Resource development Trades Council of Newfoundland v. Labrador, 2020 NLSC 116

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Resource Development Trades Council of Newfoundland and Labrador v. Long Harbour Employers Association Inc. , 2020 NLSC 116 Date : August 27, 2020 Docket : 201901G3880 Between: Resource development Trades Council of Newfoundland and Labrador Applicant And: Long Harbour Employers Association Inc. First Respondent And: labourers international union, local 1208 Second Respondent And: john f. roil Third Respondent Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: August 20, 2020

Summary: The Applicant sought an order augmenting the record on judicial review of a consensual labour arbitration by the inclusion of written resumes of final argument presented to the arbitrator. The Court found that the resumes were not complete record of the submissions of

the parties and therefore could not displace the Arbitrator's

summary of the positions of the parties. Therefore, inclusion of the resumes in the record was not necessary to the function of the Court on judicial review. The Application was dismissed. Appearances: Peter A. O’Flaherty, Q.C. Appearing on behalf of the Applicant Denis J. Mahoney and Brittany L. Keating Appearing on behalf of the First Respondent R. Barry Learmonth, Q.C. Appearing on behalf of the Second Respondent No Appearance On behalf of the Third Respondent Authorities Cited: CASES CONSIDERED: NARL Refining Limited Partnership v.

United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740, 2020 NLSC 100 ; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 STATUTES CONSIDERED: Labour Relations Act , R.S.N.L. 1990, c. L-1 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched.

D REASONS FOR JUDGMENT Boone, J. : INTRODUCTION [ 1 ] The Applicant, Resource Development Trades Council of Newfoundland and Labrador (RDTC), has applied for judicial review of the March 29, 2019, decision of an arbitrator on a consensual labour arbitration. The arbitration concerned a grievance of the termination of employment of 14 members of the union.

They had been employed as janitors to clean buildings and temporary trailers used by construction managers at the site of the Vale Inco nickel processing plant. [ 2 ] The processing plant construction was subject to a Special Project Order issued under the Labour Relations Act , R.S.N.L. 1990, c. L-1, s. 70 , which has been considered by this Court on several occasions. That Order established the Respondent Long Harbour Employers Association Inc. (LHEA) to represent contractors on the site, and RDTC to act on behalf of all trade unions having members working on the Project.

RDTC and LHEA negotiated a collective agreement that was recognized by the Special Project Order. [ 3 ] The main issue in the arbitration was whether the facilities that had been cleaned by the unionized janitors from the start of the

Project had been effectively removed from the scope of the Special Project Order and transferred to Vale operations. [ 4 ] The Arbitrator found that the buildings in question continued to be within the scope of the Project during the material time, therefore, that the work performed by the terminated employees continued to be bargaining unit work, and that their dismissal was in violation of the Collective Agreement.

Nevertheless, he dismissed the grievance because he found that RDTC had acquiesced in actions of the employer and therefore was estopped from asserting what otherwise would have been a right on behalf of the dismissed employees. [ 5 ] RDTC says that the decision of the Arbitrator was based on findings of fact unsupported by evidence or contrary to the evidence; and on errors of law in applying the law of equitable estoppel and interpreting the Special Project Order.

Whether the decision was so based, and therefore ought to be reviewed and quashed by this Court, will be the focus of the Application for judicial review. [ 6 ] The arbitration involved 23 days of hearings but spanned a period of over two years. At the conclusion of the evidence, the arbitrator requested that the parties each provide him with brief written resumes of the final arguments that each would make in oral submissions. [ 7 ] RDTC now applies for an interlocutory order augmenting the record to be considered by the Court on judicial review.

In this Interlocutory Application, RDTC asks the Court to order that the record include the written resumes of argument. LHEA opposes that motion; the Labourers’ Union does not take a position. ISSUE [ 8 ] The parties agree that the record on judicial review of a labour argument would not ordinarily include the submissions made by the parties.

