2013 NBCA 50, 2013 NBCA 50

COURT OF APPEAL OF NEW BRUNSWICK 8-13-CA JONES’ MASONRY LTD. APPELLANT JONES’ MASONRY LTD. APPELANTE - and - - et - LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 900 RESPONDENT UNION INTERNATIONALE DES JOURNALIERS D’AMÉRIQUE DU NORD,

SECTION LOCALE 900 INTIMÉE Jones’ Masonry Ltd. v. Labourers’ International Union of North America, Local 900, 2013 NBCA 50 Jones’ Masonry Ltd. c. Union internationale des journaliers d’Amérique du Nord,

section locale 900, 2013 NBCA 50 CORAM: The Honourable Justice Robertson The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Robertson L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: December 19, 2012 Appel d’une décision de la Cour du Banc de la Reine : Le 19 décembre 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 410 Décision frappée d’appel : 2012 NBBR 410 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: April 24, 2013 Appel entendu : Le 24 avril 2013

Judgment rendered: August 15, 2013 Jugement rendu : Le 15 août 2013 Reasons for judgment by: The Honourable Justice Robertson Motifs de jugement : L’honorable juge Robertson Concurred in by: The Honourable Justice Green Souscrit aux motifs : L’honorable juge Green Dissenting reasons by: The Honourable Justice Bell Motifs dissidents: L’honorable juge Bell Counsel at hearing: For the appellant: Clarence L. Bennett For the respondent: Joël Michaud and Brenda L. Comeau Avocats à l’audience : Pour l’appelante : Clarence L. Bennett Pour l’intimée : Joël Michaud et Brenda L.

Comeau THE COURT The appeal is dismissed with costs. Bell, J.A., dissenting, would have allowed the appeal. The judgment of the Court was delivered by ROBERTSON, J.A. [ 1 ] This appeal is from a decision of the Court of Queen’s Bench dismissing an application for judicial review with respect to a decision of the Labour and Employment Board (the “Board”), rendered under ss. 13 , 14 and 40 of the Industrial Relations Act , R.S.N.B. 1973, c. I-4 (the “ Act ”).

Collectively, those provisions validate the Board’s policy for ascertaining employee support for a trade union’s application for certification involving an employer within the “construction industry”. The policy requires that an employee must be at work and engaged in the “craft” on the day the application is filed with the Board, if that employee is to be included in the bargaining unit for purposes of determining union support. Herein, the Board was faced with two separate applications for certification involving the same employer (the appellant).

One trade union sought certification with respect to the employer’s “labourers” (the respondent). The other trade union sought certification with respect to the employer’s “bricklayers”. Common to both applications is the fact they were “strategically” filed on a Saturday. Historically, Saturday has never been a regular workday for this employer.

[2] On the Saturday the trade unions filed their applications with the Board, only 10 of theemployer’s 73 employees were engaged in their craft (14%): seven of 33 labourers and three of 40 bricklayers. Under the Act, unionsupport is normally determined by counting the number of employees in the bargaining unit who are members in “good standing” of thetrade union on the date the certification application is filed. A majority is sufficient for purposes of certification in the constructionindustry.

Consequently, the labourers’ union needed only the support of four of seven labourers to obtain an order of certification (12%of all labourers). The bricklayers’ union needed only two of the three bricklayers (5% of all bricklayers).

This was true provided theBoard adhered to its policy of looking only to those employees who actually worked on the filing date. [3] The employer argued that the filing of Saturday applications amounted to an “abuse ofprocess” and, correlatively, that the refusal to recognize exceptions to the policy, having regard to the surrounding circumstances, wouldqualify as an improper fettering or exercise of discretion.

The employer emphasized that the purpose of the policy was to deal with thetransient nature of employment within the construction industry and yet the record demonstrated that the employer had a stableworkforce. The Board was not persuaded. It acknowledged the existence of two lines of authority dealing with the filing of “Saturday”applications and aligned itself with the more recent pronouncements of the Ontario Labour Relations Board. These pronouncements areantagonistic to according exceptional treatment to such applications: see Ken Anderson Electric Inc., [1996] O.L.R.D.

No. 3281 (QL)];Dalron Construction Ltd., [2009] O.L.R.D. No. 563 (QL); Legacy (c.o.b. Cyber Services Electrical and Fire Alarm Specialists), [2009]O.L.R.D. No. 3589 (QL) and Stef DeGraaf Inc. (Westminster Acoustics Division), [2011] O.L.R.D. No. 247 (QL) and compare withUnited Brotherhood of Carpenters and Joiners of America, Local 2486 v. Industrial Mine Installations Ltd., [1968] O.L.R.B. Rep. May217; Smiths Construction Co. Arnprior Ltd, [1984] O.L.R.B. Rep. March 521 (QL) and Al Gordon Electric Limited, [1990] O.L.R.B.Rep.

