2011 NBCA 22, 2011 NBCA 22

COURT OF APPEAL OF NEW BRUNSWICK 65-10-CA BOWATER MARITIMES INC. APPELLANT BOWATER MARITIMES INC. APPELANTE - and - - et - COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION, LOCALS 117, 146, 164 and 263 and INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL 1433 RESPONDENTS SYNDICAT CANADIEN DES COMMUNICATIONS, DE L’ÉNERGIE ET DU PAPIER, SECTIONS LOCALES 117, 146, 164 et 263, et L’ASSOCIATION NATIONALE DES DÉBARDEURS,

SECTION LOCALE 1433 INTIMÉS Bowater Maritimes Inc. c. Communications, Energy and Paperworkers Union, Locals 117, 146, 164 and 263 and International Longshoremen’s Association, Local 1433, 2011 NBCA 22 Bowater Maritimes Inc. c. Syndicat canadien des communications, de l’énergie et du papier, sections locales 117, 146, 164 et 263, et l’Association nationale des débardeurs,

section locale 1433, 2011 NBCA 22 CORAM: The Honourable Justice Turnbull The Honourable Justice Robertson The Honourable Justice Green CORAM : L’honorable juge Turnbull L’honorable juge Robertson L’honorable juge Green Appeal from a decision of the Court of Queen’s Bench: April 15, 2010 Appel d’une décision de la Cour du Banc de la Reine : Le 15 avril 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 134 Décision frappée d’appel : 2010 NBBR 134 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O. Appeal heard: November 9, 2010 Appel entendu : Le 9 novembre 2010

Judgment rendered: March 17, 2011 Jugement rendu : Le 17 mars 2011 Reasons for judgment by: The Honourable Justice Robertson Motifs de jugement : L’honorable juge Robertson Concurred in by: The Honourable Justice Turnbull The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Turnbull L’honorable juge Green Counsel at hearing: For the appellant: Peter McLellan, Q.C. and Richard G. Petrie For the respondents: Joël Michaud and Daniel P.L. Léger Avocats à l’audience : Pour l’appelante : Peter McLellan, c.r., et Richard G. Petrie Pour les intimés : Joël Michaud et Daniel P.L.

Léger THE COURT The appeal is dismissed with costs of $3,500. LA COUR L’appel est rejeté avec dépens de 3 500 $. The judgment of the Court was delivered by ROBERTSON, J.A. I. Introduction [ 1 ] In administrative law, there comes a point where the proper application of the deferential standard of “reasonableness” has as much to do with judicial attitude as it does with the standard’s prescribed scope. So said the Supreme Court in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190.

This appeal is about judicial attitude and the deference owed to a labour arbitrator’s interpretative decision which is tied to two interrelated contracts: a collective agreement and a pension plan. The arbitrator’s decision is reported as [2008] N.B.L.A.A. No. 28 (QL). [ 2 ] Briefly, this case is about whether unionized employees at the Dalhousie Paper Mill are entitled to accumulate time and service towards pensionable benefits, following the employer’s decision to declare a permanent closure of its mill.

The respondent unions argued the employees did not lose their status as either employees, or as members of the pension plan, as a result of the employer’s declaration. Their argument hinged on the employees’ continuing right of “recall” up to a maximum of 36 months

from the date of the lay off and because there was no inconsistency between the provisions of the collective agreements and the pension plans. Following a two-day hearing, the arbitrator accepted the unions’

interpretation of the relevant collective agreements and pension plans. The unifying thread found in his 30-page decision is that the employer’s unilateral declaration of mill closure does not override the relevant contracts and, correlatively, those contracts implicitly recognize the possibility of a subsequent sale of the mill operation despite the employer’s announced intention.

In plain language, the arbitrator rejected the employer’s paternalistic contention “it’s over when I say it’s over” and adopted the union’s understanding of the well-known malapropism “it ain’t over ‘til it’s over”. [ 3 ] On the application for judicial review, brought in the Court of Queen’s Bench, the parties could not agree on the proper standard of review. The unions argued for the standard of reasonableness. The appellant employer (Bowater) looked only to the provisions of the pension plans to argue that, as labour arbitrators lack expertise in the area of pension law, correctness is the proper standard.

