Alberta Union of Provincial Employees v Optima Living Alberta Ltd, 2021 ABQB 815

Court of Queen’s Bench of Alberta Citation: Alberta Union of Provincial Employees v Optima Living Alberta Ltd, 2021 ABQB 815 Date: 20211014 Docket: 1903 25439, 2003 17613 Registry: Edmonton Between: Alberta Union of Provincial Employees Applicant - and - Optima Living Alberta Ltd and Alberta Labour Relations Board Respondents _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Douglas R. Mah _______________________________________________________ A. Background [ 1 ] Two concurrent judicial review applications concerning these parties were placed before me for hearing on October 1, 2021 respecting:

• the ALRB decision of October 25, 2019, with the reasons given on November 14, 2019, dismissing AUPE’s complaint against the employer Optima; and • the ALRB reconsideration decision of November 9, 2020, dismissing AUPE’s reconsideration application in respect of the earlier decision. [ 2 ] At the hearing itself, I was advised by counsel for AUPE that the second judicial review was filed for precautionary reasons only. All counsel agreed that a judicial review decision in respect of the first ALRB decision will effectively dispose of both applications.

In consequence, this decision deals only with the original ALRB decision. [ 3 ] In this application, AUPE essentially assails the ALRB decision to deny a cease-and-desist order pertaining to Optima’s outsourcing of 52 of the 53 employees represented by AUPE at Optima’s Century Park supportive living facility in Vegreville, Alberta, which occurred while collective bargaining was in progress.

At the core of this dispute is the reasonableness of the ALRB panel’s finding that Optima’s outsourcing is not contrary to section 147(3) of the Alberta Labour Relations Code in that the collective agreement contains a provision that expressly permits such an outsourcing. [ 4 ] In this decision, I refer to outsourcing and contracting out as one and the same. B. The Circumstances of the Outsourcing [ 5 ] AUPE had sent a notice to bargain to the predecessor employer operating Century Park. Negotiations were ongoing when Optima acquired century Park.

Optima is a successor employer for the purposes of the collective agreement, which was still in effect under the Code ’s

section 130. [ 6 ] The bargaining unit consisted of all 53 Century Park employees, composed of 2 cooks, one recreation aide, 10 LPNs and 40 healthcare aides. [ 7 ] How the outsourcing occurred can be summarized as follows: • On June 21, 2017 Optima advised AUPE that it would continue with the proposal tabled by the predecessor for collective bargaining purposes back on July 4, 2016.

There was no response by AUPE. • On August 8, 2017, Optima wrote to the AUPE membership service officer that it was reviewing Century Park’s operations and was providing notice to AUPE that it would be considering, as part of the review, the option of contracting out some of the work. • The membership services officer replied on August 28, 2017 acknowledging that Optima might be considering outsourcing but had made no decision yet, and reminding Optima of its obligation under the collective agreement to provide notice and meet with the union. • Optima wrote again to the membership services officer on September 19, 2017 to make the point that the current business model was untenable and that engaging a third-party service provider would result in considerable savings.

The letter also stated the view that the collective agreement specifically contemplates outsourcing and prescribes a process for it. • On November 14, 2017, as part of its negotiations with Optima during collective bargaining, AUPE proposed the following change to

article 15.01: The Employer agrees not to contract out, subcontract or outsource the work of the bargaining unit. In the event Regular Employees will be displaced due to subcontracting, the Employer will notify the Union with as much advance notice as possible of such change and will meet and discuss reasonable measures to protect the interests of Employees so affected. • Throughout the remainder of 2017 and into the first half of 2018, Optima continued to search for a third-party provider.

It knew that any such provider and the contracting out itself had to be approved by Alberta Health Services. • During 2018, Optima engaged in serious discussions with a third-party provider in British Columbia. On October 12, 2018, Optima advised AUPE that it was taking steps to contract out a portion of the Century Park work.

No final decision had been made in relation to contracting out, but if it did proceed, then employees in the bargaining unit would be affected. • Later, Optima elaborated by advising that contract negotiations with the third-party provider were proceeding but not finalized, and still subject to AHS approval. • There were delays in obtaining AHS approval, as Optima had to contend with compliance issues that pre-existed the acquisition. By spring of 2019, AHS gave Optima the go-ahead to reinstitute its efforts to pursue the outsourcing.

