CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 963, Applicant – v. –, 2022 NBKB 214

Citation: 2022 NBKB 214 Date: November 15, 2022 Docket: FM-102-2021 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 963, Applicant – and – NEW BRUNSWICK LIQUOR CORPORATION, operating as ALCOOL NB LIQUOR and HIS MAJESTY IN RIGHT OF THE PROVINCE OF NEW BRUNSWICK, as represented by TREASURY BOARD, Respondents Date of Hearing: September 29, 2022 Date of Decision: November 15, 2022 Subject Matter: Judicial Review Before: Justice E. Thomas Christie At: Burton, New Brunswick Appearances: Glen S.

Gallant for the Applicant Clarence Bennett, K.C. and John Morse for the Respondent, New Brunswick Liquor Corporation Keith Mullin for the Respondent, the Province of New Brunswick as represented by Treasury Board Christie, J. INTRODUCTION [ 1 ] The Applicant, Canadian Union of Public Employees, Local 963 (CUPE), is the certified bargaining agent for certain employees working with New Brunswick Liquor Corporation, operating as Alcool NB Liquor (ANBL). This has been the case for many years. The bargaining history resulting in the current collective agreement was not without some, ‘bumps in the road’.

In the most recent round of bargaining, CUPE filed with the Labour and Employment Board (Board) two complaints against Her Majesty in right of the Province of New Brunswick and ANBL. One complaint related to a tentative collective agreement reached by the bargaining teams that the “employer” would not ratify. The second complaint related to ANBL refusing to allow face masks in the workplace, worn by CUPE members, that contained a statement related to this failure to ratify the tentative contract. The Board combined the complaints for the purposes of the hearing.

The Board issued one set of reasons dealing with both complaints. CUPE seeks judicial review of the Board’s determination of the complaints. [ 2 ] In addition to the above rulings on the merits of CUPE’s complaints, the Board was asked to rule on a preliminary matter pertaining to the proper listing of the responding parties to the complaints. CUPE argues that the preliminary ruling is foundationally deficient. Essentially, the Board made three substantive rulings (set out in two sets of reasons) that CUPE seeks to quash. Ruling 1 was the preliminary ruling and released by the Board on April 12, 2021.

Rulings 2 and 3, dealing with the merits of the complaints, were contained in one set of reasons, dated September 8, 2021.

[ 3 ] During the hearing before me, the participants recognized that the Board’s resolution of the issues was problematic. They do not agree on the consequence of this.

Moreover, I think it is fair to say that the predicament the Board ended up in was a result, in part, of the uncertainty of counsel as to how best to identify the proper parties to the complaints. [ 4 ] In my view, the Board’s disposition of the preliminary ruling was of such consequence that if it is found to be unreasonable, the rest of the underlying proceeding cannot stand. [ 5 ] The preliminary ruling addressed whether CUPE’s January 8, 2021 complaint, as filed with the Board, should have included as a respondent, ‘Her Majesty in right of the Province of New Brunswick as represented by Treasury Board ’ [emphasis added].

Treasury Board asserted that it should not have been named as a respondent in the complaint. The Board agreed and ordered the removal of ‘Her Majesty in right of the Province of New Brunswick as represented by Treasury Board’ as a named respondent. The Board did allow Treasury Board to remain as an Intervenor. With that said, this is not all of the story regarding the place of Treasury Board in this proceeding. [ 6 ] Ruling 2 relates to the circumstances wherein a tentative agreement was reached at the bargaining table by ANBL and CUPE.

However, ANBL was unable to get sign-off by the Lieutenant- Governor in Council and the tentative deal (despite having been ratified by CUPE) was dead. CUPE considered this refusal of the employer to sign-off on the deal to be bad faith bargaining, and that allegation formed the basis for the complaint. The Lieutenant-Governor in Council provided no reasons for rejecting the tentative deal.

This lack of reasons left the bargaining teams (and the Board) bewildered. [ 7 ] Ruling 3 relates to a complaint by CUPE challenging the refusal by ANBL to allow CUPE members to wear, in the workplace, face masks on which were printed the words, “ A Deal is a Deal – Chose Promise, Chose Due ”, and which also had printed the CUPE Local 963 logo. The Board found that, in these circumstances, the ANBL’s rule against wearing this mask was a legitimate workplace rule. THE BOARD’S PRELIMINARY RULING [ 8 ] In my view, as I noted above, the preliminary ruling was a foundational in nature.