The parties also agree that the test that I should apply in order to determine this application is a functional approach to the question whether the subject material is necessary for the conduct of the judicial review. [ 9 ] Therefore, the only issue is whether it is necessary for the Court to review the brief resumes of argument submitted to the arbitrator in order to decide the application for judicial review. ANALYSIS [ 10 ] Consensual labour arbitrations such as that under consideration here are intended to provide expeditious and practical resolution of disputes in the collective bargaining sphere.

Ordinarily, the parties to an arbitration do not exchange pleadings or written briefs. The issues are determined by the grievance referred to the arbitrator, the evidence led at the hearing, and final argument. The evidence is not usually recorded or transcribed verbatim, and the parties typically agree before the arbitration – as they did here- that the record will consist of the arbitrator’s notes of viva voce evidence and the exhibits produced. Therefore, as Justice McGrath noted in NARL Refining Limited Partnership v.

United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 , 2020 NLSC 100 , at paragraph 107 , the Court “…can only rely on the evidence and submissions as contained in the record and summarized in the Award. The Arbitrator is entitled to deference in respect of that summation.” [ 11 ] The arbitrator decided that the work performed by the positions from which the unionized janitors had been laid off, and in which they had been replaced by non-union employees, was bargaining-unit work.

This decision would have resulted in a finding of wrongful termination, but the arbitrator found that the union was estopped from complaining because it had acquiesced in the employer’s action. He found acquiescence in two separate courses of conduct by the union, in 2014 and in 2016. [ 12 ] RDTC says that it was aware that LHEA intended to take the position that its conduct in 2014 constituted acquiescence leading to estoppel, and RDTC led evidence and submitted argument in response to that.

However, RDTC says that neither party led evidence that tended to show acquiescence on the part of the union in 2016. [ 13 ] RDTC makes two arguments on this application. First, it says that the employer’s failure to make submissions before the arbitrator to the effect that the 2016 conduct constituted acquiescence is a factor tending to support the union argument on judicial review that there was no evidence of such acquiescence or that there was evidence to the contrary.

Second, RDTC says that an arbitrator’s finding of estoppel in the absence of submissions from either party that he should draw that conclusion is not “responsive” to the case presented by the parties within the meaning of that term as used by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , and therefore, it is necessary for this Court to review the written summaries of argument submitted to the arbitrator. [ 14 ] The first RDTC argument does not stand up to scrutiny.

The evidence before the arbitrator is, as agreed by the parties, memorialized in the arbitrator’s notes and the exhibits. There is no other record of the evidence. The suggestion that the absence of argument on an issue by the representative of one of the parties is admissible to demonstrate that there was no evidence supporting such an argument is based on false premises: that there can be no other explanation for the failure to make such an argument. Obviously, a myriad of other reasons, from strategy to inadvertence, could explain the failure of a party to make an argument to an arbitrator.

The expansion of the record is not justified for the purpose relied upon by RDTC in its first argument. [ 15 ] The second argument is more compelling in principle. It would be procedurally unfair and substantively unresponsive for an arbitrator to decide a grievance based on a legal argument that had not been raised and to which a party did not have an opportunity to respond.

The function of the Court on a judicial review is to consider whether the proceeding has been conducted fairly in the context of the requirements of the duty of fairness applying to the decision and to examine the reasons given by the decision-maker to determine whether the reasons meet requisite standards of justification, transparency, and intelligibility. [ 16 ] The process involved in consensual labour arbitration does not lend itself to clear exposition of the issues prior to the introduction of evidence.