On August 6, 2019, AHS approved the proposed contract with the third-party provider, subject to certain conditions. • On August 14, 2019 Optima wrote to AUPE to advise of its intention to outsource to a third-party. At that time, Optima invoked

article 15.01 to request a meeting for the purpose of discussing how to minimize the impact of the outsourcing decision on employees. It also purported to invoke

article 32.02 and proposed also concurrently meeting to discuss the resulting reduction in regular employees. • On August 28, 2019, Optima wrote to AUPE again to confirm that the third-party contractor had been retained and would commence services at Century Park as of November 1, 2019. The letter further advised that certain employees in the bargaining unit

would no longer be required, namely those in the HCA, LPN and Cook classifications. In practice, this amounted to 52 out of the 53 bargaining unit employees, with only the recreation aide being retained. • Termination notices were sent to the affected employees on September 3, 2019. The next day, the membership services officer and another AUPE representative met with Mr. Shivji, who had been Optima’s main point of contact with the union. At the meeting, Mr.

Shivji stated how the employer wanted to make the transition as easy as possible on employees and explained Optima’s business rationale behind the outsourcing move. • Subsequent to September 3, 2019, the employees at Century Park were reportedly distressed at the entire turn of events. Although offers of employment had been made to some employees, they were at lower pay and different hours. C. Proceedings before the ALRB [ 8 ] AUPE’s complaint was heard by the ALRB on October 15 th , 16 th , 17 th and 18 th , 2019.

Although the complaint was couched in terms of employer violations of various sections of the Code , the ALRB’s ruling on Optima’s

summary judgement application left only violations of sections 147(3), 60 (1)(

a) and (

b) and 60(3) in dispute. Since AUPE did not, at the hearing, link the outsourcing to the collective bargaining, the ALRB panel found that no breaches had been established in regard to sections 60(1)(

a) and (

b) and 60(3). [ 9 ] The bulk of the panel’s analysis in its November 14, 2019 reasons deals with section 147(3).

The panel made these findings: • some of the ALRB’s own previous jurisprudence, notably the Shepherd’s Care case ( Shepard’s Care Foundation and AUPE , Re , 2016 CarswellAlta 796, [2016] Alta LRBR 33 ), did not apply because in those cases the employer relied upon the management rights clause as its authority to outsource, as opposed to a more specific provision that permits outsourcing, which is the case here; • the present case is closer to the City of Edmonton decision ( CUPE, Local 30 and Edmonton (City), Re , 1995 CarswellAlta 1680, [1995] Alta.

LRBR 102 ) in which there was a specific provision that permitted the thing complained of to be done by the employer; • Optima was transparent in providing AUPE with substantial disclosure well in advance of its actual contracting out decision; • there were two valid business reasons behind the decision to contract out; • in the present case, articles 15.01 and 32 of the collective agreement explicitly authorize contracting out and reducing the number of staff; • in the case of an auxiliary nursing care bargaining unit, any contracting out is likely to involve most, if not all of the unit. [ 10 ] In consequence of the foregoing bullet points, the ALRB panel dismissed the complaint with respect to section 147(3). [ 11 ] AUPE’s application to the ALRB to reconsider its first decision in this matter was dismissed by different panel on November 9, 2020.

D. Standard of Review [ 12 ] There is no disagreement among the parties as to the applicable standard of review with respect to the merits of the ALRB’s original decision.

It is agreed that since Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , reasonableness is the presumptive standard of review in all cases, unless (at para 69): • statutorily rebutted by a legislated standard of review or a statutory appeal provision; or • the decision under review raises constitutional questions, general questions of law of central importance to the legal system as a whole, or issues of jurisdictional boundaries between two or more administrative decision-makers. [ 13 ] Neither of the exceptions applies here. [ 14 ] In applying the reasonableness standard, Vavilov prescribes the indicia of reasonableness as either: • first, a decision is acceptable if based on an internally coherent and rational chain of analysis, which is evident in the reasons themselves or which can be inferred from the record (at paras 102); or • second, the decision is justified in relation to the facts and the law that constrain the decision-maker (at para 105). [ 15 ] The concept of constraints on decision-makers is defined as the limits and contours of the space in which the decision-maker may act and the types of solutions and it may adopt, and includes: governing legislation, other statute or common law, the principles of statutory