If I find it to have been unreasonable, it follows that its magnitude is such that the rest of the proceeding also falls. [ 9 ] The preliminary ruling of April 12 th resulted from the originating complaint of CUPE, dated January 8, 2021 (the complaint was amended on or about June 17, 2021, to include the ‘face mask’ rule). The complaint form, as originally filed with the Board, identified two respondents. First, it identified “ Her Majesty in right of the Province of New Brunswick ”. Second, it identified “ New Brunswick Liquor, operating as Alcool NB Liquor ”.

Treasury Board was not identified (in any capacity). [ 10 ] I was advised by counsel during the present hearing that, when the Board first acknowledged receipt of the complaint in writing, it did so by referencing as Respondents in the subject matter of the letter, “Her Majesty in right of the Province of New Brunswick, as represented by Treasury Board and New Brunswick Liquor Corporation” [underlined emphasis added]. This caught the attention of Mr. Mullin, on behalf of Her Majesty, and it set off alarm bells.

It became necessary, in his view, to seek a preliminary ruling from the Board to exclude Treasury Board as a respondent. All parties agree that Treasury Board is the representative employer for Her Majesty for the purpose of Parts I, II, III of the Public Service Labour Relations Act , RSNB 1973, c. P-25 ( Act ). ANBL, being a Crown corporation, falls under

Part IV of the Act . In other words, the parties agree that in this context, Treasury Board is not the representative employer for any purpose related to collective bargaining involving ANBL and CUPE 963. Furthermore, all participants agree that Treasury Board was never mentioned in the complaint as originally filed. [ 11 ] The matter proceeded before the Board for a determination of this issue.

At para. 1 of its reasons on the preliminary issue, the Board writes the following: The Canadian Union of Public Employees, Local 963 (“Complainant”) filed a Complaint on January 8, 2021 in which it is alleged that Her Majesty in right of the Province of New Brunswick as represented by Treasury Board (“Treasury Board”) and New Brunswick Liquor Corporation, operating as Alcool NB Liquor (“ANBL”) had violated

section 45 of the Public Service Labour Relations Act (“ Act ”) by “failing to bargain collectively in good faith and make every reasonable effort to conclude a collective agreement”. [emphasis added]

[ 12 ] CUPE did not file a complaint on January 8, 2021, alleging anything against, or even identifying, Treasury Board. Furthermore, at para. 7 of its reasons, the Board identifies the issue to be as follows: Simply put, should Treasury Board be a named Respondent in this Complaint? [ 13 ] To be fair to the Board, and as counsel advised me during the hearing, throughout the process of addressing the preliminary issue, there was a degree of uncertainty as to what really was in issue. Nevertheless, the Board concludes at para. 19 that: 19.

For all the reasons above, the Board removes Her Majesty in right of the Province of New Brunswick as represented by Treasury Board as a Respondent and grants it full Intervenor status. [ 14 ] In the result, the complaints continued toward the hearing on the merits but, as it turns out, without reference to Her Majesty, in any capacity, as a respondent. The only respondent that remained was ANBL. [ 15 ] It is useful at this stage to recall that, for the purposes of identifying the ‘employer’ under Parts I-IV of the Act , one must turn to the definition as set out in the Act .

It is not as simple as saying that ANBL is the ‘employer’. The Act , in s. 1 , defines the ‘employer’: “employer” means Her Majesty in right of the Province as represented by, (

b) in the case of a portion of the public service of the Province specified in

Part IV of the First Schedule, the separate employer concerned; [ 16 ] While the Act defines the ‘employer’ as being His Majesty as represented by ANBL in a representative capacity, it does not give ANBL ‘free reign’ in collective bargaining. Generally, as was described to me, ANBL is required to bargain within a set ‘envelope’ the terms of any renewed agreement – an envelope determined by the Province. In the present case, both CUPE and ANBL understood that the tentative agreement they reached was within the bounds of what had been set by the Provincial government.

However, there is another fetter on the authority of ANBL to bargain collectively. [ 17 ] This second limitation is found in s. 62 of the Act and requires the Lieutenant-Governor in Council to approve the tentative contract.

