Unifor Local 2002 Applicant And: Exploits Valley Air Services Ltd. RESPONDENT, 2022 NLSC 4

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Unifor Local 2002 v. Exploits Valley Air Services Ltd. , 2022 NLSC 4 Date : January 12, 2022 Docket : 202101G3077 Between: Unifor Local 2002 Applicant And: Exploits Valley Air Services Ltd. RESPONDENT Before: Justice Garrett A. Handrigan On Judicial Review From: A Decision of Scott Sterns, Arbitrator, dated the 8th day of March 2021 Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: December 7, 2021

Summary: EVAS applied by Interlocutory Application to set aside an Originating Application that Unifor filed asking for judicial review of an arbitration decision filed in Halifax, NS. EVAS claimed that Unifor should have filed its application for review in Nova Scotia and asked this Court not to assume jurisdiction over the Originating Application. The Court allowed EVAS’ Interlocutory Application and declined to assume jurisdiction over the Originating Application.

While it was satisfied that it could assume jurisdiction, it refused to do so in the circumstances prevailing, particularly because of how readily the parties agreed to do the arbitration in Nova Scotia. The Court was also reluctant to deprive EVAS of a potential juridical advantage that it might have in Nova Scotia, if Unifor was out of time with its application in that jurisdiction. It ordered Unifor to pay EVAS’ costs of the Interlocutory Application to be taxed by Column 3 of the Scale of Costs.

Appearances: Anthony Dale Appearing on behalf of the Applicant Ruth E. Trask Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Atlantic Shrimp Co. v. Newfoundland & Labrador (Labour Relations Board) , 2006 NLTD 121 STATUTES CONSIDERED: Judicature Act , R.S.N.L. 1990, c. J-4 ; Constitution Act , 1867 , 30 & 31 Victoria, c. 3 (U.K.); Canada Labour Code , R.S.C. 1985; Arbitration Act , R.S.N.L. 1990, c. A-14 ; c. L-2 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D ; Nova Scotia Civil Procedure Rules , Royal Gaz Nov 19, 2008 .

REASONS FOR JUDGMENT Handrigan, J. : INTRODUCTION [ 1 ] Exploits Valley Air Services Ltd. (“EVAS”) provides air services throughout Atlantic Canada. It focuses primarily on transporting passengers, but it also delivers cargo and is available for medevac services. EVAS employed approximately 200 people at peak times before the pandemic, but the number dropped precipitously in March 2020 at the onset of COVID-19.

Unifor Local 2002 (“Unifor”) is a trade union and the certified bargaining agent for most of EVAS’ employees, who are captains and first officers, but the bargaining unit does not include chief pilots or other managerial staff who might be pilots. [ 2 ] EVAS issued layoff notices to all its employees when COVID struck, except for 12 in Gander and 5 in Halifax. EVAS told its laid-off employees that the recall rights which their collective agreement with Unifor provided for them, expired 12 months after they were laid off. Unifor grieved EVAS’ position on their members’ recall rights.

Scott Sterns, an arbitrator from Halifax, NS heard the grievance in Halifax on February 10, 2021, and dismissed it on March 8, 2021. [ 3 ] Unifor applied to this Court by Originating Application on May 7, 2021, to judicially review Mr. Sterns’ decision. Meanwhile, on June 30, 2021, and before it responded to Unifor’s Originating Application, EVAS filed an Interlocutory Application asking to set the Originating Application aside or to stay the application for judicial review.

In effect, EVAS claims that Unifor had attorned to the jurisdiction of the Nova Scotia Supreme Court so that the matter is not within the jurisdiction of this Court. Alternatively, EVAS says that there is no real or substantial connection between this Court and the issue that Unifor’s Originating Application raises, or if there is a connection that this Court is not the most convenient forum in which to hear it. [ 4 ] I heard EVAS’ Interlocutory Application on December 7, 2021 and reserved my judgment until now. The Issues [ 5 ] EVAS’ Interlocutory Application raises these issues: 1.

Can this Court assume jurisdiction over Unifor’s Originating Application for judicial review? 2. If so, should this Court assume jurisdiction over Unifor’s Originating Application? The Law Statutory & Subordinate Legislation [ 6 ] In its Interlocutory Application, EVAS asked for an order to set aside Unifor’s Originating Application under Rule 10.05 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . The Rule reads, as is relevant here: 10.05.

(1) A defendant may, at any time before filing a defence or appearing on an application, apply to the Court for an order (

a) setting aside the originating document …

[ 7 ] EVAS also asks in the alternative for an order staying Unifor’s Originating Application under Section 97 (1) of the Judicature Act , R.S.N.L. 1990, c. J-4 . It reads: 97.

