United Food & Commercial Workers Canada Union, Local 401 Applicant - v. -, 2012 ABQB 306

Court of Queen ’ s Bench of Alberta Citation: United Food & Commercial Workers Canada Union, Local 401 v. North Country Catering Ltd., 2012 ABQB 306 Date: 20120510 Docket: 1103 20135 Registry: Edmonton Between: United Food & Commercial Workers Canada Union, Local 401 Applicant - and - North Country Catering Ltd. and Alberta Labour Relations Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.H.

Goss _______________________________________________________ Introduction [ 1 ] The United Food and Commercial Workers Canada Union, Local 401 (Union) requests that the Court quash the November 24, 2011 decision of the Alberta Labour Relations Board (Board) in which it declined to direct the filing in this Court of its access order against the Employer, North Country Catering Ltd. (Employer): North Country Catering Ltd (Re) , [2011] ALRBD No 77. Background [ 2 ] The Employer operates six lodges/camps which provide accommodation for construction, oilfield and other workers in remote Wood Buffalo locations.

Employees work three weeks on, one week off. During the three work weeks, employees live in the

same lodges in which they work. With permission, they can have visitors during non-work hours. For the one week off, the Employer transports most employees to and from the lodges. [ 3 ] The Union has been assisting employees at these lodges with their attempts to unionize and has attempted to meet with employees for this purpose. Employees have signed petitions in support of the Union ’ s certification applications. [ 4 ] The Union has filed three applications with the Board to have it certified as the bargaining agent for employees at three of the lodges.

The Board Officer ’ s report found that the Union had at least 40% support at each of these three lodges. The Board then held certification votes with respect to these lodges and sealed the ballot boxes pending resolution of certain disputes between the Union and the Employer. [ 5 ] On July 29, 2011, the Union filed complaints with the Board, alleging among other things that the Employer ’ s refusal to allow Union organizers to access the lodges breaches s. 148(1) (

a) of the Labour Relations Code , RSA 2000, c L-1 ( Code ) which prohibits an employer from interfering with the representation of employees by a union. [ 6 ] On September 13, 2011, the Board heard the Union ’ s request for an order granting it reasonable access to the lodges. [ 7 ] On October 24, 2011, the parties entered into a Settlement Agreement regarding unfair labour practice complaints pending before the Board.

The Settlement Agreement contemplates that the Board would nevertheless rule on the complaint regarding access to the lodges, and that either party could then apply for reconsideration or review. [ 8 ] On October 28, 2011, the Board heard the certification applications and reserved on its decision. [ 9 ] On November 2, 2011, the Board granted an interim order under s. 12(2) of the Code allowing the Union interim access to the lodges pending the Board ’ s final determination on the issue: North Country Catering Ltd (Re) , [2011] ALRBD No 74. [ 10 ] On November 3, 2011, the Employer applied to the Board for reconsideration and stay of the Access Decision.

It then applied for an interim stay pending the Board ’ s consideration of its stay and reconsideration applications. [ 11 ] On November 7, 2011, counsel for the Union wrote to the Employer ’ s counsel requesting access to the lodges pursuant to the Board order. On November 9, 2011, the Employer advised through counsel that it would not allow access, and applied under s. 12(2) (

e) for an interim stay of the Access Decision pending further determination of matters. [ 12 ] On November 10, 2011 the Union applied to the Board to have the November 2, 2011 order filed with the Court pursuant to s. 18(6) of the Code , or in the alternative to direct the Employer to grant access to the lodges on certain specified dates and times as provided under s. 1(

d) of the Order. [ 13 ] On November 14, 2011 the Board clarified, after a conference call with counsel for the Union and the Employer, that a hearing would be held on November 18, 2011 to determine the Union ’ s application to file the Access Decision of November 2, 2011 with the court and the Employer ’ s request for an interim stay of any such filing with the Court. [ 14 ] On November 18, 2011 the Board stayed the Union’s request to have the Access Decision filed with the Court until such time as the Board could determine the Reconsideration Application filed by the employer.

