resource development trades council of newfoundland v. labrador, 2019 NLSC 84

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Resource Development Trades Council of Newfoundland and Labrador v. Muskrat Falls Employers' Association Inc. , 2019 NLSC 84 Date : April 15, 2019 Docket : 201801G5247 Between: resource development trades council of newfoundland and labrador Applicant And: Muskrat falls employers' association inc. Respondent Before: Justice Daniel M. Boone On Judicial Review From: A Decision of a consensual arbitral tribunal Norman J. Whalen, Q.C., Sole Arbitrator, dated the 4th day of June, 2018. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 25, 2019

Summary: Applicant Union sought judicial review of an Arbitrator’s findings of fact regarding a worker’s assertion of reverse priority on lay off. The Arbitrator found that the Applicant had not established competence and qualifications necessary to perform the work remaining following layoffs. The Applicant argued that this finding amounted to palpable and obvious error that rendered the Arbitrator’s award unreasonable. The Application was dismissed. Appearances: Dana K. Lenehan, Q.C. Appearing on behalf of the Applicant Stephanie M. Sheppard Appearing on behalf of the Respondent

Authorities Cited: CASES CONSIDERED: Dunsmuir v. New Brunswick v. , 2008 SCC 9 ; Canada (Minister of Citizenship and Immigration) v Khosa , 2009 SCC 12 ; A.T.A. v. Alberta (Information & Privacy Commissioner), 2011 SCC 61 ; N.L.N.U. v. Newfoundland & Labrador (Treasury Board) , 2011 SCC 62 ; Stewart v. Elk Valley Coal Corp. , 2017 SCC 30 ; NAPE v. Clayton Hospitality Inc ., 2013 NLTD(G) 78; Canada Post Corp. v. CPAA , 2016 NLTD(G) 101 STATUTES CONSIDERED: Labour Relations Act , R.S.N.L. 1990, c. L-1 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched.

D TEXTS CONSIDERED: Brown & Beatty, Canadian Labour Arbitration , 4 th ed., looseleaf (Aurora: Canada Law Book, 2006) REASONS FOR JUDGMENT Boone, J. : INTRODUCTION [ 1 ] The labour relations regime governing Muskrat Falls Project construction includes a scheme providing for priority of layoff of workers. That scheme forms the essential legal background for this case. But, this case is one that really concerns the limits of judicial review of a labour arbitrator’s factual findings. [ 2 ] Draper Pennell was laid off from the Project in September, 2017.

On his behalf, the Union filed a grievance alleging that his layoff was in contravention of the Collective Agreement because it failed to recognize the priority accorded to him as a resident of Labrador. His employer, Astaldi Canada, denied the Grievance and the parties proceeded to consensual arbitration before Norman Whalen, Q.C. The Arbitrator determined that the Union had not met the burden of proving that Mr. Pennell had the competence and qualifications to perform the work of those with lesser priority still working at the time of Mr. Pennell’s layoff, and he denied the Grievance.

The Union seeks judicial review of, and an Order setting aside, the Award of the Arbitrator. For the reasons that follow, I have determined that the Application ought to be dismissed. background The Priority Scheme [ 3 ] The Muskrat Falls construction project (the “Project”) was declared a special project by Newfoundland and Labrador Regulation 67/13 Lower Churchill Hydroelectric Generation Project Special Project Order (the “Special Project Order”), which was promulgated pursuant to the Labour Relations Act , R.S.N.L. 1990, c. L-1 .

Section 11 of the Special Project Order provides as follows: 11.

Hiring priority This Order acknowledges that the commitments respecting hiring priority contained in the Lower Churchill Innu Impacts and Benefits Agreement and the Lower Churchill Construction Projects Benefits Strategy have application to the special project. [ 4 ] As acknowledged in the Special Project Order, the Provincial Government and the Project Owner, Nalcor Energy, had previously agreed to a Project Benefit Strategy that required the establishment of a construction hiring protocol implementing commitments made for the employment of Innu people and of non-Innu residents of Labrador. [ 5 ] The Special Project Order designates the Applicant and Respondent as the labour and employer associations, respectively, to represent trade unions and contractors working on the site.