(1) The court may direct a stay of proceedings pending before it. Case Law [ 8 ] In Atlantic Shrimp Co. v. Newfoundland & Labrador (Labour Relations Board) , 2006 NLTD 121 , Orsborn, J. dealt with an application by the Atlantic Shrimp Company in which Atlantic Shrimp challenged the NL Labour Relations Board’s conclusion “…that it had the ‘jurisdiction to process the application for certification’” (Paragraph 2), that the Board issued at the request of the Fish Food and Allied Workers’ Union (“FFAWU”).

Atlantic Shrimp believed that “…the only labour relations tribunal that could and should assume jurisdiction is the Nova Scotia Labour Relations Board” (Paragraph 2). [ 9 ] Atlantic Shrimp’s application raised other issues besides jurisdiction that are not relevant here. However, on the jurisdictional issue Orsborn, J. concluded that the NL Labour Relations Board had jurisdiction to process the FFAWU’s certification application, and he refused to interfere: “The Board’s decision on its jurisdiction to entertain the application for certification was correct.

The order of December 12, 2005 should not be disturbed” (Paragraph 64). [ 10 ] Of notable relevance to EVAS’ Interlocutory Application is this comment from the learned justice: “It was not suggested by either counsel that the assumption of jurisdiction by a provincial labour relations board is subject to different principles from those applied by superior courts ” (Paragraph 39). It is clear from his reasons that Orsborn, J. was of the same opinion, so that the law that governs the assumption of jurisdiction by labour relations boards applies with the same effect to superior courts.

I turn now to analyze Atlantic Shrimp more carefully and to distill from it, an analytical framework to discuss the issues I must address in this case. [ 11 ] Atlantic Shrimp Co. relied on these factors to support its claim that Nova Scotia, not Newfoundland and Labrador was the appropriate jurisdiction to decide the FFAWU’s certification application: • Atlantic Shrimp had its headquarters in Lunenburg, NS. • The certificate of registry that Transport Canada issued for Atlantic Shrimp’s fishing vessels, indicated that their port of registry was Halifax, NS and that their owner was CS Manpar Inc., a company with headquarters in Nova Scotia. • The vessels harvested and processed their catches outside Canadian territorial waters but landed the fish in two NL ports. • Atlantic Shrimp’s operations manager worked out of Lunenburg and there was no on-site manager in NL, although the operations manager generally attended in person when most of its vessels landed here. • Captains were responsible for the management of their vessels, their navigation and safety onboard but consulted with the operations manager on all other decisions, including hiring crew for the vessels. • Crew members signed a crew agreement, which said it would be interpreted by the laws of Nova Scotia and any disputes would be dealt with in Nova Scotia, by an arbitrator appointed by the Minister of Labour for the province and heard in Halifax. • Personnel records for crew members were retained in Atlantic Shrimp’s office in Lunenburg. • Purchase orders for maintaining and equipping the vessels were, except in emergencies, contracted out of Lunenburg, and paid there. • Settlements to pay the crew were calculated in Lunenburg and paid by cheque or direct deposit from the office in Lunenburg. • Group benefits, including Blue Cross for prescriptions, dental expenses, eye care and major medical expenses, as well as life insurance, were arranged and administered through the Lunenberg office. • Workers’ compensation claims were made through the Lunenburg office and the Workers’ Compensation Board of Nova Scotia paid them.

• Vessel refits were done every 3 years on average and were completed in Scandinavia. [ 12 ] Despite those factors, the NL Labour Relations Board decided that “…there is a real and substantial connection to Newfoundland and Labrador which is greater than any connection to Nova Scotia” (Paragraph 13 of Orsborn, J.’s judgment, as he quoted it from the NL Labour Relations Board’s decision).

In justifying its conclusion, the Board focused on the “employment relationship” between Atlantic Shrimp and its workers which “is centered on the vessel” (Paragraph 13). [ 13 ] Later in his reasons, Orsborn, J. summarized the factors that the NL Board relied on to find that it had jurisdiction: In this case, the regular visits of the vessel to the province at the end of each fishing trip - a recurring routine with each fishing trip followed by at least three days in port - the onshore management of the crew while in port, the regular and repeated offloading of the catch in the province, and the residence in the province of a majority of employees comfortably establish a real and substantial connection between this province and the contemplated collective bargaining relationship between the employees and the employer. (Paragraph 54) [ 14 ] Orsborn, J. also noted that the “employment relationship” was a critical aspect of the certification process that the Board ordered: …[A] certification application is of a different nature than a court proceeding or order that provides a final determination of rights in the context of a specific dispute.

A certification application, if successful, creates a relationship for the purposes of collective bargaining and, assuming a collective agreement is concluded, results in a regime which will govern the ongoing relationship between the employees, the employer, and the union. (Paragraph 41) [ 15 ] Working down through Atlantic Shrimp Co. , I drew from it the following considerations that Orsborn, J. applied in his analysis of the issues in that case that may be useful in addressing the issues in this case: 1.

