Corbett v Health Sciences Association, 2022 ABKB 794

Court of King’s Bench of Alberta Citation: Corbett v Health Sciences Association, 2022 ABKB 794 Date: 20221206 Docket: 2101 10756 Registry: Calgary Between: Katie Corbett and Darryl Jensen Applicants - and - Health Sciences Association of Alberta and Alberta Labour Relations Board and Siksika Health Services Respondents _______________________________________________________ Reasons for Judgment of the Honourable Justice N.E.

Devlin _______________________________________________________ Overview [ 1 ] In 2016, the Health Sciences Association of Alberta (“the Union”) was certified to represent the staff of Siksika Health Services (“SHS”), which provides frontline EMS care to the Siksika First Nation. The relationship between SHS and the Union has been mired in litigation and conflict from the outset, resulting in the employees being without a first collective agreement for almost six years.

[2] This application was brought by two employees who oppose the Union. In the spring of 2021, they initiated their secondattempt to revoke the Union’s bargaining rights. Following normal practice, the Alberta Labour Relations Board (“the Board”) promptlyheld a vote on the matter and sealed the ballots. Ultimately, the Board declined to proceed with the revocation application and thus didnot count the ballots.

Instead, it granted the Union’s already pending application for mandatory first contract arbitration. [3] Both decisions flowed from a common set of hearings culminating in a single set of reasons: Health Sciences Association ofAlberta v Siksika Health Services, (AB LRB) (“HSSA”). No one sought to judicially review the decision sendingthe parties to arbitration. A first collective agreement was awarded in May 2022, retroactive to September 2020: Health SciencesAssociation of Alberta v Siksika Health Services, (AB GAA).

This agreement will expire in March of 2023. [4] Despite the labour relationship moving to arbitration and a collective agreement, the Applicants filed the present judicialreview seeking to quash the Board’s concomitant refusal to proceed with their revocation application. They argue that the Board’sdecision to compel first contract arbitration under Division 14.1 of the Alberta Labour Relations Code, RSA, c L-1 (“the Code”) neitherpermitted nor compelled the Board to nullify or ignore their right to have the revocation application fully determined.

Consequently, theyseek an order quashing that part of the decision, compelling the Board to count the ballots from the 2021 employee vote, and mandatinga substantive decision on revocation. [5] For the reasons that follow, this application for judicial review is dismissed.

The Board’s decision giving precedence to thelong-frustrated desire of these employees to engage in collective bargaining, and consequently shelving the revocation application, waslegally permitted by the Code, an exercise of the Board’s core expertise in a unique and difficult workplace, and reasonable. [6] Moreover, a discretionary remedy reviving the stale revocation process would be inappropriate. A fresh revocationapplication can be commenced as early as January 2023 and provides a superior remedy if the 2021 process was discontinued in error.

Relevant Facts [7] The events in this case break down into two time periods: several years consumed by the SHS’s constitutional challenge tothe applicability of the Code, and a second period in which SHS minimally engaged with the Union in collective bargaining and Board-directed mediation. The parties agree with the Board’s detailed recitation of this history: HSSA at paras 31-78. [8] In

summary, SHS brought a constitutional challenge to the application of the provincial labour regime to its workplace,based on its connection to the Siksika First Nation. It pursued this the matter all the way to the Supreme Court.

While this litigationfailed at every step, a series of stays prevented SHS’s employees from exercising their collective bargaining rights for more than three-and-a-half years: Siksika Health Services v Health Sciences Association of Alberta, et al., (SCC); 2019 ABCA 494;2019 ABCA 169; 2018 ABQB 591, 2017 ABQB 683. [9] Even once it was determined that the Union had been validly certified, SHS was a recalcitrant participant in collectivebargaining. The Board’s decision is replete with evidence that SHS remained opposed to dealing with the Union and chose to slow-walkthe bargaining process.

