Edge Innovations Inc. Applicant And: International Association of Bridge, Structural, Ornamental v. Reinforcing Ironworkers, Local Union 764, 2021 NLSC 81

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Edge Innovations Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local 764 , 2021 NLSC 81 Date : June 4, 2021 Docket : 202101G0508 Between: Edge Innovations Inc. Applicant And: International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union 764 First Respondent And: Newfoundland and Labrador Labour Relations Board Second Respondent Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 2, 2021

Summary: The Employer applied to continue a stay of a decision of the Labour Relations Board to count the ballots in a certification vote pending the outcome of an application for judicial review of that decision. The Employer argued that allowing the vote to proceed would harm

the principle of ballot secrecy. The Court decided that that did not represent irreparable harm of the nature required to invoke thediscretion to continue the stay. The application to continue the stay was dismissed. Appearances: Christopher E. King and Andrea N. Williams Appearing on behalf of the Applicant Mark D. Murray Appearing on behalf of the First Respondent Megan S. Reynolds Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; Hurley v.Slate Ventures Inc. (1996), (NL SC), 136 Nfld. & P.E.I.R. 341 (Nfld. S.C.(T.D.), [1996] N.J. No. 14; Tall Boys Ltd.v. Bennett, 2002 NFCA 50; Hogan v. Newfoundland (Attorney General) (1998), (NL CA), 172 Nfld. & P.E.I.R. 185(Nfld. (C.A.)); 163 D.L.R. (4th) 672 (Nfld. (C.A.)); Newlab Clinical Research Inc. v. N.A.P.E., 2003 NLSCTD 167; Sodexo CanadaLimited v. Hotel Employees and Restaurant Employees International Union, Local 779, 2019 NLSC 192 STATUTES CONSIDERED: Labour Relations Act, R.S.N.L. 1990, c.

L-1; Labour Relations Board Rules of Procedure, NL Regs.745/96; Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982(U.K.), 1982, c. 11 RULES CONSIDERED: Rules of the Supreme Court, 1986 S.N.L. 1986, c. 42,

Schedule D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] Edge Innovations Inc. (“Edge”) is a construction management company based in Alberta. It specializes in the supply andinstallation of portable fabric structures. In November, 2019, Edge was awarded a contract for the supply of a structure to a fish farm inStephenville. That contract is the only work that Edge has in this Province. It hired nine people to work on the contract, and assignedanother employee to oversee it remotely.

The construction portion of that contract is now complete. [2] In June, 2020, the International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local 764 (“theUnion”) filed an Application for certification of a bargaining unit to represent the nine Edge employees working on the site inStephenville. [3] The Labour Relations Board (“the Board”) assigned an Investigating Officer to investigate the Application and then held arepresentation vote by mail that closed on July 17, 2020. The Investigating Officer prepared a report for the Board dated November 12,2020.

A panel of the Board reviewed the report and submissions made by Edge and the Union. Edge had argued in its submissions tothe panel that one of the nine ought not to have been included in the bargaining unit as he was a management employee. The paneldetermined that a hearing was not necessary and it found that all nine employees proposed by the Union ought to be included in thebargaining unit. Edge then requested a reconsideration of the panel decision.

Although both Edge and the Union had originally requesteda hearing on the issue of the number of employees in the bargaining unit, the Union changed its position on the reconsideration and saida hearing was not necessary. The panel determined that a hearing was not necessary. On January 7, 2021, it confirmed its first decisionand dismissed the request by Edge for reconsideration.

Edge requested written reasons for this decision and the panel provided writtenreasons on January 19, 2021. [4] Edge applied to the Court for an Order in the nature of certiorari setting aside the decision of the Board and ordering that thebargaining unit include only eight employees; or, alternatively, for an order setting aside the decision of the Board on the makeup of the

bargaining unit and requiring that the Board hold a hearing on the issue. [ 5 ] The Board collected the ballots through a double envelope system. Each employee submitted a ballot in an envelope inside another envelope marked with the employee’s name. The Board has not yet opened the outer marked envelopes in order to access and count the ballots. Once these outer marked envelopes are opened, they will be separated from the ballots that they contain and the ballots intermingled and counted.

