2013 NBCA 42, 2013 NBCA 42

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 163-12-CA HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK, as represented by Board of Management APPELLANT SA MAJESTÉ LA REINE DU CHEF DE LA PROVINCE DU NOUVEAU-BRUNSWICK, représentée par le Conseil de gestion , APPELANTE - and - - et - CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 2745 [Administrative Support Category – Stenographic, Typing, Clerical, Regulatory and Office Equipment Operation Occupation Group],

Part II, First

Schedule of the Act RESPONDENT SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE,

SECTION LOCALE 2745, [Catégorie du soutien administratif,

partie II de l’annexe I de la Loi – groupe d’occupations des sténographes, dactylographes, commis aux écritures et aux règlements et mécanographes] , INTIMÉ Her Majesty the Queen in Right of the Province of New Brunswick, as represented by Board of Management v. Canadian Union of Public Employees, Local 2745, 2013 NBCA 42 Sa Majesté la Reine du chef de la Province du Nouveau-Brunswick, représentée par le Conseil de gestion c. Syndicat canadien de la fonction publique,

section locale 2745, 2013 NBCA 42 CORAM: The Honourable Justice Robertson The Honourable Justice Richard The Honourable Justice Bell CORAM : L’honorable juge Robertson L’honorable juge Richard L’honorable juge Bell Appeal from a decision of the Court of Queen’s Bench: November 22, 2012 Appel d’une décision de la Cour du Banc de la Reine : Le 22 novembre 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 381 Décision frappée d’appel : 2012 NBBR 381 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o.

Appeal heard: April 23, 2013 Appel entendu : Le 23 avril 2013 Judgment rendered: July 4, 2013 Jugement rendu : Le 4 juillet 2013 Reasons for judgment by: The Honourable Justice Robertson Motifs de jugement : L’honorable juge Robertson Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Bell Counsel at hearing: For the appellant: Keith Mullin For the respondent: Glen S. Gallant Avocats à l’audience : Pour l’appelante : Keith Mullin Pour l’intimé : Glen S. Gallant THE COURT The appeal is allowed.

The order of the Queen’s Bench allowing the application for judicial review is set aside and replaced with an order dismissing the application. The appellant is entitled to costs of $2,500 on the initial application and $2,500 on the appeal. LA COUR Accueille l’appel. Elle annule l’ordonnance de la Cour du Banc de la Reine favorable à la requête en révision et la remplace par une ordonnance de rejet de la requête. L’appelante a droit aux dépens de la requête initiale, qui sont de 2 500 $, ainsi qu’à des dépens de 2 500 $ en appel.

The judgment of the Court was delivered by ROBERTSON, J.A. [ 1 ] This is an appeal from a decision of the Court of Queen’s Bench allowing an application for judicial review with respect to a decision of the Labour and Employment Board, rendered under s. 43.1 of the Public Service Labour Relations Act , R.S.N.B. 1973, c. P-25. That provision authorizes the Board to designate, in advance, those employees in a bargaining unit who provide an “essential service” and are, therefore, precluded from participating in a lawful strike.

An essential service is defined in terms of one that is necessary in the “interest of the health, safety or security of the public”. The Board’s decision effectively confirmed an earlier Board ruling that “Teachers’ Assistants” and “Student Attendants” provide an essential service within the meaning of the legislation. [ 2 ] Applying the review standard of reasonableness, the application judge held the Board to have erred in accepting at face value the contents of a directive issued by the Minister of Education to the Director of Human Resources for the Department of Education.

That directive declared that, if members of the bargaining unit were to withdraw their services, the Minister would not authorize the closure of schools within the Province. The Board accepted that directive as conclusive proof that schools would remain open in the event of a strike. That finding was then woven into the Board’s determination that the services offered by Teachers’

Assistants and Student Attendants were essential to the health safety and security of special needs children (“exceptional pupils”). The application judge also held that the Board’s reasoning was incompatible with the purpose of s. 43.1 of the Act .