The assumption of jurisdiction by a provincial labour relations board is governed by the same principles as apply to superior courts, and vice versa . 2. The territorial limitation on the jurisdiction of a provincial court or tribunal derives from the Constitution Act , 1867 , 30 & 31 Victoria, c. 3 (U.K.), so that questions of whether a court or tribunal has territorial jurisdiction to proceed raise constitutional issues. 3.

The recognition and enforcement of judgments from other provinces is encouraged in the Canadian federation; thus, a more relaxed approach is taken to the assumption of jurisdiction (the corollary to the recognition and enforcement of judgments ) within the federation than to the recognition of an order from a foreign jurisdiction. 4. Inquiries about the “subject matter” jurisdiction and the “territorial” jurisdiction of a court or tribunal are distinct pursuits. in that the former engages an adjudicative role, but the latter does not. 5.

When reviewing decisions affecting “subject matter” jurisdiction, the court must undertake a “functional and pragmatic” analysis to determine the appropriate standard of review and will be asked to consider factors such as: the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purpose of the constituent legislation and the particular provision engaged; and the nature of the question — law, fact, or mixed law and fact . 6.

Decisions on territorial jurisdiction are reviewable on the standard of correctness. 7. Deciding whether a real and substantial connection exists imports notions of reasonableness. 8. The limits of reasonableness are difficult to define and do not contemplate a test that can be rigidly applied – considerable judgment is required when deciding if a reasonable and substantial connection exists. 9. More than one jurisdiction may have a sufficient connection to a proceeding and, if so, a court or tribunal may have to ask if it should assume jurisdiction or defer to a more appropriate jurisdiction.

10. If more than one jurisdiction has a sufficient connection to the proceeding it will be question of forum non conveniens . 11. Deciding on forum non conveniens means asking which of the competing jurisdictions has the “more” and not necessarily the “most” real and substantial connection to the matter. 12.

When a court or tribunal is asked to assume jurisdiction over a matter with one or more extra-territorial aspects, the primary question is whether jurisdiction can be assumed, in that the jurisdiction in question has a real and substantial connection to the matter and not whether one jurisdiction has a more real and substantial connection than the other. 13. Asking whether jurisdiction can be exercised does not entail assessing the merits of competing jurisdictions but simply involves deciding whether there is a reasonable basis (i.e., a “real and substantial connection”) upon which to assume jurisdiction. 14.

If a court can assume jurisdiction over a matter, it must then consider whether it should assume jurisdiction. [ 16 ] This is the law I will apply to analyze the issues I stated above. I turn now to that analysis, beginning with the background to the issues. Analysis Background [ 17 ] Unifor Local 2002 is a trade union within the meaning of the Canada Labour Code , R.S.C. 1985, c. L-2 and is a chartered local union of Unifor.

It is also the certified bargaining unit for all employees of Exploits Valley Air Services who are captains and first officers of their aircraft, but chief pilots and other managerial staff who may also be pilots are not included in the bargaining unit. Unifor’s address is 7015 Tranmere Drive, Mississauga, ON L5S 1M2. Exploits Valley Air Services (generally known as “EVAS Airlines”) is a NL company, whose address is P. O. Box 355, 70 C. L. Dobbin Drive, Gander, NL A1V 1W7. [ 18 ] EVAS operates an airline throughout Atlantic Canada.

Before March 2020 it employed approximately 200 persons who piloted, serviced, and maintained its fleet of aircraft, offering up to 56 passenger flights a day in the region, as well as freight and medevac services. Most of EVAS’ flights were under contract to Air Canada. In March 2020, with the onset of COVID-19, Air Canada cut its flight services deeply and reduced or eliminated its reliance on EVAS’ flights. [ 19 ] Therefore, EVAS laid off practically all its employees, retaining only a skeleton crew of 12 persons in Gander and 5 in Halifax.

EVAS issued notices to the laid-off employees, in letters that went out on March 24, 2020, and April 3, 2020: This letter confirms our discussions today that you are being temporarily laid off from your employment with Exploits Valley Air Services Limited (EVAS Air). We are providing working notice effective immediately.

Your last day of work will be…. (Taken from one of the letters reproduced under Tab C of the Record of the Arbitration Proceeding submitted by Unifor in support of its Originating Application for Judicial Review of the Arbitration Ruling). [ 20 ] Meanwhile, on July 29, 2020, EVAS also emailed all its laid-off employees, advising them: In the coming days, we will be issuing permanent lay-off notices to those employees currently on layoff. (Taken from an email reproduced under Tab I of the Record of the Arbitration Proceeding submitted by Unifor in support of its Originating Application for Judicial Review of the Arbitration Ruling) [ 21 ] EVAS followed up with another email on August 20, 2020, which provided: Under the Canada Labour Code , accepting of severance payments is considered to be a complete termination from the company.