The application judge agreed. Looking only to those provisions of the pension plans, she held the arbitrator’s

interpretation to be correct, but for reasons different than those he had crafted. The application judge’s decision is reported at 2010 NBQB 134 , 359 N.B.R. (2d) 336. [ 4 ] I am of the respectful view the application judge erred in adopting the correctness standard of review and in upholding the arbitrator’s interpretative ruling for reasons differing from those proffered in his decision. This is not a case where a review court can uphold an administrative decision for different reasons.

I hold the deferential standard of reasonableness applies to the arbitrator’s interpretative ruling covering both the collective agreements and the pension plans. This is not a case where the pension plan applies to both unionized and non-unionized workers and where the need for interpretative consistency is a valid consideration. This is not a case where the arbitrator is being asked to decide a discrete issue of pension law relating, for example, to general principles of contract or trust law.

Nor is this a case where the labour arbitrator is being asked to interpret an “external statute” or a case involving the registration, regulation, administration or termination of a pension plan. In this case, the question of whether an employee is still an employee and the question of whether the employee is still a member of a pension plan does not invite consideration or application of a different expertise or skill set. Hence, the deferential review standard of reasonableness applies. Applying that standard, I conclude there is no basis for interfering with the arbitrator’s decision. His

interpretation is sustainable because it possesses two qualities. First, his reasons for decision meet the threshold of “justification, transparency and intelligibility within the decision-making process”. Second, his

interpretation comes within the range of “acceptable and rational solutions”, that is to say, a “range of possible, acceptable outcomes which are defensible in respect of the facts and the law”. [ 5 ] Truly, the deference doctrine is about judicial attitude. It is neither a platitude nor a disguised invitation to re- weigh or re-hash competing arguments.

An aggrieved party intent on challenging an interpretative ruling made by an administrative decision-maker, whose decisions may be owed deference, must be able to explain why the decision does not pass the threshold of transparency and intelligibility or why the interpretative outcome does not fall within the acceptable range. If the written submissions focus on those questions, the task of the review court is simplified and the deference doctrine respected. II.

The Background [ 6 ] On November 29, 2007, Bowater announced to its unionized employees that it was proceeding with the “permanent closure” of its Dalhousie Paper Mill. They were also told their employment would terminate on January 31, 2008. Having regard to the provisions of the collective agreements and certain pension plans, which form part of those agreements, the two unions pursued fourteen grievances tied to the right of approximately 81 employees who, at the time of the Mill’s closure, were close to having the “age” and “years of service” that would have entitled them to pension benefits.

In fact, this case involves two unions, two collective agreements, two pension plans and the same employer. There being no substantive difference between the respective agreements and plans, I shall refer to those applicable to the grievances brought by the respondent, Communications Energy Paperworkers Union, Locals 117, 146, 164 and 263, as dealt with in the arbitrator’s decision. [ 7 ] The general nature of the interpretative question which divided the parties is as follows.

Under the terms of the collective agreement, an employee with more than one year of service is entitled to remain on layoff and maintain recall rights for a maximum period of up to 36 months. The unions argued that notwithstanding the announced closure of the Mill, the affected employees continued to be on layoff and, during this period, are entitled to accumulate time and service towards pensionable benefits. If the argument were accepted, employees who were, for example, three years shy of age 55 would become eligible for retirement benefits so long as they possessed the required years of service.

Bowater resisted the argument, no doubt motivated by the realization that if the unions’ argument were accepted, the two pension plans would incur additional liabilities of $9.2 million and $1.2 million respectively. Bowater’s counter argument was that while the anticipated Mill closure may not have terminated the employees’ layoff status under the collective agreements, the closure ended their membership in the pension plans and their right to accumulate pensionable time and service. [ 8 ] The arbitrator addressed the competing arguments by analyzing the relevant provisions of the collective agreement.

Pursuant to

Article 5.08(b), an employee with more than one year of service is entitled to remain on layoff and maintain recall rights for a period up to a maximum of 36 consecutive months, after which the layoff becomes a termination of employment and recall rights lapse.

Article 5.08(

b) reads as follows:

5.08 Employees who have been laid off shall be entitled to be re-employed as opportunity exists by mill service provided: (

b) A lay-off becomes a termination of employment and recall rights lapse when an employee has been laid-off in excess of twelve (12) consecutive months without reemployment if he has less than one (1) year of service; laid-off for a period equal to or longer than his mill service accumulated to the date of his lay-off up to a maximum of thirty-six (36) consecutive months without reemployment if he has more than one (1) year of service. [ 9 ] The employer has never disputed the fact that employees, following closure of the Mill, are entitled under the terms of the collective agreement to remain on layoff status for a maximum of 36 months.