The parties entered into a Collective Agreement governing labour relations on the Project. [ 6 ] The Collective Agreement created the scheme for priority of hiring and layoff in the following provisions that also recognized the Employer Contractor’s right to assess the competence and qualifications of workers : 7.02 The Parties agree to ensure compliance with the Gender Equity and Diversity obligations regarding hiring of females and persons from underrepresented groups as specified by the Benefits Strategy or any employment equity plan that may be applicable to the hiring of qualified Labrador Innu, to be hired or referred in the following order of priority:

i) Qualified Labrador Innu; ii) Qualified residents of Labrador; and iii) Qualified residents of Newfoundland. 7.03 In order to meet the obligations applicable to the hiring and retention of qualified Labrador Innu and obligations contained within the Benefits Strategy, the Parties agree that all Project partners, including the Association, its Contractor members, the Council of Unions and its Union members will work proactively and progressively to advance the participation and integration in the areas of employment, training and apprenticeship for all employees/groups under

Article 7.02 above. 7.10 The Council of Unions recognizes the Contractor’s right to evaluate all persons to determine their level of competency, qualifications and physical and medical fitness to perform the required work. [ 7 ] Mr. Pennell was a resident of Labrador. He was referred to the Project by his union in response to an Astaldi Canada workforce request for concrete labourers. He worked at the Project continuously from March, 2016, until his layoff in September, 2017. The Arbitration Award [ 8 ] The dispute before the Arbitrator concerned the specifics of Mr.

Pennell’s competence and qualifications relative to the workforce requirements of his employer. [ 9 ] The Union argued before the Arbitrator that because it had alleged a contravention of the hiring priority scheme, the Respondent had the burden of demonstrating that it had followed the policy through evidence showing that Mr. Pennell was not qualified to do the work available at the time of layoff. Mr. Pennell had been referred for a position as a concrete labourer and hired as such by Astaldi. The concrete labourers were assigned to either the placement crews or housekeeping/cleanup crews.

The placement crew was responsible for pouring and placing concrete, and the members required a high level of competence, often in specific areas of expertise. The housekeeping/cleanup crews were involved in support tasks such as dewatering, pre-pour cleaning, stripping forms and general labour work related to concrete pours. The Union also took the position that members of the housekeeping crews were frequently, albeit temporarily, transferred to placement crews. The housekeeping/cleanup crew members were often expected to cover for the placement crew during breaks.

Assignment of a particular worker to a specific crew was subject to change at any time. These were the only categories of crews, with corresponding members, which were organized and utilized by Astaldi on the Project. There were non- Labrador residents on these crews after Mr. Pennell’s layoff, in breach of the policy, and therefore in contravention of the Collective Agreement. [ 10 ] The Respondent maintained before the Arbitrator that the Union had the burden to prove that Mr. Pennell was competent and qualified to do the work available at the time of his layoff.

The Project required high standards of labour productivity and these standards were entrenched within the Collective Agreement, including within the priority scheme. At the time of layoff, Astaldi was transitioning to a different stage of work, from very large concrete pours to more precise, secondary pours, often around installed equipment. The Respondent introduced evidence to the effect that it was conscious of the need to follow the priority scheme but also of the need to ensure that the remaining labourers were competent to perform the more technically difficult tasks. As to Mr.

Pennell’s competence and qualifications, the Respondent asserted that Mr. Pennell was qualified to work on the one remaining housekeeping/cleanup crew but all members of that crew were residents of Labrador and Mr. Pennell did not have priority over them. The remaining crews were identified in evidentiary exhibits as concrete placement and greencutting/curing crews. According to the Respondent, the green-cutting crews were not housekeeping crews but were required to possess the same level of technical competence as the concrete placement crews. Mr.

Pennell did not have the experience or assessed competence to work on either of these crews, notwithstanding that he had been sometimes required to cover for placement crew members or even be assigned temporarily to a placement crew during the large pours. [ 11 ] The Arbitrator found that the priority provisions of the Collective Agreement do fetter the Employer’s traditionally unrestricted right, on a construction project such as this one, to conduct layoffs based on competence and qualifications.

However, he did not accept the Applicant’s submission that the effect of the priority scheme was to shift the burden of proof to the employer in every situation where a worker in one of the groups accorded priority was laid off before a worker in a group with less priority.

He held, rather, that the burden would only shift to the employer once it was established through evidence that the worker with priority had the competence and qualifications to perform the job in question. [ 12 ] The Arbitrator found that the evidence before him demonstrated that the Employer, in anticipation of imminent layoffs, initiated a process for the assessment of the concrete labourers on the Project. He rejected the Employer’s position that it was entitled to assess the workers within each level of priority on a best-to-last basis.