June 637 (QL). [4] In the present case, the Board emphasized the need for certainty and stability, fostered byconsistent

interpretations, and the importance of dealing with construction industry applications in a timely fashion. The Board alsorecognized that the application of its long-standing policy might seem unfair because of the ability of trade unions to file applications onnon-regular workdays. In response, the Board observed that employers get to direct their workforce and decide who works and when.Ultimately, the Board granted the certification order sought in regard to the labourers. However, the Board concluded otherwise inregard to the application embracing the bricklayers.

The Board reasoned that the “representation principle” would be offended ifcertification were based on the lowest common denominator, that is to say, if the wishes of two bricklayers were to determine the wishesof 40. By implication, the Board ruled that the representation principle was not offended if four labourers were to determine the wishesof 33. [5] The application judge concluded the Board’s decision met the review standard ofreasonableness.

Like her, I can find no basis for interfering with the Board’s decision pertaining to the labourers having regard to theSupreme Court’s application of the deferential review standard: see Newfoundland and Labrador Nurses’ Union v. Newfoundland andLabrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708; Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65,[2012] S.C.J. No. 65 (QL) and Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd.,2013 SCC 34, [2013] S.C.J.

No. 34 (QL). [6] Admittedly, the fact that the Board was willing to make an exception to the policy in regard tothe application embracing the bricklayers is problematic. It is arguable that that application does not present “significantly differentcircumstances” from those tied to the application involving the labourers. However, the reality is that the bricklayers’ union did not seekjudicial review of the Board’s decision. This appeal deals only with the application for certification brought by the labourers’ union.

I amalso mindful of the Supreme Court jurisprudence that indicates it is not the proper role of reviewing courts to resolve the matter ofconflicting tribunal decisions: see Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles),(SCC), [1993] 2 S.C.R. 756, [1993] S.C.J. No. 75 (QL). [7] While I have not been persuaded that the Board’s decision warrants intervention, it isimportant to clarify the precedential significance of this Court’s decision in United Brotherhood of Carpenters and Joiners of America,Local 1386 v. Bransen Construction, 2002 NBCA 27, 249 N.B.R. (2d) 93.

That is a decision which I authored on behalf of a unanimouspanel. I do so because it is evident from the Board’s decision that it was concerned with whether that decision “robs the Board” of itsdiscretion to depart from its long-standing policy so as to take into account “glaring representation inequities”. The concern stems fromthis Court’s characterization of the Board’s policy as an “inflexible

interpretation” of the Industrial Relations Act. Ultimately, the Boardconcluded, and properly so, that Bransen Construction could not be interpreted to have eliminated the discretionary nature of the Board’spolicy. That was the same conclusion earlier reached by a differently constituted Board: see United Brotherhood of Carpenters andJoiners of America, Local 1386 v. United Contractors Ltd., [2003] N.B.L.E.B.D. No. 23 (QL). That said, at the time BransenConstruction was decided, the Board had never recognized an exception to its long-standing policy. And that is all that was meant whenthis Court spoke of the Board’s “inflexible

interpretation”. [8] In concluding that the Board’s decision meets the threshold standard of reasonableness, I ammindful of the incisive observations of Bastarache and LeBel JJ. in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, (atpara. 48): “Deference is both an attitude of the court and a requirement of the law.” With respect to the former, I confess sympathy to theemployer’s pleas of unfairness and the perception that the policy’s application, in the circumstances of this case, undermines the

representation principle embedded in the Industrial Relations Act , and to the perception that the policy’s application is tilted towards the interests of trade unions. I am also mindful of Paul Weiler’s observation in Reconcilable Differences (Toronto, Carswell, 1980) at page 44: “Unions do themselves no good by flimflamming a group of employees into ‘instant unionism’ which they will shortly regret.” But as correctness is not the proper review standard, deference must be accorded to an administrative decision of a specialized tribunal.

The Board’s reasons are fulsome and fairly address the issues advanced within the dictates of the relevant, albeit wavering if not conflicting, jurisprudence. As recently held in Irving Pulp : The board’s decision should be approached as an organic whole, without a line-by-line treasure hunt for error ( Newfoundland Nurses , at para. 14).