This means, by accepting the severance amount, you are accepting the termination of employment and relinquish all recall rights . Anyone who wishes to remain on the recall list, must notify the company immediately and decline to receive the severance payout, at this time. Those declining the severance payment may choose to be paid their severance at a later date.

However, anyone not recalled with 12 months of their initial lay off date, will automatically have their severance payment issued and all recall rights will cease at the end of 12 months. (Bold in original; taken from an email reproduced under Tab J of the Record of the Arbitration Proceeding submitted by Unifor in support of its Originating Application for Judicial Review of the Arbitration Ruling) [ 22 ] Unifor reacted immediately to the email that EVAS sent out to its laid-off employees on August 20, 2020. On August 21, 2020, Unifor challenged EVAS’

interpretation of the Canada Labour Code and stated: …EVAS appears to have a different

interpretation of the Collective Agreement and the Canada Labour Code as it relates to recall rights. We reiterate – per the Collective Agreement – members who have been laid off have recall rights. The language in the Collective Agreement pertaining to length of recall is silent. There is no sunset (i.e., “end”) date referenced. As such, recall rights are indefinite, at least until the completion of the Collective Agreement, or it is extended by a statutory freeze.

Unifor contends that should EVAS require a signature/notification from a FMC (sic) [Flight Crew Member] in order to retain recall rights, those signatures/notifications are made under duress and is a violation of the Collective Agreement. Per

Article 16, this process does not require a signature and/or notification to maintain recall rights. (Taken from a memo reproduced under Tab K of the Record of the Arbitration Proceeding submitted by Unifor in support of its Originating Application for Judicial Review of the Arbitration Ruling) [ 23 ] The collective agreement with EVAS that Unifor refers to is effective for a 3-year period from February 5, 2019, to February 5,

Article 16 of the agreement deals with “Layoff, Bumping and Recall”.

Article 16.3 provides for “Severance” for laid-off employees: 16.3.1. Laid-off FCMs [Flight Crew Members] shall receive a severance amount in accordance with the Canada Labour Code . [ 24 ] Division XI of the Canada Labour Code provides for severance payments to laid-off employees. In

section 235, it specifies minimum rates of severance employers must pay to laid-off employees. It reads in part: 235

(1) An employer who terminates the employment of an employee who has completed twelve consecutive months of continuous employment by the employer shall, except where the termination is by way of dismissal for just cause, pay to the employee the greater of… [ 25 ] Subsection 235 (2) of the Code states:

(2) For the purposes of…Division [XI], (

a) except where otherwise provided by regulation, an employer shall be deemed to have terminated the employment of an employee when the employer lays off that employee. (Underlining mine) [ 26 ] EVAS claimed, as I noted above, that

Article 16 of its collective agreement with Unifor obliged EVAS to pay severance to its laid-off employees as specified in section 235 (1) of the Canada Labour Code ; but it also claimed that those laid-off employees to whom it paid severance were terminated by the deeming provision in section 235 (2) of the Code and lost their recall rights. [ 27 ] Unifor filed a grievance on October 26, 2020, alleging that EVAS violated both their collective agreement with Unifor and the Canada Labour Code : The company believes recall rights expire 12 months post layoff and that the member has to notify the company to (sic) in order to maintain such a right or the company will use the default to severe (sic)/terminate their employment.

The company contends they can hire new FMC’s (sic) to fill vacancies, those who have never been employed by EVAS 12 months post layoff. (Taken from a copy the “Grievance Report” reproduced under Tab A of the Record of the Arbitration Proceeding submitted by Unifor in support of its Originating Application for Judicial Review of the Arbitration Ruling) [ 28 ] EVAS denied the grievance and the grievance went to arbitration before Scott Sterns. [ 29 ] Richard Dunlop, a lawyer with Stewart McKelvey in Halifax, NS provided an affidavit to support EVAS’ Interlocutory Application to set aside or stay Unifor’s Originating Application to quash and set aside the arbitrator’s ruling.

In his affidavit, Mr. Dunlop documented the process by which Unifor and EVAS selected Mr. Sterns to arbitrate Unifor’s grievance: • November 19, 2020: Unifor confirmed that Chad Johnston, a National Staff Representative, would represent the union in the grievance.

• December 18, 2020: Chad Johnston sent an email to Mr. Dunlop naming three possible arbitrators – Scott Sterns, Gus Richardson, and J.A. McLellan – all based in Nova Scotia. • January 5, 2021: Unifor and EVAS agreed that Scott Sterns would arbitrate Unifor’s grievance. • January 11, 2021: Chad Johnston emailed Scott Sterns, on behalf of both Unifor and EVAS, to ask if Mr. Sterns was available to hear the arbitration in February 2021. • January 12, 2021: Mr. Sterns, Unifor and EVAS agreed that the arbitration would take place on February 10, 2021, in Halifax, NS. • January 18, 2021: Mr. Dunlop confirmed for Mr.

