NARL Refining Limited Partnership Applicant And: United Association of Journeyman v. Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada,, 2020 NLSC 100

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : NARL Refining Limited Partnership v.

United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 , 2020 NLSC 100 Date : July 16, 2020 Docket : 201701G6272 Between: NARL Refining Limited Partnership Applicant And: United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 Respondent And: United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9316 Intervenor RESPONDENT Before: Justice Rosalie McGrath Place of Hearing: St.

John’s, Newfoundland and Labrador Dates of Hearing: April 26, 2018 and June 2, 2020

Summary: The Court set aside a decision of a labour arbitrator on the basis that the arbitrator failed to grapple with the essential submissions made by the Applicant and Intervenor Respondent. The decision was therefore unreasonable. Appearances:

Harold M. Smith, Q.C. Appearing on behalf of the Applicant Dana K. Lenehan, Q.C. Appearing on behalf of the Respondent Gordon N. Forsyth, Q.C. Appearing on behalf of the Intervenor Respondent Authorities Cited: CASES CONSIDERED: North Atlantic Refining Ltd. v. U.A., Local 740, 2007 NLTD 162; Newfoundland Processing Ltd. v. UnitedAssociation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of Canada, Local 740 et al., September 20, 1994(Browne); North Atlantic Refining Ltd. v.

United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of theUnited States and Canada, Local 740 (Contracting Out Grievance), [2000] Nfld. LAA No. 5; Canada (Minister of Citizenship andImmigration) v. Vavilov, 2019 SCC 65; Bell Canada v. Canada (Attorney General), 2019 SCC 66; Canada Post Corp. v. CanadianUnion of Postal Workers, 2019 SCC 67; N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62; Delios v. Canada(Attorney General), 2015 FCA 117; M.A.H.C.P. v.

Nor-Man Regional Health Authority Inc., 2011 SCC 59; Edmonton (City of) v.Edmonton Police Association, 2020 ABCA 182; Labourers’ International Union of North America, Local 183 v. GDI Services (Canada)LP, 2020 ONSC 1018; Walker v. Canada (Attorney General), 2020 FCA 44; Burke v. N.A.P.E., 2010 NLCA 12; NAPE v. Newfoundland& Labrador Health Boards Assn., 2010 NLTD(G) 107; Snelgrove v. Newfoundland and Labrador (Justice and Public Safety), 2020NLSC 75; Salmonid Association of Eastern Newfoundland v. Her Majesty the Queen in Right of Newfoundland and Labrador, 2020NLSC 34; Chaffey v.

Her Majesty the Queen in Right of Newfoundland and Labrador, 2020 NLSC 56; R. v. St. John’s (City), 2017NLCA 71; A.T.A. v. Alberta (Information and Privacy Commissioner), 2011 SCC 61; Arsenault v. Canada (Attorney General), 2016FCA 179; Fisher v. Canada (AG), 2012 FC 120; U.A., Local 740 v. Canadian Process Services Inc. (2001), (NLSC), 206 Nfld. & P.E.I.R. 101, 108 A.C.W.S. (3d) 841 (Nfld. S.C. (T.D.)); Maracle v. Travelers Indemnity Co. of Canada, (SCC), [1991] 2 S.C.R. 50; Newfoundland and Labrador Association of Public and Private Employees v. Newfoundland andLabrador, 2018 NLSC 14; I.B.E.W., Local 353 v.

Jacobs Catalytic Industrial Services Ltd., [2007] O.L.R.D. No. 5112, [2007] O.L.R.B.Rep. 1043 (Ont. Lab. Rel. Bd.); Newfoundland & Labrador (Treasury Board) v. N.A.P.E., 2010 NLCA 37; Association of Allied HealthProfessionals v. Eastern Regional Integrated Health Authority, 2016 NLLRB 5; Sayers & Associates Ltd. v. U.A., Local 740, 2004NLSCTD 20 STATUTES CONSIDERED: Labour Relations Act, R.S.N.L. 1990, c. L-1; Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched.A RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986. c. 42, Sched. D TEXTS CONSIDERED: Donald J.M. Brown, David M.

Beatty & Adam Beatty, Canadian Labour Arbitration, (Toronto: Canada LawBook, 4th ed.) REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] The Applicant, NARL Refining Limited Partnership (“NARL”), seeks judicial review of an arbitration decision dated July 30,2017 (the “Award”).

The Award deals, in part, with the effect of an August 1995 Letter of Understanding (“LOU”) between NARL andthe United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local740 (the “Pipefitters”). [2] NARL is engaged in the refining, storage and trans-shipment of petroleum products at its Refinery at Come by Chance,Newfoundland and Labrador (the “Refinery”).

As NARL carries out some construction work in the industrial and commercial sector atthe Refinery, it is one of the member employers of the Construction Labour Relations Association of Newfoundland and Labrador Inc.(the “CLRA”).

The CLRA is the accredited employers’ organization for all unionized employers engaged in the industrial andcommercial sector of the construction industry in the Province of Newfoundland and Labrador. [3] On October 1, 1990, the Labour Relations Board for the Province of Newfoundland and Labrador (the “Board”) certified theRespondent union, the Pipefitters, as the bargaining agent representing a unit of employees comprising welders, apprentice welders andworking foremen employed by the employer in the industrial and commercial sector of the construction industry, save and except a

number of exempted positions. [ 4 ] The Intervenor Respondent, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 9316 (the “Steelworkers”) was certified on November 6, 1991 to represent all employees of NARL at the Refinery, save and except a number of exempted positions for construction employees covered by the Pipefitters’ certification order. [ 5 ] The CLRA, together with the Mechanical Contractors Association and other mechanical contractors, had entered into a collective agreement with the Pipefitters.

That collective agreement governed work carried out within the industrial and commercial sector of the construction industry in the Province, including work done by members of the Pipefitters at the Refinery. [ 6 ] The Steelworkers are NARL’s regular internal workforce but, as noted above, their certification is outside the construction industry and is not governed by the specific rules applicable to that industry contained in sections 54 to 68 of the Labour Relations Act , R.S.N.L. 1990, c. L-1 (the “ Act ”).

As such, NARL and the Steelworkers bargain directly with each other and manage their own labour relations. [ 7 ] The manner in which the two certification orders co-existed and were applied at the Refinery was summarized by Fry, J., as she then was, now Chief Justice of the Newfoundland and Labrador Court of Appeal, in North Atlantic Refining Ltd. v.

U.A., Local 740 , 2007 NLTD 162 (the “2007 Decision”), at paragraph 13: 13 The practical application of the certification orders is that generally speaking, the Steelworkers are considered the bargaining agent for all regular employees employed in the operations and maintenance of the Refinery and related site operations while the Pipefitters are considered bargaining agent for certain construction employees engaged in the plumbing and pipefitting sector of the construction industry, who may from time to time work at the Refinery. [ 8 ] However, as the Refinery is an ongoing operation, a portion of its existing, internal workforce represented by the Steelworkers have the same skills and qualifications as members of the Pipefitters.

In particular, both unions represent welders and other workers who may perform plumbing and pipefitting work at the Refinery. Numerous grievances have arisen over the years because work assigned to welders in each union may incorporate aspects of both construction and maintenance if broken down into individual tasks, with the parties failing to agree on how the scope of work should be characterized and assigned to each union. [ 9 ] The grievance that is the subject of this judicial review is one such instance. The grievance arose in July 2016.

It related to a work assignment that, arguably, had aspects of both construction and maintenance work. NARL had assigned this work to its internal workforce represented by the Steelworkers. The Pipefitters grieved the work assignment on the basis that it was “construction work” and should have been assigned to the Pipefitters. [ 10 ] The grievance proceeded to arbitration with the Arbitrator agreeing with the Pipefitters that the work assigned, i.e., the attachment of a new boiler to the existing system, was “construction work”.

