Resource development Trades Council of Newfoundland v. Labrador, 2021 NLSC 134

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Resource Development Trades Council of Newfoundland and Labrador v. Long Harbour Employers Association Inc. , 2021 NLSC 134 Date : October 22, 202 1 Docket : 201901G3880 Between: Resource development Trades Council of Newfoundland and Labrador Applicant And: Long Harbour Employers Association Inc. First Respondent And: labourers international union, local 1208 Second Respondent And: john f. roil Third Respondent Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 21, 2021

Summary: The Court allowed an application for judicial review and quashed the decision of a labour arbitrator. The Arbitrator had decided that the termination of employment of several unionized employees was in violation of the collective agreement, but that the union was estopped by its acquiescence from proceeding with a grievance. The Court decided that the Arbitrator’s decision was unreasonable because the Arbitrator did not address the question of reliance in applying the doctrine of estoppel. Appearances: David Goodland, Q.C. Appearing on behalf of the Applicant

Stephanie Sheppard Appearing on behalf of the First Respondent R. Barry Learmonth, Q.C. Appearing on behalf of the Second Respondent No Appearance On behalf of the Third Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; M.A.H.C.P. v. Nor-ManRegional Health Authority Inc, 2011 SCC 59 , [2011] 3 S.C.R. 616 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: Donald J.M. Brown and David M.

Beatty, Canadian Labour Arbitration, 5th ed. looseleaf (Toronto: Carswell,2019) REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] Fourteen unionized janitors were employed by AECON to clean facilities at the site of the construction of the Vale Inco nickelprocessing plant. They were laid off due to lack of work. Their union grieved the termination, but an arbitrator dismissed the grievance. The union asks this Court to review and quash the Arbitrator’s decision. The application requires the Court to consider the standard ofreasonableness as applied to the arbitral remedy of estoppel.

The application is allowed, for the reasons that follow. Background [2] The Vale nickel processing plant construction was subject to a Special Project Order issued under the Labour Relations Act,R.S.N.L. 1990, c. L-1, s. 70. That Order established the Long Harbour Employers Association Inc. (LHEA) to represent contractors onthe site, and the Resource Development Trades Council (RDTC) to act on behalf of all trade unions having members working on theProject.

RDTC and LHEA negotiated a collective agreement that was recognized by the Special Project Order. [3] Vale and its construction contractors originally intended to build the processing plant as a complete turnkey facility; Valewould not start processing nickel until construction was completed. The site would remain in control of the unionized constructioncontractors until it was turned over to Vale. [4] However, the construction project was not completed by the original target date.

Vale adapted to this delay by utilizing aphased construction model under which parts of the project would be turned over to Vale processing operations once each was ready foroccupancy. [5] AECON was notified by Vale that several structures that had been cleaned by the unionized janitors employed by AECONwere to be considered as ready for turnover and removed from the AECON scope of work on April 1, 2016. AECON laid off thejanitors. Vale hired a nonunion contractor to clean the buildings.

The union grieved, and the grievance was referred to consensualarbitration. [6] The Arbitrator found that the buildings in question continued to be within the scope of construction during the material time,that the work performed by the terminated employees therefore continued to be bargaining unit work, and that their dismissal was inviolation of the Collective Agreement. (LHEA does not take issue in this Court with that aspect of the Arbitrator’s decision) [7] Nevertheless, the Arbitrator dismissed the grievance because he found that RDTC had acquiesced in the Vale turnover plans,and therefore was estopped from asserting the rights of the dismissed employees.

[ 8 ] RDTC says that the decision of the Arbitrator was based on findings of fact unsupported by evidence or contrary to the evidence; and on errors of law in applying the law of equitable estoppel. Whether the decision was so based, and therefore ought to be reviewed and quashed by this Court, will be the focus of the Application for judicial review. ISSUES [ 9 ] RDTC says that the Arbitrator’s application of the doctrine of estoppel was wrong in fact and in law. The issues that I must decide are as follows: 1.

Was the decision by the Arbitrator that the union acquiesced in the employer’s turnover process reasonable? 2. Was the decision by the Arbitrator to impose the remedy of estoppel reasonable? ANALYSIS The Standard and Process of Judicial Review [ 10 ] The first question that must be decided on judicial review is the standard of review.