When this occurs, then it will no longer be possible to identify which ballot was submitted by the employee whose membership in the bargaining unit is in dispute. [ 6 ] Only 5 ballots were cast in the certification vote. There are 9 employees in the bargaining unit determined by the Board; according to the employer there should only be 8. A majority vote is required to certify the bargaining unit.

Therefore, if there are only 8 members in the bargaining unit, it will not be certified; if there are 9 then it will only be certified if all of those who cast ballots voted in favour of the Union. [ 7 ] Edge made an interlocutory ex parte application to the Court for an Order staying the decision of the Board to count the ballots. The evidence submitted by Edge established that the Board intended to proceed with the count on either January 28 or 29, 2021.

On January 27 I granted the Order to stay the ballot count but directed that the parties appear on February 16 to argue whether that stay ought to be continued until the Originating Application is heard and determined. Unfortunately, the pandemic and related lockdown prevented that hearing from taking place until June 2. [ 8 ] I have decided that the stay ought not be continued. ISSUES 1. What is the test that the Court ought to apply to determine whether to stay the Board’s Ballot Count Order until the Originating Application is decided; and 2.

On the Application of that test, should the Board’s Ballot Count Order be stayed until the Court makes a decision on the Originating Application? ANALYSIS Statutory and Regulatory Regime [ 9 ] The Labour Relations Act, R.S.N.L. 1990, c. L-1 , governs organized labour relations in this Province. The Act and the Labour Relations Board Rules of Procedure , NL Regs. 745/96, issued under the Act, set out the process for determining whether employees in a workplace will be represented collectively by a union. This process begins the Union’s application for certification of a bargaining unit: 36.

(1) A trade union claiming to have as members in good standing a majority of employees of 1 or more employers in a unit may, subject to the rules of the board and in accordance with this section, make application to the board to be certified as bargaining agent of that unit.

(2) Where a collective agreement is not in force and a bargaining agent has not been certified under this Act for the unit, the application may be made at any time. [ 10 ] The Act expressly directs how the Board is to decide whether to certify the union as bargaining agent, in essence by requiring that the Board certify a recognized union if the majority of employees in the workplace wish to be represented by the union: Condition precedent 48.

Where a trade union or a council of trade unions, claiming to have as members in good standing a majority of the employees of 2 or more employers in an appropriate unit, applies for certification as the bargaining agent of the employees in that unit, the board shall not certify that union or council as the bargaining agent for the employees, unless (

a) a majority of the employers of those employees consent to the certification; and (

b) the board is satisfied that the applicant might be certified by it under this Act as the bargaining agent of the employees of each employer who are in the unit if separate applications for the purpose were made by the applicant. [ 11 ] There are two questions that must be decided in order to determine whether a majority of employees want union representation: the total number of employees in the proposed bargaining unit; and the number of those employees who wish to be represented by the union. [ 12 ] The Act directs that the second question is to be decided by a vote of the members of the proposed bargaining unit: Taking of votes and ballot 47.

(1) Where an application for certification is supported by not less than 40% of the employees in the unit to which the application relates, the board shall take a vote of the employees in the unit to determine their wishes with respect to the certification of the applicant trade union as their bargaining agent.

[ 13 ] The priority of the first question is emphasized in both section 47(6) of the Act and section 26(8) of the Regulations : 47 .

(6) Where a vote is taken under subsection (1), the board shall remove and destroy, without counting, the ballots cast by persons who are not employees in the unit to which the application relates. 26 .