This led the application judge to conclude that the employees in question do not provide an essential service within the meaning of the legislation and to grant an order setting aside the Board’s decision. [ 3 ] While I agree with the application judge’s finding of error with respect to the Board’s reliance on the Minister’s self-serving and non-binding declaration of intent, I conclude the error does not justify intervention. The Board’s reasons and existing jurisprudence are capable of supporting its ultimate ruling and of meeting the threshold review standard of reasonableness.

Accordingly, I would allow the appeal, set aside the order below and grant an order dismissing the application for judicial review. [ 4 ] The essential facts are as follows. The appellant is Her Majesty in Right of New Brunswick, as represented by the Board of Management on behalf of the Department of Education and Early Childhood Development (hereinafter “the employer”). The respondent, Canadian Union of Public Employees, Local 2745 (hereinafter “the union”), is the certified bargaining agent for the bargaining unit of employees working in the various school districts set out in

Part II of the First

Schedule of the Act . That bargaining unit is comprised of approximately 3,209 employees. Of that number, approximately 2,163 are Teachers’ Assistants. There are approximately 37 Student Attendants. These employees attend to the needs of “exceptional pupils” as referred to in s. 12 of the Education Act , S.N.B. 1997, c. E-1.12. These students have been assessed as requiring “extra assistance” because of physical, intellectual and/or behavioural needs.

Indeed, it is common ground these students are indeed “exceptional” and require special education programs and services. [ 5 ] On January 6, 2009, the union filed an application, under s. 43.1(8) of the Act , to amend an existing order which the Board had issued on November 8, 2002, pursuant to reasons issued on April 5, 2002. The 2002 Order had determined that the services provided by Teachers’ Assistants and Student Attendants were “essential in the interest of the health, safety or security of the public” as provided for under s. 43.1(1) of the Public Service Labour Relations Act .

Ultimately, this Court determined that the Board’s decision met the then threshold standard of patent unreasonableness. In the present case, the union sought an amending order by arguing that the law on essential services had since evolved. In fact, reliance was placed on only one decision, the decision of this Court in Canadian Union of Public Employees, Local 1253 v. Her Majesty the Queen in Right of the Province of New Brunswick, as represented by the (Board of Management) , 2006 NBCA 101 , 306 N.B.R. (2d) 150 (“the Custodian case”). The employer disputed the relevancy of that decision.

It also tendered into evidence a directive from the Minister of Education, stating that the Minister would not authorize the closure of any school in the event members of the bargaining unit were to strike. [ 6 ] In its decision, the Board relied on the Minister’s directive to conclude, as a matter of fact, that if members of the bargaining unit were to strike, the schools would remain open and, therefore, the withdrawal of services would compromise the health, safety or security of the exceptional students.

The Board also concluded that nothing said in the Custodian case derogated from the Board’s earlier jurisprudence and that of this Court, which jurisprudence had confirmed that Teachers’ Assistants and Student Attendants provided an essential service within the meaning of the legislation. The union sought judicial review of the Board’s decision on the common understanding that the review standard of “reasonableness” applied.

The application judge concluded that the Board’s decision failed to meet that standard for two principal reasons: (1) the Board relied on the employer’s evidence that schools would remain open when assessing the “importance of the services” provided by the Teachers’ Assistants and Student Attendants; and (2) the Board’s reasoning is incompatible with the purpose of s. 43.1 of the Public Service Labour Relations Act . [ 7 ] As a starting point, a brief historical overview of the relevant jurisprudence sets the background for the legal analysis to follow and the conclusion that the Board’s decision meets the threshold standard of “reasonableness”.

The Board has long considered that the operation of schools and the provision of educational services is not an essential or necessary service (see New Brunswick v. Council of School Board Unions ,

(1980) N.B.L.L.C.,

Part II, 14011). As well, the Board has long held that the government is under no legal obligation to keep schools open in the event of a strike. Hence, if teachers were to strike, schools could close without compromising the safety, health or security of the public. Within this context the term “public” refers to “students”. That the parents of those children might be inconvenienced by the closure of schools is of no moment. [ 8 ] In 1993, the Board was asked to decide whether Teachers’ Assistants and Student Attendants provided an essential service to students with “special needs”. The Board held “no”.