There are no pleadings, and the only statement of the issues engaged is that provided in the grievance, which

usually only references the impugned conduct and the Articles of the Collective Agreement or other workplace rules alleged to have been violated. Usually, the parties do not exchange briefs or submissions prior to the evidence. The parties therefore have to be alert through the hearing to the issues engaged by the evidence adduced. [ 17 ] As noted by Justice McGrath in the recent NARL Refining decision, at paragraph 107, the arbitrator is entitled to deference in his

summary of the evidence and the submissions of the parties. In this case, the arbitrator summarized the evidence that he later utilized to determine that acquiescence by the union to management activity in 2016 resulted in an estoppel: Sabrina Kelly [Vale HR representative] gave evidence about her interactions with Ray Ryall as Site Representative for RDTC during the period in 2016 when the transfer of temporary infrastructure was happening.

She explained that as this turnover process was unfolding, she had discussions with Ray Ryall “on a regular basis” and that she sent him a map of the entire site (Exhibit MF 7) including information about the turnover of these buildings so that he was aware of the probable impact that turnover would have on various RDTC unions. … Kelly observed that she and Ray Ryall had many conversations about Vale’s underlying principle that, because of the new approach with various interim production systems going into operation over a longer period of time than initially planned, once a building was occupied only by Vale employees, the Project Agreement was no longer to be applied to that building.

She explained that on more than one occasion, she and Ryall would mention the turnover of these temporary buildings in the context of discussing this transfer principle. As Ryall had expressed his understanding of it to her, “Vale employees are in there now, so we don’t have jurisdiction - right?” Kelly would always confirm that principle to him.

In the view of Pat McCormick [President of RDTC], the turnover of temporary infrastructure could affect the rights of many union workers, so for that reason Ray Ryall as Site Representative would not have had the ability to agree to, or accept on RDTC’s behalf, any management decision on turnover process. He explained that Ryall had never indicated to him anything about such an understanding where a loss of work for union members had been happening.

McCormick said he was unaware of the problem until the issue surfaced after the layoff notices had [been] given to the HRW workers, just prior to April 1, 2016. [ 18 ] The arbitrator also summarized the legal arguments of the parties. His

summary of the position taken by LHEA includes the following: Alternatively, past practice and/or estoppel prohibit the RDTC from success in these factual circumstances. The unions on site were aware of the facts because of the communication between Sabrina Kelly for the Employer and Ray Ryall as Site representative. The RDTC did nothing to alert the Employer to any concerns and must be estopped from claiming damages now. [ 19 ] The brief written summaries of legal argument are not comprehensive enough to displace the

summary of argument stated by the arbitrator. RDTC concedes that the brief summaries of argument it is seeking to include in the record did not include every argument that the parties made before the arbitrator. The absence of argument for estoppel based on 2016 events would not lead to the conclusion that no such argument was advanced by LHEA or raised by the arbitrator during the summation by RDTC. In that circumstance, the inclusion of the written summaries in the record could not possibly displace the summation of the position of the parties given by the arbitrator.

Consequently, although those documents could bear on the issue as to whether the arbitrator decided a grievance based on a legal argument that had not been raised, and to which RDTC did not have an opportunity to respond, and they might be helpful in resolving that issue, they are not necessary.

The arbitrator noted that LHEA had argued that the 2016 conduct by RDTC formed the basis of an estoppel argument, his summation is entitled to deference, and consideration of the brief written summaries is not necessary to fulfill the function of this Court on review. [ 20 ] If there was a complete transcript of the oral arguments made before the arbitrator, or if the parties had relied only on written arguments, then the expansion of the record to include either would have been necessary in order to fulfill the function of the Court to test the Applicant’s arguments that the process was unfair or the decision unresponsive to the positions of the parties. [ 21 ] As noted by the Supreme Court of Canada in Vavilov , the submissions of the parties can be useful in judicial review, in order to test whether the administrative decision under consideration was responsive to the dispute and constrained by the factual and legal context.

However, there is nothing in the decision in Vavilov that leads to the conclusion that everything that bears on delineating the submissions of the parties must always be included in the record on review. Disposition [ 22 ] The Application by RDTC for an order augmenting the record is dismissed, with costs to LHEA of this Application taxed on Column III of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched. D . _____________________________ DANIEL M. BOONE Justice