The Board held a full evidentiary hearing and found as a fact that: • SHS did “nothing” to prepare for the expedited bargaining process that had been ordered: HSSA para 118; • SHS took an “extreme bargaining position” by failing to advance any proposals whatsoever: HSSA at para 128; • SHS’s low level of engagement with the bargaining process was “very disconcerting” and “troubling”: HSSA paras 119-120; • SHS’s approach had “completely frustrated” the enhanced mediation it had ordered: HSSA at para 128; • the demands and constraints of the Covid pandemic did not explain or account for SHS’s conduct: HSSA at paras 122-126; and • SHS’s “failure to direct time, energy and resources towards the bargaining process was a deliberate effort by SHS to underminethe bargaining relationship.” HSSA at para 127. [emphasis added] [10] Significantly, the Board found as a fact that SHS’s conduct was done with an eye to an impending revocation application: ...SHS’s entire course of action must be viewed in the context of anticipating imminent revocation applications: the fact a revocationapplication had been made was referenced in SHS’s very first response to the first contract assistance request in August of 2020.

Therewas hardly any doubt another revocation application would be forthcoming when the first was ruled untimely”: HSSA at para 127. [emphasis added] [11] All of this led the Board to conclude that, “the delay by SHS must now come to an end, and arbitration is the appropriatemechanism to achieve this”: HSSA at para 130. [12] The Board concurrently concluded that its decision to send the parties to first contract arbitration precluded entertaining thecompeting revocation application that was also before it.

This decision was explained in the following terms at paras 26-28: Simply put, where employer’s conduct has undermined, or threatens to undermine, the bargaining relationship between the parties to suchan extent that the Board would declare the dispute must be resolved by arbitration, permitting a revocation application to proceed wouldreward the employer for that conduct. That cannot be permitted. It is contrary to the clear purpose and intention behind the version ofsection 92.3 in question here.

This means that in some circumstances the actions of an employer will lead to a result which restricts employees in the bargaining unit from exercising what would otherwise be their right under the Code to revoke their union’s bargaining rights. In the first contract bargaining context, the Board considers that appropriate, and that it is supports, rather than undermines, the principle of free employee choice of bargaining agent.

The relationship of the bargaining agent and the bargaining unit in the context of first agreement collective bargaining is fragile, and may be unduly affected by employer actions prolonging the first contract dispute and leading to irreparable breakdown of the bargaining relationship. Members of the bargaining unit may view the bargaining agent as ineffective, and question the original decision to certify. While in normal circumstances employees have that right, when the situation results from employer conduct that the Code seeks to restrain, the ability to pursue revocation is appropriately restrained.

The result of this analysis in this case is that the Board considers it appropriate to first consider whether HSAA’s first contract arbitration request should be granted. If it should, the revocation application must be denied. [ 13 ] Put simply, the Board found that SHS’s conduct (both culpable and non-culpable) had frustrated its employees’ desire to bargain collectively for so many years that to allow a revocation process to proceed at that juncture would defeat the employees’ collective bargaining rights.

The Board acknowledged the tensions that had formed and the interests of the applicants for revocation, holding as follows at para 134: The Board stresses that this [its decision not to entertain the revocation] is not a reflection on any actions of the Revocation Applicants, and the Board anticipates their frustration. The evidence reveals there is a portion of the bargaining unit deeply opposed to the certification and eager to pursue revocation, just as there is a portion of the bargaining unit deeply supportive of HSAA.

The Board would simply reiterate its comments above, that the first contract sections of the Code are intended to protect the new bargaining relationship as a whole, and particularly the impressions of the “persuadable middle” about that bargaining relationship, from being unduly and inappropriately impacted by the actions of the employer . That is what the Board has found here. This is not a “technicality”.

The actions of SHS have resulted in it being necessary to ensure a collective agreement be reached via arbitration, with a resulting period of peace in which all parties can develop a greater familiarity with the proper processes of a certified bargaining relationship . In the end, this may not change any minds among the Revocation Applicants. However, it is entirely necessary to protect the bargaining relationship as a whole as a result of the actions of SHS. [emphasis added] [ 14 ] It is this decision, and the factual findings underlying it, that the applicants and SHS challenge on this judicial review.