The services provided by all of the employees within the bargaining unit were simply “incidental to the education services that are provided to the public”: see New Brunswick (Board of Management) v. Canadian Union of Public Employees, Local 2745 , [1993] N.B.P.S.L.R.D. No. 2 (QL) (the “MacLean decision”). However, in 1998, a differently constituted Board concluded that a distinction could be drawn between the services offered by Teachers’ Assistants and Student Attendants: New Brunswick (Department of Finance) (Re) , [1998] N.B.L.E.B.D. No. 6 (QL) (the “Lordon decision”).

On the basis that Student Attendants provided physical/medical assistance to special needs students, the Board declared those members of the bargaining unit as employees providing an essential service. However, as the job descriptions of Teachers’ Assistants was restricted to assisting teachers in regard to classroom instruction, the Board was not prepared to include these employees within the essential service designation.

[ 9 ] In 2002, the Board was presented with evidence that both Teachers’ Assistants and Student Attendants have responsibilities which involve the health, safety and security of students with special needs. On the basis of that evidence, the Board granted an order declaring both groups as providing an essential service within the meaning of the legislation: New Brunswick (Board of Management) (RE) , [2002] N.B.L.E.B.D. No. 13 (QL) (the “McGinley” decision). On judicial review, that part of the Board’s decision designating Teachers’ Assistants was challenged.

While the application was allowed in the Court of Queen’s Bench, this Court reinstated the Her Majesty the Queen in Right of the Province of New Brunswick v. CUPE, Local 2745 , 2004 NBCA 24 , 269 N.B.R. (2d) 141. [ 10 ] In 2005, the Board of Management, armed with the Board’s jurisprudence pertaining to the essential services designation in regard to Teachers’ Assistants and Student Attendants, persuaded the Board that school custodians, who are responsible for cleaning schools, also provide an essential service within the meaning of the legislation: New Brunswick (Board of Management) (Re) , [2005] N.B.L.E.B.D.

No. 57 (QL) (the “Couturier” decision). In reaching that conclusion, the Board reasoned that in the event the custodians withdrew their services, schools would not close because of the importance placed on children attending public schools and of their obligation to do so. The Board then reasoned that, if schools were to remain open, the health, safety and security of students would be compromised.

In reaching that conclusion the Board also relied on the reasoning advanced in both the “Lordon” and “McGinley” decisions outlined above. [ 11 ] The application for judicial review of the “Couturier” decision came directly to this Court after the Court of Queen’s Bench refused to provide the parties with a hearing date (now labeled the “Custodian case”).

The Board’s decision was found to be patently unreasonable for three reasons: (1) the Board’s ultimate conclusion was based on a false premise, namely that schools had to remain open because of a child’s right to an education; (2) the Board’s reliance on its earlier jurisprudence was not justified in that the decisions were distinguishable on substantive grounds; and (3) the Board’s broad approach to the designation issue was incompatible with the purpose underscoring s. 43.1 of the Public Service Labour Relations Act in that the Board effectively addressed a broad question rather than a narrow one.

The broad question was framed in terms of whether custodians were required to perform duties that may impact on the health of students. The narrow question required the Board to focus on the ultimate effect which a withdrawal of services might have on the health, safety and security interests of students. [ 12 ] I turn now to the legal issues that need to be addressed on this appeal. As stated at the outset, I agree that the Board should have given no weight to the Minister’s directive that schools would remain open in the event members of the bargaining unit were to strike.

Not only is the evidence self-serving, it comes in the form of a bald declaration. The Minister simply refers to his statutory obligation to “provide free school privileges” and of his right to order the closure of schools for any reason that he considers sufficient: see s. 8 of the Education Act and s. 6(2) of Regulation 97-150, adopted thereunder.