interpretation, the evidence, the submissions of the parties, past practices and decisions, and the impact of the decision on the affected party (see paras 108-135). [ 16 ] Overall, the Vavilov approach affords deference to and recognizes that administrative decision-makers are appointed for the specific purpose that courts should not be making those decisions and should exercise only supervisory capacity (at para 82). [ 17 ] Accordingly, the reasonableness review focuses on the decision actually made, both in terms of the reasoning process and the outcome. A reviewing court should refrain from re-deciding the issue itself, but rather only consider whether the decision made,

including both the rationale and the outcome, is reasonable or not. In doing so, the reviewing court must develop an understanding of the reasoning that led to the decision to assess whether decision as a whole is reasonable (at paras 83-84). [ 18 ] Deference does not mean that administrative decision-makers get a free pass from the courts. Where the reviewing court has an appreciation of the institutional setting and the record, if the reasons reveal a fundamental gap or an unreasonable chain of analysis, the court should not rewrite the decision and substitute its own justification for the outcome.

The reviewing court must still hold the decision-maker to a standard of accountability in that the decision-maker must have articulated to the affected party, in a transparent and intelligible way, the rationale on which it based its conclusion (at para 96). [ 19 ] Finally, issues of procedural fairness (particularly in the post- Vavilov era) are not determined on the basis of whether they are correct or reasonable but rather whether they have met the level of fairness required by the circumstances: Borgel v Paintearth (Subdivision and Development Appeal Board), 2020 ABCA 192 at para 11 .

See also Cenovus TL ULC v Alberta (Energy), 2019 ABQB 301 at paras 18 & 19 ; and FJN v JK , 2019 ABCA 305 at para 46 . E.

Summary of AUPE’s Argument [ 20 ] AUPE’s offensive against the ALRB initial decision is launched on three fronts: • the ALRB panel distinguished previous ALRB decisions in an unreasonable manner; • the ALRB panel unreasonably failed to consider Optima’s failure to disclose its decision to outsource; and • the ALRB panel improperly took judicial notice of a fact which was integral to the decision. [ 21 ] In the latter regard, AUPE says the inclusion of this fact as a basis for decision-making is unreasonable in that there is no evidentiary foundation.

Further, or in the alternative, the inclusion of this fact breaches procedural fairness because AUPE had no opportunity to challenge its assertion. F. Previous ALRB Decisions 1. The “Freeze” [ 22 ] At issue in AUPE’s complaint to the ALRB was whether Optima’s outsourcing was a violation of the statutory prohibition or “freeze” in effect under section 147(3) once collective bargaining has commenced.

The freeze provision prevents the employer from making any workplace changes that “alter the rates of pay, a term or condition of employment or right or privilege of any employee represented by the bargaining agent” while the bargaining continues.

There are three exceptions to the freeze, namely: • the changes are part of the employer’s established custom or practice; • the bargaining agent consents; or • the change is made in accordance with a collective agreement in effect with respect to that bargaining agent. [ 23 ] It is accepted that the complaint before the ALRB was concerned only with whether the third exception applies. [ 24 ] It is also accepted that “the purpose of section 147(3) is to prevent employers from unilaterally implementing unusual changes that may have the effect of destabilizing the collective bargaining process or undermining employee support for the union”: Shepard’s Care at para 36. [ 25 ] The Supreme Court of Canada notes of similar Québec legislation in TUAC, local 503 c.

Cie Wal-mart du Canada , 2014 SCC 45 , [2014] 2 S.C.R. 323 (SCC): [35] The "freeze" on conditions of employment codified by this statutory provision limits the use of the primary means otherwise available to an employer to influence its employees' choices: its power to manage during a critical period (see G. W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), vol. 2, at p. 10-80.3; B. W. Burkett et al., eds., Federal Labour Law and Practice (2013) , at p. 171).

By circumscribing the employer's unilateral decision-making power in this way, the "freeze" limits any influence the employer might have on the association-forming process, eases the concerns of employees who actively exercise their rights, and facilitates the development of what will eventually become the labour relations framework for the business. [ 26 ] Optima’s outsourcing in this case would be illegal unless express authority is found in the collective agreement, that is, the third statutory exception to the freeze applies. 2.