The aspect of the Award dealing with how work is characterized is not challenged by NARL. [ 11 ] NARL’s position on this judicial review is that the LOU and the practice that had developed dealing with the manner of assigning of welding and pipefitting work at the Refinery should have been given effect. While the Steelworkers are not a party to the LOU, they also take the position that it should be given effect. [ 12 ] However, the Arbitrator failed to give the LOU or the practice any legal effect, instead relying on the wording of the unions’ collective agreements.

As a result, NARL and the Steelworkers say that the Award is unreasonable. ORIGIN AND HISTORY OF THE LOU [ 13 ] A general understanding of events leading to the LOU is necessary to determine whether it should be given any legal effect. The Arbitrator summarized those events in the Award. [ 14 ] Prior to the LOU, all parties agree that if the work fell within the industrial and commercial sector of the construction industry, as defined by the Act , the CLRA collective agreement applied by virtue of the Pipefitters’ certification order.

However, if the work was outside the industrial and commercial sector of the construction industry, or if it fell within the industrial plant maintenance exemption in the CLRA accreditation order, the work would be assigned to NARL’s regular workforce by virtue of the Steelworkers’ certification order.

However, agreeing on such a distinction proved to be difficult, leading to many jurisdictional grievances. [ 15 ] In a 1994 decision, the Board offered the parties guidance on making a distinction between “construction” and “maintenance” in light of the specific circumstances pertaining to Refinery work tasks ( Newfoundland Processing Ltd. v.

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of Canada, Local 740 et al. , September 20, 1994 (Browne)). [ 16 ] Notwithstanding this 1994 decision, there continued to be grievances relating to the question of whether assigned work constituted construction or maintenance work. A mediator was appointed in or about 1995 to engage the parties in resolving a number of then outstanding jurisdictional disputes.

That mediation effort resulted in NARL and the Pipefitters entering into the LOU. [ 17 ] NARL and the Steelworkers assert that the evidence before the Arbitrator demonstrated the intent and effect of the LOU was to eliminate the necessity to characterize work as either construction or maintenance in order to determine which certification order applied. [ 18 ] The LOU provided that all welding, plumbing and pipefitting work which could be done by NARL’s existing internal workforce (Steelworkers) would be done by them.

Any welding, plumbing or pipefitting work requiring efforts beyond what the then existing workforce was able to provide, regardless of whether it was maintenance or construction, would be contracted out to a company governed by the CLRA collective agreement, meaning that members of the Pipefitters would perform it. This is in conformity with a

letter of agreement between NARL and the Steelworkers dated October 1995 (the “Steelworkers’ LOA”). [ 19 ] NARL and the Steelworkers say, not only did the Arbitrator have before him evidence concerning the formation and compliance with the terms of the LOU over a twenty-year period of time, he also had the benefit of prior arbitral awards and judicial review decisions. [ 20 ] In particular, the evidence revealed that the Pipefitters filed a grievance under the CLRA collective agreement in 1999 on the basis that NARL had not sufficiently respected the mutual arrangement reached in the LOU governing work assignments.

NARL raised a preliminary objection to that 1999 grievance on the basis that the LOU was not part of that collective agreement. As a result, NARL asserted the Arbitrator had no jurisdiction to hear or decide a grievance resulting from it. [ 21 ] Arbitrator Browne dismissed that preliminary objection, ruling that the LOU was a collective agreement addressing a local issue and was intended to continue beyond the expiry of the CLRA collective agreement then in force. Neither party sought judicial review of the finding that the LOU was a collective agreement ( North Atlantic Refining Ltd. v.

United Assn. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 (Contracting Out Grievance), [2000] Nfld. LAA No. 5). [ 22 ] The Pipefitters filed another work assignment grievance in 2005. NARL once again raised a preliminary objection before the same arbitrator that the grievance was not arbitrable. The arbitrator found that the grievance could be arbitrated.

However, NARL sought judicial review of that decision, resulting in the 2007 Decision. [ 23 ] As the arbitrator’s decision related to jurisdiction, the appropriate standard of review was that of correctness. Fry, J. found that the decision did not follow a sufficiently logical path to enable the Court to understand the basis on which the arbitrator had assumed jurisdiction over the grievance before him. His decision was therefore quashed for lack of jurisdiction. [ 24 ] Also applying the correctness standard, Fry, J. found the LOU could not be characterized as a stand-alone collective agreement.

She held that section 64(2) of the Act precluded any entity from negotiating a collective agreement with the Pipefitters relating to construction work in the industrial and commercial sector other than the accredited employers’ organization, (i.e. the CLRA). [ 25 ] At paragraph 143, the Court left open the question of whether, though they could not negotiate a collective agreement, NARL and the Pipefitters could nevertheless negotiate “some other form of agreement or contract”. [ 26 ] Neither party appealed the 2007 Decision and there have been no arbitral awards or court decisions dealing with the effect of the LOU since that decision. overview of JULY 2016 GRIEVANCE and aWARD [ 27 ] The Arbitrator began the Award by noting the agreement of the parties on preliminary matters, the exhibits that had been entered and the persons who testified.

After noting the particulars of the grievance and the positions of the parties, he identified the issue to be decided as follows: The question for resolution is how is it to be determined what work is to be done by whom. Did the employer follow the proper method in assigning the subject work? Entwined in this question is a determination of the type of work that is proposed and by which collective agreement it is governed.

The employer argues that one must look at established agreements to answer the first question while the union argues that all that is required is a determination of whether the work is maintenance or construction and assign it accordingly. Lastly, who actually did the work? [ 28 ] The Arbitrator referenced the relevant collective agreements and legislation, followed by a

summary of the evidence placed before him. He then set forth the positions of all three parties. [ 29 ] The next portion of the Award is comprised of the considerations the Arbitrator took into account. The Arbitrator began with a discussion of the nature of the work to be assigned. He considered whether the work grieved was best classified as construction or maintenance, ultimately concluding that it was construction work.

However, he then proceeded to note that both NARL and the Steelworkers took positions that would bypass the legal analysis of construction versus maintenance, arguing that the LOU should prevail. [ 30 ] The Arbitrator ultimately rejected the arguments of NARL and the Steelworkers. He determined that he was bound by the old analysis of construction versus maintenance, an issue on which the Board provided guidance in 1994. It is that finding that NARL and the Steelworkers assert is unreasonable. issues [ 31 ] The issues identified by NARL and the Steelworkers are as follows:

a) What is the appropriate standard of review of the Arbitrator’s Award?

b) Is the Award unreasonable? In particular: (

i) in respect of the Arbitrator’s failure to give effect to the alleged local practice evidenced in the LOU and his application of the law of estoppel; and (ii) in respect of the issue of the Pipefitters’ alleged abandonment of jurisdiction over construction work? [ 32 ] The Pipefitters not only disagree that the Award is unreasonable, but objected to the issues framed by NARL on this judicial review. In particular, they state that NARL is trying to raise issues on judicial review that were not before the Arbitrator.

LAW AND analysis

a) Standard of Review [ 33 ] I agree with the position taken by all parties that the standard of review is that of reasonableness. The Supreme Court of Canada released a trilogy of decisions reframing the law of judicial review in December 2019, namely, Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 ; Bell Canada v. Canada (Attorney General) , 2019 SCC 66 ; and Canada Post Corp. v. Canadian Union of Postal Workers , 2019 SCC 67 .