The Minister’s directive says nothing of the right of members of the bargaining unit to take strike action and says nothing of the needs of exceptional students and how those needs would be met if members of the bargaining unit were to withdraw their services and the schools remained open. In short, the Minister made no attempt to explain or justify his anticipatory decision to keep schools open in the event Teachers’ Assistants and Student Attendants withdrew their services.

As well, it has not escaped attention that the legislative scheme makes no provision for the issuance of declaratory orders that schools will remain open in the event of a lawful strike. The legislation provides only for orders authorizing the closure of schools for cause.

Finally, the significance of the Minister’s directive has to be measured against the reality that Ministers, like governments, inevitably change. [ 13 ] Like the application judge, I conclude that the Board erred in treating the Ministerial directive as conclusive proof that schools would remain open in the event of lawful strike by members of the bargaining unit. This is not to say that the question of whether schools would close, in the event the Teachers’ Assistants and Student Attendants withdraw their services, is irrelevant.

As explained below, the question is relevant when it comes to the Board’s task of assessing whether there is a plausible or real risk that the health, safety or security of exceptional students would be compromised if these employees were to withdraw their services. Before addressing that issue, it remains to be decided whether the Board’s error warrants judicial intervention. In my opinion, it does not. In effect, the Board made a finding of fact that schools would remain open in circumstances where the Board need only have drawn a reasonable inference of such a risk.

The Board was alive to the risk assessment issue that had been identified in the “Custodian case” and, in fact, reproduced the relevant passages from that decision. This is why the Board’s error does not fall within the “overriding” category. Hence, the pivotal issue is whether this Court’s decision in the “Custodian case” somehow altered the law of essential services, thereby overriding the Board’s earlier jurisprudence holding that Teachers’ Assistants and Student Attendants provide an essential service.

In the present case, the Board addressed that question and responded with the correct answer: “no”. [ 14 ] In the “Custodian case”, the Board had declared that school custodians provide an essential service within the meaning of the legislation. This conclusion was premised on the finding that in the event of a strike there was an expectation that schools would remain open because of the obligation of children to attend public schools. This Court found that premise flawed for two reasons.

First, the Minister possesses the statutory right to close schools, with cause, regardless of the rights or obligations of students. Second, the perceived obligation that schools would remain open, because of a child’s obligation to attend school, conflicted with the established right of teachers to withdraw their services in the event of a lawful strike. The Court went on to formulate the primary question in terms of the Board assessing the ultimate impact on the public (the students) if the employer were no longer able to provide the services which the custodians provided.

The reasonable inference is that the Minister would have to close schools because of health and safety issues. With the closure of schools, the risk of harm to students would no longer be present and, correlatively, the services of the custodians would no longer be necessary in the “interest of the health, safety or security of the public”. That is why the

employer’s claim that custodians provided an essential service failed. [ 15 ] It is important to appreciate that, in the “Custodian case”, the employer was citing the “Lordon” and “McGinley” decisions, dealing with Teachers’ Assistants and Student Attendants, to support its argument that school custodians also provided an essential service. In response, this Court held that any analogy between school custodians and those employees providing direct services to exceptional students was misplaced.

This Court held, at paragraph 20, that: “Not only do the duties of school custodians differ from those offered by [Teachers’ Assistants and Student Attendants], there is also a difference when it comes to assessing the impact a strike would have on the student population (public) in each situation.” Moreover, at paragraph 19, this Court explained why this was so. The Board in the present case reproduced that passage. Regrettably, the application judge overlooked it.

Paragraph 19 reads: My second reason for holding that the Board's decision fails to withstand the most deferential of review standards is tied to the Board's reliance on two of its earlier precedents dealing with the designation of teaching assistants and student attendants. Those decisions are invoked to support the application of the assumption that schools would remain open during a strike (see the 1998 and 2002 Board decisions discussed above). In my respectful view, reliance on the two earlier precedents is misplaced.

I accept the proposition that, if teacher assistants and student attendants were to strike, schools would remain open. This is certainly true with respect to student attendants who are responsible for the welfare of physically or emotionally challenged school children. If these employees were to withdraw their services, the void would have to be filled by the teaching staff. If that option were not viable then the affected students would have to remain home. But in either case there would be no need to close the school.