The parties agree in this case that reasonableness is the applicable standard against which the Arbitrator’s decision should be measured. [ 11 ] RDTC says that the Arbitrator’s application of the doctrine of estoppel was wrong in fact and in law, and therefore unreasonable. [ 12 ] Applying the reasonableness standard requires assessment as to whether the Arbitrator’s decision was internally rational and proceeded logically from the law and the facts in the record. As the majority of the Supreme Court of Canada put it in Canada (Minister of Citizenship and Immigration) v.

Vavilov , 2019 SCC 65 , at paragraph 85 : “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.” [ 13 ] The factual context for the Arbitrator’s decision is the evidence in the record. This arbitration involved 23 days of hearings.

The parties agreed before the hearings that the documentary exhibits introduced by the parties, and the Arbitrator’s notes of evidence from the witnesses, would constitute the record. [ 14 ] The collective agreement is the most important part of the framework for the legal context in a case arising out of a dispute in the collective bargaining sphere. Related statutes, and common law principles derived from arbitral and legal precedent, may also be important elements of legal context, depending upon the nature of the dispute.

In this case, the most significant legal constraint that must be considered is the scope of the arbitral remedy of estoppel.

The Decision of the Arbitrator [ 15 ] The Supreme Court of Canada expressly directed in Vavilov that the starting point for any judicial review is the tribunal’s reasons for decision. [ 16 ] The primary dispute before the Arbitrator was whether the work of cleaning the structures continued to be bargaining unit work beyond the date asserted by the employer. [ 17 ] RDTC argued that the collective agreement provided that work on a system or a portion of the site would be considered bargaining unit work until it was substantially complete, and that substantial completion had not been reached for the structures in question. [ 18 ] LHEA argued that once the structures in question were occupied and used solely by Vale employees, and contractors engaged in operation of the processing plant, the collective agreement no longer applied. [ 19 ] The Arbitrator rejected the LHEA argument and decided that the work of cleaning the facilities continued to be bargaining unit work after the relevant date.

In the usual result the grievance would have been allowed, and the janitors’ layoffs determined to have been in violation of the collective agreement. [ 20 ] However, the Arbitrator decided that RDTC was estopped from asserting its position that the collective agreement was violated.

The Arbitrator’s reasons for that determination were as follows: • The employer had invoked its view of the turnover process for other facilities and structures since 2014; • The janitors’ union had delivered a brief complaining about the employer’s turnover process in 2014 but had not acted on it by filing a grievance; • Sabrina Kelly, the employer’s Labour Relations Administrator, explained the employer’s rationale for its turnover process to Ray Ryall, RDTC Site Representative, on several occasions prior to April 1, 2016; • It appeared to Sabrina Kelly that Ray Ryall understood and accepted the employer’s

interpretation of the collective agreement as it applied to the turnover process;

• Ray Ryall was not called to testify; • Ray Ryall as site representative did not have authority to amend the collective agreement but in accepting the

interpretation of the collective agreement as applied to the turnover process, Ray Ryall was administering the agreement in the field, not agreeing to an amendment of it; • Ray Ryall knew and understood the consequences of the employer’s turnover process; • The lack of formal follow-up by RDTC in respect of the 2014 complaint by the janitors’ union was indicative of a lack of intention to act; • Vale advised AECON that the structures were no longer within the Special Project scope and entered into a contract with an employer not bound by the collective agreement to provide janitorial services to those structures. [ 21 ] The Arbitrator set out the doctrine of equitable estoppel as described in Donald J.M.

Brown and David M.

Beatty, Canadian Labour Arbitration, 5th ed. looseleaf (Toronto: Carswell, 2019) a leading labour arbitration text: The concept of equitable estoppel is well developed at common law and has been expressed in this way: The principle, as I understand it, is that where one party has by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave to promise or assurance cannot afterwords be allowed to revert to the previous legal relations as it no such promise or assurance had been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduce, even though it is not supported in point of law by any consideration, but only by his word.

One arbitrator has summarized the doctrine in the following terms: It is apparent that there are two aspects of the doctrine so stated. There must be a course of conduct in which both parties act or both consent and in which the party who later seeks to set up the estoppel is led to suppose that the strict legal rights will not be enforced. It follows that the party against whom the estoppel is set up will not be allowed to enforce his strict rights if it would be inequitable to do so.