Sterns that he and Mr. Johnston agreed that Mr. Sterns would do the arbitration. • January 21, 2021: Mr. Sterns sent Unifor and EVAS his Notice of Hearing for the arbitration, confirming that he would hear it in a conference room at the offices of Mr. Dunlop’s law firm, Stewart McKelvey in Queens Marque, 600-1741 Lower Water Street, Halifax, NS B3J 0J2 on February 10, 2021, starting at 9:30 am. Mr. Sterns’ notice also stated that the hearing would be conducted “Virtually” in addition to in person at this location. • February 10, 2021: The arbitration took place as planned.

Richard Dunlop, for EVAS and Chad Johnston, for Unifor appeared in person, before Mr. Sterns at the Queens Marque location; Chad Johnston called one witness, Ashley Watkins, assistant to the President of Unifor Local 2002, who appeared by video before Mr. Sterns and was examined and cross-examined by Mr. Johnston and Mr. Dunlop respectively. EVAS called one witness, Troy Freeborn, a management employee with the company. Mr. Freeborn, like Mr. Watkins, testified by video and Mr. Dunlop examined Mr. Freeborn and Mr. Johnston cross-examined him. • Mr.

Sterns released his decision on March 8, 2021 and dismissed Unifor’s grievance . [ 30 ] Unifor filed its Originating Application in this Court on May 7, 2021, asking for an order in the nature of certiorari to quash and set aside Mr. Sterns’ decision.

Unifor emailed an unfiled copy of its Originating Application to counsel for EVAS on May 14, 2021; from which, on May 18, 2021, counsel for EVAS requested that Unifor serve him with a filed copy of the Originating Application and noted to Unifor that EVAS did not attorn to the jurisdiction of this Court to hear the Originating Application. [ 31 ] Counsel for Unifor emailed a filed copy of its Originating Application to counsel for EVAS on May 28, 2021, and EVAS filed its Interlocutory Application to set aside or stay Unifor’s Originating Application on June 30, 2021.

I heard the Interlocutory Application on December 7, 2021 and reserved my judgment until now. [ 32 ] This is the background to the Interlocutory Application. I turn now to discuss the issues that I stated earlier in these reasons, against that background and by applying the law that I stated above. Discussion Can this Court assume jurisdiction over Unifor’s Originating Application for judicial review? [ 33 ] EVAS agrees that it has a real and substantial connection to this Province, and it is self-evident that it does. EVAS operates out of Gander, NL.

It has its head office there, its operating officers and employees work there, and it is also where it carries out ongoing repairs, maintenance, and inspections on its aircraft and equipment.

While EVAS has an office in Halifax, NS it is of a smaller scale than its Gander operation and it employs just a few of its approximately 200 employees there, most of whom work out of Gander. [ 34 ] Unifor notes that EVAS insisted on conducting a previous arbitration in Gander and drew heavily upon an affidavit that Florence White, EVAS’ Chief Financial Officer, swore on January 22, 2019, to support EVAS’ insistence that the 2018 arbitration should be held in Gander; and it was. Chad Johnston, Unifor’s National Representative, filed a copy of Ms.

White’s affidavit in response to EVAS’ Interlocutory Application in this matter. Ms. White ends her affidavit with this statement: “33. Before the matter arose in this case, I have never heard a suggestion that a grievance should be heard in any place other than Gander, NL”. (Copy of Florence White’s affidavit, attached as Exhibit “C” to Chad Johnston’s affidavit filed on October 29, 2021). [ 35 ] While EVAS agrees that it has a real and substantial connection to this province territorially, it says it is misleading to focus on the territorial connection.

Rather, EVAS says the more appropriate inquiry is to ask if there is connection between this Province and the subject matter of the litigation. To that end, EVAS says that Unifor’s Originating Application is directed to Scott Sterns’ ruling from the arbitration hearing which Unifor wants to quash and set aside so that its grievance can be remitted to further arbitration, whether before Mr. Sterns or another arbitrator.

[ 36 ] In its Originating Application, Unifor attacks Mr. Sterns’ ruling on several fronts, saying his

interpretation of the collective agreement was unreasonable, that he did not comply with the Canada Labour Code , and that he refused to consider extrinsic evidence that might have affected his ruling. [ 37 ] In the Grievance Report that it submitted to arbitration on October 26, 2021, Unifor described the “Nature of Grievance” as “Interpretation/Application”. Unifor was the grievor and said the grievance was of this nature: “Policy Grievance- Layoff/Bumping/Recall/Severance Pay”.

Unifor focused on clause 16 of its Collective Agreement with EVAS and said that EVAS had misinterpreted the recall rights that it extended to its laid-off employee. In effect, Unifor’s grievance engaged a policy issue, particular to neither this Province nor Nova Scotia. [ 38 ] This is the reverse of the jurisdictional issue the NL Labour Relations Board faced in Atlantic Shrimp Co .