Section 62 provides as follows: 62. A separate employer may, with the approval of the Lieutenant-Governor in Council , enter into a collective agreement with the bargaining agent for a bargaining unit comprised of employees of the separate employer, applicable to employees in that bargaining unit. [emphasis added] [ 18 ] In this case, and as noted above, the Lieutenant-Governor in Council rejected the tentative agreement. It gave no reasons for doing so. This was particularly concerning since the terms of the agreement fell within the bargaining envelope that had been provided to ANBL.

Further, the refusal of the Lieutenant-Governor in Council was an extraordinary event. At para. 14 of the Board’s reasons is found the following: 14. Since 1968, when

section 62 of the Act was proclaimed, the Board is unaware of, and neither party could point to, another situation where the Lieutenant-Governor in Council did not grant authority to a separate employer to sign a collective agreement. [ 19 ] CUPE argues that removing Her Majesty as a respondent in the complaint was legally wrong. As the ‘employer’, Her Majesty should have remained on as a respondent. Moreover, removing Her Majesty limited what the Board could direct by way of remedy, in the event it found conduct deserving of correction.

The effect was that the Board, and the parties, were left in a ‘bargaining fog’, so to speak, with no one to answer for the conduct of the negotiations on behalf of the employer. The Board referred to the parties being ‘stalemated’. The Board wrote as follows at para. 15 of its decision on the merits of the complaints: What is even more problematic in this case, is that the Lieutenant-Governor in Council not only did not authorize the Respondent to sign the freely bargained tentative collective agreement but did not provide the parties with any reasons for this decision.

As a result, the parties were effectively stalemated. Without understanding why the Lieutenant-Governor in Council would not grant the Respondent approval to sign the collective agreement, the Board rhetorically asks, what is the benefit to return to the collective bargaining table? [ 20 ] The Act makes clear, ANBL is not, on its own, the employer. As confirmed by the Court of Appeal in New Brunswick (Board of Management) v. CUPE Local 1190 , 2001 NBCA 21 , for the purposes of the legislation, the employer is, ‘Her Majesty in right of the

Province’. It is not the corporate entity. By removing Her Majesty as a respondent to the complaints, the Board removed the entity withresponsibility under the Act. As CUPE noted in their pre-hearing brief, this resulted in the very unfortunate situation where those present,on both sides at the bargaining table, came to an agreement within the parameters set out by the Province, only to then have theLieutenant-Governor in Council scuttle the deal with no explanation.

The Board felt that, in the face of such unprecedented action by anemployer, it was left with no remedial options because it had, in its preliminary ruling, removed the legal ‘employer’ as a respondent.The Board found that ANBL did nothing particularly wrong – after all, its bargaining team had agreed on terms and conditions ofemployment. But the Board was lost as to what it could do against an employer it had removed as a respondent. [21] Council for ANBL argues that the present proceedings are moot. As such, this court should refrain from embarking upon areview of the proceedings.

With that said, ANBL does acknowledge that, to some degree, the whole process, ‘went off the rails’. As itnotes in its pre-hearing brief at para. 33, there remains no live controversy between the parties because, less than three months after theBoard’s decision on the merits, a new collective agreement was finalized. ANBL relies on Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, to assert that because there remains no live controversy between the parties and, while the courthas discretion to consider such questions in any event, it should decline to do so.

It argues that, should this court opine on the question ofwhether there was bad faith bargaining, it might open old wounds between the parties that have begun to heal. [22] I will say at this point that I reject the argument that the issues are moot. The relationship between collective agreement parties isnot a contractual relationship defined, for instance, by a single transaction. Labour relations are complex, ongoing relationships betweenparties from which there may be no escaping one another over the long term.

Collective bargaining toward renewal of a collectiveagreement represents one, albeit consequential, part of an ongoing and long-term relationship. Providing clarity in identifying who mustanswer for any claims of bad faith bargaining, particularly in circumstances like this, warrants this court’s intervention. [23] As to its position on the preliminary issue, ANBL did not take a position before the Board. It was an issue substantially betweenCUPE and Her Majesty as represented by Treasury Board.

Having said that, ALNB did argue before this court that it could not be heldto account for the decisions of the Lieutenant-Governor in Council. ANBL makes the point at para. 57 of its pre-hearing brief that,“ANBL submits that it cannot be held to account for the decisions of the Lieutenant-Governor in Council”. Perhaps this is true, but if notANBL, then who? Especially in this situation where there was no other respondent left named in the complaints. [24] The Intervenor argues that there is but one employer, “Her Majesty in right of the Province as represented by the New BrunswickLiquor Corporation”.