The main situation where it would be inequitable for strict legal to be upheld would be where the party now setting up the estoppel has relied to his detriment.

Thus, the essentials of estoppel are: a clear and unequivocal representation … which may be made by words or conduct, or in some circumstances it may result from silence or acquiescence intended to be relied on by the party to whom it was directed; although that intention may be inferred from what reasonable should have been understood; some reliance in the form of some action or inaction; and detriment resulting therefrom …” [ 22 ] In this Court, both parties agree that this statement accurately describes the doctrine of equitable estoppel. [ 23 ] RDTC says, however, that the Arbitrator’s application of the law of estoppel was unreasonable. [ 24 ] In particular, RDTC says that in applying the doctrine of estoppel, the Arbitrator made findings of fact that were contrary to the evidence, or unsupported by any evidence, or made legal errors.

RDTC submits that the decision of the Arbitrator did not flow logically from the factual and legal matrix and therefore was unreasonable. Alleged Errors in Fact Finding [ 25 ] A labour arbitrator’s findings of fact are entitled to considerable deference. The rationale for this deference was explained by the Supreme Court of Canada in Vavilov , at paragraph 125 : 125 It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings.

The reviewing court must refrain from "reweighing and reassessing the evidence considered by the decision maker": CHRC , at para. 55; see also Khosa , at para. 64; Dr. Q , at paras. 41-42. Indeed, many of the same reasons that support an appellate court's deferring to a lower court's factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen , at paras. 15-18; Dr.

Q , at para. 38; Dunsmuir , at para. 53. [ 26 ] This deference is not, of course, absolute: “The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.” ( Vavilov at para. 126 ). [ 27 ] Quite aside from judicial deference, RDTC faces an additional challenge in arguing that this Arbitrator made factual errors. The parties agreed at the Arbitration that the Arbitrator’s notes would be the only record of the evidence from witnesses; there was no audio recording or transcript.

The Arbitrator’s reasons setting out his factual findings therefore represent his recollection of witness’ testimony aided by his notes, and these findings are not subject to challenge based on factors external to his reasons. [ 28 ] The Arbitrator found that there were numerous discussions between Kelly and Ryall between 2014 and 2016. RDTC says that

this was based on mistake of fact because the record did not demonstrate that these discussions occurred, or this finding was contradictedby the documentary record that showed there was no turnover from construction to operations of any structure between 2014 and 2016. [29] However, the Arbitrator in his reasons quoted Kelly’s testimony that she had discussions with Ryall “on a regular basis,” thatshe sent a map to Ryall showing the turnover plan, and that “she explained in significant detail that she met with Ryall on a number ofoccasions and explained to him what the employer was doing in the turnover of temporary infrastructure and why it was doing it.” Thefactual findings regarding these discussions were supported by the evidence recorded and recounted by the Arbitrator.

There is no basisfor this Court to reconsider these findings of fact. Arbitral Remedy of Estoppel [30] RDTC also says that the Arbitrator erred in finding estoppel in the understanding between Kelly and Ryall regarding thevalidity of the employer’s position on turnover. [31] The parties agree that the Arbitrator correctly stated the principles underpinning the arbitral remedy of estoppel.

Thoseprinciples are part of the legal matrix that, following Vavilov, constrain the Arbitrator. [32] The degree to which these legal principles restrict the Arbitrator is lessened by the consideration that labour arbitratorsapproach their decisions with expertise in the field of labour relations. Consensual labour arbitrations are intended to provideexpeditious and practical resolution of disputes in the collective bargaining sphere. Labour arbitrators develop expertise in the resolutionof those disputes.

In Vavilov, the Supreme Court of Canada held that expertise alone is not a foundation for judicial deference to thedecisions of specialized tribunals. But, the court recognized that expertise is still a factor to be taken into account in considering thefactual and legal context within which an arbitral decision is made: 91 A reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against astandard of perfection.

That the reasons given for a decision do "not include all the arguments, statutory provisions, jurisprudence orother 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 norfrom 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 ofa lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed byadministrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the formand content of their reasons.