The Board’s oral decision was followed with written reasons on November 24, 2011. In the written reasons, entitled “Letter Decision”, the Board recounted very briefly the procedural history, the parties’ submissions and its conclusion, stating:

15 Following the parties’ presentations the Board adjourned to consider the evidence and jurisprudence presented and then returned todeliver an oral decision to the following effect: Since the hearing of September 13th that led to the Access Decision, the Employer says a new development has taken place which, infairness to the parties, ought to be taken into account before deciding to file the decision with the Court. That new development is thefact the parties entered into a Settlement Agreement on October 24th. Although the parties urge upon us differing

interpretations as towhat that agreement means, in our opinion that is an issue best left to be determined if and when the Employer's reconsiderationapplication is heard. Accordingly, we accept the Employer's request and pursuant to section 12(2)(

e) grant an interim stay of the Union's request to have theBoard file the Access Decision with the Court pursuant to section 18(6) until such time as the Employer's reconsideration application isdetermined by the Board. Union’s Position [15] The Union argues that the Employer had only requested an interim stay pending the Board’s consideration of the stay andreconsideration applications. While the Board purported to grant a stay of proceedings, it essentially granted the Employer a stay ofexecution without applying the relevant test.

The Board has consistently applied the tripartite test on applications for stays, citing, amongother cases Alberta Building Trades Council (Re), [2007] ALRBD no 18 (Asbell) and should have applied it, as it had done in theNovember 2, 2011 decision. [16] Further, in Permasteel Construction Ltd. (Re), [2000] Alta LRBR 291, the Board noted that it is more difficult for anapplicant to meet the first element of the test when seeking a stay of execution as opposed to another type of interlocutory injunctionbecause the Board has already heard evidence and argument, and rendered a decision.

The Board in its November 2, 2011 decision foundthat there was a strong prima facie case that the Employer’s refusal to allow organizers to enter the lodges breached s. 148(1) of theCode, noting that the Employer provided no justification for its outright refusal of access. The Employer refused to abide by the Board’sdirective. [17] The Settlement Agreement expressly contemplates that access remained a live issue. The Employer’s refusal to comply withthe November 2, 2011 order was deliberate, blatant, willful and ongoing. The fact that a party has filed a reconsideration applicationdoes not excuse non-compliance.

The November 24, 2011 decision sends a message that parties can flout Board orders withoutconsequences.

The labour relations system would break down if Board orders could be ignored with impunity. [18] Finally, the Union submits that the decision is contrary to the purposes of the Code, which are to promote an effectiverelationship between employees and employers through the fair and equitable resolution of matters arising in respect of terms andconditions of employment, to provide for efficacious resolution of workplace disputes in the least disruptive way, and to promote peaceand harmony in industrial relations.

It was unreasonable for the Board to refuse to file its own order which the Employer had refused tofollowed, where the access issue remained live as a result of the Settlement Agreement. Employer’s Position [19] The Employer argues that the judicial review application is out of time as the clock started running on November 18, 2011when the Board issued its oral decision. The “no later than 30 days” for filing and serving judicial review applications under s 19(2) ofthe Code is mandatory:

Interpretation Act, RSA 2000, c I-8, s 28(2)(d, f). A Board interim decision is binding and final: Johannesson vAlberta (Workers’ Compensation Board) (1995), (AB KB), 32 Alta LR (3d) 373 at 381 (QB), Code, s 12(4). The 30day time limit applies even if reconsideration is occurring at the same time as judicial review: Alberta Union of Provincial Empoyees vCanadian Union of Public Employees, Local 875, [2003] AJ No 1523 at para 14, 18 (QB), Alberta (Attorney General) v.

United Foodand Commercial Workers Union, Local No. 401, 2011 ABCA 93, 502 AR 188. [20] On the merits, the Employer submits that the decision was reasonable and was made in anticipation of a hearing in the nearfuture into the unfair practice complaints. Under the Code the Board “may” make or issue any interim order, declaration or directive itconsiders necessary pending a final determination in a matter: s 12(2)(e). The Board has the jurisdiction to reconsider its decision: s12(4). It “may” file a directive or order it made with the Court for compliance: s. 18(6). It has broad discretion in exercising these

powers. The directives were interim and remedial in nature, contingent on the outcome of the unfair practice hearings, which did notoccur due to the settlement. The Board’s policy is to grant reconsideration when there is substantial new evidence not available at theinitial hearing: Information Bulletin #6: Applications for Recondiseration, Judicial Reviews & Stays, p 1. The new evidence before theBoard was the Settlement Agreement and the fact that the unfair practice hearings would not occur. The basis for the directives in theAccess Decision was undermined. [21] The decision is transparent and intelligible.