(8) All ballots cast in the vote will be held for counting until the board has determined the appropriate bargaining unit and considered other issues which may affect the vote. [ 14 ] The first step in determining the total number of employees in the bargaining unit is imposed on the employer, which is required by section 26(3) of the Regulations to provide a list of employees and their classifications: 26.

(3) The employer or interested parties shall, upon receipt of the application, immediately provide to the officer a list of employees and their classifications. [ 15 ] The Act provides that the Board is not bound by the information provided by the employer, but may examine records and conduct inquiries or hearings: Examination of records 46.

For the purposes of determining whether the majority of the employees in a unit consist of members in good standing of a trade union or whether a majority of them have selected a trade union to be their bargaining agent, the board may make the examination of records or other inquiries that it considers necessary, including the holding of the hearings or the taking of the vote, that it considers expedient, and the board may prescribe the nature of the evidence to be provided to the board. [ 16 ] The Regulations emphasize that the authority to decide the scope of the putative bargaining unit lies with the Board, but may be exercised by the chief executive officer: 50.

(1) Where the board has directed that a vote be taken of the employees in a bargaining unit, the chief executive officer is responsible for the taking of the vote and reporting on that vote to the board and, subject to the direction of the board, has authority on behalf of the board to settle all matters pertaining to the taking of the vote and to issue directions considered necessary for the taking of the vote, including authority to (

a) settle the list of employees entitled to vote; … [ 17 ] The Act also provides generally for the powers of the Board and some of those general powers have specific application to the determination of the set of employees to be regarded as the putative bargaining unit: Powers of board 18. In relation to a proceeding before it, or to determine a matter referred to it by the minister or under an application made to it, the board may (

a) examine the evidence that is submitted to it respecting the membership of employees in a trade union seeking certification; … (a.2) compel, at any stage of a proceeding, a person to provide information or produce the documents or things that may be relevant to a matter before it, after providing the parties an opportunity to make representations; (a.3) limit the scope of a hearing; … (

c) make those investigations, inquiries and examination of records that it considers necessary; … (

e) enter the premises of an employer where work is being or has been done by employees and inspect and view the work, material, machinery, appliances or articles there and interrogate persons respecting a matter that is before the board in a proceeding; … (

g) authorize a person to do anything that the board may do under paragraphs (c), (

e) and (

f) and to report to the board on them; … (

k) decide a question that may arise in a proceeding, or under an application made to it, or referred to it by the minister, including a

question as to whether (

i) a person is an employer or employee, (ii) a person performs management functions or is employed in a confidential capacity in matters relating to labour relations, … (

v) a group of employees is a unit appropriate for collective bargaining … [ 18 ] As set out in

section 18(

g) of the Act, the Board can delegate to others its powers to determine the number of employees in a putative unit. The Regulations , at

section 20, set out the responsibilities of certain officers of the Board in this regard: 20.

(1) The responsibilities of the chief executive officer of the board, subject to the direction of the board, include (

a) the processing of applications made to the board; … (

c) the conduct of investigations for the board in connection with applications or other matters coming before the board; (

d) the preparation and submission of reports to the board concerning the matters mentioned in this section; and …

(2) Subject to the direction of the chairperson, the chief executive officer may undertake or cause to be undertaken the investigation on the board's behalf as the chief executive officer considers necessary in the circumstances of the case or the chief executive officer may dispense with an investigation. [ 19 ] The Act contains a privative clause: Effect of decision 19.

(1) A decision, order, direction, declaration or ruling of the board shall not be questioned or reviewed in a court, and an order shall not be made or process entered or proceedings taken in a court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the board or its proceedings.

(2) The board may review, rescind, amend, alter or vary an order or decision made by it or by a panel and may rehear an application before making an order in respect of it.

(3) An application to the board for the review, rescission, amendment, alteration or variation of an order or decision of the board or a panel under subsection (2) shall be made within 6 months of the making of the original order or decision or the longer period the board considers appropriate in the circumstances. POSITIONS OF THE PARTIES [ 20 ] The Board based its decision on the scope of the bargaining unit on the report of an Investigating Officer.

