Resource Development Trades Council of Newfoundland v. Labrador, 2018 NLSC 260

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Newfoundland and Labrador (Resource Development Trades Council) v. Muskrat Falls Employers' Association Inc. , 2018 NLSC 260 Date : December 18, 2018 Docket : 201801G5254 Between: Resource Development Trades Council of Newfoundland and Labrador Applicant And: Muskrat Falls Employers' Association Inc. Respondent Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 17, 2018

Summary: In the context of a judicial review, the Applicant sought to augment the record to be reviewed by the Court by including the written briefs submitted to the Arbitrator. The Court determined that the briefs were not necessary to the function of the Court on judicial review. The Application was dismissed. Appearances: Dana K. Lenehan, Q.C. Appearing on behalf of the Applicant

Stephanie M. Sheppard Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Irving Pulp & Paper Ltd. v. CEP, Local 30, 2013 SCC 34; Newfoundland (Treasury Board) v. NAPE, (2000), (NL SC), 195 Nfld. & P.E.I.R. 330, 586 A.P.R. 330 (Nfld. S.C.(T.D.)); Newfoundland (Treasury Board) v. N.A.P.E.(2003), 2003 NLSCTD 18; Newfoundland (Treasury Board) v. NAPE, 2004 NLCA 58; Grand Lake Timber v. C.E.P,. Local 104 (2001), (NB KB), 233 N.B.R. (2d) 121, 201 A.P.R. 121 (Q.B.); Saint John (City) v. CUPE, Local 18, 2014 NBQB 201 STATUTES CONSIDERED: Arbitration Act, R.S.N.L. 1990, c.

A-14 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] In this judicial review of an arbitration award, the Council seeks an Interlocutory Order supplementing the record to beconsidered by this Court with the addition of the legal briefs submitted to the Arbitrator by the parties.

The Association opposes this. [2] The Applicant, Resource Development Trades Council of Newfoundland and Labrador (the “Council”) and the Respondent,Muskrat Falls Employers’ Association Inc. (the “Association”) are parties to the Collective Agreement governing labour relations for theMuskrat Falls Project. [3] The Council has brought an Originating Application for judicial review of, and an Order setting aside, the decision of anarbitrator.

The arbitration arose out of a grievance filed on behalf of an employee on the Muskrat Falls Project who had been subjected toa drug test on demand by his employer, tested positive and subsequently banned from the Project site. The Arbitrator upheld theemployer’s action and denied the grievance. [4] This Application raises a single issue: ⋅ Should the record to be considered by this Court on review of the arbitration award include the briefs submitted by the parties tothe arbitrator?

Law and Analysis [5] The Originating Application to set aside the arbitration award is taken pursuant to the Arbitration Act, R.S.N.L. 1990, c. A-14, and the inherent jurisdiction of this Court. Neither the Arbitration Act nor the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42,Sched. D define the content of the record to be considered by this Court on review of a labour arbitration.

The parties agree that Rule54.08, which prescribes the material to be included in the return of a tribunal reviewed in a certiorari application, has no application tothis matter. [6] The scope of the record on judicial review of an arbitration award has been considered by this Court on two occasions thatarose in the context of the same proceeding. In Newfoundland (Treasury Board) v. NAPE, (2000), (NL SC), 195Nfld. & P.E.I.R. 330, 586 A.P.R. 330 (Nfld.

S.C.(T.D.)), Barry, J. determined that the arbitrator’s notes of the evidence formed part ofthe record and, even if the notes were not part of the record, they nonetheless constituted relevant material that could be considered bythe reviewing Court. In Newfoundland (Treasury Board) v. N.A.P.E. (2003), 2003 NLSCTD 18, Thompson, J. ordered affidavitsoutlining the notes of a union representative and an observer as to the evidence given by a witness at the arbitration hearing struck fromthe record to be considered by the Court (the affidavits had been filed without leave). The decision of Thompson, J. was appealed.

TheCourt of Appeal, at Newfoundland (Treasury Board) v. NAPE, 2004 NLCA 58, found that Barry, J. was seized of the originatingapplication, that Thompson, J. therefore lacked jurisdiction to consider substantive issues within that proceeding, and ordered thedecision of Thompson J. set aside as a nullity.

The Court of Appeal did not, however, consider the merits of the decision of Thompson, J.nor comment on the correctness of his reasoning regarding the scope of the record on judicial review of an arbitration award. [7] I note that both Barry, J., and Thompson, J. were considering whether the evidentiary record ought to be augmented bysupplementary material. In this matter, I have to decide whether the scope of the record ought to be expanded to include the written legalbriefs and case law submitted by the parties to the Arbitrator. Nevertheless, I found guidance in the approach taken in these twodecisions.