The Board was alive to all of the arguments, evidence, and parties’ positions. Itwas not required to apply the tripartite injunction test, but applied a test similar to the strong preliminary case test which is akin to aprima facie threshold, the same test it used in the Access Decision: UFCW Local 401 v Economic Development Edmonton, 2002 AltaLRBR 186 at paras 15, 16, UA Local 488 v Firestone Energy Corp, [2005] Alta LRBR LD-031 at paras 9, 10. The test chosen by theBoard was proper and within its jurisdiction under the Code. The Employer clearly had a strong prima facie case.

It was fair not to applya more stringent test on the Employer than had been applied to the Union in the Access Decision. Even if the tripartite injunction testapplied, that test was met and the Board was live to the issue. [22] The Employer notes that the Board has held that Alberta, unlike other jurisdictions, has not given its labour boardsjurisdiction in the Code to grant organizing access orders. Further, unlike other jurisdictions, Alberta does not have specific remoteaccess legislation.

Issuing an access order without finding an unfair practice would elevate the right, freeing it from its dependence on acomplaint followed by a Board ruling. An employer’s property rights should only be abrogated to the minimum extent necessary toaccommodate the employee’s rights under the Code: Operating Engineers 955 v Midwest Pipeline, [1990] Alta LRBR 445. [23] The Employer submits that it is not flouting a Board order. Rather, it sought an interim stay in the proper fashion, which theBoard granted after weighing the issues before it.

It would be ineffective to allow the Union to enforce an interim order where newcircumstances led the Board to reconsider its decision. The most effective resolution was to allow the reconsideration application toproceed first. [24] Finally, the Employer submits that filing with the Court can engage contempt proceedings and further exacerbate therelationship between union and employer. Its decision to grant a stay is not inconsistent with the Code. Board’s Position [25] The Board’s submissions were limited to the standard of review, its practices and procedures, and the Return.

It submits thatthe reasonableness standard applies in this case, citing Dunsmuir v New Brunswick, 2008 SCC 9; Alberta Information and PrivacyCommissioner v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR 654; United Food and Commercial Workers Union,Local 401 v Westfair Foods Ltd, 2010 ABCA 120, 477 AR 315 at para 47; and Baker v Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 SCR 817 at para 53. [26] The Board submits, as indicated by the Board in its November 2, 2011 decision at paras 15-16 and 35-46, that its practice is touse several different tests for granting interim relief, and the Board is entitled to choose which test to apply.

This is consistent with theSupreme Court’s comments in Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals, 2011SCC 59, [2011] 3 SCR 616. Issues [27] The Court must address the following issues: 1. Is the application out of time?

2. Did the Board err in granting the stay? 1. Is the application out of time? [ 28 ] The Code provides: 19(2) A decision, order, directive, declaration, ruling or proceeding of the Board may be questioned or reviewed by way of an application for judicial review seeking an order in the nature of certiorari or mandamus if the application is filed with the Court and served on the Board no later than 30 days after the date of the decision, order, directive, declaration, ruling or proceeding, or reasons in respect of it, whichever is later. [ 29 ] The hearing

summary of November 18, 2011 indicates “oral decision issued - letter to follow”, with the following “notes”: “Union’s request to have the Access Decision of Nov 2/11 filed with the Court, pursuant to s. 18(6) is stayed, as requested by the employer, until such time as the board determined the reconsideration application filed by the employer”. [ 30 ] The Employer argues that the written decision added nothing. However, it does add the procedural history and the submissions of the parties, which form the context for the decision.