Standard of review [ 15 ] Judicial review is conducted on a reasonableness standard: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 (“ Vavilov ”) at para 17 . This mandates the reviewing Court to approach the Board’s decision “holistically and contextually” with “respectful attention” to its area-expertise and advantages as the fact finder: Vavilov at paras 13, 75, and 102-103 . [ 16 ] Where the decision under review has its genesis in a strict statutory mandate, the reviewing Court must ensure the law was correctly applied: Vavilov at paras 53-54 .

The relevant statutory provisions [ 17 ] The challenge to the Board’s decision turns in large measure on sections 53 and 54 of the Code , which govern applications for revocation of bargaining rights. At the time of the decision these provisions stated as follows: Inquiry into revocation application 53(1) Before granting an application for revocation, the Board shall satisfy itself, after any investigation that it considers necessary, that (

a) the application is timely, (

b) in the case of an application by an employer or by the employees in the unit, the employees have voted, at a representation vote conducted by the Board, in favour of the revocation of bargaining rights of the trade union as their bargaining agent, …

(2) Before conducting a representation vote on an application for revocation brought by employees, the Board shall satisfy itself, on the basis of the evidence submitted in support of the application and the Board’s investigation in respect of that evidence, that at the time of the application for revocation at least 40% of the employees within the unit indicated in writing their support for the application for revocation.

(3) Subject to subsections (4) and (5), the Board shall conduct any representation vote and complete its inquiries into and consideration of the application for revocation of bargaining rights as soon as possible.

(4) The Board shall make its final decision whether to grant the application for revocation no later than 6 months after the date of the application.

(5) Notwithstanding subsection (4), the Chair may, in exceptional circumstances, approve an extension of the time referred to insubsection (4). Revocation of bargaining rights 54(1) When the Board is satisfied with respect to the matters referred to in section 53(2) and satisfied, after considering any otherrelevant matter, that the bargaining rights of the trade union should be revoked, the Board shall grant a declaration that the trade union’sbargaining rights are revoked, and revoke any certification. [emphasis added] [18] The questions on this review center on whether the Board was: (

i) permitted to stop the revocation process in favour ofmandatory arbitration under these provisions; and (ii) acted reasonably by deciding to do so. Grounds for judicial review [19] The Applicants and SHS advance overlapping and individual grounds for review. SHS attacks the Board’s factual findings.The logical sequence is to address these concerns first, as they strike at the foundation of the Board’s approach to the broader issue. i.

Was the Board’s factual finding of misconduct against SHS reasonable? [20] SHS sought to excuse its impugned bargaining conduct on the basis that the Covid 19 pandemic disproportionately impactedits operations. The Board factually rejected this explanation. SHS now argues that the Board erred by failing “to place sufficient weighton the unprecedented challenges faced by SHS...as a result of the global pandemic.” [21] This ground of review fails.

The Board gave detailed consideration to SHS’s arguments, acknowledged the impact of Covidand SHS’s unique role in pandemic response, and articulated why it was unmoved by this excuse. The Board’s treatment of the Covidexplanation was reasoned and reasonable. Beyond being supported by the evidence before it, the Board’s conclusions were consistentwith the reality that the rest of SHS’s business continued during the pandemic, as did labour relations at large. [22] SHS simply disagrees with the Board’s weighing and evaluation of the evidence and the resultant conclusion.

The SupremeCourt has recently reminded reviewing courts that they must refrain from “reweighing and reassessing the evidence considered by thedecision maker”: Vavilov at para 125. The Board’s factual finding that SHS’s dilatory bargaining conduct was a choice is reasonable andprovides no basis for intervention by this Court. ii.