It is understandable that the Board would be concerned with the possibility that the affected children would opt to remain in school, thereby forcing the teachers to assume the duties being performed by student attendants. If that were to occur, arguably the health or safety of this group of students would be compromised. As the Board is guided by the principle that it should err on the side of caution, it is understandable that it would declare that these employees perform an essential service within the meaning of the Act .

I recognize that the Board has applied the same reasoning in the context of teacher assistants. It is a question of fact whether this group of school employees performs duties that overlap with those performed by student attendants. But as that determination raises a question of fact, it is unnecessary to comment further on the Board's finding. [ 16 ] The above passage affirms that the analysis to be performed, in regard to the employer’s claim that Teachers’ Assistants and Student Attendants provide an essential service, differs from the one pursued in regard to school custodians.

Moreover, based on the limited evidence presented to the Board, the question of whether schools would remain open or closed in the event Teachers’ Assistants and Student Attendants withdrew their services is not self-evident.

In the circumstances, the Board had to assess whether there is a plausible or real risk: (1) that schools might stay open notwithstanding a withdrawal of services; (2) that the parents of exceptional students might elect to have their children remain in the classroom; and (3) that, in such circumstances, classroom teachers might be unable to attend to the needs of both regular and exceptional students.

For greater certainty, it is important to note that when assessing the risk of harm resulting from a withdrawal of services, the Board need not make factual findings based on the civil standard of proof: balance of probabilities. The Board is entitled to draw reasonable inferences and make a final determination with respect to risk assessment by embracing the premise that it is entitled to “err on the side of caution”. The Board in this case was aware of that understanding.

Indeed, the more recent decision of the Board in New Brunswick Crown Prosecutors Association [Scientific and Professional Category-Crown Prosecutors Group] (Re) , [2012] N.B.L.E.B.D. No. 16 (QL), affirms that understanding of the law: Given that the determination of essential services involves choosing options that fall within a range of reasonableness, some labour boards have commented that they feel obligated to err on the side of caution in determining what positions will be designated.

It is appreciated why labour boards make statements of this nature, given the potential for serious consequences if certain services are not available to the public. [para. 16] [ 17 ] Assuming that the overwhelming majority of students do not fall within the “exceptional” category, it would have been reasonable for the Board to infer that there was a real risk that schools would remain open in the event of a strike. In turn, if schools were to remain open, the Board had to contend with the risk that some parents might choose to keep their exceptional children at home.

But there is also the risk that some parents would elect to send their exceptional children to school. In which case, it must be asked who would look after their special needs. A reasonable inference is that classroom teachers may be forced to assume the duties being performed by Teachers’ Assistants and Student Attendants. If so, it is proper to ask whether teachers would be able to meet the needs of both the exceptional and non-exceptional student.

Having regard to the guiding premise that the Board should err on the side of caution, it was reasonable for the Board to affirm its earlier decisions that a withdrawal of services might reasonably compromise the health, safety or security of the exceptional student. In brief, the withdrawal of services poses a real risk of harm. This is what s. 43.1 of the Public Service Labour Relations Act is all about. [ 18 ] In

summary, while the provision of educational services to children does not qualify as an essential service within the meaning of the Public Service Labour Relations Act , the provision of services to exceptional children within the educational system does. This is because the services provided by members of the bargaining unit, Teachers’ Assistants and Student Attendants, are necessary in the interest of the health, safety or security of the exceptional student. This is a finding of the Board and

there is nothing in the Board’s jurisprudence which warrants intervention on the part of any reviewing court. [ 19 ] I would allow the appeal, set aside the order below and grant an order dismissing the application for judicial review. The appellant is entitled to costs of $2,500 on the application for judicial review and $2,500 on the appeal. ____________________________________ J.T. ROBERTSON, J.A. WE CONCUR: _________________________________ J.C. MARC RICHARD, J.A. __________________________________ B. RICHARD BELL, J.A.