Curiously, Bowater’s position, as stated in their letter to employees advising of the Mill’s closure, is that permanent and definitive closure results in the termination of their employment as of the last day of their work. In light of

Article 5.08(b), the arbitrator pointed out this notice was incorrect, unless it was intended to refer to the termination of their scheduled work as opposed to the termination of employment status. The arbitrator went on to examine

Article 5.02(

c) which reinforces the notion that an employee’s Mill “service” continues while the employee is on layoff. That

Article provides that service can be lost in one of four possible situations. None of the situations is applicable to the grievances at hand. [ 10 ] The arbitrator turned to

Article 6 which deals with severance pay. Based on that Article, he concluded that termination of employee status is not even a requirement in order to qualify for severance pay.

Article 6.1 states that persons employed on a year round basis and who have one year or more of continuous service, are eligible for severance pay when laid off for a minimum of six weeks. If the layoff exceeds twelve consecutive months, or there is a “permanent layoff”, the amount of severance pay increases. A permanent layoff occurs in the event of a “permanent paper machine, department or mill closure”. In short, the collective agreement does not rule out the possibility that following a permanent layoff, resulting from the closure of the Mill, an employee may be recalled to work. While

Article 5 makes no reference to permanent layoff, it does state that a layoff becomes a termination of employment once the right of recall has lapsed.

Article 6.03 states that an employee’s recall rights are not affected in any manner because of the payment of severance pay.

Article 6.04 provides that, if an employee is recalled after receiving severance pay, the employee begins to accumulate a new period which will be credited toward any future severance payments when the employee is laid off. In brief, the arbitrator noted there was nothing in

Article 6 to indicate that Mill closure affected an employee’s recall rights and the employer had not argued the contrary. The arbitrator ended his analysis of the provisions of the collective agreement with an acknowledgment that, despite the Mill closure, one could not rule out the remote possibility that the Mill could be reopened or sold. This is what he concluded: The Employer provided limited evidence that it did not expect the Mill to be reopened or sold.

In spite of the Employer’s expectation, there appeared to be an implicit acknowledgment that one could not rule out the remote possibility that the Mill could be reopened or sold. In the event of a sale of the Mill, a new purchaser may be required, under the successor rights provisions of the Industrial Relations Act , to assume the existing Collective Agreement prior to the expiry of the recall period.

There has been no suggestion that the Collective Agreement has been frustrated as a result of the closure of the Mill as one might encounter in the situation of an individual contract of employment. [para. 26] [ 11 ] In brief, the arbitrator ruled that under the terms of the collective agreement, and notwithstanding the closure of the Mill on January 31, 2007, the employees were laid off on that date and did not lose their status as employees.

This led the arbitrator to consider whether the employees continued to remain members of the pension plan until their recall rights expired pursuant to the collective agreement. If they remained members of the plan during the period of recall, it followed the employees were entitled to accumulate age and service for purposes of accessing pension benefits. [ 12 ]

Section 13.3 of the pension plan provides that, should a member of the plan cease to be an employee, membership in the plan also ceases. However, there is no express provision in the plan regarding loss of status as an employee or as a member of the Plan. At this stage, the arbitrator’s analysis begins with an acknowledgment that

Article 13.02 of the collective agreement provides that the pension plan (the basic and supplemental plans) forms part of the collective agreement. The arbitrator reviews various sections of the pension plan (Sections 11, 12.2, 12.3, 12.9 and 14.1) which led him to conclude the parties were cognizant of the provisions of the collective agreement at the time they negotiated the terms of the pension plan, and, therefore, it must be assumed that the parties intended the two documents to be complementary.