AUPE’s Position [ 27 ] AUPE says that the ALRB panel failed to follow its own jurisprudential precedents. As noted above from Vavilov , one of the constraints imposed on an administrative decision-maker is that decision-maker’s own past practices and decisions. A departure must be justified so as not to be unreasonable. AUPE asserts that the ALRB unreasonably departed from its well-established precedent on this issue, without proper or any justification. [ 28 ] The ALRB did so, contends AUPE, because it concluded that authority to engage in the subject outsourcing is found in

articles 15.01 and 32 of the collective agreement. These articles read:

Article 15 Notice of Subcontracting 15.01 In the event Regular Employees will be displaced due to subcontracting, the Employer will notify the Union with as much advance notice as possible of such change and will meet and discuss reasonable measures to protect the interests of the Employees so affected.

Article 32 Layoff and Recall 32.01 It is the exclusive right of the Employer to: (

a) establish, and vary from time-to-time, the job classifications and the number of Employees, if any, to be employed in any classification, or in any work place; and (

b) assign to other classifications any, or all, of the duties normally performed by classifications of this bargaining unit when Employees from within this bargaining unit are not available. Meeting with the Union 32.02 The Employer and the Union recognize the value of meeting prior to a layoff process occurring. The purpose of this meeting is to discuss the process of how the reduction will take place, review the current seniority list, and discuss other relevant factors the parties agree upon. Notice of Reduction 32.03 (

a) When, in the opinion of the Employer, it becomes necessary to: (

i) reduce the number of Regular Employees; or (ii) reduce a Regular Employee's regularly scheduled hours of work; or (iii) wholly or partly discontinue an undertaking, activity or service; the Employer will notify affected Employee (&) at least fourteen (14) calendar days prior to the date of reduction, except that the fourteen (14) calendar days notice shall not apply where reduction results from

an act of God, fire, flood, or a work stoppage by employees not covered by this Collective Agreement. [ 29 ] AUPE’s contention is that the two articles quoted above are not good enough. They are not explicit as to authorizing outsourcing. In particular, AUPE argues: •

Article 15 creates a procedural right only with respect to the giving of notice. It does not create a substantive right to contract out the work. • The ALRB panel failed to explain why the hauntingly similar language in the collective agreement in the Shepard’s Care case to

article 32 was insufficient to expressly permit the employer from contracting out the work in that case but not in the Optima case. [ 30 ] Consequently, AUPE says that Optima’s only source of authority in this collective agreement is the residual management rights clause. [ 31 ] The ALRB’s own jurisprudence, says AUPE, has consistently held that in an employer’s exercise of management rights where the contracting out of all or almost all of the bargaining unit’s work occurs after notice to bargain has been served, the employer’s actions violate section 147(3): • Canadian Paperworkers Union, Local 1118, Applicant and MacMillan Bathurst Incorporated, Respondent , [1992] Alta.

LRBR 253 • I.A.M. & A.W., Local 99 v Finning International Inc, 2005 CarswellAlta 1947, [2005] Alta. LRBR. 478, [2005] ALRBD No 88 .; • I.A.M. & A.W., Local 99 v Finning International Inc , 2009 ABCA 55 ; and • the Shepherd's Care case. [ 32 ] The decision also invokes the City of Edmonton case, which concerns the legality of classification changes made by the employer during the freeze. [ 33 ] In particular, AUPE takes exception to this paragraph in the decision:

[55] With the exception of City of Edmonton decision, the above cases dealt with the reasonableness and good faith obligation placed on the use of the management rights clause to contract out.

They did not deal with a case such as this where the contracting out is arguably expressly permitted by the collective agreement. [ 34 ] AUPE contends that since the ALRB panel said that the collective agreement (relying on articles 15.01 and 32) only “arguably”, or in other words ambiguously, permits the outsourcing rather than unambiguously doing so, any ambiguity must be resolved in a manner that supports the policy objectives of the statutory freeze: per Westfair Foods Ltd, Re , [2017] ALRBD No 96 at para 122.

The resulting conclusion is that there is no express right under the collective agreement to outsource work and that such a right can only be founded in Optima’s management rights clause. [ 35 ] Four of the cases listed above all stand for the proposition that reliance on the management rights clause is insufficient to overcome the statutory freeze when it comes to contracting out.

Notably, the City of Edmonton case did feature a collective agreement with sufficiently specific language to permit the employer in that case to alter classifications so as to come within the third exception to section 147(3). [ 36 ] Here, AUPE states that: • Neither

article 15.01 nor 32 contains the necessary permissive language. • As a result, Optima must default to the management rights clause. • The established jurisprudence from the ALRB thus points to the outsourcing in this case as an illegal act under section 147(3). [ 37 ] Overall, AUPE contends that the result of the ALRB’s decision in the Optima case, the destruction of the entire bargaining unit, is antithetical to the policy objectives of section 147(3) and that Optima could not point to a single contracting out case where this result was permitted. 3. Optima’s Position [ 38 ] Optima responds that: • It is not necessary to categorize the right found in

article 15.01 as either substantive or procedural since the language clearly contemplates that outsourcing may occur.