Did sections 53 and 54 of the Code compel completion of the revocation process? [23] The next question is whether the Board had the jurisdiction to make the decision it did, or whether the Code compelled it tocomplete its consideration of the revocation application irrespective of the status of collective bargaining between SHS and the Union. [24] The Applicants argue that the Code did not permit the Board to leave the votes uncounted or shelve the revocation processsimply because it had determined that the parties should proceed to first contract arbitration. On the Applicants’

interpretation, section53(3)’s direction that the Board “shall conduct any representation vote and complete its inquiries...as soon as possible” means that theBoard must count the ballots. They further argue that this provision dovetails with

section 54, such that the vote count constitutes one ofthe “other relevant matters” that the Board must consider. [25] This ‘mandatory counting’

interpretation is in tension with the Board’s jurisprudence on these provisions, a purposive readingof the Code, and the realities of the labour relations context. The Board has previously considered the interplay between requests for firstcontract assistance and contemporaneous revocation applications.

In Certain Employees of Mountain View Seniors’ Housing v AlbertaUnion of Provincial Employees and Mountain View Seniors’ Housing, (AB LRB) (“Mountain View”), the Boardreceived and considered submissions from both the parties and intervenors in the labour relations community which advanced a varietyof approaches to this issue. Ultimately, the Board, concluded that the Code provides case-specific and contextual discretion in decidinghow to handle such competing applications: Mountain View at paras 29-30.

There is nothing expressly set out in the Code barring a revocation application when a request for assistance has been filed. It wouldhave been an easy thing for the legislature to include such language if it had that intent. Clearly, the intent was to leave the matter to theBoard’s discretion under section 54(1), and that discretion has generally been exercised with caution. The Board has broad discretionunder the first contract provisions which is guided by the

preamble of the Code. All of this leads to the conclusion that the Board shouldexercise its discretion cautiously with a view to the particular context at issue and the important policy considerations at stake under boththe revocation and first contract provisions. [Emphasis added] The Board concludes: • its analysis is to be contextual; • the Board is to be guided by the Code’s support for freedom of association, free collective bargaining and the need for a balanced,

fair and constructive bargaining process; • a

section 92.2 application for assistance is not an automatic bar to a revocation application; and • an application for revocation could be dismissed in light of a

section 92.2 application in appropriate circumstances. [26] While the decision in Mountainview considered the converse of the present situation – namely whether a revocationapplication was permitted once first contract assistance had been ordered – the Board’s core finding that sections 53 and 54 afford itflexibility when dealing with the conflicting applications in this context applies equally here. [27] The Board’s further

interpretation that

section 54 permits and requires a case-specific and highly contextual analysis as towhether any particular revocation application should proceed to a counting of the votes and a final conclusion is compelling. The Codeshould be read as giving the Board context-sensitive discretion wherever this is consistent with its language: Canada (Citizenship andImmigration) v. Khosa, 2009 SCC 12 at para 18. This is particularly true given the importance of considering individual workplacedynamics and history, as well as unique working conditions, in sound decision making in the labour relations realm. [28] Interpreted in this light, the Board’s

section 54 mandate to consider “any other relevant matter” before granting revocation canand should be read as encompassing consideration of the overall stage and status of the labour relationship at hand. This includesconsidering whether fairness and vindication of the employees’ desire to bargain collectively require giving precedence to achievementof a first collective agreement over a parallel revocation attempt. [29] In reaching this conclusion, I adopt the following reasons of Marceau J. in Parkland School Division No. 70 v. Alberta(Labour Relations Board), 2007 ABQB 623 at para 17, where this Court held that: …because a contextual approach is called for in the

interpretation of the Labour Relations Code, the expertise of the Board deservessignificant deference. In reaching this conclusion, I note the following comment of Cory J. for the Supreme Court of Canada inU.F.C.W., Local 518 v Kmart Canada Ltd, (SCC), [1999] 2 S.C.R. 1083 at paras 69 and 70: The Board is a highly specialized tribunal entrusted by the legislature with the authority to administer the Code and apply its generalprovisions to the circumstances of a labour dispute. It was argued that courts must show a degree of deference to the Board ininterpreting labour legislation.