The parties filed supplemental briefs and made oral submissions on this trilogy. [ 34 ] In Vavilov , the Supreme Court of Canada set out a revised framework for determining the standard of review for administrative decisions. The starting point of that framework is that the standard of reasonableness applies unless rebutted in two situations, neither of which are applicable to this Award. [ 35 ] In Vavilov , the Supreme Court of Canada also wrote extensively on how reviewing courts should carry out a reasonableness review.

While all parties agree that the standard is one of reasonableness, they differ on how the Court should approach the Award in light of the Supreme Court of Canada’s reasons in Vavilov . [ 36 ] The Supreme Court of Canada in Vavilov commented generally on the nature of a reasonableness review at paragraph 13: 13 Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process.

It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a "rubber-stamping" process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review. [ 37 ] In carrying out such a robust review, courts are directed to develop an understanding of the decision-maker’s reasoning process to determine whether the decision as a whole is reasonable.

In particular, at paragraph 99 of Vavilov , the Supreme Court of Canada states: 99 …To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir , at paras. 47 and 74; Catalyst , at para. 13. [ 38 ] In assessing whether the decision bears the hallmarks of reasonableness, reviewing courts are reminded that decision-makers communicate their rationale for a decision by means of their reasons.

The court must therefore be concerned with both the reasonableness of the rationale and the outcome. [ 39 ] In particular, at paragraphs 84 to 85 of Vavilov , the Supreme Court of Canada stated the following with respect to a court’s review of reasons: 84 As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first.

A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with "respectful attention" and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion: see Dunsmuir , at para. 48, quoting D. Dyzenhaus, " The Politics of Deference: Judicial Review and Democracy ", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286. 85 Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable.

As we will explain in greater detail below, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision. [ 40 ] As noted above, reasons must be consistent with the legal and factual constraints that surround the decision.

At paragraphs 105 and 106 of Vavilov , the court identified a non-exclusive list of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely: the governing statutory scheme; other relevant statutory or common law; principles of statutory

interpretation; the evidence before the decision-maker and facts of which the decision-maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. [ 41 ] Further, while the Supreme Court of Canada reiterated that a reviewing court is not to interfere with the factual findings of the decision-maker or assess or re-evaluate the evidence, the reviewing court must take into account the evidentiary record and the general factual matrix that bear on the decision in conducting a reasonableness review.

In particular, at paragraph 126, the Supreme Court of Canada stated as follows: 126 That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir , para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam , at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.

In Baker , for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker's approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.

[ 42 ] At paragraph 96 of Vavilov , the Supreme Court of Canada also specifically cautioned reviewing courts against an inappropriate extension of its decision in N.L.N.U. v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 . In that decision, Justice Abella noted that if there was a defect in an arbitrator’s reasoning, the court ought to first consider whether there are other reasons which could intelligibly be offered in support of the decision.

Paragraph 96 of Valilov is reproduced below. 96 Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines , at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion.

This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision.

To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken. [ 43 ] The Steelworkers say these comments make it clear that if a decision- maker’s rationale is non-existent or flawed, a reviewing court is not permitted to provide its own reasoning to justify the outcome. [ 44 ] The Pipefitters generally agree with the above comments respecting a reviewing court’s role on judicial review.

However, they also note that the Supreme Court of Canada started its analysis of reasonableness review with the understanding that a reviewing court is to exercise judicial restraint in respect for the distinct role of the administrative decision-maker. [ 45 ] In particular, at paragraph 83 of Vavilov , the Supreme Court of Canada noted that the role of a court is to review, but refrain from deciding the issue itself.

A court does not ask itself what decision it would have made in place of the administrative decision- maker, attempt to ascertain the “range” of possible conclusions that could have been open to the decision-maker, and conduct a de novo analysis or seek to determine the “correct” solution to the problem. The court quoted with approval from paragraph 28 of a decision of the Federal Court of Appeal in Delios v.

Canada (Attorney General) , 2015 FCA 117 , in which the court noted that “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”. [ 46 ] The Pipefitters also note that, while the court recognized the importance of the reasoning process, the Supreme Court of Canada also stated that administrative justice is not expected or intended to resemble judicial justice.

The following excerpt from paragraphs 91 and 92 of Vavilov demonstrates this point: 91 A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do "not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred" is not on its own a basis to set the decision aside: Newfoundland Nurses , at para. 16.

The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings. 92 Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons.

These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker's strength within its particular and specialized domain. "Administrative justice" will not always look like "judicial justice", and reviewing courts must remain acutely aware of that fact. [ 47 ] Applying the above criteria, the Supreme Court of Canada noted there is a heavy onus on a party seeking judicial review to show serious shortcomings in the reasons.

Any shortcomings must be sufficiently central or significant to render the decision unreasonable. [ 48 ] At paragraph 101 of Vavilov , the Supreme Court of Canada noted two fundamental types of flaws for a court to consider: 1) where there is a failure of rationality internal to the reasoning process; and 2) where a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. [ 49 ] In respect of the first type of “flaw”, the Supreme Court of Canada made it clear that the court is not to carry out a line by line treasure hunt for error.

What is critical is the ability of the court to find a chain of analysis that could reasonably lead the decision- maker, on the evidence before it, to the outcome. The Pipefitters submit that reasons should be reviewed holistically; meaning that a reviewing court may be able to infer a chain of analysis from the record. [ 50 ] With respect to the second type of “flaw”, the Pipefitters place particular emphasis on the need to consider principles of

interpretation, past practices of the administrative decision-maker, the potential impact of the decision, the evidence before the decision- maker and the submissions of the parties. In doing so, the court must also take into account that many administrative decision-makers must have flexibility in fashioning remedies and be creative in adapting legal and equitable doctrines, such as estoppel, to the facts of the case. [ 51 ] In particular, at paragraph 113 of Vavilov , the court referred with approval to its prior decision in M.A.H.C.P. v.

Nor-Man Regional Health Authority Inc. , 2011 SCC 59 , in which Justice Fish, for a unanimous court, held that labour arbitrators are authorized by broad mandates and expertise to flexibly craft remedies. [ 52 ] The Pipefitters submit that the statements in Vavilov referred to above demonstrate that the Supreme Court of Canada has not eliminated the concept of deference but merely clarified that the reasons offered in support of a decision are the primary lens through which a judicial review is conducted. The starting point remains judicial restraint, or deference to the administrative tribunal’s decision.

It is only where a decision-maker’s rationale for an essential element of the decision is unreasonable, or is not addressed and cannot be inferred from the record, that a court should intervene. [ 53 ] The Pipefitters also note that the Supreme Court of Canada was careful in how it considered prior jurisprudence. It described its decision as a “recalibration” of the choice of standard and a “clarification” of its application.

At paragraph 143 of Vavilov , the Supreme Court of Canada held that prior case law will “continue to provide insight, but should be used carefully to ensure that their application is aligned in principle with these reasons”. [ 54 ] As such, the Pipefitters submit that there is value in examining how the recalibrated standard has been applied to decisions of consensual arbitrators in a labour relations setting. [ 55 ] In Edmonton (City of) v.

Edmonton Police Association , 2020 ABCA 182 , the Alberta Court of Appeal reiterated that nothing in Vavilov is inconsistent with the prior commentary of the Supreme Court of Canada that a decision-maker’s reasons should not held to a standard of perfection and do not have to include or address every point made in an administrative hearing. What is critical is that the decision maker has “seized the substance of the dispute”. In particular, the court stated as follows at paragraph 27: 27 While the Arbitration Decision analysis

section is short, five paragraphs, that does not necessarily mean that the arbitrator did not engage with the issues. In this case, there was one narrow legal issue which he had to determine, and he did. Vavilov has given some guidance to reviewing courts in how to review a decision on the reasonableness standard of review: see paras 82-138. These suggestions are not be read like a checklist or a straightjacket to which reasons must conform.