If the collective agreement, arrived at through a process of bargaining and negotiation, represents the joint expectations of the parties, then clearly (Optima argues) outsourcing is just such an expectation. • Further, Optima says that AUPE’s argument focusing on the word “arguably” constitutes the minute line-by-line dissection of an administrative decision that is prohibited by Vavilov at para 102 and Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper , Ltd., 2013 SCC 34 , [2013] 2 SCR 458 at para 54 . • Moreover, the effect of the word “arguably” in that particular sentence of the decision is overridden by the panel’s subsequent language in the decision.

A statement appears in the very next sentence that “the existence of articles 15.01 and 32 of the collective agreement explicitly addresses contracting out and the reduction of the number of employees.” In the same paragraph, the panel says that articles 15.01 and 32 support the contracting out and then the next paragraph states that articles 15.01 and 32 “ explicitly contemplate contracting out and reducing the number of staff.” Paragraph 56 then states “the employer in exercising its right to contract out and to reduce staff conducted itself in accordance with the express terms of the collective agreement.” The totality of the language used by the ALRB panel, says Optima, clearly states that it found those two particular articles in the collective agreement to explicitly and unequivocally authorize the contracting out. (my emphasis added) • The panel fully dealt with the applicable precedents.

It distinguished the McMillan Bathurst case, the two Finning cases, and the Shepard’s Care case by contrasting the residual management rights clause in those cases with the specific articles 15.01 and 32 in the Optima case.

It further adopted the reasoning in the City of Edmonton case by drawing a parallel to the Optima case in terms of the language in both collective agreements that permitted the acts complained of. • The four previous cases where the contracting out was not permitted were also distinguished on the basis that Optima was acting for bona fide business reasons, unlike in those other cases. • Finally, in terms of the policy objective of preserving the status quo during collective bargaining so as not to undermine the union’s bargaining position, Optima points out that the legislature expressly created three exceptions to the statutory “freeze” and that Optima’s actions fell into the last of those exceptions.

Had AUPE wished to outlaw contracting out, it could have sought to do so through the collective bargaining process. The decision recounts how such an attempt was made in this case but was unsuccessful. Optima argues that AUPE now seeks to do through judicial review what it could not achieve through collective bargaining. 4.

Was the ALRB’s consideration of its previous decisions reasonable or not? [ 39 ] Based on the approach contained in Vavilov described above, I conclude that the ALRB’s consideration of its previous decisions is reasonable. [ 40 ] First, the ALRB panel provided a clear and intelligible justification for distinguishing the four cases: • In the four cases, the employer relied on the management rights clause as the authorizing provision in the collective agreement to justify the changes it made during the collective bargaining process. In the Optima case, the panel found that articles 15.01 and 32, read

together, provide the necessary specific authority within the collective agreement. • This distinguishing feature is further demonstrated by the panel adopting the reasoning in the City of Edmonton case which, in the panel’s view, is similar to or analogous to the Optima case in that both collective agreements contain the necessary specific authorizing language. • The panel provided a lengthy and exhaustive factual background to support its finding that Optima was acting for bona fide business reasons.

This is another distinguishing feature from the four cases where the ALRB found the employer was not acting in good faith. • While the use of the word “arguably” in para 55 of the decision may lend uncertainty to the panel’s meaning, that uncertainty is removed in the next two paragraphs where it finds that articles 15.01 and 32 explicitly address or contemplate the contracting out and staff reduction, and support it.