Nonetheless, he did accept that the result of the Employer’s effort was to effectively assess the competence and qualifications of the concrete labourers. [ 13 ] The Arbitrator then engaged in a considered review of the evidence related to the Grievor’s competence and qualifications. He noted that the Grievor did engage in some concrete placement work while on site.

In particular, he had covered for the placement crews on their breaks; his housekeeping crew had been occasionally called upon to engage in concrete pours; and for the last three weeks before his layoff the Grievor had been temporarily assigned to a placement crew. He determined that the evidence demonstrated that Mr. Pennell fell short of the minimum experience working in concrete placement or curing at the time he was initially referred for the concrete labourer position, and, therefore, was assigned to a housekeeping/cleanup crew. Mr. Pennell did not object to this assignment.

He did not acquire the necessary experience while working on the Project. Therefore, the Arbitrator determined that the Grievor did not

have the necessary competence and qualifications to perform the work of concrete placement or curing. [ 14 ] The Arbitrator determined that the remaining work for the Employer on the Project after Mr. Pennell’s layoff required only one housekeeping/cleanup crew. All those on the remaining housekeeping/cleanup crew were residents of Labrador with the same priority as Mr. Pennell. The rest of the work was to be performed by green-cutting/curing and concrete placement crews.

In a crucial finding, the Arbitrator accepted evidence adduced by the Respondent, which he found showed that the greencutting/curing crew was required to have the same qualification as the placement crew, because the greencutting/curing crew was required to fill in for the placement crew during pours. Consequently, although there were non-Labrador residents working on the greencutting/curing crew, the Grievor did not have the necessary competence and qualifications to displace them by asserting priority. ISSUES 1. What is the appropriate standard of review of the Arbitrator’s Award? 2.

Did the Arbitrator’s findings of fact include palpable and overriding error reviewable on the applicable standard? ANALYSIS Standard of Review [ 15 ] This is a review of the decision of a consensual labour arbitrator. Consistent with the overwhelming direction from precedent, the parties agree that review of the Arbitration Award is to be conducted on a standard of reasonableness, as articulated by the Supreme Court of Canada in Dunsmuir v. New Brunswick v. , 2008 SCC 9 ; Canada (Minister of Citizenship and Immigration) v Khosa , 2009 SCC 12 ; A.T.A. v.

Alberta (Information & Privacy Commissioner), 2011 SCC 61 ; and N.L.N.U. v. Newfoundland & Labrador (Treasury Board) , 2011 SCC 62 . [ 16 ] The reasonableness standard was described in the following manner in the majority decision in Dunsmuir , at paragraph 47 : 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

Application to this Case [ 17 ] Before this Court, the Applicant does not dispute the Arbitrator’s

interpretation of the priority scheme provisions of the Collective Agreement, or his allocation of the burden of proof. The Applicant grounded this Application entirely on the position that the Arbitrator’s finding of fact that the Employer’s remaining work included work for only one housekeeping/cleanup crew was a palpable and overriding error of fact. The Applicant argued that the green-cutting/curing crew was really a housekeeping/cleanup crew. In argument, counsel for the Applicant asserted that in the construction industry, there are only two types of concrete work: placement/curing and housekeeping/cleanup.

Counsel conceded that there was no evidence to that latter effect before the Arbitrator. [ 18 ] The Respondent takes the position that there was evidence before the Arbitrator that the Employer’s remaining work on the Project included only tasks beyond the competence and qualifications established by the Applicant on behalf of the Grievor. [ 19 ] The Supreme Court of Canada recently dealt with the appropriate approach to review of tribunal fact-finding on the standard of reasonableness, in Stewart v. Elk Valley Coal Corp. , 2017 SCC 30 , which was a review of the decision of a Human Rights Tribunal.

The Tribunal had determined that a complainant’s dismissal from employment was due to breach of employer policy and not due to discrimination. The majority decision, at paragraph 22, characterized the exercise of review as follows: 22 In sum, this case involves the application of settled principles on workplace disability discrimination to a particular fact situation. The nature of the particular disability at issue — in this case addiction — does not change the legal principles to be applied. The debates here are not about the law, but about the facts and the inferences to be drawn from the facts.

These issues were within the purview of the Tribunal, and attract deference. The only question is whether the Tribunal's decision was reasonable. [ 20 ] At paragraph 40, the majority determined that the Tribunal decision was reasonable because there was evidence to support it: 40 It was the Tribunal's task to determine whether the reason for the termination of employment or the impact of the Policy on Mr. Stewart established a prima facie case of discrimination.