Nothing in Vavilov is inconsistent with other comments made by the Supreme Court of Canada that reasons should serve three purposes: inform the parties of the decision, provide public accountability, and permit review by a court: Vavilov at para 79 , citing R. v. Sheppard , 2002 SCC 26 (S.C.C.) ; and see R. v. M. (R.E.) , 2008 SCC 51 (S.C.C.) . There is no boilerplate to be followed; rather, a functional approach is appropriate. Reasons will be tailored to their particular context. If it is clear the legal principles are understood by a decision maker, there is no need to repeat all of the cases.

Reasons do not have to include every point; they are not held to a standard of perfection: Vavilov at para 91 . A decision maker must have "seized the substance of the matter": REM at para 43. In this case, there is no doubt that the arbitrator seized the substance of the matter. [ 56 ] Similarly, in the Ontario Superior Court of Justice decision in Labourers’ International Union of North America, Local 183 v. GDI Services (Canada) LP , 2020 ONSC 1018 , the court applied pre- Vavilov case law, but noted it must be relied upon with care.

In the labour relations context, judicial deference remains, as that is the rationale for the standard of review being one of reasonableness. [ 57 ] For its part, NARL relies on labour relations decisions dealing with the failure to deal with a central issue using pre- Vavilov case law. NARL notes that a reviewing judge must review the reasons to ensure the arbitrator actually responded to the issues presented by the parties. At paragraph 67 of Burke v.

N.A.P.E. , 2010 NLCA 12 , Green, C.J.N.L., as he then was, commented upon a tribunal’s responsibility to respond to the issues raised as follows: 67 A decision that is unresponsive to the case presented cannot be said to meet the standard of "justification, transparency and intelligibility" within the Dunsmuir test of reasonableness. The essential submissions made should not be ignored. If they are regarded by the tribunal as frivolous or irrelevant to the issues in dispute, the tribunal should say so.

If they are not, but rather, are simply unpersuasive, the tribunal should be expected to give at least a rational reason for why they are not persuasive.

Such a requirement is inherent in the Dunsmuir focus on "the process of articulating reasons" to see if the result is supported by a chain of reasoning that is reasonable. [ 58 ] Further, at paragraph 70, Green, C.J.N.L. noted that: 70… Where it appears, from an analysis of the reasons given in the context of the record and submissions made, that it did not address the essential submissions, it cannot be said that the decision meets the Dunsmuir standard of "justification, transparency and intelligibility". [ 59 ] An example of a failure to address an essential submission can be found in NAPE v.

Newfoundland & Labrador Health Boards Assn. , 2010 NLTD(G) 107. Orsborn, C.J., as he then was, found that an arbitral award was unreasonable because the arbitrator did not actually grapple with a fundamental question that was before him. The question was whether a union was estopped from grieving the reorganization of a group home based on its consent, knowledge and participation in the reorganization. That had been the employer’s fundamental argument. [ 60 ] Both Burke and Newfoundland & Labrador Health Boards Assn. were decided prior to Vavilov and even prior to N.L.N.U.

As such, the Court of Appeal and Orsborn, C.J. were relying upon Dunsmuir . The comments, however, are equally applicable in carrying out a Vavilov analysis in light of the focus on justification, transparency and intelligibility, as addressed through the lens of the reasons provided by the decision-maker. [ 61 ] In fact, the Pipefitters filed a post- Vavilov case dealing with this very issue. In the Federal Court of Appeal in Walker v. Canada (Attorney General) , 2020 FCA 44 , the court overturned a decision of an administrative tribunal for failure to address a fundamental argument advanced by a litigant.

At paragraph 10, the court held that the Board’s failure to consider a factor that played a central role in, and was fundamental to, the applicant’s defence rendered its decision unreasonable. Further, it found that it was impossible to discern from the decision what weight the Board would have attributed to the factor if it had considered it.

The court recognized that Vavilov dictated that such a failure may well render such a decision unreasonable as the decision would lack transparency and intelligibility. [ 62 ] The Supreme Court of Canada’s decision in Vavilov has also been considered by this Court in three decisions released earlier this year. While none of the cases involved an arbitral award, they do demonstrate how other judges of this Court have applied the Vavilov approach. [ 63 ] In Snelgrove v.

Newfoundland and Labrador (Justice and Public Safety) , 2020 NLSC 75 , Justice Stack noted at paragraph 18 that a reasonableness review must be considered under the lens of transparency, intelligibility and justification.

[ 64 ] In Salmonid Association of Eastern Newfoundland v. Her Majesty the Queen in Right of Newfoundland and Labrador , 2020 NLSC 34 , Justice Boone concluded that a decision of a statutory decision-maker was unreasonable as it did not demonstrate an internally coherent and rational chain of analysis, leading from the legal context imposed by statute to the conclusion reached by the Minister.

Another flaw was that the Minister gave no indication as to how he chose between two conflicting positions, each of which he had been advised were equally valid. [ 65 ] Another example of relevance to the matter before me is the decision of Justice Noel in Chaffey v. Her Majesty the Queen in Right of Newfoundland and Labrador , 2020 NLSC 56 . In that case, Noel, J. noted that the reasons did not address the critical factual dispute that lay at the heart of the request.

At paragraph 55, the Court found that, where facts relevant to the factual context are disputed, the Minister is required to carefully assess all material presented before making a determination. [ 66 ] It is the directions given to reviewing judges in Vavilov , as well as pre- and post- Vavilov case law that is consistent with these directions, that will form the basis of my review of the Award.

b) Is the Arbitrator’s Decision Reasonable? [ 67 ] Both NARL and the Steelworkers submit that the Award is not reasonable as the Arbitrator’s reasoning path is not sufficiently justifiable, intelligent and transparent to demonstrate that he understood and dealt with the central issues he was tasked to decide.

Furthermore, they say that the Award itself is untenable in consideration of the law and facts on the record. [ 68 ] NARL identified three allegedly fatal flaws in the Arbitrator’s reasons. [ 69 ] Firstly, NARL says that the Arbitrator’s failure to grapple with the issues raised by NARL and the Steelworkers is evident from the outset in how he identified and analyzed the dispute. NARL says the Arbitrator ought to have first considered whether the LOU and the longstanding local practice at the Refinery made it unnecessary to consider the technicalities of the work.

Instead, he approached the matter by first classifying the work as either construction or maintenance. [ 70 ] Secondly, NARL says the Arbitrator took an overly formalistic approach and strict characterization of the LOU by failing to recognize and give effect to the law and facts before him. He ought to have properly addressed whether the Pipefitters were estopped from grieving under the CLRA collective agreement, or otherwise prevented from resiling from the LOU.

NARL submits that the formalistic approach taken by the Arbitrator is not in keeping with proper labour relations practices and is therefore a reviewable fatal flaw on the part of the Arbitrator. [ 71 ] The third fundamental error alleged by NARL is that the Arbitrator dismissed the LOU without addressing it as a pragmatic solution to a complicated situation. After the LOU was signed, the parties withdrew or discontinued a number of outstanding arbitrations and Board matters.

As such, the Arbitrator had evidence that the agreements reached were mutually devised to end the multiplicity of legal disputes that plagued their relationships. [ 72 ] The Steelworkers agree with the position taken by NARL but also refer to an additional legal issue they raised before the Arbitrator. They asked the Arbitrator to determine whether the Pipefitters had abandoned their jurisdiction over construction work. They say that abandonment is evidenced in the LOU and the LOA. As a result, the CLRA collective agreement simply did not apply to work at the Refinery.

The Steelworkers say that the Arbitrator failed to deal with that issue. [ 73 ] On the other hand, the Pipefitters say the Award is reasonable as the assignment of work is governed by the accreditation and certification orders and related collective agreements.