As Vavilov instructs at para 100 , the court should not be troubled by superficial flaws or shortcomings that are minor missteps. [ 41 ] Second, I note at para 54 of the decision, they ALRB panel specifically addresses the similarity in wording between the collective agreement in Shepard’s Care and

article 32 in the Optima case. The panel reasoned that the Shepard’s Care collective agreement did not have language similar to

article 15 in Optima. It then says at para 56 that the combination of articles 15.01 and 32 authorize the outsourcing and consequent staff reduction. [ 42 ] Third, while counsel for AUPE argued that the ALRB panel did not couch its decision in terms of the expectations of Optima’s employees, I note that at para 45 of the decision, the panel quotes and adopts this passage from the City of Edmonton case:

Article 19 of the collective agreement specifically enables the city to create new classifications, and change or delete existing classifications. The explicitness of that right suggest that the city expected to be able to create, amend or delete classifications at any time and that the employees shared that expectation. [ 43 ] The emphasis was added by the ALRB panel in this case. I also note that the specific references to changing or deleting existing classifications or creating new classifications in

article 19 of the collective agreement in the City of Edmonton case are also procedural in nature, setting out a process to be followed in the event of changed, deleted or new classifications. It was these provisions that the ALRB related to the shared expectations of the parties as quoted in the passage above. [ 44 ] Fourth, AUPE argued that

article 32 cannot be reasonably interpreted to sustain the outcome reached by the ALRB panel. The objection focuses on whether the word “discontinue” in sub-paragraph 32.03(a)(iii) (in the context of discontinuing an undertaking, activity or service) can reasonably include outsourcing. AUPE contends that Optima did not discontinue providing care at Century Park; it merely hired a third-party to perform that function. This is a purely semantical argument. In the absence of more precise language, either side of the semantical argument is reasonable.

The panel’s bottom line was that articles 15.01 and 32 read in combination rendered the outsourcing lawful. The court should not step in and substitute its own

interpretation of the collective agreement for that of a specialized labour relations tribunal exercising its core function. [ 45 ] Last, it is quite true as counsel for AUPE suggests that no case was cited to me in which the total elimination of the bargaining unit was countenanced under the third exception to section 147(3). If this was a result that AUPE wanted to avoid, then it could have attempted to negotiate a “no contracting out” clause in the collective agreement, as it attempted to do in November 2017 to replace the existing

article 15.01. Freedom to bargain collectively is also a value that is promoted by labour relations legislation. The court should not interfere in the process by imposing additional terms not found in the collective agreement that was negotiated. [ 46 ] In the result, I find that the ALRB has explained its application of the case law in a clear, justifiable and intelligible manner. G.

Disclosure of Outsourcing Decision [ 47 ] AUPE also contends that the ALRB’s finding that Optima was transparent by providing the union with substantial disclosure well in advance of the actual contracting out decision is not supported by the record and therefore unreasonable. This finding appears at para 57 of the decision as one of four bullet points explaining the magnitude of the contracting out. [ 48 ] Optima says in its written brief that AUPE should have raised this argument before the ALRB and should be prohibited from doing so at first instance in judicial review.

Alternatively, Optima asserts that the evidentiary record amply supports the finding. [ 49 ] Neither side devoted much in the way of oral argument to this question, preferring instead to rely on their written briefs. [ 50 ] In reviewing the record and the ALRB panel’s recitation of facts from paras 5 through 39 of the decision, it is clear that the record does support the finding. There was an extensive process involved. First, Optima reviewed the Century Park operations following acquisition and came to some conclusions about viability and profitability.

Next, Optima had to then source third-party providers, await the outcome of an AHS audit, re-engage in sourcing and eventually select a provider, come to acceptable contractual terms with that provider and then wait out two levels of AHS approval. It signalled its intention that it might be outsourcing to AUPE at the outset in August 2017. At intervals, Optima provided progress reports to the union. Almost exactly 2 years later, Optima provided the formal notice required under

article 15.01. Each step is carefully recounted in the factual narrative provided by the panel. [ 51 ] From this record, it is reasonable for the ALRB to have found that substantial disclosure took place prior to the actual decision in that the union was kept abreast of developments. It is apparent that until August 2019, whether there would be any contracting out or not was still conditional, but in the circumstances it is difficult to say how Optima could have been more definitive about the outsourcing until the last piece fell into place. I conclude from this that the decision cannot be deemed unreasonable based on this finding, in view of

the record and the decision itself. H. Improper Judicial Notice? [52] AUPE’s third branch of argument relates to the fourth of the four bullet points in para 57 where the panel states “with anauxiliary nursing care bargaining unit, any contracting out is likely to involve most, if not all of the unit.” The implication is even thoughAUPE was not told until August 2019 that Optima’s intention was to outsource nearly the entirety of the bargaining unit, AUPE shouldhave known this would be the case. [53] This finding of fact, says AUPE, comes completely out of the blue and has no foundation anywhere in the evidence.