In the Originating Application, Edge challenges the Board decision to include in the putative bargaining unit an employee named Brian Martin who Edge says performs management functions and therefore ought not to be included. Edge says that the Court ought to quash the decision of the Board and either decide the issue or direct that the Board hold a hearing to decide the issue. [ 21 ] On the initial application for a stay, Edge argued that if the Board is allowed to proceed with the ballot count then this would mean that the issue of whether Mr.

Martin’s vote should have been included and counted would be rendered moot. Before counting, the Board will remove the ballots from their corresponding envelopes identified with the name of the voters. After that, it will no longer be possible to determine how Mr. Martin’s vote affected the outcome of the representation vote, without violating the confidentiality of Mr. Martin. Therefore, if it is determined that Mr. Martin’s vote ought not to have been counted, then the only way in which the Board can proceed to a vote on certification is to hold an entirely new vote. This would result in a delayed vote.

Edge said that both the impact on Mr. Martin’s confidentiality and the delayed vote would constitute irreparable harm and asked the Court to stay the Ballot Count Order of the Board pending the outcome of the Originating Application. [ 22 ] On the hearing of this Application to continue the stay, the position presented by the Employer was different. As only 5 ballots were cast the removal of Mr. Martin’s ballot will not result in a requirement for a new vote. Rather, the outcome would then be that a majority of employees would not have voted for certification.

However, the Employer still says that the removal of Mr. Martin’s ballot will result in violation of the principle of secret ballot, and the Employer argues that the stay should remain in place to protect this public interest. [ 23 ] The Union says that the Employer’s position does not demonstrate harm to the Employer. Alternatively, it says that if Employer can rely on the public policy harm to the principle of secret ballot as irreparable harm, then the Union can rely on the public policy harm resulting from the delay in the certification vote if the count does not proceed.

In that case, the Union says, the balance of convenience favours allowing the vote to proceed. [ 24 ] The Board takes no position on this Application.

Issue 1: What is the test that the Court ought to apply to determine whether to stay the Board’s Ballot Count Order until theOriginating Application is decided? [25] The parties agree that the principles that the Court ought to apply are those derived from the decision of the Supreme Court ofCanada in RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, which the Supreme Courtheld were to apply to cases in which an interlocutory injunction or a stay of proceedings is sought.

Those principles are expressed in theform of a three-part test: 48 … First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried.Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, anassessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending adecision on the merits. …. [26] In this jurisdiction, the test has been stated as follows by Green, J., as he then was, in Hurley v.

Slate Ventures Inc. (1996), (NL SC), 136 Nfld. & P.E.I.R. 341 (Nfld. S.C.(T.D.), [1996] N.J. No. 14: 25 The principles applicable to the grant of an interlocutory injunction in disputes between private litigants not involving a labourdispute and not raising constitutional issues in this jurisdiction can be summarized as follows: 1. The applicant must show that there is a serious issue to be tried, in the sense that the claim is not frivolous or vexatious. 2.

The applicant must show he or she is suffering or will likely suffer irreparable harm, namely, loss that cannot be readily assessed interms of money or, if it can be so assessed, a loss that will be uncollectible. 3. The applicant should give an undertaking in damages that would be adequate, if the respondent were to succeed at trial, to compensatethe respondent for loss sustained because of the granting of the injunction. The person giving the undertaking ought, as a general rule, tobe in a financial position to honour the undertaking if called upon. 4.

Where there is doubt as to the adequacy of the respective remedies in damages available to either party, the applicant must then satisfythe court that the balance of convenience favours the granting of the injunction. In considering this factor, the court must look at andbalance, among other things, the degree of irreparable harm that may be suffered by the Plaintiff, if the injunction were not granted andby the Defendant, if the injunction were granted. The existence and strength of the undertaking offered by the applicant is a factor to beconsidered in the determination of the balance of convenience. 5.