The Arbitrator did consider and deal with submissions made to him by NARL and the Steelworkers, as evidenced from the Award. [ 74 ] The Pipefitters say that the case boiled down to two essential questions: what was the nature of the work, and if it was construction, did the LOU preclude the Pipefitters from insisting on its bargaining rights? [ 75 ] Having reviewed and considered the submissions of the parties, the Arbitrator found that the work was construction but that the LOU and alleged past practice had no legal effect on the July 2016 grievance or future work assignments.

The Pipefitters say the Arbitrator seized the substance of the dispute and answered the two questions placed before him. [ 76 ] The Pipefitters further submit that the issues of estoppel and past practice were not argued at the arbitration. They should therefore not be raised on judicial review. Can NARL argue the issues of past practice and estoppel on this judicial review? [ 77 ] The Pipefitters raised the issue that NARL should not be allowed to advance arguments it did not raise at the arbitration hearing.

In support of this objection, the Pipefitters filed an affidavit from their solicitor attaching cases submitted at arbitration by all three parties. The cases presented by NARL dealt with construction versus maintenance and the scope and appropriateness of the bargaining unit. The cases submitted by the Steelworkers dealt primarily with abandonment of bargaining rights and voluntary recognition.

Finally, the cases submitted by the Pipefitters included four cases specific to the Refinery, as well as cases primarily focused on the issue of construction versus maintenance. [ 78 ] The Pipefitters’ stated purposes in filing the affidavit from their solicitor were to

i) complete the record; and ii) underscore that the issues of past practice and estoppel were not raised by NARL or the Steelworkers at the arbitration hearing. [ 79 ] In reply, NARL asserted it is inappropriate for counsel on a judicial review to file affidavit evidence as to submissions made since submissions do not form part of the record. The Steelworkers also objected to such affidavit evidence. [ 80 ] I agree that affidavit evidence outlining submissions and case law referred to by the parties does not form part of the record before this Court on judicial review. I have not considered it as such.

[ 81 ] However, it is appropriate for counsel to assert that an issue was not raised at arbitration and should not therefore now be considered on judicial review.

In order to consider whether or not an arbitrator grappled with a fundamental issue that was raised before him, I have to allow counsel some leeway to identify the issues that were placed before the Arbitrator, to the extent it is not already clear from the record. [ 82 ] The importance of identifying the submissions made before the Arbitrator is also evident from the decision of the Supreme Court of Canada in Vavilov , in which the submissions of the parties are specifically identified as being relevant to the history and context of the proceedings on a reasonableness review. [ 83 ] In this instance, the affidavit and a review of the cases submitted at arbitration only serves to confirm a fact on which all counsel are generally in agreement.

That is, the issues of estoppel and past practice were not identified and addressed by name in submissions to the Arbitrator. That same point could have been made in oral submissions before me. [ 84 ] However, that is not to say that those issues should not be considered. I will therefore look to what was actually put before the Arbitrator. [ 85 ] The Pipefitters acknowledge that the CLRA’s written letter responding to the grievance identified the issue of estoppel may be in play. The CLRA suggested that NARL would be in a better position to respond to the grievance and, in particular, the issue of estoppel.

However, at the hearing, only four months later, estoppel was not specifically raised as a defence. [ 86 ] Further, while the issue of estoppel is referenced in the Award, the Pipefitters say the Arbitrator actually embarked on a consideration of estoppel of his own volition.

The Pipefitters suggest that NARL and the Steelworkers have therefore seized on the Arbitrator’s own reference to estoppel to raise arguments which they failed to advance at the arbitration. [ 87 ] The reference to estoppel and practice is set out below: It would on the basis of these facts be tempting to conclude that because these agreements have existed since 1995 that UA 740 is estopped from denying their validity, especially so when it filed a grievance alleging breach of these very agreements. The employer and the Steelworkers urged the arbitrator not to let UA dishonour its commitment.

However, I must be mindful that the Supreme Court opined on this very issue and found that these letters did not form part of the collective agreements with the CLRA. This estoppel, it could be argued, continued after the court decision because, according to Mr. Efford, the parties continue to follow the same practice for the following 10 years. However, balanced against such a finding is that if this was such an important issue to the employer and their unions, there was a simple way to fix the problem.

That would be for the CLRA to endorse the arrangement as an alteration to their collective agreement with the UA. Given that they have not done so in the in excess of 10 years since that decision, it would be inappropriate for an arbitrator to interfere in that process… [ 88 ] The Pipefitters underline that the Arbitrator was only addressing a legal issue that “could be argued” or an argument that was “tempting”.

However, since NARL did not squarely argue estoppel at the hearing, the Arbitrator was not asked to consider whether there was an enforceable estoppel against the Pipefitters. [ 89 ] For its part, NARL submits that the issue of estoppel cannot be characterized as a new question raised for the first time on this judicial review. The concept of estoppel is intrinsic to the factual matrix that was before the Arbitrator. It is a concept in respect of which NARL and the Steelworkers were effectively aligned when asking the Arbitrator to respect and give effect to the existing arrangement.

As the Arbitrator offered his specialized expertise on this subject, it is entirely appropriate for this Court to consider the issue of past local practice and estoppel. [ 90 ] NARL refers to the Newfoundland and Labrador Court of Appeal decision in R. v. St. John’s (City) , 2017 NLCA 71 , at paragraphs 26 to 28 , in which the Court of Appeal notes that an appeal court is not bound by the positions taken by parties on questions of law.

Questions which are “rooted in or are components of” an existing issue are not truly “new”. [ 91 ] Like an appeal court, NARL says that a court sitting on judicial review may ask questions which redirect the attention of counsel to different aspects of the matter under consideration.

In fact, the process of looking at legal issues in a new light is often a fundamental feature of judicial or appellate review. [ 92 ] While acknowledging that the nuances of judicial review are distinct from appellate review, NARL submits that the guidance of the Court of Appeal relating to whether an issue on appeal is brand new, or merely a sub-set of another question, remains instructive. [ 93 ] NARL also refers to the Supreme Court of Canada decision in A.T.A. v. Alberta (Information & Privacy Commissioner) , 2011 SCC 61 .

In that case, the court considered when it is appropriate to exercise its discretion to hear and decide an issue on judicial review where that issue was not raised at first instance. Rothstein, J. recognized that judicial review is fundamentally a discretionary remedy, with the reviewing court having the ability to decline to exercise its discretion where appropriate. [ 94 ] However, at paragraphs 24 through 26, he identified the following rationale for not allowing a new issue to be raised on judicial review:

a) to avoid unnecessary interference by the Court into the jurisdiction bestowed on the administrative decision-maker by statute. That decision-maker should have the opportunity to deal with the issue first and make its views known;

b) to avoid depriving the court of the benefit of the tribunal’s views, particularly where the issue raised on judicial review for the first time falls within the tribunal’s specialized function or expertise;

c) to avoid prejudice to the opposing party; and

d) to avoid the court being denied an adequate evidentiary record to consider the issue. [ 95 ] With respect to the first two rationales noted above, NARL says the Arbitrator, who was an experienced labour arbitrator, would have been familiar with these concepts and would have seen them as issues arising from the facts before him.

NARL says the Arbitrator, in summarizing the submissions of counsel for the Steelworkers, identified the crux of the issue as follows: The background to this dispute is crucial and shows that all parties have conducted themselves in accordance with the letters of the understanding and the UA 740 cannot be allowed to go back on the agreement. [ 96 ] Later in the Award, the Arbitrator also noted that both the employer and the Steelworkers urged him to not let the UA dishonour its commitment. [ 97 ] NARL asserts that it is irrelevant whether counsel, in submissions before the Arbitrator, used the specific terminology of past local practice or estoppel.