AUPEcontends that it seems the panel took judicial notice of such a fact based on its own experience in labour relations and knowledge of theindustry. [54] Judicial notice may be taken where the facts are either notorious or generally accepted, or are capable of immediate andaccurate demonstration by resort to readily accessible sources of indisputable information: R v Spence, 2005 SCC 71 at paras 53-54 &61.

Here, the impugned fact falls into neither category. [55] Further, AUPE argues that the so-called fact was integral to the ALRB panel’s ultimate conclusion, being one of the fourfoundational pillars of the decision found in para 57.

The central importance of this disputed fact, says AUPE, means that the decision isunreasonable. [56] Alternatively, AUPE says that it did not have the opportunity to test the evidence or make submissions, and consequentlythere is a breach of procedural fairness. [57] Optima responds that there is nothing unreasonable nor unfair about the statement because: • it is well-known and documented in the ALRB’s own public bulletin who a standard auxiliary care bargaining unit consists of andhow they function as “an integrated team providing direct client care”, and the statement arises from the institutional setting per Vavilovat para 94; • further, on the record itself 50 of the 53 employees in the bargaining unit were involved in providing care, and given the integratednature of the work, it is reasonable to assume that all employees providing the actual care in auxiliary care cases would be outsourcedwhen making the outsourcing decision is made; • statutory delegates have a wider margin for taking official notice of facts than do courts and, in this case, the ALRB was relying onits own acquired expertise; and • in any event, taken in context, the statement is peripheral not central. [58] Authors Jones and de Villars in their Principles of Administrative Law, 7th ed (Toronto: Thomson Reuters, 2020) say: In a courtroom setting, judicial notice has traditionally been restricted.

Courts have only been able to take judicial notice of facts whichare (

a) so notorious as not to be the subject of dispute among reasonable persons, or (

b) capable of immediate and accurate demonstrationby resorting to readily accessible sources of indisputable accuracy. But, to restrict the ability of members of statutory delegates to take judicial notice of only notoriously known or verifiable facts woulddefeat one of the rationales for the appointment of specialized statutory delegates. The courts have recognized that this differencebetween themselves and statutory delegates implies that the more restrictive rules pertaining to judicial notice do not apply to statutorydelegates.

The requirement is that the procedure be fair. [59] Thus, statutory delegates have a wider margin for taking official notice. Jones and de Villars quote as follows from themajority in Singh v.

Canada (Minister of Employment & Immigration), 1984 CarswellNat 181, 6 Admin L R 38 (Fed CA) which inturn approvingly quotes from Maslej v Canada (Minister of Manpower and Immigration), 1976 CarswellNat 84, 1976 CarswellNat84F, (FCA), [1977] 1 FC 194 (FCA) at 198: . . . no tribunal can approach a problem with its collective mind blank and devoid of any of the knowledge of a general nature which hadbeen acquired in common with other members of the general public, through the respective life-times of its members, including perhapsmost importantly that acquired from time to time in carrying out their statutory duties. [60] However, there is the caution that admission of such facts must reflect fairness in that the affected party must have notice andthe opportunity to controvert the evidence.

For example, in Huerto v College of Physicians & Surgeons (Saskatchewan), (SK CA), 1996 CarswellSask 63, 34 Admin L R (2d) 159 (SKCA), the court found that a disciplinary tribunal had acted in anunfair manner by relying on the personal knowledge of its panel members to determine the proper standard of care (which was the keyissue in the case) while denying the accused physician the right to test the evidence.

The Court of Appeal endorsed the reviewing judge’sview that the accused physician did not know, and had no way of testing, the specific knowledge of each panel member that was broughtto bear, its reliability and the expertise of the panel members. [61] AUPE makes the point that the panel in the reconsideration decision at paragraph 10 acknowledges that the original panelwent beyond the evidence before it and supplemented it with its own general labour relations knowledge.

The reconsideration panel saidthe inclusion of this statement did not appreciably impact the original panel’s “appropriate finding on the relevant point.” [62] I agree with the reconsideration panel in this regard. The statement with regard to how the contracting out of an auxiliarynursing care bargaining unit would likely involve most if not all of the unit is not a critical finding. It appears as the fourth bullet point in

para 57. All of para 57 is concerned with explaining how the magnitude of the employer’s decision to outsource is justified, and how its impact on the terminated employees may be seen as somewhat attenuated. The intent of para 57 is shown in its opening words: “In this case, the termination of 52 or 53 employees is significant, however…” The impugned factual statement is not central to the ALRB panel’s reasoning in determining that the outsourcing was permitted under section 147(3).