These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicativeof a decision maker's strength within its particular and specialized domain. "Administrative justice" will not always look like "judicialjustice", and reviewing courts must remain acutely aware of that fact. 93 An administrative decision maker may demonstrate through its reasons that a given decision was made by bringing thatinstitutional expertise and experience to bear: see Dunsmuir , at para. 49.

In conducting reasonableness review, judges should beattentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to adecision maker's demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on itsface nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonableapproach given the consequences and the operational impact of the decision.

This demonstrated experience and expertise may alsoexplain why a given issue is treated in less detail. [33] In a passage referred to in Vavilov at paragraph 105, the Supreme Court of Canada had previously endorsed the view thatdoctrine of estoppel is applied with less rigidity in labour arbitrations: M.A.H.C.P. v. Nor-Man Regional Health Authority Inc, 2011 SCC59 , [2011] 3 S.C.R. 616: 5 Labour arbitrators are not legally bound to apply equitable and common law principles — including estoppel — in the same manneras courts of law.

Theirs is a different mission, informed by the particular context of labour relations. 6 To assist them in the pursuit of that mission, arbitrators are given a broad mandate in adapting the legal principles they find relevantto the grievances of which they are seized.

They must, of course, exercise that mandate reasonably, in a manner that is consistent with theobjectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and thefactual matrix of the grievance. [34] The rationale for a more flexible application of estoppel in labour arbitrations is rooted in the nature of workplaces governed bya collective agreement.

Collective agreements are usually negotiated for relatively long terms; between negotiations, the workplace isgoverned through a combination of varied actors interpreting and applying the agreement to a myriad of situations often not specificallyaccounted for in the express terms of the agreement. As the Supreme Court of Canada put it in Nor-Man: 50 These are the governing principles of labour arbitration in Canada. Their purpose and underlying rationale have long been wellunderstood by arbitrators and academics alike. More than 30 years ago, Paul C.

Weiler, then Chairman of the British Columbia LabourRelations Board and now Professor Emeritus at Harvard University, underlined their importance in a dispute of particular relevance here.He explained in the following terms why the doctrine of estoppel must be applied differently in a grievance arbitration than in a court oflaw:

... a collective bargaining relationship is quite a different animal. The union and the employer deal with each other for years and yearsthrough successive agreements and renewals. They must deal with a wide variety of problems arising on a day-to-day basis across theentire spectrum of employment conditions in the workplace, and often under quite general and ambiguous contract language. By andlarge, it is the employer which takes the initiative in making operational decisions within the framework of the collective agreement.

Ifthe union leadership does not like certain management actions, then it will object to them and will carry a grievance forward about thematter. The other side of that coin is that if management does take action, and the union officials are fully aware of it, and no objection isforthcoming, then the only reasonable inference the employer can draw is that its position is acceptable. Suppose the employer commitsitself on that assumption.

But the union later on takes a second look and feels that it might have a good argument under the collectiveagreement, and the union now asks the arbitrator to enforce its strict legal rights for events that have already occurred. It is apparent onits face that it would be inequitable and unfair to permit such a sudden reversal to the detriment of the other side.

In the words of theBoard in [Corporation of the District of Burnaby and CUPE, Local 23, [1978] 2 C.L.R.B.R. 99 at page 103], "It is hard to imagine abetter recipe for eroding the atmosphere of trust and co-operation which is required for good labour management relations, ultimatelybreeding industrial unrest in the relationship — all contrary to the objectives of the Labour Code".... (Re Penticton (City) v.C.U.P.E., Local 608 (1978), (BC LA), 18 L.A.C. (2d) 307 (B.C.

L.R.B.), at p. 320) 51 Reviewing courts must remain alive to these distinctive features of the collective bargaining relationship, and reserve to arbitratorsthe right to craft labour specific remedial doctrines. Within this domain, arbitral awards command judicial deference. [35] But, the Supreme Court of Canada in Nor-Man reminded reviewing courts that there are limits to judicial deference: 52 But the domain reserved to arbitral discretion is by no means boundless.