The Arbitrator, having recognized the submissions made regarding past conduct and not allowing a party to resile from an agreement, would have been in a position to opine on the concepts of estoppel and past practice. As evidenced by the Award, he proceeded to do so. As such, the Court has the benefit of having the views of the specialized arbitrator. The first two rationales from A.T.A. are therefore satisfied. [ 98 ] Further, NARL notes that the opposing parties have had a fair opportunity to respond to the issue of whether an estoppel exists. The notions of past practice and estoppel appear not only in the

summary of the parties’ evidence and positions in the Award but the legal issues were explicitly raised in NARL's Originating Application for judicial review. The Respondents are not prejudiced as they have had every opportunity to respond to the issue. The third and fourth rationale have therefore been satisfied. [ 99 ] The Steelworkers support the position taken by NARL. They also refer to the CLRA reference to estoppel in its response to the grievance. That letter was entered as a consent exhibit at the arbitration.

It would have been unreasonable for the Arbitrator to not expressly deal with an issue that the CLRA itself had noted as being an argument in response. [ 100 ] Further, while not identified as a ground for judicial review, the Steelworkers note that it could be argued that the unilateral identification, consideration and rejection of an estoppel without inviting submissions on the issue amounted to a denial of procedural fairness. Reference is made to Arsenault v. Canada (Attorney General) , 2016 FCA 179 and Fisher v.

Canada (AG) , 2012 FC 120 . [ 101 ] However, I note that in light of the position of NARL and the Steelworkers that the issues of estoppel and past practice flowed out of the evidence and submissions, it would be difficult to also maintain an argument of breach of procedural fairness in dealing with an issue not argued before the Arbitrator. [ 102 ] Overall, having considered the history and context of the proceedings before the Arbitrator as set forth in the Award, I agree with NARL and the Steelworkers that the Arbitrator treated the legal issues of past practice and estoppel as arising from the evidence and submissions before him.

This is evidenced from his

summary of the parties’ submissions and evidence and the fact that he provided his opinions on those legal issues in the Award. [ 103 ] As a specialized labour arbitrator, the applicability of those concepts would have been, and clearly was, known to him. The Arbitrator must have felt that these issues were placed before him. If he did not, he ought to have invited submissions from the parties before opining on the issues.

Based on my review of the record, this is not a situation where an arbitrator was not aware of, and did not have an opportunity to opine on, a legal issue that was not placed before him at the hearing. [ 104 ] In these circumstances, once the Arbitrator considered and applied the doctrine of estoppel to the facts before him, it is appropriate for this court to consider those issues on judicial review.

However, even if I am incorrect that these issues are not truly new issues, I find that the rationales from A.T.A. are satisfied. [ 105 ] This Court has the view of the specialized labour Arbitrator, as reflected in his Award.

Further, there is no prejudice to the Pipefitters as they had an opportunity to advance arguments before the Arbitrator as to whether he should give effect to the LOU and to also provide legal arguments on this judicial review. [ 106 ] With respect to the last rationale, I agree with NARL that the evidence supporting the issues of past local practice and estoppel is contained in the record and summarized in the Award.

This Court is therefore not deprived of an adequate evidentiary record against which to consider the reasonableness of the Arbitrator’s findings on these issues. [ 107 ] However, I am cognizant that a judicial review is carried out on a different appellate standard and with a different record than an appeal of a judicial decision from a lower court. On judicial review, I do not have the benefit of a transcript of the hearing before the Arbitrator. As such, I can only rely on the evidence and submissions as contained in the record and summarized in the Award.

The Arbitrator is entitled to deference in respect of that summation. [ 108 ] Similarly, I recognize that the Arbitrator is entitled to deference in respect of his findings of both fact and law. While counsel may refer me to cases that were not before the Arbitrator, these cases must be considered solely for the purpose of considering whether a decision was reasonable. I cannot find a decision unreasonable simply because I would have decided the issue differently by relying on newly submitted cases that were decided differently on the application of different facts to the law.

With that in mind, I will therefore now consider the reasonableness of the Award. Manner of Identifying and Analyzing Issues [ 109 ] As noted above, the first fatal flaw alleged by NARL is the Arbitrator’s decision to start his analysis by classifying the work as either construction or maintenance rather than dealing in a substantive way with the effect of the LOU.

[ 110 ] NARL asserts that this manner of deciding the issues demonstrates that the Arbitrator determined in advance that the LOU was invalid on the basis that it was not part of the CLRA collective agreement.

They say that if he grappled with the true substantive issues in the proceedings, he would have started by dealing with the effect of the LOU. [ 111 ] Instead, he started down the road of determining whether the work at issue was construction work without an appreciation for the fact that the Refinery has made no distinction between construction and maintenance when assigning work since the LOU was entered into. [ 112 ] On the other hand, the Pipefitters state that the order in which the Arbitrator dealt with the issues before him is not a signal of a fatal flaw in the Award.

The Arbitrator identified the two primary issues as being the characterization of the work as construction versus maintenance and the effect of the LOU, if any. [ 113 ] The Pipefitters note that the Arbitrator began his reasons by recognizing that the parties are “no strangers” to the arbitral and litigation process; providing a synopsis of the history of the Refinery as contained in the 1994 decision of the Labour Relations Board: Newfoundland Processing .

They say that decision was of critical importance as it set out the framework for the history of the dealings between the parties. [ 114 ] In that 1994 decision, the Arbitrator noted the Board held that, apart from major maintenance turn-arounds, the day-to-day maintenance “which involves the sustaining and maintaining of existing systems and the facility generally to preserve functioning is maintenance and not construction”.

Construction, meanwhile, would include restoration work and work required to “restore a system or part of a system which had ceased to function or function economically”. [ 115 ] The Pipefitters say that the Newfoundland Processing decision was both historically and contextually the appropriate starting place for assessing both the merits of the grievance and the administrative setting in which the parties had operated for several decades. [ 116 ] It was only natural for the Arbitrator to proceed to ask and answer the question: What is the nature of the work that is in dispute in this case?

This issue was also the subject of a great deal of the evidence and submissions before the Arbitrator. [ 117 ] Having concluded the work was construction, the Arbitrator considered the next logical question of what was required by the collective agreement. He then turned to the 2007 Decision in dealing with the effect of the LOU.

He also dealt with the effect of the failure of the CLRA to endorse the LOU. [ 118 ] The Pipefitters say that the order in which the Arbitrator dealt with these issues in no way indicates that he had prejudged the issue or failed to appreciate the arguments of the parties. [ 119 ] Having considered the submissions of the parties, I agree with the Pipefitters that the order in which the Arbitrator dealt with the issues placed before him does not necessarily mean that he had predetermined the LOU had no legal effect.

In particular, in framing the issue, he identified that “the question for resolution is how it is to be determined what work is to be done and by whom. Did the employer follow the proper method in assigning the subject work”? [ 120 ] He then proceeded to note that this involved not only a determination of the type of work but a consideration of the employer’s position that one must look to existing agreements to answer the question.

He followed by noting the positions of the parties and, in particular, those of NARL and the Steelworkers, that would have bypassed the need for him to determine whether the work was maintenance or construction. [ 121 ] The order in which the Arbitrator dealt with the issues is a question of style versus substance. In fact, it could be argued that, in framing the decision in the way he did, the Arbitrator was potentially avoiding the need to decide an irrelevant issue.

For example, if he found that the work was clearly maintenance work, there would have been no need for him to delve into the legal effect of the LOU as the Pipefitters could not have had a valid grievance, even if the Arbitrator did not give legal effect to the LOU. [ 122 ] As a result, I do not find that the manner in which the Arbitrator dealt with the issues, in and of itself, could lead to a finding that he made a fatal flaw in his analysis. However, this then leads to the manner in which he dealt with the legal effect of the LOU.