This is not a case like Huerto where the supplementary evidence provided by the panel members on the standard of care was the key evidentiary point on whether such a standard had been breached. [ 63 ] This type of error, if it is an error, falls into the adage that “a reviewing court must bear in mind that the written reasons given by the administrative body must not be assessed against a standard of perfection” ( Vavilov at para 91 ) and that flaws or shortcomings that are merely superficial or peripheral to the merits of the decision are excusable ( Vavilov at para 100 ).

I say that because even if the fourth point in paragraph 47 was dropped, the vitality of paras 56, the balance of 57, and 58 remains. [ 64 ] In the preceding paragraph, I hedged on whether the impugned statement was an error or not.

I did so deliberately because there is a persuasive argument that it is not, namely that: • This is more of a case like Singh or Maslej where the knowledge was acquired by the panel members through experience in carrying out their statutory duties. • There was otherwise an evidentiary basis in that the composition of the bargaining unit was known to all, and in particular the fact that 50 of 53 of the unit employees were involved in directly providing care. Optima had made it clear to AUPE that the current business model was not financially sustainable which it said had caused the predecessor to sell.

Outsourcing two cooks and a recreational aide would not change the business model. • The statement must be assessed in regard to the ALRB’s institutional setting which includes its own information bulletins, and in particular, Information Bulletin # 10 Respecting Bargaining Units for Hospitals and Nursing Homes , which specifically prescribes that the bargaining unit for auxiliary nursing care consists of all employees when employed in auxiliary nursing care who provide client care in an integrated manner. • Thus, as resulting of the two foregoing bullet points, once the discussion concerning outsourcing began, it was reasonable that the Century Park employees understood that the subject of the potential outsourcing could only have been auxiliary nursing care. • Therefore, the statement could be a matter of logical deduction by the panel based on known facts from the record and information contained in the institutional setting as well as personal knowledge of how supportive living facilities operate, rather than a mere bald assertion pulled out of thin air. • Finally, as to fairness, the statement in question was raised by the employer’s counsel during submissions in the hearing before the ALRB.

AUPE could have challenged the statement in rebuttal by saying that it should be disregarded or given no weight, had no basis in evidence, was inaccurate or unverifiable. [ 65 ] I dispose of this point mainly on the ground that the impugned statement is peripheral and not core to the ALRB’s central finding of legality of the outsourcing in this case. However, for the other reasons listed above, I remain unconvinced that the making of the statement is either an unreasonable error or amounts to a breach of procedural fairness. I.

Conclusion [ 66 ] In the result, looking at the ALRB’s reasons as a whole, I conclude the decision both in terms of the rationale and the outcome is reasonable based on an internally coherent and rational chain of analysis, which is evident in the reasons themselves or that can be inferred from the record. The panel has justified its finding of legality of the outsourcing in an intelligible and transparent manner and in light of the relevant legal and factual constraints that bear on the decision.

Overall, I am satisfied there are no sufficiently serious shortcomings in the decision so as to detract from the requisite degree of justification, intelligibility and transparency. [ 67 ] Despite the valiant and capable advocacy of AUPE’s counsel, as applicant AUPE was ultimately unable to overcome the hurdle of deference presented when an expert tribunal works within its home statute and discharges a core function (interpreting a collective agreement). [ 68 ] The application for judicial review of the original decision is dismissed. [ 69 ] Cost may be spoken to within 60 days of release of this decision, if the parties so wish. [ 70 ] I thank all counsel for the thorough and professional way in which the case was presented, both orally and in written briefs.

Counsel for the ALRB appropriately confined her role to presenting the record, speaking to the applicable standard of review and remaining available to answer the court’s questions concerning the ALRB’s practices and procedures. Heard on the 01 st day of October, 2021. Dated at the City of Edmonton, Alberta this 14 th day of October, 2021.

Douglas R. Mah J.C.Q.B.A. Appearances: Patrick Nugent & Adam Cembrowski Nugent Law Office for the Applicant (Alberta Union of Provincial Employees) Gabriel Joshee-Arnal Neuman Thompson for the Respondent (Optima Living Alberta Ltd) Terri Susan Zurbrigg Alberta Labour Relations Board for the Respondent (Alberta Labour Relations Board)