Both Barry, J. and Thompson, J. determined that the question of what constitutes the record is not prescribed in thisjurisdiction by statute or rule and that the question is one within the inherent jurisdiction of the Court. [8] Thompson, J. at paragraph 37 of the 2003 NAPE decision adopted the decision of Glennie, J. in Grand Lake Timber v. C.E.P.,

Local 104 (2001), (NB KB), 233 N.B.R. (2d) 121, 201 A.P.R. 121 (Q.B.) at paragraphs 50 and 51 describing theminimum content of the record, as including the decision under review, the documents that initiated the administrative proceedings andthe pleadings, if any. [9] Barry, J., at paragraph 25 of the 2000 NAPE decision, described the method of enquiry appropriate for determining anapplication to expand or supplement the record as a “functional approach.” [10] Thompson, J., at paragraph 50 of the 2003 NAPE decision, proceeded in a similarly functional manner: 50 The determination of the need for information external to the record may have to be set within the context of the scope of judicialreview and the identification of those elements necessary for the proper exercise of the court's supervisory jurisdiction. [11] I adopt this functional approach.

In answering the question raised by this Application, I will first consider the scope of theexercise of judicial review engaged on review of the subject arbitration award. [12] The second aspect of this approach raises the question as to the standard against which the material sought to be included in therecord is to be measured to determine whether it serves the function of the reviewing Court sufficiently to justify its inclusion. Thestandard was expressed somewhat differently in each of the two NAPE decisions.

Barry, J. stated that the reviewing court should “seekwhatever documents may be available… in order to determine as far as possible the nature of the evidence before the tribunal.” Thompson, J. described this part of the approach as “the identification of those elements necessary for the proper exercise of the court’ssupervisory jurisdiction.” There may very well be no doctrinal difference.

Barry, J. determined the scope of the exercise in which hewas engaged to be a consideration as to whether there was any evidence that supported the award. [13] The question raised on this Application was also considered in Saint John (City) v. CUPE, Local 18, 2014 NBQB 201. JusticeChristie at paragraph 19 determined that “in the ordinary course… the written submissions or briefs provided to an arbitration board arenot to be included as part of the record of the tribunal proceedings.” Justice Christie went further at paragraph 21and stated that: 21 In

summary, it would be an exceptional circumstance wherein a reviewing Court would consider a record of the proceeding belowto include anything other than the actual exhibits marked or accepted as such by the Board, the pleadings (usually in the form of thegrievance and any replies) and the reasons for decision. To allow otherwise could lead to the reviewing Court becoming more of atribunal of first instance or result in something more akin to a trial de novo.

That is not the purpose of a Court on judicial review. [14] I find that the appropriate test for this second stage of the functional approach is whether the material sought to be included inthe record is necessary for the conduct of the judicial review. A more expansive test using a less stringent criteria than necessity wouldcarry with it the potential for exceeding the function of the Court on judicial review and turning the exercise into a trial de novo orappeal.

Application to This Case [15] In the Originating Application for review of the arbitration award, the Court has been asked by the Council to find that theArbitrator’s decision is indefensible in law as it failed to follow a substantial, consistent line of arbitral jurisprudence, and therefore thatthe arbitrator’s decision should be set aside as unreasonable. [16] The position of the Council is that the inclusion of the briefs in, or with, the record is necessary to demonstrate that this arbitralconsensus was put before the arbitrator in this case and that his failure to address or, more accurately, to follow-the relevant case law wasunreasonable.

The Association position is that consideration of the briefs is not necessary to the process of judicial review in this case. [17] The parties agree that the current standard to be applied by a reviewing court on consideration of an arbitration award is that ofreasonableness as expressed by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, at paragraph 47: 47 In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility withinthe decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomeswhich are defensible in respect of the facts and law. [18] In a case such as this, determination of the range of reasonable outcomes will involve consideration of the arbitraljurisprudence: Irving Pulp & Paper Ltd. v. CEP, Local 30, 2013 SCC 34.

As expressed in the dissent of Rothstein and Moldaver, JJ. inthat case (the dissent was not on this point), at paragraph 75, “…the arbitral precedents in previous cases shape the contours of whatqualifies as a reasonable decision in this case.” [19] Identifying whether there is an arbitral consensus, and expressing that consensus, will be steps in which this Court will have toengage in order to determine whether the Arbitrator’s decision is within the range of reasonable legal outcomes.

However, the process ofidentifying and expressing that consensus will be conducted by this Court without any need to consider the submissions made to theArbitrator. [20] The briefs the Applicant seeks to include in the record to be examined by this Court can add nothing to the record except todemonstrate the arbitral jurisprudence that was presented to the arbitrator. [21] Therefore, considering the scope of the exercise of judicial review engaged in this proceeding, I conclude that the briefs soughtto be included in the record are not necessary for the proper exercise of the court’s supervisory jurisdiction. [22] The Application is dismissed.

_____________________________ Daniel M. Boone Justice