He reasoned: If the parties intended the meaning of “employee” to be different in the two documents one would assume that the parties would have carefully indentified the distinction given the importance and financial implication of the Retirement Plan to employees at a point in time when they are being laid off. [para. 37] [ 13 ] The arbitrator went on to rule there was nothing in the pension plan to support Bowater’s argument that an employee lost his or her membership in that plan simply because of the announced permanent closure of the Mill and, therefore, the

employee was unable to gain the benefit of age and continuous service during the period of layoff, as provided for under

Article 5 of the collective agreement. In point of fact, the arbitrator held the provisions of the collective agreement and the sections of the pension plan were consistent with one another. [ 14 ] The arbitrator also dealt with a problem that would arise if he were to accept Bowater’s interpretative argument. Assuming employees lost their status under the pension plan because of the Mill’s permanent closure, and should they be recalled after the announced date, they would be unable to have their pension rights reinstated. This conclusion was based on

Section 13.3 of the pension plan. This

section states that if a plan member ceases to be an employee, his membership in the plan ceases, and a former employee who is subsequently reemployed is to be treated as a new employee for purposes of the plan. The arbitrator observed that the plan does not make any specific provision to restore retroactively an individual’s status as a plan member in the event the employer’s bona fide but mistaken classification of the Mill closure as permanent. The arbitrator went on to find Bowater’s interpretative position to be in conflict of the

Section 12.2 of the pension plan which states that the period of layoff of an employee at the Dalhousie Mill is “deemed” to be a temporary suspension of employment. Based on all of those considerations the arbitrator concluded: The parties have opted to place employees on layoff if there is a lack of work and provide them with recall rights. The Retirement Plan makes reference to the fact that employees on layoff continue to maintain their membership in the Plan.

The Employer, in the absence of clear language, cannot change this arrangement by claiming there has been a permanent and definitive closure of the Mill. A reading of the Retirement Plan, by itself, would lead to this conclusion. The parties' intention, however, is further reinforced by reading the Retirement Plan within the context of the Collective Agreement into which the Retirement Plan has been incorporated. It must be seen that the parties were attempting to establish compatibility between the Retirement Plan and the Collective Agreement.

Only if there was a very clear and obvious intent in the Retirement Plan to distinguish when termination of employment can occur would one be in a position to ignore the provisions in the Collective Agreement. [para. 45] [ 15 ] The arbitrator went on to deal with two alternative arguments. The first was advanced by Bowater. It argued that employees laid off as of the date of the permanent closure of the Mill could no longer be considered in “active service” and, therefore, they were ineligible for any of the early retirement benefits referred to in the retirement plan.

In comprehensive reasons, the arbitrator rejected this argument. First, the argument would not apply in the case of the International Longshoremen’s Association, Local 1433 because of the wording of its retirement plan. Second, Bowater’s argument appears to have equated “active service” with active employment, and yet the two terms are not synonymous; in fact, the collective agreement does not define what is meant by “active service”.

The arbitrator also rejected the unions’ argument that the employer had discriminated against employees at the Dalhousie Mill because the employer had permitted its employees at the Belgo Mill in Quebec to use their layoff and recall rights to qualify for early retirement.

Despite the similarity in wording of the Belgo and Dalhousie collective agreements, the arbitrator held, for various reasons, the argument could not succeed. [ 16 ] Finally, the arbitrator addresses the precedential significance of a decision of the Quebec Superior Court reviewing a decision of the Quebec Administrative Tribunal which in turn had reviewed a decision of the Quebec Pension Board: Boucher v. Bowater Pâtes et Papier Canada Inc. , [2002] J.Q. No. 4417 (S.C.) (QL) . The case involves a Quebec mill that had been purchased by Bowater from the then owner who had earlier declared a closure of that mill.

This was a case in which an employee, Mr. Boucher, did not have a sufficient combination of age and service to qualify for pension benefits, unless the time spent on layoff was counted as pensionable time and service. The employee prevailed before the Pension Board but that decision was reversed by the Quebec Administrative Tribunal. In turn, the decision of that Tribunal was confirmed by the Quebec Superior Court which held that pension rights could not continue to accumulate after the pension plan had terminated.

The arbitrator distinguished the Quebec case on several grounds, including the fact that the interpretative issue in that case involved the

interpretation of s. 54 of the Supplemental Pension Plans Act , R.S.Q., c. R-15.1 ( s. 54 speaks of “continuous employment” as opposed to “continuous service”). [ 17 ] On judicial review, the application judge did not look upon the collective agreements and pension plans as interconnected documents. Instead, she looked only at the provisions of the pension plan and concluded that, as the terms of such plans do not fall within the arbitrator’s expertise, correctness was the proper standard of review.