Where the application of the balance of convenience test leads to no clear resolution, the court will normally seek to preserve thestatus quo. 6. Where the status quo is uncertain or its preservation is not a desirable result the court may consider the relative strength of each party'scase and if the merits on one side appear to be disproportionately greater than the merits of the other then the injunctive relief should begranted or denied accordingly. I believe that the foregoing principles follow from the Court of Appeal decisions in Hart Leasing and Holdings Ltd. v. St.

John's(City) (1992), (NL CA), 101 Nfld. & P.E.I.R. 131 and Labatt Brewing Co. v. Carling O'Keefe Breweries CanadaLtd. (1985), 55 Nfld. & P.E.I.R. 30 (affirming the decision of Goodridge J. reported at (1985), 53 Nfld. & P.E.I.R. 66). In my view, theyare also generally consistent with the discussion of general principles applicable to the granting of injunctions by the Supreme Court ofCanada in RJR-MacDonald Inc. v. Canada (AG), (SCC), [1994] 1 S.C.R. 311. [27] That articulation of the test by Green, J. was described by the Court of Appeal in Tall Boys Ltd. v. Bennett, 2002 NFCA 50, atparagraph 18, as a good

summary of the approach to be followed, and it has been followed in numerous cases decided by this Court. [28] A brief discussion of each part of the test is in order before I turn to the application of the test to this case.

The Strength of the Applicant’s Case: Serious issue or Prima Facie Case [29] The authorities make it clear that the first step in the test involves an assessment of the strength of the Applicant’s case, andthat in most cases the standard for that assessment is whether the Applicant demonstrates that there is a serious issue – i.e. one that is notfrivolous or vexatious - to be tried on the merits of the proceedings. In this case, the Union raises the issue of whether the standard to be

applied ought to be the more rigorous requirement for the Applicant to show a prima facie case or a strong prima facie case. [30] In RJR-MacDonald, the Supreme Court recognized two exceptional cases when the more rigorous standard should be applied,and queried, without deciding, the existence of a third: 56 Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. The first arises whenthe result of the interlocutory motion will in effect amount to a final determination of the action.

This will be the case either when theright which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application willimpose such hardship on one party as to remove any potential benefit from proceeding to trial. Indeed Lord Diplock modifiedthe American Cyanamid principle in such a situation in N.W.L. Ltd. v.

Woods, [1979] 1 W.L.R. 1294 , at p. 1307: Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action becausethe harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which moneycannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right toan injunction if the action had gone to trial is a factor to be brought into the balance by the judge in weighing the risks that injustice mayresult from his deciding the application one way rather than the other. 60 The second exception to the American Cyanamid prohibition on an extensive review of the merits arises when the question ofconstitutionality presents itself as a simple question of law alone…. 61 The suggestion has been made in the private law context that a third exception to the American Cyanamid "serious question to betried" standard should be recognized in cases where the factual record is largely settled prior to the application being made.

Thus inDialadex Communications Inc. v. Crammond (1987), (ON SC), 34 D.L.R. (4th) 392 (Ont. H.C.) , at p. 396, it washeld that: Where the facts are not substantially in dispute, the plaintiffs must be able to establish a strong prima facie case and must show that theywill suffer irreparable harm if the injunction is not granted. If there are facts in dispute, a lesser standard must be met. In that case, theplaintiffs must show that their case is not a frivolous one and there is a substantial question to be tried, and that, on the balance ofconvenience, an injunction should be granted.

To the extent that this exception exists at all, it should not be applied in Charter cases. [31] The second exception clearly does not apply in this case. The Union does not suggest that the third applies. However, theUnion says that the second exception does apply and that the Applicant therefore must show a prima facie case on the merits of theapplication for judicial review in order to succeed on this application for a stay pending the hearing of the judicial review application.

