24]; sect. 24 [para. 124]; sect. 25(4), sect. 25(14) [para. 111].

Authors and Works Noticed:

Adams, George W., Canadian Labour Law (2nd Ed.) (2013 Looseleaf), vol. 1, §§ 1.20 to 1.150 [para. 84]; 7.60 [para. 120].

Archibald, Bruce P., Teaching Canadian Labour and Employment Law in the Globalized New Economy: Ruminations of an Ageing Neophyte, 14 C.L.O.L. 139, p. 148 [para. 139].

Barnacle, Peter, Lynk, Michael, and Wood, Roderick, Employment Law in Canada (4th Ed.) (2005 Looseleaf), vol. 1, § 2.2 [para. 85].

Goldenbert, H. Carl, and Crispo, John H.G., Construction Labour Relations (1968), pp. 415 [para. 161]; 430 [para. 157].

Langille, Brian A., and Davidov, Guy, Beyond Employees and Independent Contractors: A View From Canada (1999), 21 Comp. Lab. Law & Policy J. 7, footnote 64 [para. 147].

Nova Scotia, Commission of Enquiry into Industrial Relations in the Nova Scotia Construction Industry, Report of (1970), p. 13 [para. 159].

Raynor, Wesley B., Canadian Collective Bargaining Law (2nd Ed. 2007), generally [para. 145].

Counsel:

Jack Graham, Q.C., and Michael Murphy, for the appellant;

Ronald A. Pink, Q.C., and Andrew R. Nielsen, for the respondent, IATSE, Local 849;

Edward A. Gores, Q.C., for the respondent, Nova Scotia Labour Board.

This appeal was heard on December 9, 2013, at Halifax, N.S., before Saunders, Fichaud and Bryson, JJ.A., of the Nova Scotia Court of Appeal.

On April 3, 2014, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Fichaud, J.A. (Saunders, J.A., concurring) - see paragraphs 1 to 134;

Bryson, J.A., dissenting - see paragraphs 135 to 186.