Turning to the provisions of the pension plans, Bowater argued employees who were working at the Mill on the date of closure could no longer satisfy the definition of employee under the pension plan as the employees could not fall within the category of employees “temporarily not receiving remuneration” but rather fell within the category of those who were “permanently not receiving remuneration”. The application judge ruled that, while logic may favour the employer’s

interpretation, the terms of the pension plan did not. The application judge observed that the words “permanently not receiving remuneration” do not appear in the pension plan. On the other hand, she acknowledged that the plan does define “Continuous Service” and dictates that a layoff in excess of 12 consecutive months but not exceeding the maximum recall period of 36 months is deemed to be a “temporary suspension of employment”.

Finally, the application judge noted that the pension plan makes no reference to a permanent lay off and is silent when it comes to the question of the effect of Mill closure on plan members. The application judge ends her analysis by noting the arbitrator took a different route to arrive at his decision. III. The Proper Standard of Review

[18] Dunsmuir established a two-step process for determining the applicable standard of review. Under the firststep, the court must “ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to beaccorded with regard to a particular category of question” (para. 62). If not, the court must move to the second step of the framework andapply the “standard of review analysis” which is contextual and involves consideration of a number of relevant factors, including: “(1)the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3)the nature of the question at issue, and; (4) the expertise of the tribunal” (para. 64). The Supreme Court also observed that in many cases,it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonablenessstandard in a specific case. The present case is on point. As will become evident, the fourth factor outlined above (expertise) is of criticalsignificance. [19] If this case were simply about an arbitrator’s

interpretation of the provisions of a collective agreement,negotiated in accordance with the Industrial Relations Act, R.S.N.B. 1973, c. I-4, or the Canada Labour Code, R.S.C. 1985, c. L-2, noone would quibble with the proposition that deference is owed to his interpretative rulings. This is true before and after the SupremeCourt’s decision in Dunsmuir. The only difference is that the pre-Dunsmuir deferential standard of patent unreasonableness has beeneliminated, leaving only the deferential standard of reasonableness.

While the parties to this appeal are united in their view that thedeferential standard of review applies to the arbitrator’s interpretative decision surrounding the provisions of the collective agreement,Bowater focuses solely on the interpretative ruling surrounding the provisions of the pension plan, and on a short line of cases whichstand for the general proposition that, as labour arbitrators lack expertise in the area of pension law, their related decisions are owed nodeference. In support of its position, Bowater cited Calgary (City) v.

International Association of Fire Fighters (Local 255), 2008 ABCA77, [2008] A.J. No. 190 (QL), and Trent University Faculty Association v. Trent University, (ON CA), [1997] O.J.No. 3417 (C.A.) (QL). Two other decisions involving the

interpretation of pension legislation were cited to this Court: CAW v. KitchenerFrame Ltd., 2010 ONSC 3890, [2010] O.J. No. 3041 (QL), and Saint John (City) v. Saint John Fire Fighters’ Association, InternationalAssociation of Fire Fighters, Local 771, 2010 NBQB 159, 361 N.B.R. (2d) 50. The latter is presently on appeal and under reserve in thisCourt. [20] As should be evident, Bowater’s deference argument hinges on this Court looking at the underlying issue in amanner that is at odds with the approach adopted and pursued before the arbitrator.

The arbitrator dealt with the ultimate issue in termsof interpreting the provisions of the collective agreements and pension plans as interconnected or interlocking documents. Hence, thequestion whether the Mill’s closure brought about a termination of the employment relationship was as critical as the question of whetherthe employees remained members of the pension plans in the absence of an express provision dealing with mill closure.

In this Court andin the court below, the employer attacks only the arbitrator’s interpretative rulings dealing with the provisions of the pension plan andrelies on case law to establish that correctness is the proper review standard when dealing with pension issues. In effect, the employerwould have us apply two standards to the arbitrator’s decision: reasonableness would be applied to the interpretative rulings dealing withthe collective agreements and correctness would be applied to the

interpretation rulings applicable to the pension plans. This leads me toask whether this is a proper case for adopting a bifurcated approach to the application of the deference doctrine. In my respectful view,the answer must be “no”. Let me explain. [21] Applying Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, we know that when a pensionplan is incorporated into a collective agreement, grievance arbitrators possess the jurisdiction to deal with both. The question remains,however, whether they possess a relative expertise when it comes to interpreting the provisions of the Pension Plans.