There is ample evidence to support the Tribunal's conclusion that there was no prima facie case and, therefore, no basis to overturn it. [ 21 ] The manner in which the majority applied the test of reasonableness in Elk Valley does, on one possible reading emphasizing the reference to “ample evidence,” suggest that the exercise on review of an arbitrator’s finding of fact is a search for evidence of certain sufficiency.

However, in my view, the use of that descriptor in the excerpted portion of the decision was not intended to convey that the findings of fact of a tribunal must be reviewed for a measured sufficiency of evidence but, rather, was intended only to say that the test was more than barely met in that case.

[ 22 ] In Brown & Beatty, Canadian Labour Arbitration , 4 th ed., looseleaf (Aurora: Canada Law Book, 2006), the authors provide the following description of the role of a reviewing court in respect of a labour arbitrator’s findings of fact: … Because it is the arbitrator who alone receives and hears the evidence upon which the findings of fact are made, the general rule is that facts found by the arbitrator are not subject to review or correction by the courts, although in some instances the Supreme Court of Canada has not shown such a high level of deference.

Thus, assuming that the arbitrator has applied the proper standard of proof, weighing the evidence and drawing inferences therefrom is within the exclusive arbitral function and is not subject to judicial review. However, two exceptions have been recognized to this general rule. In the first place, a court is entitled to assure itself that there is some evidence to support the arbitrator’s finding of fact. If it determines that there is no evidence to support the finding, then it is empowered to set aside the finding or the award.

As well, courts have held that where the arbitrator relies upon “illegal” evidence which goes to the root of the matter to be decided, that will constitute an error of law which vitiates the award.

Similarly, where there is an “obvious disconnection” between a board’s fact-finding and its ultimate conclusion, the decision will be quashed. [ 23 ] I note that the authors of that text cite, among other cases, the Elk Valley decision of the Supreme Court in support of the proposition “ the general rule is that facts found by the arbitrator are not subject to review or correction by the court.” The authors, therefore, take that same view as I do of the ratio of Elk Valley .

In assessing the fact-finding of an arbitrator for reasonableness, a reviewing court will uphold the decision if there was some evidence that supported the arbitrator’s decision, and, viewed the other way around, will only overturn the decision if there was no evidence that supported the finding or award. The task of the reviewing court is not to reconsider the inferences drawn by the arbitrator or conduct its own weighing of the evidence for sufficiency. [ 24 ] My conclusion in that regard is bolstered by reference to previous decisions of this Court. In NAPE v.

Clayton Hospitality Inc ., 2013 NLTD(G) 78, Burrage, J. was dealing with a grievance alleging that the grievor’s termination from employment had been in violation of the Collective Agreement because she had not been accorded the right to union representation during a telephone call in which, according to her testimony at arbitration, she was told that she was “fired.” Burrage, J. determined that there was no sworn evidence before the arbitrator contradicting the grievor’s assertion that she had been dismissed.

Nevertheless, the arbitrator’s decision determined that this telephone call was a meeting that was not disciplinary in nature, and union representation was not required. The arbitrator noted an unsworn contradictory statement by the employer representative, but did not explain whether any weight was accorded to this. Burrage, J found that the arbitrator’s decision was unresponsive to the case presented and he set the award aside as unreasonable, because it could not stand in light of the absence of evidence contradicting that of the grievor. [ 25 ] In Canada Post Corp. v.

CPAA , 2016 NLTD(G) 101, Orsborn, J. considered an application for review of an arbitrator’s decision concerning the union’s refusal to consent to a management decision. Canada Post argued that the sole reason offered by the union for its objection to a Saturday closure of a rural post office did not relate to a labour relations issue. The arbitrator found that the main reason for the union objection was rooted in community objection, but he also found that the loss of member hours, which was the subject of a separate grievance, was a factor in the union reason.

Canada Post argued that there was no evidence of a labour relations purpose before the arbitrator. Orsborn, J. dealt with this argument of Canada Post in the following passage: 38 In his decision arising out of the September 2014 arbitration hearing, the arbitrator referred to the evidence of the local Association president, speaking to the separate grievance filed challenging the reduction in hours. The arbitrator said: Ms. Ade testified that the reduction of the hours of work of the Assistant to six hours per week at the Englee Post Office is subject of a separate grievance under another

article of the Collective Agreement. The Association has not raised any labour relations issue related to Saturday closure other than the issue of reduction of hours that is raised in the separate grievance. (my underlining) 39 I take from this that the arbitrator had before him some evidence of a labour relations purpose — the loss of the Saturday hours — for the refusal.