An arbitral award that flexes a common law or equitableprinciple in a manner that does not reasonably respond to the distinctive nature of labour relations necessarily remains subject to judicialreview for its reasonableness. [36] The doctrine of estoppel is grounded in fairness. It recognizes that sometimes it would be unfair to allow a person to enforcetheir strict legal rights after saying or doing something that leads another to believe that they would not do so. There is nothinginherently unfair in someone changing their mind.

It only becomes unfair when another does something to their own detriment inreliance on strict rights not being asserted. It is this kind of unfairness that the doctrine of estoppel was developed to address. [37] The element of detrimental reliance is therefore fundamental to the doctrine of estoppel, and this fundamental requirement is,within the Vavilov framework, among the legal constraints that set parameters for consideration of the arbitrator’s decision.

Althoughlabour arbitrators must be allowed latitude in the application of estoppel (for instance, in deciding what words or actions might express orimply a forbearance from enforcing strict legal rights; or in deciding the authority of the speaker or actor necessary before a forbearancecan be relied upon; or whether reliance has been detrimental) it is not reasonable for a labour arbitrator to find estoppel without decidingfirst that there has been reliance because in the absence of detrimental reliance there is no unfairness that requires a remedy. [38] The Arbitrator found that Kelly explained the employer’s turnover process to Ryall; that Ryall indicated that he understood andaccepted it; and that in doing so Ryall was acting within his authority to administer the collective agreement on the job site. [39] At pages 25 to 26 of his decision, under the heading “Vale’s Rationale for Turnover to Operations,” the Arbitrator summarizedthe Vale decision-making process related to turnover: The various steps in the process were described by Kelly.

She explained that the documentation for the ‘temporary infrastructure’turnover was something that evolved in early 2016 based on the concept of turnover that had been used previously for the turnover ofsubsystems within a permanent building. Since the provision of all site services was ultimately intended to be assumed by Valeoperations personnel from construction contractors at some point in time, discussions were held early in 2016 among Vale managersabout how this process should happen for these temporary structures.

In a meeting held on February 24, 2016 (Exhibit SK 4), decisionswere made by Vale to move forward with a plan to transfer various assets (roads and temporary structures) as well as the responsibilitiesfor maintaining them, including janitorial services, snow removal and solid waste disposal, from construction management to operationsmanagement control.

That concept then needed to be documented. [40] And later, at page 27: Kelly noted in her evidence that no union representative expressed any concerns about this process as it unfolded in 2016 and nogrievances, other than the one here filed by HRW in May 2016, had ever been filed by RDTC on behalf of any union representingworkers in other disciplines at the site. … Consequently, DFB Driver, another contractor which had been responsible for providing siteservices to both the construction and operations teams for a period of time, was then hired effective on April 1, 2016 by Vale operationsstaff to perform janitorial services using non-union personnel at the buildings involved in this dispute. [41] Other than the use of the word “[c]onsequently,” the Arbitrator never expressly considered whether there was a causalconnection between acquiescence on the part of RDTC and the Vale decision to turn over the buildings to operations. [42] The minutes of the February 24, 2016, meeting referenced by the Arbitrator, did record that janitorial services in the affectedstructures would be transferred from construction to operations.

However, there was no reference in those minutes to any acquiescenceby Ryall or RDTC to the turnover plan. Moreover, the effective discussions between Ryall and Kelly referenced by the Arbitrator tookplace after this meeting.

[ 43 ] The Arbitrator, at page 50, said that there was “clear evidence of estoppel arising from the communications between Kelly and Ryall in the spring of 2016” and that “the RDTC is now estopped from asserting its right to require compliance with the terms of

Article 36 in the March/April 2016 turnover process of the buildings involved here because of RDTC’s acquiescence in the light of those discussions between Kelly and Ryall.” [ 44 ] Therefore, according to the facts as found by the Arbitrator, Vale made the decision to turn over the buildings to operations, and then this decision was communicated to Ryall, who indicated to Kelly that he accepted that this was in compliance with the collective agreement.

Then, shortly after the turnover was effected, the janitors’ union filed a grievance. [ 45 ] That sequence of events as found by the Arbitrator is not consistent with a conclusion that the Vale turnover decision was made in reliance on the acquiescence by Ryall. [ 46 ] The Arbitrator did not find that acquiescence arose from the failure of RDTC to act on its 2014 Brief complaining about the Vale turnover process. Rather, he considered, at pages 49 to 50, whether the Brief was sufficient to displace his conclusion that acquiescence by Ryall led to estoppel: Finally the impact of the 2014 Brief must be considered.