The Intervenor is of the view that the Board did not err in its preliminary ruling because it did not remove the‘employer’ from the complaints. Once Treasury Board was ‘removed’ as a respondent it took no substantive

part in the hearing on themerits. [25] All parties agree the standard of review is that of ‘reasonableness’, as understood from Canada (Minister of Citizenship andImmigration) v. Vavilov, 2019 SCC 65. The principles articulated in Vavilov, that underpin the basis for judicial intervention, includesthe premise that deference is owed to a tribunal’s decision. Furthermore, not all errors of the tribunal serve as a basis for judicialintervention. Nor is judicial review to be a line-by-line search for error.

The reviewing court must be satisfied that there exists areasonable line of analysis (as set out in the reasons) between the questions before it and the outcome based on the evidence and lawpresented. [26] Having heard the arguments of all counsel, I conclude that the Board erred in leaving as a respondent only ANBL. I could see nobasis for removing from the complaints, as originally styled, Her Majesty the Queen in right of the Province. Somehow, all concernedembarked upon this quest to remove Treasury Board as a respondent.

The situation before the Board on the preliminary question is akinto the scenario where an administrative tribunal answers a question not put to it. Its preliminary decision was unreasonable. [27] Here, it is apparent that the Board was asked (or thought it was being asked) to remove a respondent (Treasury Board) who wasnever named in the originating process. [28] Not only did the Board ‘remove’ Treasury Board as a respondent, but it went further and removed Her Majesty (in any capacity)as a respondent. No party had asked for that relief at the preliminary stage.

The end result was the removal of the only entity againstwhom the Board could have fashioned a meaningful remedy, had it found a violation of the Act. The Board was aware of this, as itstruggled to deal with a situation where ANBL and CUPE were stalemated in their bargaining efforts by the lack of remedial optionsagainst the Lieutenant-Governor in Council. [29] Finding, as I do, that the preliminary decision of the Board was an error and unreasonable, thus warranting judicial intervention,what consequences flow therefrom on the decision on the merits?

In my view, the error of removing the legislatively defined employer

(Her Majesty the Queen as represented) undercuts the integrity of the decisions on the merits. There may be room to debate whether reference to the Sovereign as a respondent, along with a separate reference to ANBL as a respondent (as CUPE originally did), would suffice, or should it have been styled as ‘Her Majesty the Queen in right of the Province as represented by ANBL’. Regardless, it is clear in my view, that there could be no basis for ANBL to be listed as the only respondent.

It does not act on its own in matters of collective bargaining and the preliminary decision left the parties and the Board with no remedial options. [ 30 ] ANBL argues that the timeline for commencing a judicial review of the preliminary decision began when it was released. Our Rules of Court ( R . 69.03) require judicial review to be commenced within three months of the decision to be challenged. ANBL argues that the challenge to the preliminary decision is out of time. It is true that the commencement of the Application was more than three months after the release of the preliminary ruling.

But it was just that – a preliminary ruling in an ongoing process before the Board. The Board had not completed its work. Furthermore, it would not, in my view, be generally acceptable to allow or encourage judicial review of preliminary rulings made by a tribunal while it was in the midst of doing its work. It is most efficient, in my view, and absent exceptional circumstances, to allow the tribunal to complete its work before seeking review of preliminary rulings.

CONCLUSION [ 31 ] I accept CUPE’s argument that the error of removing reference to Her Majesty was a fundamental error requiring the court’s intervention. It was an unreasonable decision. Leaving ANBL as the only named respondent removed from the Board the option of crafting a remedy that was responsive to the concerns it identified in the complaints before it.

While this error may be less of a concern with regard to the face mask ruling (as it did not directly implicate the Lieutenant-Governor in Council) it would be, in my view, impossible to have the required confidence in the process in general given the initial error from which the process evolved. [ 32 ] The decisions of the Board at issue (April 12, 2021 and Sept. 8, 2021) are removed into this court and quashed. I make no other order recognizing that ANBL may be correct, in part, to have observed that the disputes then at issue are now, essentially, moot.

Nor did CUPE or any participant ask that it be remitted for a re-hearing. The Applicant is entitled to costs from the Respondent in the amount of $2,500.00 plus HST and allowable disbursements. __________________________ Justice E. Thomas Christie Court of King’s Bench of New Brunswick, Trial Division