In the absence of finding that the decision, based on the record, is outside the range of reasonable outcomes, the decision should not be disturbed [para. 54]. [ 9 ] The fact the Board has taken the law in this Province in a direction that I might not have chosen is of no moment. Deference is a requirement of the law and concerned with the identification of a range of reasonable outcomes. This case does not fall outside that range. Accordingly, I would dismiss the appeal with costs of $2,500. ____________________________________ J.T. ROBERTSON, J.A. I CONCUR: _______________________________________ BRADLEY V.

GREEN, J.A. The following are the reasons delivered by BELL, J.A. (dissenting) [ 10 ] The representation principle is one of the essential building blocks of harmonious labour relations. A union which cannot claim to represent significant numbers of those employed in an enterprise faces the possibility of external contempt from the employer and internal management challenges from the membership.

In addition, a lack of significant support for a union is oftentimes a guarantee of future litigation before labour boards. [ 11 ] Cognizant of the importance of the representation principle, the Labour and Employment Board, in the consolidated matter of International Union of Bricklayers and Allied Craftworkers, Local 8 and Labourers’ International Union of North America, Local 900, Applicants and Jones Masonry Ltd., Respondent and Saint John Construction Association Inc. and Moncton Northeast Construction Association Inc., Accredited Employers’ Organizations, [2011] CanLII 35359 (NBLEB) concluded that the principle would be offended if two bricklayers were able to establish a collective bargaining relationship for 40 employees.

However,

it also concluded that the principle would not be offended if four labourers were to determine the bargaining relationship for 33employees. [12] I am of the view the consolidated decision contains within its pages a glaring inconsistency withrespect to the application of the representation principle. Recognizing that the standard for judicial review in the present case isreasonableness, I respectfully disagree with my colleagues regarding the outcome. In reaching this conclusion, I make the following briefobservations. [13] As the Supreme Court held in Nor-Man Regional Health Authority Inc. v.

Manitoba Associationof Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, para. 52 and, as observed by the minority in Communications, Energyand Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] S.C.J. No. 34 (QL) [Irving Pulp &Paper] “the domain reserved to arbitral discretion is by no means boundless”. Under the reasonableness review, there is a differencebetween judicial abdication and judicial restraint (McLachlin C.J. and Rothstein and Moldaver JJ. dissenting, para. 73). [14] While Domtar Inc. v.

Quebec (Commission d’appel en matière de lésions professionnelles), (SCC), [1993] 2 S.C.R. 756, [1993] S.C.J. No. 75 (QL) is appropriately cited by my colleagues for the principle that itis not the proper role of reviewing courts to resolve the matter of conflicting tribunal decisions, I read the decision more narrowly for thefollowing reasons. First, in Domtar Inc., the Court was presented with divergent positions regarding the

interpretation of the samelegislation by two different tribunals. In the present case, we are presented with the same tribunal, the same panel of that tribunal, thesame employer and the same circumstances, but for the respective unions’ percentages of support. Second, in Domtar Inc., one tribunalwas required to interpret the statute within the context of an administrative procedure, while the other was required to interpret the samestatute within the context of penal proceedings. Without doubt, decision makers approach the

interpretation of statutory languagedifferently depending upon whether the language is being interpreted from a remedial or penal perspective. In the present case, unlikeDomtar Inc., the Board was required to apply identical interpretive models to both cases before it.

Third, although the Court in DomtarInc. concluded that consistency, and, in effect the application of the rule of law, must on the facts of the case before it, be sacrificed onthe altar of judicial restraint, it did recognize that consistency in the application of the law is unquestionably a valid objective (para. 66).Fourth, in Domtar Inc., the Court limits its abrogation of the rule of law to those circumstances in which litigants receive “diametricallyopposite answers to the same question, depending on the identity of the members of the administrative tribunal” (para. 66).

Here, one isdealing with the same member of the same tribunal who, in my view, fails to apply the same standard in relation to the representationprinciple in virtually identical circumstances. [15] Consistent rules and decisions are fundamental to the rule of law (Irving Pulp & Paper, Ltd.,para. 78). Otherwise, the law can be used as a tool to advance arbitrary and, admittedly, unpredictable decision making. In my respectfulview, the Board’s decision is unreasonable in that it is the result of arbitrary decision making, which might otherwise be described aslacking justification, transparency and intelligibility.

I would allow the appeal, remove the Board decision into the Court, and quashsame. ____________________________________ B. RICHARD BELL, J.A.