Reasons for the decision are not to be considered in a vacuum, but rather they must be considered in the context of the evidence, the parties’ submissions and the process to appreciate and understand the entire decision: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 SCR 708 at para 18 . [ 31 ] Given the indication at the time of the oral decision that a letter was to follow, the parties would reasonably have understood that the letter might contain information elucidating the conclusion.

Further, the recounting of the procedural history and submissions provides the context for the conclusion and indicates that the decision maker was alive to various facts and issues raised by the parties. [ 32 ] Section 19(2) specifically addresses situations where reasons are issued subsequent to an oral decision. Nothing in s 19(2) qualifies “ reasons ” except for the phrase “ in respect of it ” .

The written reasons rendered on November 24, 2011 are clearly “in respect of” the decision rendered orally. [ 33 ] I find the period for filing the application for judicial review began to run from the time of the written decision. I conclude that the judicial review application was filed in time. 2. Did the Board err in granting the stay? a. Admissibility of Post-Decision Materials [ 34 ] The Employer included in its authorities materials relating to the procedural history occurring after the decision in question.

Rule 3.22 provides: 3.22 When making a decision about an originating application for judicial review, the Court may consider the following evidence only: (

a) the certified copy of the record of proceedings of the person or body that is the subject of the application, if any;

(

b) if questioning was permitted under rule 3.21, a transcript of that questioning; (

c) anything permitted by any other rule or by an enactment; (

d) any other evidence permitted by the Court. [35] Slatter J. (as he then was) in Alberta Liquor Store Assn v Alberta (Gaming and Liquor Commission), 2006 ABQB 904, 406AR 104 at paras 40 to 42 observed the general rule that judicial review is conducted based on the return filed by the tribunal, and thatadditional affidavits and evidence are exceptional, for example to show bias, breach of natural justice not apparent on the record, or tosupplement an inadequate record.

Evidence that was not before the tribunal, relating to the merits of the decision, is not permitted onjudicial review; a board's decision cannot be rendered unreasonable by referring to matters that were never put before it: Sarg Oils Ltd v(Alberta) Environmental Appeal Board, 2007 ABCA 215, 75 Admin LR (4th) 314 at para 15. [36] No application was made to allow further, other or new evidence under Rule 3.22 or any other authority.

The information atTabs 2, 3, 8, 9, 16-19 of the Employer’s authorities was not available to the Board at the time of its decision, and therefore I decline toconsider it either as fresh evidence or by way of judicial notice. b.

Standard of Review [37] The parties agree that this discretionary decision is reviewable on a reasonableness standard as to both process and substance.Indeed, Board decisions are entitled to considerable deference as it has tremendous expertise in weighing the many factors and policiesat play in this dynamic and complex field: United Food and Commercial Workers Union, Local 401 v Westfair Foods Ltd, 2010 ABCA120, 477 AR 315, Royal Oak Mines Inc v Canada (Labour Relations Board), (SCC), [1996] 1 SCR 369.

Boarddecisions are to be given deference and questions of fact, policy and discretion related to labour matters are within the parameters of theCode and the Board’s jurisdiction: Alberta Union of Provincial Employees v Health Sciences Assn, 2009 ABCA 266, 457 AR 387 atpara 17. [38] Therefore, the task before this Court is to consider whether there was justification, transparency and intelligibility in thedecision-making process, and whether the decision falls within the range of outcomes that is defensible with respect to the facts and thelaw: Dunsmuir.

Where a tribunal has not thoroughly addressed an issue, such review requires respectful attention to the reasons offered or which couldbe offered in support of the decision, if necessary having regard to the record: Newfoundland and Labrador Nurses' Union vNewfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at paras 12, 15. c.

Reasonableness of the Decision [39] The Union argues that the Board purported to grant a stay of proceedings, but in reality granted the Employer a stay ofexecution. [40] The Board in correspondence dated November 14, 2011 indicated that it would deal with the Union’s request to file theinterim decision with the Court, and the Employer’s request for an interim stay of any such filing. This is reiterated in the written reasons. [41] The notes of the oral hearing on November 18, 2011 state that the Union’s request to have the Access Decision of November2, 2011 filed was stayed as requested by the Employer.