Failing to give Legal Effect to the LOU [ 123 ] The second and third fundamental flaws alleged by NARL essentially allege an unreasonable analysis of the legal effect of the LOU. NARL asserts that the Arbitrator ought not to have given no effect to the LOU or past local practice by simply noting the prior finding in the 2007 Decision that the LOU did not form part of the collective agreement with the CLRA.

NARL says he ought to have proceeded to determine the question that had been left open in the 2007 Decision; i.e. whether there was another basis to give effect to the LOU. [ 124 ] NARL and the Steelworkers note that, at paragraph 110 of the 2007 Decision, Fry, J. specifically noted the Pipefitters may not have been without recourse as the LOU could represent a binding contract enforceable in the courts.

She was merely saying that it did not meet the requirements of a collective agreement that could be enforced by arbitration. [ 125 ] Justice Fry also specifically noted, at paragraph 143 of the 2007 Decision, that NARL and the Pipefitters could perhaps negotiate some form of agreement or contract, other than a collective agreement.

All she was deciding was the discrete jurisdictional issue of whether an arbitrator could treat the LOU as a collective agreement and therefore have jurisdiction to hear and determine a grievance filed in respect of its’ alleged breach. [ 126 ] NARL and the Steelworkers further say that Justice Fry was not asked to and did not determine whether the LOU was a legally binding agreement or whether the alleged past practice created an estoppel preventing another party from resiling from the agreement

reached. NARL and the Steelworkers submit that their clear request to not allow the Pipefitters to resile from their agreement broughtinto play those very issues that were identified but not expressly decided in the 2007 Decision. [127] NARL and the Steelworkers submit the Arbitrator had ample evidence, from representatives of both the Steelworkers and NARL,with respect to the parties’ intention to treat the LOU as a binding settlement. The evidence also revealed a local practice applicable tothe Refinery had developed.

NARL says that this practice was in response to the somewhat unusual and unique certificationcircumstance, that of having two unions representing workers with the same skills, at the same location, and with the same employer. [128] NARL and the Steelworkers further say that the LOU gave a meaning to the Pipefitters’ October 1, 1990 certification order. Bysurrendering or abandoning its exclusive rights over construction work done by NARL’s internal workforce, the Pipefitters gained accessto day-to-day maintenance, turnaround and construction work that was outside the capacity of NARL’s own workforce.

This provided abenefit to the Pipefitters’ members as they gained access to work to which their certification order did not apply. In return, the Pipefittersagreed not to enforce their rights (i.e., file a grievance) to argue over whether a particular work assignment was construction versusmaintenance. [129] This also benefitted the Steelworkers as it provided certainty of work to the regular internal workforce and eliminated thedifficulties associated with defining scopes of work as construction versus maintenance.

The Steelworkers’ LOA in 1995 confirms theiragreement with that settlement. [130] As a result, both NARL and the Steelworkers take the position that it is irrelevant whether the work grieved was characterized aseither construction or maintenance. The proper approach for work assignments at the Refinery is that all welding, plumbing andpipefitting work be treated equally under the LOU. NARL is only to award work to the Pipefitters that is beyond the capacity of fifty-four members of its regular workforce, being members of the Steelworkers.

Evidence was lead before the Arbitrator that fifty-four (54)represented the number of NARL’s regular workforce in 1995 and that number was the benchmark for determining when welding,plumbing or pipefitting work would be assigned to the Pipefitters. [131] However, instead of addressing the request not to allow the Pipefitters to resile from their agreement, the Arbitrator notes thefinding in the 2007 Decision, “that these letters did not form parts of the collective agreements with CLRA”. [132] However, if the LOU was external to the CLRA Agreement, there would have been no need for the CLRA to offer its writtenconsent to the LOU.

The only way the CLRA would have been required to sign the LOU was if the LOU, in order to have legal effect,had to be a collective agreement or a document thereto. This was not the assertion made by NARL and the Steelworkers. [133] NARL and the Steelworkers say that the lack of CLRA endorsement was a red herring. The lack of a CLRA signature should nothave any impact on whether the LOU should be enforced and whether estoppel should lie against the Pipefitters. [134] In fact, the CLRA were actually a party to the grievance but had consented to its interests being represented by NARL.

TheArbitrator had before him correspondence sent to the Pipefitters on behalf of the CLRA, referenced above, in which the issue of estoppelwas noted. That letter also designated NARL as the proper respondent to the grievance, noting “the uniqueness of the ongoingrelationship” at the Refinery. The Arbitrator also noted the CLRA had not objected to the local practice at the Refinery since 1993.

Both NARL and the Steelworkers say that the Arbitrator failed to deal with that issue, therefore rendering his decision unreasonable. [135] NARL and the Steelworkers assert that a document secondary to a collective agreement may have legal effect, as evidenced in thedecision of Justice Rowe, as he then was, in U.A., Local 740 v. Canadian Process Services Inc. (2001), (NL SC), 206Nfld. & P.E.I.R. 101, 108 A.C.W.S. (3d) 841 (Nfld. S.C. (T.D.)). In that case, the union and the local employer, who was also governedby a CLRA collective agreement, had entered into a local “targeting” arrangement.

The targeting arrangement allowed the employer tomake local variations to help secure additional unionized work. This was procedurally accomplished through the use of a memorandumof understanding that added to the collective agreement. After the union had received the benefit of work secured under the targetingarrangement, it filed a grievance seeking to enforce the strict terms of the collective agreement. [136] On judicial review, Justice Rowe upheld the arbitrator’s finding of estoppel.

The union had argued that the targeting arrangementwas not a proper collective agreement entered into by the accredited bargaining agent, the CLRA. However, Rowe, J. found that thiswas irrelevant to the outcome as equity required the union to honour the agreement from which it had already benefited.

At paragraph25, Rowe, J. stated as follows: 25 It cannot be equitable for the union to agree with the employer on a course of action ... a fortiori, through its May 6, 1998 letter, forthe union to induce the employer to undertake the course of action ... and then after the course of action pursuant to their agreement hasbeen implemented, have that agreement set aside, to the detriment of the employer and the benefit of the union.

Having had its benefit(increased work for its members) from the "targeting" arrangement, it is equitable that the union be estopped from post facto denying theemployer its benefit (decreased costs relating to overtime). [137] NARL also notes Rowe, J.’s finding at paragraphs 13 to 14 that the arbitrator could have based his decision on contract, withoutreference to estoppel. [138] NARL says not only was the LOU a legally binding agreement, but it also formed the basis of applying the legal doctrine ofestoppel, an issue that was summarily and unreasonably dismissed by the Arbitrator. [139] To support the application of estoppel, NARL refers to the wording of the LOU which reads, in relevant part, as follows: Therefore, from this day forward when the company has work to do in the welding, pipefitting and instrumentation fields which exceedsthe capacity of its existing permanent and part-time workforce, it will contract out that work to certified, qualified contractors who aresignatory to the UA Local #740 (Pipefitters) collective agreement.

This commitment, the parties agree, is the mutually acceptedmeaning of the UA’s certification with North Atlantic Refining Limited.

[140] NARL says that this language provides a permissible basis on which to deviate from the strict language of the CLRA collectiveagreement and the Pipefitters’ certification order. The Pipefitters and NARL have expressly stated their agreement to an acceptableinterpretation of the certification order, an order that remains in place. [141] The doctrine of promissory estoppel was articulated in Maracle v. Travelers Indemnity Co. of Canada, (SCC),[1991] 2 S.C.R. 50, at page 57, wherein Sopinka, J. stated: 13 The principles of promissory estoppel are well settled.