The answer to thatquestion depends upon the context in which the pension issue arises. This is not a case where the pension plan applies to both unionizedand non-unionized workers and, hence, the need for consistency in

interpretation is a valid consideration. This is not a case where thearbitrator is being asked to decide a discrete issue of pension law involving questions of general contract law or trust law. This is not acase dealing with the registration, regulation, administration or termination of a pension plan as referred to in Ari N. Kaplan, PensionLaw (Toronto: Irwin Law Inc., 2006), at pp. 8 and 9. Finally, this is not a case where the labour arbitrator is being called on to interpretan “external statute” as was the case in Saint John (City) v.

Saint John Fire Fighters’ Association, International Association of FireFighters, Local 771. I appreciate why the application judge chose the correctness standard. The jurisprudence reflects a hesitancy togrant deference to administrative decision-makers when it comes to pension issues. On point is Calgary (City) v. InternationalAssociation of Fire Fighters (Local 255) in which the pension plan issue also involved consideration of the Income Tax Act andRegulations.

That is why that case is clearly distinguishable. [22] This is not a case where the arbitrator can look to the pension plans as external stand-alone documents. This isnot a case where the pension issue involves consideration of issues outside the deemed expertise of labour arbitrators and traditionallydecided by the courts. This is a case where the arbitrator must look to two contracts to determine the effect of a mill closure on status asan employee and as a member of the pension plan.

This is a case where the arbitrator is being asked and is obligated to interpret twointerrelated contracts and to see whether the presumption of consistency has been displaced. The arbitrator’s deemed expertise in regardto the

interpretation of collective agreements extends to negotiated pension contracts which the parties have chosen to incorporate intothe collective agreement. The question of whether an employee is still an employee and the question of whether the employee is still amember of a pension plan do not invite consideration or application of a different expertise or skill set. For these reasons, reasonablenessis the proper standard of review.

IV. Application of the Reasonableness Standard [23] The impact of Dunsmuir on the deference doctrine continues with the Supreme Court’s acknowledgment thatthe sole deferential standard of review, reasonableness, is both an attitude of the court and a requirement of the law. Writing for theSupreme Court, Bastarache and LeBel JJ. stated: The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent areturn to pre-Southam formalism.

In this respect, the concept of deference, so central to judicial review in administrative law, has perhapsbeen insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of the court and arequirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or thatcourts must show blind reverence to their

interpretations, or that they may be content to pay lip service to the concept of reasonablenessreview while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodieswith regard to both the facts and the law. The notion of deference "is rooted in

part in a respect for governmental decisions to createadministrative bodies with delegated powers" (Canada (Attorney General) v. Mossop, (SCC), [1993] 1 S.C.R. 554, atp. 596, per L'Heureux-Dubé J., dissenting). [para. 48] [24] Once the reviewing court is convinced that deference is due, the task of applying the reasonableness standardis at hand. Again, Dunsmuir provides meaningful guidance. The reviewing court must inquire into those qualities that make a decisionreasonable.

There are two: (1) reasons that reveal “justification, transparency and intelligibility” within the decision-making process; and(2) whether the decision falls within a range of “possible, acceptable outcomes which are defensible in respect of the facts and law”.

Thisis what the Court said: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.[para. 47] [25] There can be no doubt that the arbitrator’s reasons for decision meet the test of “justification, transparency andintelligibility”. The reasons are comprehensive and there is no allegation of a failure to address an argument properly raised andintelligently pursued. Nor are the reasons for decision crafted in such a way as to omit relevant evidence or considerations.

Instead, thedecision walks the reader through the relevant provisions of the collective agreements and pension plans looking for the answer to theultimate interpretative issue. Hence, the arbitrator’s reasons are immune from challenge on the plea of inadequacy. On this point seegenerally Attorney General of New Brunswick v. The Dominion of Canada General Insurance Company, 2010 NBCA 82, [2010] N.B.J.No. 413 (QL), and Attorney General of New Brunswick v. Pembridge Insurance Company, 2011 NBCA 2, [2011] N.B.J. No. 14 (QL).See also Burke v.

Newfoundland and Labrador Assn. of Public and Private Employees, 2010 NLCA 12, [2010] N.J. No. 62 (QL), andSussman v. College of Alberta Psychologists, 2010 ABCA 300, [2010] A.J. No. 1157 (QL). [26] This takes us to the second aspect or component of the reasonableness standard: whether the impugneddecision falls within a range of possible and acceptable outcomes which are defensible. Here is where the employer’s appeal falls intoruin. There is no attempt to offer a penetrating and concise explanation of why the arbitrator’s ruling does not fall within the acceptablerange.