There are sound reasons for exercising judicial restraint in those circumstances ... In the absence of Charter considerations, the statutory

interpretation made by the Board is ordinarily entitled to deference provided it isnot patently unreasonable. [30] The Board’s

interpretation that

section 54 of the Code granted it discretion to terminate the revocation application in favour ofdirected arbitration was both reasonable and entitled to deference. There is no basis for judicial intervention on this point. iii. Was it reasonable to leave the ballots uncounted before making a decision to discontinuethe revocation process? [31] There is a superficial appeal to the notion that ‘a ballot cast should be a ballot counted’. This precept drives the Applicants’position.

However, in labour relations matters, votes are often conducted before the legitimacy of the voters list, and of thecircumstances of the vote itself, have been determined.

There is an imperative to ‘get the vote in the can’, to capture as accurately aspossible the true will of workers before they are subject to influence from interested parties.[1] Therefore, ballots may be kept under sealand uncounted, pending the Board’s determination of all the collateral litigation which may arise. [32] In this case for instance, the Union raised a lengthy series of objections to the revocation application, including that theApplicants are “management employees” and have used their power over scheduling to influence members and that the voters list hasbeen manipulated.

A hearing has never been held into these complaints and would have to precede any counting of the votes in anyevent. This is why sections 53(3-5) of the Code envision a process wherein the vote is captured first and the arguments about it (and theprocess it is part of) are heard thereafter. Therefore, it is far from certain that the Board would have ultimately proceeded to ballotcounting in any event. [33] Correctly interpreted,

section 54 contemplates leaving votes uncounted where the Board decides that the totality of thecircumstances dictates that the revocation process should not proceed. A decision to send the parties to first contract arbitration underDivision 14.1 of the Code because of dilatory employer conduct that has frustrated collective bargaining epitomizes the situations wherethis is a proper outcome. [34] Consonant with this approach, the language of

section 54 contains numerous hallmarks of discretion. Specifically, it calls forthe Board to “be satisfied” that revocation “should be” ordered, after considering “other relevant matters”. This is plainly a call for theBoard to take a 360-view of the specific bargaining relationship at issue and make a judgment call on what path forward is most fair andbest promotes the purpose of the Code. [35] The Applicants complain that it is unreasonable for the employees’ voices to have been left out of the equation.

However, it isimplicit in the Board’s decision that the employees may well have supported revocation in the uncounted ballots but that this would notchange its decision.

It may be appropriate to dismiss a revocation process where a vote would not fairly ascertain the employees’ wishes,irrespective of whether ballots have been cast or not: Ross v Pei Union of Public Sector Employees, (PE LRB) atpara. 125. [36] In this case, the Board concluded that it would be both unfair and contrary to the proper balance of the rights advanced by theCode to allow momentary employee sentiment to supersede their previously expressed and long-frustrated desire to bargain collectively.

This is precisely the sort of fine balance, born of a sophisticated sensitivity to the dynamics of labour relations, that the Board ismandated to make. [37] The instant mood of the membership, as reflected in a disputed vote, sometimes has little or no relevance to the fair and propernext-step in a contentious collective-bargaining relationship. Deciding whether a revocation application should proceed, as determinedthrough a holistic view of the entire workplace context at hand, is a condition precedent to needing the results of a membership vote.

TheApplicants’ insistence that the vote tally is always a “relevant matter” that the Board must consider inverts this reality and is out of stepwith what the Code seeks to achieve. iv. Was the Board’s chosen path reasonable? [38] First contract arbitration provisions exist in part to remedy situations in which the employer’s actions, both legitimate andotherwise, have made the nascent collective bargaining regime fruitless for the employees for too long. The Board found that this was thecase between SHS and the Union.