Although that document gave notice to the Employer that its actions up to that point in time were troubling, at least to some bargaining unit workers and to RDTC President Pat McCormick, the lack of follow-up was indicative of a lack of intention to act on the fact situations then enumerated. The Medical Centre was transferred from construction to operations control without incident or grievance. A similar transfer of control happened with respect to one of the Security Entrances to the site.

I do not conclude that this document was sufficiently probative in value to offset the clear evidence of estoppel arising from the communications between Kelly and Ryall in the spring of 2016. [ 47 ] The Arbitrator did not explain how his decision to impose the remedy of estoppel flowed logically from the finding of acquiescence by Ryall.

Put another way, the Arbitrator did not explain why it would have been unfair to allow RDTC to pursue a grievance just because that course of action was contrary to the view expressed by Ryall. [ 48 ] LHEA says (relying on the Brown & Beatty text discussion of estoppel quoted by the Arbitrator) that it is not necessary for an arbitrator to analyze each element of estoppel separately so long as it is obvious that the arbitrator understood the doctrine. I am not sure if this statement can stand in light of Vavilov .

In any event, it is difficult to appreciate that a decision maker understood an essential element of a legal doctrine when it was not discussed in the reasons. [ 49 ] In Nor-Man , Fish, J.A. described the required components of an arbitral decision concerning estoppel in noting two arbitral decisions that met the requisite standard: 19 Both arbitrators were alive to the foundational principles of estoppel.

Essentially, they both found that the union was fixed with knowledge — constructive, if not actual — of the employer's mistaken application of the disputed clauses throughout the relevant time; that the union's silence amounted to acquiescence in the employer's practice; that this sufficiently fulfilled the intention requirement of estoppel; that the employer could reasonably rely on the union's acquiescence; that the employer's reliance was to its detriment; and that all of this had the effect of altering the legal relations between the parties. [ 50 ] The Arbitrator quoted that passage as “compelling” support for his own conclusion that estoppel applied in this case.

But his reasons did not include a finding of reliance that would justify the imposition of estoppel as a means of preventing unfairness to the employer. Conclusion and Disposition [ 51 ] The legal constraints imposed on the Arbitrator required that he find the essential element of reliance before imposing the remedy of estoppel. His failure to do so means that his reasons did not demonstrate an internally coherent and rational chain of analysis from his finding of acquiescence to his imposition of estoppel.

Consequently, his decision to apply estoppel was unreasonable. [ 52 ] Therefore, the Arbitral Award is quashed. [ 53 ] The Supreme Court of Canada in Vavilov stated the usual remedy for an administrative decision found to be unreasonable is to remit the matter back to the decision maker for determination in accordance with the reasons of the court.

The court also noted that in some circumstances the reasons of the court will make it clear that a certain result is inevitable, and then the court can make the administrative decision and necessary orders rather than remitting the matter. [ 54 ] RDTC says that this dispute has already consumed considerable time and expense, especially considering the relative amount at stake. It also notes that the Arbitrator has retired.

Consequently, RDTC asks that I should go further than merely quashing the decision, and decide the merits of the full dispute between the parties. [ 55 ] While I am sympathetic to this request in the circumstances, this Court is not in a position to accede to the RDTC request. In order to consider the question of estoppel, I would have to review the entire record to determine whether the element of reliance was met in order to decide the dispute.

This is not the role of this Court on judicial review. [ 56 ] That said, I would expect that the parties would be in a position to agree to have this dispute resolved without an entire replay of the arbitration. The Arbitrator decided that the Vale turnover process as applied to the buildings in question was not in compliance with the Collective Agreement. He also found that the RDTC Site Representative acquiesced in this process.

The first issue was not contested in this Court; the second issue, was a factual decision determined by the Arbitrator on the extensive record before him. [ 57 ] The Application by RDTC for an order quashing the Arbitral Award is allowed, with costs to RDTC taxed on Column III of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched. D .

_____________________________ DANIEL M. BOONE Justice