The argument runs this way: if a stay is issued, then the vote will not be held until the judicial review hearing is determined; that willtake quite some time; and it may be that the judicial review of the decision to include Mr. Martin’s vote will not be held until theemployer finishes its contract and leaves the Province. If that occurs, then it will be too late to certify the Union to bargain collectivelywith the employer.

In effect, therefore, a decision to stay this matter will render arguments concerning the appropriate bargaining unitmoot. [32] Review of the authorities demonstrates that exceptional cases should be rare. The Court of Appeal considered this point inHogan v. Newfoundland (Attorney General) (1998), (NL CA), 172 Nfld. & P.E.I.R. 185 (Nfld. (C.A.)); 163 D.L.R.(4th) 672 (Nfld. (C.A.)), and explained the rationale for this as follows: 29 ….The law is very firm in its direction that chambers judges should eschew to the greatest possible extent passing on the relativestrengths of each party's case.

Hence, while any granting of an interlocutory injunction requires that it be shown the action puts forth aserious issue to be tried, the authorities stress that the plaintiff should be considered to have met that criterion if the claim is shown not tobe frivolous and vexatious, and have issued explicit caveats not to go beyond that point. 30 The formulation of this approach was articulated in American Cyanamid Co. and is generally accepted by and commonly used as areference source by Canadian Courts (see RJR-MacDonald Inc. p. 335).

American Cyanamid Co. considered the rejection of aninterlocutory injunction in a patent case on the basis that a prima facie case of infringement was not considered to have been established.Lord Diplock declared at p. 510 that such expressions as "probability", "prima facie case" and "strong prima facie case" should beavoided "in the context of a discretionary power to grant an interlocutory injunction", and that all that is required to establish a seriousquestion to be tried was for the chambers judge to "be satisfied that the claim is not frivolous or vexatious".

RJR-MacDonaldInc. supports this stance in stating at p. 338 that "(

a) prolonged examination of the merits is generally neither necessary nor desirable",save for several exceptions of which mention will presently be made. 31 The reason for these admonitions against probing the merits of the case in interlocutory proceedings is the undesirability of a

motions judge embarking on a trial of the matter on the basis of the limited scope provided in interlocutory applications for fullpresentation and airing of the issues involved. It goes directly to the fairness of judicial proceedings, the right to full and fair hearing andthe desire to preclude the trial process being embarrassed by the need to reverse determinations in the light of full evidence andsubmissions.

The rationale for the rule was explained in the following terms by Lord Diplock at p. 510 of American Cyanamid Co.: It is no part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which theclaims of either party may ultimately depend nor to decide questions of law which call for detailed argument and mature consideration.Those matters are to be dealt with at trial. [33] In this case, the legislation under which the Board was constituted and from which it derives its jurisdiction includes a privativeclause.

In previous cases, this Court has rejected arguments that the existence of a privative clause militates in favour of a conclusionthat a party seeking to stay a decision pending judicial review must show a prima facie case at the first stage of the RJR-MacDonald test,rather than merely a serious issue to be tried. In Newlab Clinical Research Inc. v. N.A.P.E., 2003 NLSCTD 167, at paragraphs 17 to 25,and Sodexo Canada Limited v.

Hotel Employees and Restaurant Employees International Union, Local 779, 2019 NLSC 192, atparagraphs 126 to 129, Adams, J. and McGrath, J. thoroughly considered the arguments on each side of that issue and determined thatthe demonstration of a serious issue to be tried is the standard which an Applicant for a stay pending judicial review must meet evenwhen the review is sought of the decision of a Board protected by a statutory privative clause. I agree with their reasoning andconclusions.

Therefore, in order to succeed in this Application for a stay, Edge must demonstrate that its Originating Application forjudicial review presents a serious issue to be tried.

The Meaning of Irreparable Harm [34] The Supreme Court in RJR-MacDonald, at paragraphs 63 to 64, described the criterion of irreparable harm as follows: 63 At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own intereststhat the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. 64 "Irreparable" refers to the nature of the harm suffered rather than its magnitude.