There, by comparison, Orsborn, J. said that the issue of the Board’s jurisdiction engaged “territorial” considerations, not “subject matter” ones; or as he put it: In this case, in determining whether or not the issues engaged by the certification application have a real and substantial connection to the province, the Board was not acting within its adjudicative role as contemplated by its governing legislation. It was not determining the rights of employees or of an employer or a union.

It was simply deciding whether or not it had the territorial jurisdiction to entertain the application in the first place. (Paragraph 23, Atlantic Shrimp Co. ) [ 39 ] I am dealing with a “subject matter” issue here, not a territorial one; and that issue is, quite simply, how should the recall provisions of the Collective Agreement between Unifor and EVAS be interpreted.

The Agreement, whatever the clause means, applies with the same force here as it does in Nova Scotia and affects the rights of persons EVAS employs in both provinces. [ 40 ] EVAS has a significant presence in this Province and that gives EVAS a real and substantial connection to it, just as it gives this Court jurisdiction to hear Unifor’s Originating Application. The issue is not limited territorially and may be heard as well here as it would be in Nova Scotia. The more pertinent question, however, is not whether this Court can assume jurisdiction over the matter but whether it should?

Should this Court assume jurisdiction over Unifor’s Originating Application? [ 41 ] In Atlantic Shrimp Co. , Orsborn, J. noted that the NL Labour Relations Board described what it had to decide this way: “…the issue before the Board, as agreed by the parties, is to which province is there a more real and substantial connection: Nova Scotia or Newfoundland and Labrador” (Paragraph 23, Atlantic Shrimp Co.) .

However, Orsborn, J. criticized the Board’s approach and said it would have been more productive to ask, “whether jurisdiction can be assumed”. [ 42 ] Deciding “whether jurisdiction can be assumed” entails asking whether a real and substantial connection exists between the application and the province.

If jurisdiction can be assumed, it follows to ask “…whether jurisdiction should be assumed, or whether the matter may be more appropriately subject to adjudication in another province or country – the forum non conveniens issue” (Paragraph 9, Atlantic Shrimp Co. ). [ 43 ] I have already decided that there was a real and substantial connection between this Province and the issue that Unifor raised in its Originating Application challenging Mr. Sterns’

interpretation of Unifor members’ recall rights in the Collective Agreement with EVAS. I found that this Court could assume jurisdiction over the Originating Application. Thus, I will focus the balance of my discussion on whether this Court should assume jurisdiction. To hasten to the point, I say that this Court should not assume jurisdiction. Let me explain. [ 44 ] When EVAS rejected Unifor’s grievance in October 2020, Unifor immediately engaged the arbitration process provided for in its Collective Agreement with EVAS to pursue the policy issue it had raised with the Company.

Unifor confirmed that Chad Johnston would represent it at the arbitration and Mr. Johnston suggested the names of three Nova Scotia-based arbitrators, from whom he and Richard Dunlop, on behalf of EVAS, chose Scott Sterns. [ 45 ] Mr. Johnston and Mr. Dunlop exchanged emails between November 19, 2020, and January 12, 2021, dealing with selecting an arbitrator, the format they would follow for the hearing, where it would take place, who would be involved and whether they would attend in person or virtually. In several instances, they copied their emails to Mr.

Sterns and at other times, they directed the emails to Mr. Sterns and cc’d each other. The emails culminated in a Notice of Hearing that Mr. Sterns emailed to both of them on January 21, 2021, confirming that the hearing would take place on February 10, 2021, starting at 9:30 am at this location: “Stewart McKelvey, Queen’s Marque, 600-1741 Lower Water Street, Halifax, NS B3J 0J2 – and – Virtually”. [ 46 ] This is what stands out for me from examining those emails: No issue arises between Mr. Johnston for Unifor and Mr. Dunlop for EVAS about where the hearing should take place. An email that Mr.

Johnston sent to Mr. Sterns on January 11, 2021 (cc’d to Mr. Dunlop) typifies the tenor of their emails: Hello Arbitrator Sterns. I’m wondering if you’d have availability for a 1-day hearing Feb. 1 to 21? The matter is related to layoff notice and recall under the federal legislation.

The employer is EVAS airlines in Gander and the union is Unifor Local 2002 in Toronto. In email discussions with Rick (cc’d in email), we believe it makes sense to have us in a room together and then have our witnesses to testify online. Would this model work for you? If dates do not work could you provide more dates for March. Tks CJ (Exhibit “D” to the affidavit of Richard Dunlop sworn on 28 June 2021) [ 47 ] An email that Mr. Dunlop sent to Mr. Johnston on January 5, 2021, displays a similar tone: Hi, Chad, Hope you had the chance for a bit of a break over the holiday season. Happy New Year!