This factual assessment of the situation is unimpeachable. [39] Delaying tangible progress in collective bargaining is known to foment anti-union sentiment and to be particularly perilous fornew collective bargaining agents who have yet to prove themselves to their membership.

This is the wisdom in the adage that “labourrelations delayed are labour relations defeated and denied”, laid down by Estey JA (as he then was), in Journal Publishing Co ofOttawa v Ottawa Newspaper Guild, [1977] OJ No 8 (CA), at para 4. [40] In some instances, it is appropriate to either suspend a representation vote, or hold counting of the vote in abeyance, “tocounteract the possibility that the absence of a collective agreement might be a factor in the outcome”: Choponis v MadisonDevelopment Group Inc., [1996] Sask. LRBR 511 at paras 23-24; Evans v. CAW-Canada, [2002] Sask.

LRBR 313 at paras 55-57. [41] Preventing employers from leveraging delays to undermine new unions is a core rationale for the first contract assistanceprovisions of the Code and other similar legislative regimes across the country. A comprehensive consideration of the history, purposes,and powers of provisions in the seminal decision in Yarrow Lodge Ltd. v HEU, [1993] BCLRBD No. 463, at paras 60, 99, and 111 inparticular, confirms this understanding.

While overt wrongdoing by one of the parties to a collective bargaining relationship is no longerrequired to engage first contract assistance,[2] the following passage from Yarrow Lodge, at para 97, is apposite to this case. Our society does not seek to protect the conduct of a party who seeks to deliberately frustrate or prevent the rights of another party toengage in the process of free collective bargaining….

First collective agreement imposition can, therefore, under certain circumstances,be in furtherance of the basic values underlying free collective bargaining. [42] The Board’s invocation of this principle was well within the reasonable range of approaches to this intransigent bargainingrelationship. No discretionary remedy is appropriate in any event [43] Even if I had found the Board’s decision to have been in error, I would decline to quash the decision and compel a counting ofthe April 2021 votes because the members of the Union can revoke its representation imminently if they still want to.

This is a superiorremedy to intervention by this Court. [44] Both certiorari and mandamus are discretionary remedies: see Matsqui Indian Band v Canadian Pacific Limited, (SCC), [1995] 1 S.C.R. 3 at paras 34-36. The Court may decline to grant them where alternative relief is available or theyare inappropriate for some other reason: KCP Innovative Services Inc v Alberta (Securities Commission), 2009 ABCA 102 at paras 9-10.

While no other appeal process exists in this case, a functional statutory remedy does. [45] Specifically, the first collective agreement will expire, and a new “open period” permitting revocation applications to bebrought will commence in January of 2023, pursuant to s 52(3)(d)(ii) of the Code. The impending availability of a fresh revocationprocess offers a superior remedy to entertaining revocation on a distantly stale ballot. [46] Much has happened in this labour relationship since the events at issue took place in 2021.

The Board sent the parties toarbitration, a contract was granted, and the employees of SHS have finally experienced working under the collective bargaining regimethey first voted for in 2016. They deserve to determine their labour relations future on a fresh and informed vote, taken with the benefitof having experienced a unionized workplace and a contract achieved through the collective process. This is equally true for bothsupporters of the Union and opponents of unionization. [47] Therefore, this Court would decline to order a continuation of the 2021 revocation process in any event.

Conclusion [48] The application for judicial review is dismissed. The Court is grateful for counsel’s excellent submissions. If necessary, theymay provide submissions on costs, together with brief mutual replies, within 60 days. Heard on the 9th day of September, 2022. Dated at the City of Calgary, Alberta this 6th day of December, 2022.

N.E. Devlin J.C.K.B.A. Appearances: Fred Fenwick for the Applicants Katie Corbett and Darryl Jensen John Batzel for Siksika Health Services Karen Scott for the Health Sciences Association of Alberta Terri Susan Zurbrigg for the Alberta Labour Relations Board