It is harm which either cannot be quantified inmonetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the formerinclude instances where one party will be put out of business by the court's decision (R.L. Crain Inc. v. Hendry (1988), (SK KB), 48 D.L.R. (4th) 228(Sask. Q.B.) ); where one party will suffer permanent market loss or irrevocable damage to its businessreputation (American Cyanamid, supra ); or where a permanent loss of natural resources will be the result when a challenged activity isnot enjoined (MacMillan Bloedel Ltd. v.

Mullin, (BC CA), [1985] 3 W.W.R. 577 (B.C.C.A.) ). The fact that one partymay be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able tocollect damages, although it may be a relevant consideration (Hubbard v. Pitt, [1976] Q.B. 142 (C.A.) ). The Balance of (In)convenience [35] As has been noted in many authorities, the third leg of the test is better described as the balance of inconvenience.

Again, I turnback to RJR-MacDonald for a description of the balancing process involved here: 67 The third test to be applied in an application for interlocutory relief was described by Beetz J. in Metropolitan Stores at p. 129 as:"a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction,pending a decision on the merits".

In light of the relatively low threshold of the first test and the difficulties in applying the test ofirreparable harm in Charter cases, many interlocutory proceedings will be determined at this stage. 68 The factors which must be considered in assessing the "balance of inconvenience" are numerous and will vary in each individualcase. In American Cyanamid , Lord Diplock cautioned, at p. 408, that: [i]t would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where thebalance lies, let alone to suggest the relative weight to be attached to them.

These will vary from case to case. He added, at p. 409, that "there may be many other special factors to be taken into consideration in the particular circumstances ofindividual cases." [36] The Supreme Court noted that the public interest can at times be one of the special factors that might be taken intoconsideration. The public interest usually arises as a factor in Charter[1] cases, but it can come up in almost any case.

Application to This Case The Unusual Circumstances of This Case [37] There are several aspects of this case which set it apart from other cases involving certification votes. [38] First, the Employer’s work in the Province that would be subject to the construction labour relations regime is concluded. Therefore, the outcome of the certification vote will not have any immediate impact on the parties.

The Union wishes the vote toproceed nevertheless because certification would apply if this Employer obtains other construction work in the Province. [39] Second, the number of employees in the bargaining unit relative to the number of votes cast results in some unusual arithmetic.

Five votes in favour of the Union are required whether the number of employees in the bargaining unit is eight or nine. Only five votes were cast. Therefore, for the Union to succeed, Mr. Martin’s ballot must be counted, it must have been cast in favour of certification, and all four of the other ballots must also have been for certification. On the other hand, the certification vote fails if either Mr.

Martin’s ballot is not counted or if any of the five votes were cast against certification. [ 40 ] That arithmetic means that if the Employer is successful on its judicial review application then there will be no need to count the ballots because the removal of Mr. Martin’s ballot will mean that it is impossible for a majority of the employees to have voted for certification. If the Employer is unsuccessful but the vote count is against certification, then no one will know which of the employees voted against certification unless all of them did.

If the Employer is unsuccessful and the vote count is in favour of certification then it will be because all of the five who cast ballots voted in favour of certification. Their vote will no longer be secret. [ 41 ] The most significant consequence that flows from those unusual circumstances is that both parties are relying on harm to the interests of others to support their position whether the stay ought to be continued. The Employer says that if a stay is not continued then harm will result because the secrecy of Mr.

Martin’s ballot might be unnecessarily breached; the Union says that delaying the vote count violates the public interest in prompt certification votes that is expressly recognized in the Labour Relations Act . Serious Issue [ 42 ] In its Originating Application, Edge challenges the Board decision to include Mr. Martin in the putative bargaining unit on both substantive and procedural grounds. Substantively, Edge maintains that Mr. Martin’s duties and responsibilities are such that as a matter of law he ought to have been classified as a management employee. Edge presented evidence to the Board on that point.