We could agree to Scott Sterns. Please let me know if you would like us to reach out to Mr. Sterns or if you will. Thanks, Rick M. Dunlop (Exhibit “D” to the affidavit of Richard Dunlop sworn on 28 June 2021) [ 48 ] In fact, there is nothing in the record to indicate that either EVAS or Unifor was at all concerned that the arbitration would take place in Nova Scotia and not in this Province.

The venue for the arbitration only became an issue after Unifor filed its Originating Application in this Court and EVAS asked in its Interlocutory Application whether the judicial review should proceed here or in Nova Scotia. [ 49 ] I understand why neither Mr. Dunlop nor Mr. Johnston was concerned about having the hearing in Halifax, NS. Both are residents of the city and Mr. Dunlop’s law firm readily offered to provide a conference room for them to use. Both seemed to be familiar with potential arbitrators available in the region and they readily agreed on Mr. Sterns.

They also agreed that they each would call one witness, Ashley Watkins for Unifor and Troy Freeborn for EVAS and that their witnesses would appear virtually. [ 50 ] On reflection, it is surprising that Unifor filed its Originating Application in this Court. As I mentioned already, neither side seems to have thought about proceeding anywhere than in Nova Scotia until Unifor chose this Province in which to ask for judicial review.

Unifor submits that the hearing took place only partly in person Nova Scotia and the other part was virtual, neither in Nova Scotia nor this Province. [ 51 ] In the brief he filed on the Interlocutory Application, counsel for Unifor says I should ignore the agreement that the parties made on conducting the arbitration hearing “partially in-person in Halifax (which was the business location of the arbitrator, the employer’s counsel and the union’s representative) and partially online” and focus on the judicial review hearing about which they did not agree: “Absent an agreement about the forum in which judicial review should occur, it may fairly be asked whether the Court should consider at all the physical location of hearing participants in deciding issues of territorial jurisdiction” (Paragraphs 26 & 28 of Counsel’s brief, filed on October 29, 2021).

[ 52 ] Counsel for Unifor also encourages me to take “judicial notice of the effect of COVID-19 on the conduct of many legal proceedings” (Paragraph 28 of Counsel’s brief, filed on October 29, 2021). Elsewhere, he notes that “[b]ut for COVID-19 travel restrictions, the belief of Unifor’s representative is that EVAS would again have insisted on a hearing in Gander” (Paragraph 28 of Counsel’s brief, filed on October 29, 2021).

There is not a scintilla of evidence before me to say that COVID-19 had any impact on where the arbitration hearing would be held. [ 53 ] Furthermore, in the last-quoted material from Counsel’s brief, he alludes to a 2018 arbitration between Unifor and EVAS, that EVAS insisted should take place in Gander. I referred to that arbitration above. Counsel for Unifor makes much of that arbitration, too much, in fact. Let me explain. [ 54 ] Elwin MacNeil, Q.C. was the arbitrator in the 2018 arbitration.

He issued a preliminary ruling on January 28, 2019, declaring that the “…the hearing of this matter will take place in Gander, NL at a time, date and location that I will determine in consultation with the parties” (Page 5 of his Ruling, taken from the copy attached as Exhibit “B” to Chad Johnston’s affidavit in this matter dated August 12, 2021). [ 55 ] Mr. MacNeil offered this rationale for his ruling: Aside from the arbitrator, counsel, and the parties’ counsel and representatives, there would appear to be four (4) likely witnesses, i.e., the grievor and the three management witnesses described above.

The convenience, inconvenience of travel, workplace disruption and related expenses would appear to have impacted both parties depending on the venue chosen, however it would appear that, in this instance the negative consequences to the employer would be more significant. (Page 5 of his Ruling) [ 56 ] He added these comments for clarity: The costs related to the anticipated witnesses for EVAS would appear to be more onerous on the employer were the hearings to be held in Halifax compared to the costs to Unifor should the hearing be held in Gander.

Additionally, removing key individuals of EVAS from their worksite for potentially several days could cast a (sic) onerous burden on the employer. (Page 5 of his Ruling) [ 57 ] Mr. MacNeil was obviously motivated by the balance of convenience between the parties and resolved the issue in EVAS’ favor to lessen the inconvenience to it. Neither party questioned their joint decision to hold this, the 2021 arbitration in Halifax, on the balance of convenience or otherwise.

As I noted above, they mutually agreed to meet in Halifax on February 10, 2021, and they also agreed on who would attend, whether they would be there in person or virtually and where and what time the arbitration would begin. [ 58 ] It follows simply from their choice that this Court should not assume jurisdiction over the matter in those circumstances. I am as much surprised as EVAS is that Unifor chose to issue its Originating Application to review Mr. Sterns’ ruling in this Court.