Instead, the employer totally ignores the symbiotic relationship of the collective agreements and the pension plans and focusesexclusively on the provisions of the pension plan, arguing that once Bowater declared the Mill to be permanently closed as of January31, 2008, that is the end of the matter: the employees are no longer members of the pension plan. The failure of the employer torecognize the contextual approach to both contract and statutory

interpretation is fatal (see Communications, Energy and PaperworkersUnion of Canada v. Irving Pulp & Paper Ltd., 2002 NBCA 30, 249 N.B.R. (2d) 28, at para.10, as applied by the arbitrator). For thisreason alone the appeal should fail. I should also point out that the Supreme Court has suggested that the analysis required of a reviewcourt when applying the reasonableness standard is less rigorous or detailed than the analysis usually undertaken when the reviewstandard of correctness is applied: Nolan v.

Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678, at para. 36. [27] For the sake of completeness, I shall deal with the true thrust of Bowater’s argument. Counsel argued that“service” under the pension plans was terminated as a result of the permanent closure of the Dalhousie Mill.

In furtherance of thatargument Bowater states in its written submission to this Court: “Nowhere, however, did the reviewing Judge analyze or consider theeffect of the permanent closure of the Mill and that there was no possibility of recall.” It is true the application judge did not address thisspecific argument, but the arbitrator did, and he concluded the possibility of recall did exist, notwithstanding Bowater’s declaredintention of permanent closure. For reasons which will become evident, I am going to pursue Bowater’s argument tied to the “possibilityof a recall” and its reliance on Boucher.

[ 28 ] In a nutshell, Boucher involved the same employer, the same issue, similar pension plan provisions, but a different result. Understandably, Bowater insists that if its

interpretation prevailed in Quebec then its

interpretation should have prevailed in New Brunswick. However, Bowater failed to consider whether the Quebec case involved the application of the deference doctrine to the decision of the Pension Board which had ruled in favour of the employee. In fact, it appears no deference was accorded the Board’s ruling; a ruling which involved the

interpretation of a provincial statute. [ 29 ] Bluntly stated, it would be unwise for this Court or any labour arbitrator to engage in a dissection of a case decided within the civil law system of Quebec, based on a statutory scheme with which one is not familiar.

But there is one other aspect of Boucher which is worth addressing because it is fact-based and supports the arbitrator’s contention that an employer’s unilateral declaration with respect to permanent mill closure cannot be determinative of the issue whether the right of recall persists because of a possible change in circumstances leading to the reopening of the mill. Here are the relevant facts. On January 9, 1992, Canadian Pacific Forest Products Limited announced the permanent closure of its paper plant in Trois-Rivières. Bowater was a successor of Canadian Pacific.

The aggrieved employee was told his employment would terminate on June 30, 1992, unless a buyer was found. A potential purchaser was subsequently identified but nothing materialized. On May 1, 1992, Canadian Pacific announced the plant’s permanent closure as of May 4, 1992. Employees continued to receive their salary and benefits until June 30, 1992, and received severance pay in August 1992. Beginning in April 1993, Canadian Pacific ended its inventory disposal and only the security guards remained on site until October 23, 1993. On that date there were no longer any employees at the plant.

The collective agreement expired on April 30, 1993. But on October 28, 1993, the plant assets were purchased by Tripap Inc. A new collective agreement was signed on November 27, 1993, retroactive to January 1, 1993. In January 1994, the aggrieved employee was recalled to work. On October 14, 1994, the Labour Commissioner found that there had been a transfer of the rights and obligations of Canadian Pacific to Tripap. [ 30 ] The facts of Boucher lend support for those who believe that Mr. Berra was correct when, in referring to the 1973 National League Pennant race, he opined: “It ain't over ‘til it’s over”.

Of course, the arbitrator did not have to be correct. He had only to show an intelligent basis on which to reject the employer’s unilateral plea of “permanent closure” as being decisive of the issue at hand. That plea had to be evaluated against the expectations of all parties, as reflected in the underlying contracts. After that, it was the arbitrator’s call. He made it and there is no legal basis for interference.

And that is what is meant by judicial attitude when it comes to applying the deferential standard of reasonableness in administrative law. [ 31 ] I would dismiss the appeal with costs of $3,500. ____________________________________ J.T. ROBERTSON, J.A. WE CONCUR: __________________________________ WALLACE S. TURNBULL, J.A. ___________________________________ BRADLEY V. GREEN, J.A.