Procedurally, Edge maintains that it was denied fairness and natural justice because the Board denied the request to conduct a hearing on the issue of Mr. Martin’s inclusion. Edge asks the Court to quash the Board decision and either substitute a decision excluding Mr. Martin, or send the matter back to the Board for a hearing on the issue. [ 43 ] The Employer’s case presents a serious issue to be tried. No other conclusion can be drawn without a deeper consideration of the relative merits of the case than the authorities allow.

Irreparable Harm [ 44 ] In this case, Edge says that it wants to restrain the votes from being counted. There is no demonstrable harm to Edge from counting the ballots.

In most cases, such as this one, the Employer in demonstrating harm would be able to point to the consequences that would flow from a successful certification vote in circumstances where the exclusion of a ballot may have resulted in a different outcome: the requirement that it either enter into collective bargaining, with the costs attendant on bargaining, and face either striking a collective agreement or having one imposed on it. [ 45 ] However, that is not the case here.

The parties accept that if the bargaining unit is certified, then the parties’ relationship would be covered by the existing regime and agreements that apply to the construction sector in this Province. More importantly, the Employer’s construction work in this Province is concluded. There will be no requirement that it abides by the collective agreements in place. Certification would not apply retroactively. [ 46 ] Therefore, the Employer relies on the public policy harm that could result if the ballot count proceeds.

The Employer concedes that if any of the five ballots cast are against certification then the matter is concluded. However, says the Employer, if all five votes are in favour of certification and Mr.

Martin’s vote is later determined to have been improperly included, then the removal of his ballot will result in breach of his confidentiality. [ 47 ] It is on this point that the Employer’s case for continuing the stay fails because the harm relied on by the Employer is not harm that it will suffer. [ 48 ] In RJR-MacDonald , at paragraphs 62 to 63, the Court addressed the question of whether the parties on an application for a stay or injunction could rely only on harm that they would suffer, rather than on harm that might accrue to the public interest: 62 Beetz J. determined in Metropolitan Stores , at p. 128, that "[t]he second test consists in deciding whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm".

The harm which might be suffered by the respondent, should the relief sought be granted, has been considered by some courts at this stage. We are of the opinion that this is more appropriately dealt with in the third part of the analysis.

Any alleged harm to the public interest should also be considered at that stage. 63 At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. [ 49 ] In my view, that passage is sufficient authority to entirely deal with the Employer’s assertion that it will suffer irreparable harm if the stay is not continued.

The harm required to meet the second of the RJR-MacDonald guidelines must be harm that is projected to accrue to the party, not to another. In limited circumstances, harm to the public interest may be taken into account but not until the analysis reaches the third stage when the public interest may be taken into account in balancing the inconvenience between established harm to each party. [ 50 ] The Employer has not demonstrated that it will suffer irreparable harm unless the stay of the decision of the Labour Relations Board is continued. CONCLUSION AND DISPOSITION

[ 51 ] The discretion of the Court to continue the stay in this case could only be exercised on the Employer demonstrating that there is a serious issue to be tried and that it will suffer irreparable harm if the stay is not continued. The Employer has demonstrated that there will be a serious issue to be determined when this Court considers the Application for judicial review. However, the Employer has not demonstrated that it will suffer any harm if the stay is not continued pending the outcome of the judicial review.

There is no need to move on to the third step of the RJR-MacDonald analysis as there is no harm to put on the Employer’s side of the scales of inconvenience. [ 52 ] Therefore, the Employer’s Application for a stay is dismissed. [ 53 ] The First Respondent is entitled to its costs taxed on Rule 55, Appendix 1, Column 3 of the Rules of the Supreme Court, 1986 S.N.L. 1986, c. 42,

Schedule D . _____________________________ Daniel M. Boone Justice