Logic dictates to me that Unifor would have proceeded in Nova Scotia, given how the process unfolded so seamlessly between the parties until Mr. Sterns made his ruling. [ 59 ] EVAS offered a possible explanation for Unifor’s volte-face : Rule 7.05 (1) of the Nova Scotia Civil Procedure Rules provides that an applicant must file an application for judicial review within 25 days of the ruling, excluding Saturdays, Sundays, and statutory holidays. Mr. Stern issued his ruling on March 8, 2021, so that Unifor had 25 clear days from that date to file its application for judicial review.

It did not file it in Nova Scotia during that time, but submitted it to this Court on May 7, 2021, well outside the 25-day window that applied in Nova Scotia. [ 60 ] By contrast, the NL Rules of the Supreme Court, 1986 , do not specify a deadline when applying for certiorari , as Unifor is doing here, but says that the application must be filed within a “reasonable time”. There is some possibility that Unifor may be governed by a 60-day time limit within the Arbitration Act , R.S.N.L. 1990, c. A-14 , but that is unclear. In fact, neither EVAS nor Unifor submits that the Arbitration Act applies to this matter.

In effect, EVAS is saying that Unifor may have missed the deadline that applies in Nova Scotia and has simply resorted to this Court so it could challenge Mr. Sterns’ ruling and not have to apply to extend the time to file its application in Nova Scotia. [ 61 ] EVAS also says it may lose a “juridical advantage” if this Court agrees to hear the matter.

This is as counsel for EVAS expressed it in the brief she filed for the Interlocutory Application: “In the event that this Court assumes jurisdiction, EVAS potentially loses the benefit of the limitation period for judicial review provided in the Nova Scotia Civil Procedure Rules ” (Paragraph 49 of the Memorandum of Fact and Law filed on October 6, 2021). [ 62 ] Overall, I am satisfied that this Court should not assume jurisdiction over Unifor’s judicial review. The parties mutually agreed that the arbitration would take place in Nova Scotia.

It proceeded there with an arbitrator based in Nova Scotia, with counsel for EVAS from Nova Scotia and a representative for Unifor, also from Nova Scotia. It flows logically from their agreement that the judicial review of the arbitrator’s decision should also occur in Nova Scotia. [ 63 ] I note that EVAS’ counsel in Nova Scotia, Mr. Rick Dunlop, resides in Halifax, that Unifor’s counsel, Mr.

Anthony Dale, who, though resident in Toronto may appear by video, as he did when he argued the Interlocutory Application before me; and that the judicial review would be based on the record and require no viva voce evidence. Perhaps the parties may be able to argue the judicial review before the court in Nova Scotia by video, as well. [ 64 ] Otherwise, I am loathe to deprive EVAS of any juridical advantage that may accrue to it by arguing that Unifor is out of time

with its application under NS Civil Procedure Rules to judicially review Scott Sterns’ March 8, 2021, arbitration ruling. [ 65 ] I began these reasons with two questions: 1. Can this Court assume jurisdiction over Unifor’s Originating Application for judicial review? Answer: Yes. 2. If so, should this Court assume jurisdiction over Unifor’s Originating Application? Answer: No. [ 66 ] Accordingly, I order that Unifor’s Originating Application be set aside under Rule 10.05(1) (

a) of the Rules of the Supreme Court, 1986 , for that this Court refuses to assume jurisdiction over Unifor’s Originating Application. Costs [ 67 ] In the result, I order that Unifor pay EVAS’ costs of this Interlocutory Application to be taxed by Column 3 of the Scale of Costs. While this ruling also dispenses with Unifor’s Originating Application, I make no order as to EVAS’ costs in that part of the proceedings, since EVAS did not respond to the Originating Application.

Summary and Disposition [ 68 ] EVAS applied by Interlocutory Application to set aside an Originating Application that Unifor filed asking for judicial review of an arbitration decision filed in Halifax, NS. EVAS claimed that Unifor should have filed its application for review in Nova Scotia and asked this Court not to assume jurisdiction over the Originating Application. [ 69 ] The Court allowed EVAS’ Interlocutory Application and declined to assume jurisdiction over the Originating Application.

While it was satisfied that it could assume jurisdiction, it refused to do so in the circumstances prevailing, particularly because of how readily the parties agreed to do the arbitration in Nova Scotia. The Court was also reluctant to deprive EVAS of a potential juridical advantage that it might have in Nova Scotia, if Unifor was out of time with its application in that jurisdiction. It ordered Unifor to pay EVAS’ costs of the Interlocutory Application to be taxed by Column 3 of the Scale of Costs. Order [ 70 ] I order that: 1.

Unifor’s Originating Application be set aside by Rule 10.05 (1) of the Rules of the Supreme Court, 1986 . 2. Unifor pay EVAS’ costs of the Interlocutory Application, to be taxed by Column 3 of the Scale of Costs. _____________________________ Garrett A. Handrigan Justice