The party relying on the doctrine must establish that the other party has, bywords or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, therepresentee must establish that, in reliance on the representation, he acted on it or in some way changed his position. In John BurrowsLtd. v.

Subsurface Surveys Ltd., (SCC), [1968] S.C.R. 607, 68 D.L.R. (2d) 354, Ritchie J. stated [at p. 615, S.C.R]: It seems clear to me that this type of equitable defence cannot be invoked unless there is some evidence that one of the parties enteredinto a course of negotiation which had the effect of leading the other to suppose that the strict rights under the contract would not beenforced, and I think that this implies that there must be evidence from which it can be inferred that the first party intended that the legalrelations created by the contract would be altered as a result of the negotiations. [142] NARL also makes reference to the leading Supreme Court of Canada case on estoppel in the labour relations context, Nor-ManRegional Health Authority Inc.

At paragraphs 45 to 49 of that decision, the Supreme Court of Canada confirmed it is appropriate for alabour arbitrator to apply the doctrine of estoppel flexibly, and in a manner reasonably consistent with the objectives and purposes of theAct, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievance.

Indiscouraging a rigid application of the doctrine in the labour relations context, it is not necessary to adhere to the strict letter of the caselaw on promissory estoppel as it has been defined in civil litigation. [143] NARL also relies upon the decision of Justice Paquette of this Court in Newfoundland and Labrador Association of Public andPrivate Employees v. Newfoundland and Labrador, 2018 NLSC 14, dealing with estoppel in the labour relations context.

In that case, atthe request of the majority of the unionized employees, the employer implemented a compressed work week, which was then enshrinedin a memorandum of agreement. Years later, the union grieved, seeking strict adherence to a premium payment for shifts worked duringoff-peak hours. [144] In that case, the arbitrator took a flexible approach to estoppel, finding that past practice dictated that the collective agreementwould not be strictly followed in the circumstance.

It is also notable that failing to give effect to the memorandum of agreement wouldhave ignored the reality that it was the employees who had instigated the change themselves. [145] The Steelworkers also rely on the above decisions in support of their submission that a finding that the LOU was not part of thecollective agreement was a necessary element of an estoppel, as estoppel only arises when a representation, by words or deed, is made toa party outside of the language of the collective agreement and that party relies upon that representation to its detriment. [146] Counsel for the Steelworkers disputes the position taken by the Pipefitters that there could be no estoppel as the CLRA was not aparty to the LOU.

The Steelworkers say that argument seems to suggest that the LOU could not modify the strict legal rights set out inthe certification order, the accreditation order, and the CLRA collective agreement. The Steelworkers say this is not correct as anestoppel does not modify or amend rights.

It simply prevents them from being enforced in a given situation. [147] The Steelworkers also note that Canadian Process Services, referred to above, supports its position that estoppel can be appliedagainst a union by an individual employer that is bound by an accreditation order under the Act, contrary to the submission of thePipefitters. While it is true that it is only the accredited employers’ organization who can sign and negotiate a collective agreementunder the Act, it is not correct at law to state that the failure of the accredited employers’ organization to consent negates the estoppel.

The Steelworkers refer, in particular, to paragraphs 69 and 70 of Canadian Process Services, in which Rowe, J. found that estoppel canbe applied as a defence in favour of an individual employer who was subject to an accreditation order. [148] The Steelworkers also refer to the decision of the Ontario Labour Relations Board in I.B.E.W., Local 353 v. Jacobs CatalyticIndustrial Services Ltd., [2007] O.L.R.D. No. 5112, [2007] O.L.R.B. Rep. 1043 (Ont. Lab. Rel. Bd.).

In that case, the Ontario LabourRelations Board found that the doctrine of estoppel could prevent a union from enforcing its rights against an individual employer boundby a collective agreement entered into by an accredited employers’ organization in the construction industry. The Board noted that it isnot the right itself that is being over-ruled or amended; rather it is the enforcement of that right that is estopped.

At paragraph 93, theOntario Board noted that the application of estoppel is based on equity and whether it would be unconscionable for a particularbeneficiary of rights to enforce those rights in particular circumstances. [149] As a result, the Steelworkers submit that it was open to the Arbitrator to employ estoppel in this case. However, it wasunreasonable for him to have summarily dismissed the application of estoppel to the particular facts before him simply on the basis thatCLRA was not a party to the LOU. [150] NARL and the Steelworkers state that the Arbitrator’s two short paragraphs demonstrate this

summary dismissal. In thoseparagraphs, the Arbitrator failed to indicate any reasons for failing to apply the doctrine other than the following: 1) “I must be mindful that the Supreme Court opined on this very issue and found that these letters did not form part of the collectiveagreements with CLRA”; and 2) Balanced against a finding of estoppel, based on following the practice for 10 years after the 2007 Decision, “is that if this was suchan important issue to the employer and the unions, there was a simple way to fix the problem.

That would be for the CLRA to endorsethe arrangement as an alteration to their collective agreement with the UA [the Pipefitters]”. [151] NARL and the Steelworkers say that the Arbitrator’s comment that this Court opined on the doctrine of estoppel and past practicedemonstrates that he misinterpreted the 2007 Decision. Those questions were not asked or answered in that decision. NARL submits

that this mistake was a fundamental flaw that lead to the Arbitrator’s decision to not give any effect to that LOU for work assignments atthe Refinery, leaving the practice in a state of considerable uncertainty. [152] NARL says the reasons indicate that, after deciding that the CLRA needed to ratify the agreement, the Arbitrator failed to addressestoppel for what it truly is: an equitable mechanism to be flexibly applied in the labour relations context.

That mechanism should beapplied when parties, by agreement or by conduct, choose not to abide by the strict letter of an agreement, resulting in the other partyrelying on that conduct and being injured as a result of that detrimental reliance. [153] NARL and the Steelworkers say, in fact, this is not even a situation where the Arbitrator inadequately addressed the doctrine ofestoppel. On the contrary, it is a situation where the Arbitrator failed to address the doctrine, despite admitting that it was “tempting” todo so.

NARL says this demonstrates that the Arbitrator did not address an issue that was central and essential to the analysis. [154] The Steelworkers also assert that the two paragraphs devoted to the issue of estoppel do not represent a rational and coherentchain of analysis with respect to that common law doctrine. [155] The Steelworkers further say that that Arbitrator’s suggestion that there was a “problem” to “fix” demonstrates the Arbitrator didnot fully understand that the parties had continued to apply the LOU after the 2007 Decision, despite the lack of a signature from theCLRA.

The fact that the parties did not seek to obtain formal consent of the CLRA to the LOU shows either that such consent was notrequired or that the parties believed the LOU replaced the Pipefitters’ certification order, as discussed later in this decision. [156] With respect to the issue of estoppel, the Pipefitters assert that it was not unreasonable for the Arbitrator to have decided not toapply the doctrine. As an experienced labour arbitrator, he would have been aware that an equitable defence such as estoppel should beapplied with caution in the field of labour law.

This is because of the expectation that the parties will demonstrate fidelity to the terms oftheir collective agreement. [157] The Pipefitters refer to the 2010 decision of the Newfoundland and Labrador Court of Appeal in Newfoundland & Labrador(Treasury Board) v. N.A.P.E., 2010 NLCA 37, in which the Court commented on the doctrines of past practice and estoppel byendorsing the commentary of Donald J.M. Brown, David M.

Beatty & Adam Beatty, Canadian Labour Arbitration, (Toronto: CanadaLaw Book, 4th ed.) at paragraphs 53 to 54: 53 Quite often in labour arbitration proceedings a union or an employer will raise the issues of past practice and estoppel as a means ofsupporti

[…]