In its written decision, the Board granted an interim stay of the Union's request tohave the Board file the Access Decision with the Court pursuant to s. 18(6) until the Employer's reconsideration application wasdetermined. [42] I find that there is no confusion as to the relief sought by the parties, nor that granted by the Board. Clearly, the Union sought

relief on the basis that the Employer was not complying with the Board’s November 2, 2011 directions regarding site access. There is nothing to indicate that the Board failed to appreciate the import of the stay of the Union’s request for filing. [ 43 ] The Union argues that the decision is clearly unreasonable because the Board had just decided in favour of the Union in the November 2, 2011 Access Decision, finding a strong preliminary case.

However, in paras 23 and 24 of the November 2, 2011 decision, the Board held that the interim order requested by the Union had to relate to a matter of substance before the Board. It further held that the Union’s three certification applications and the unfair labour practice complaints of the Union and Employer were such matters. The intervening Settlement Agreement changed the context within which the Access Decision had been reached. [ 44 ] The Union points to paragraph 5 of the Settlement Agreement which provides: 5. The Labour Board would rule on the access application made previously by the UFCW.

Either the UFCW or NCC can apply for reconsideration or judicial review of it. [ 45 ] The Agreement contemplated that the Board would rule on access, which it did on November 2, 2011, and that either party would be entitled to apply for reconsideration or judicial review. By letter of November 3, 2011, the Employer applied for reconsideration of the Access Decision. [ 46 ] The Union also submits that the Board erred in failing to apply the tripartite test. In its written decision, the Board stated: 11 Regarding the Employer's application for an interim stay, section 12(2) (

e) of the Code states the Board has a discretion to grant such an order. The Board's normal practice in deciding to issue an interim order is to apply the common law tests used in the courts for granting an injunction (see UFCW, Local 401 v. Economic Development Edmonton [2002] Alta.L.R.B.R. 186 at paras. 15 & 16). But the Board also recognizes that interim relief in labour relations matters may involve unique considerations that do not require the test applied in the courts for interim relief (see PPF Local 488 v. Firestone Energy Corp. et al. [2005] Alta.L.R.B.R. LD-031 at paras. 9 & 10). 12 If the Board is to apply the common law tests they are described as being (

a) is there a prima facie case, (

b) is there evidence of irreparable harm, and (

c) where does the balance of convenience lay (see Teamsters, Local 987 v. Northern Alberta Dairy Pool Limited [1991] Alta.L.R.B.R. 159 at pages 166 & 167; IBEW, Local 424 v. Vulcan Electrical Ltd. [1997] Alta.L.R.B.R. 141; and I.B. #6). Here the Employer has established a strong prima facie case, it will suffer irreparable harm if the interim stay is not granted, and the balance of convenience favours the granting of the stay.

The Union no longer needs an access order since there are no unfair labour practice complaints outstanding because of the Settlement Agreement. [ 47 ] In my view, the Union has not established that the Board erred in its approach. The Code does not mandate a particular test. The Board was aware of the relevant legal and equitable doctrines and gave intelligible reasons for its decision.

As was held by the Supreme Court in Nor-Man at paras 43 to 53, administrative decision makers in the labour field may adapt relevant legal and equitable doctrines for the purpose of resolving disputes. [ 48 ] The Board provided brief but adequate reasons. It is clear from the decision that the Board considered the Settlement Agreement to have changed the playing field. The Board has significant expertise in weighing the many factors and policies at play in the field of labour relations. The Union is essentially asking this Court to re-weigh those factors.

This is not open to the Court on a review for reasonableness. [ 49 ] I conclude that the decision is transparent, intelligible and within the range of defensible outcomes. Conclusion [ 50 ] The application is dismissed.

Heard on the 4 th day of April, 2012. Dated at the City of Edmonton, Alberta this 9 th day of May, 2012 J.H. Goss J.C.Q.B.A. Appearances: Patrick G. Nugent for the Applicant F. Albert X. Lavergne for the Respondent, North Country Catering Ltd. Shawn W. McLeod for the Respondent, Alberta Labour Relations Board