The fact that a separate grievance was filed to address the full loss of the part-time hours, including the Saturday hours, does not take away from the fact that the loss of the Saturday hours was raised as a reason to object to the Saturday closure. 40 This evidentiary reference, although it might be a thin reed, is sufficiently strong to conclude that there was some evidence before the arbitrator that the loss of the Saturday hours was at least part of the reason for the Association's refusal. 41 Accordingly, and bearing in mind the requirement for judicial deference to the findings of the arbitrator, I do not accept the premise of the argument advanced by Canada Post. [ 26 ] Orsborn, J, also concluded that it was reasonable for the arbitrator to consider the community objection in assessing the reasonableness of the refusal of the union to consent to the Saturday closure.

I note that his decision was upheld on appeal to the Court of Appeal. The Court of Appeal did not address the question of the approach to review of findings of fact. [ 27 ] It is clear that Orsborn, J. determined that the exercise of considering the reasonableness of the factual findings of an arbitrator is a search for whether there is some evidence that supports those findings, and that even evidence that could be characterized as a “thin reed” still constitutes some evidence. [ 28 ] I turn now to analysis of this case.

The Applicant placed significant reliance on a list of workers remaining on the Project after the Grievor was laid off, which was entered as an exhibit and used in cross-examination of the Employer’s representative. The Applicant asserted that the exhibit showed 14 non-Labrador residents working on housekeeping/cleanup crews following the Grievor’s layoff, and that the Arbitrator’s conclusions that there were no workers remaining performing jobs for which the Grievor was competent could not be reconciled with this evidence.

The Applicant says that this constituted error that was obvious and palpable, and rendered the Arbitrator’s decision unreasonable. [ 29 ] The exhibit upon which the Applicant relies did show that there were non-Labrador residents working on remaining crews denominated as green-cutting/curing crews. The Applicant maintained in argument that these crews were, in reality, housekeeping crews by another name, and the Grievor was competent to perform the tasks required of these crews. [ 30 ] However, there is a fundamental disconnect in the Applicant’s argument. As conceded by the Applicant, there was no

evidence before the Arbitrator that showed that green-cutting/curing crews were expected only to perform equivalent tasks as that of housekeeping/cleanup crews, nor that the required competence and qualifications of the crew members was the same for both types of crews. [ 31 ] The Arbitrator adverted to the existence of the exhibit.

However, he based his decision not on the designations of the crews or workers, but rather on on the Employer’s evidence that it had fairly assessed the competence and qualifications of all workers prior to lay off, and the Employer’s evidence that the remaining work on the Project required skills and an identified minimum experience-level in concrete work which the Grievor did not have. He noted that the evidence of the Grievor’s supervisor was that he did not have the requisite experience to perform the remaining task, that his work was unsatisfactory, and that his lack of competence raised safety issues.

The Arbitrator concluded: 177. In order to engage the protection of the residency provisions of

Article 30.03, an employee must have both the qualifications and competence necessary to complete the remaining work. The qualifications set out by the Employer prior to Mr. Pennell’s hiring appear to be both reasonable and non-discriminatory. 178. Mr. Burton [the Employer’s representative] was clear in his evidence that, as the work force shrank, the remaining workers had to be able to fill in on a number of positions.

With the reducing work force, the remaining workers needed to be multi-skilled and, as a result, there would be only one clean-up/housekeeping crew remaining on site; as well, the greencutting/curing crew would have to be able to fill in for the placement crews. 179. I find that Mr. Pennell has not demonstrated that he has the required qualification or competence to fill a position on either the placement and vibrating crews or the greencutting/curing crew, and he has not shifted the burden to the Employer. He has therefore not engaged the residential priority protection under

Article 30.03. CONCLUSION [ 32 ] The Arbitrator properly directed himself to the evidence of the Grievor’s competence and qualifications relative to the remaining work. There was evidence to support his conclusion that the Grievor did not have the requisite competence and qualifications to engage the protection of the priority scheme. There is, consequently, no basis for this Court to interfere or engage in consideration of whether there was evidence to the contrary, to reweigh the evidence, or evaluate the inferences drawn by the Arbitrator. [ 33 ] The Application is dismissed.

The Respondent is entitled to its costs taxed on Column 3 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched. D . _____________________________ Daniel M. Boone Justice