W SÁNEĆ SCHOOL BOARD Applicant v. B.C. GOVERNMENT, 2017 FCA 210

Date: 20171024 Docket: A-417-16 Citation: 2017 FCA 210 CORAM: PELLETIER J.A. BOIVIN J.A. GLEASON J.A. BETWEEN: W SÁNEĆ SCHOOL BOARD Applicant and B.C. GOVERNMENT AND SERVICE EMPLOYEES’ UNION Respondents Heard at Vancouver, British Columbia, on September 13, 2017. Judgment delivered at Ottawa, Ontario, on October 24, 2017. REASONS FOR JUDGMENT BY: GLEASON J.A. CONCURRED IN BY: PELLETIER J.A. BOIVIN J.A. Date: 20171024 Docket: A-417-16 Citation: 2017 FCA 210 CORAM: PELLETIER J.A. BOIVIN J.A. GLEASON J.A. BETWEEN: W SÁNEĆ SCHOOL BOARD Applicant and B.C.

GOVERNMENT AND SERVICE EMPLOYEES’ UNION Respondents REASONS FOR JUDGMENT GLEASON J.A. [ 1 ] In this application for judicial review, the applicant, the W SÁNEĆ School Board (the W SB), seeks to set aside the decision of the Canada Industrial Relations Board (the CIRB or the Board) dated September 23, 2016 in WSANEC School Board v. B.C. Government and Service Employees’ Union, 2016 CIRB 838 .

In that decision, the CIRB dismissed the W SB’s application to exclude from the all-employee bargaining unit those employees whose primary duties focus on the revitalization of the SENĆOŦEN language and culture and on the transmission of W SÁNEĆ beliefs and teachings (the SENĆOŦEN employees). The CIRB made the decision in question without holding an oral hearing. [ 2 ] For the reasons that follow, I would dismiss this application for judicial review, without costs.

I. Background [ 3 ] The W SÁNEĆ are an indigenous people whose traditional lands are located on Vancouver Island. They have in the past been referred to in English as the “Saanich” . The W SB (previously known as the Saanich Indian School Board) is a First Nations School Board that provides education to First Nations children, youth and adults. It is located on the TSARTLIP Reserve and serves the W SÁNEĆ people of four First Nations, each of which is a band within the meaning of the Indian Act , R.S.C. 1985, c. I-5. [ 4 ] In 1998, the CIRB certified the respondent, the B.C.

Government and Service Employees’ Union (the BCGSEU), as the bargaining agent for a bargaining unit comprised of all employees of the Saanich Indian School Board working at a school and adult education centre operated by the Board.

Subsequently, the description of the bargaining unit was amended so that it reads as follows: [A]ll employees of the WSANEC School Board employed at or from the tau Welnew Tribal School, the Saanich Adult Education Centre, and the Saanich Child Care Centre, excluding the Administrator, HR Manager, Bookkeeper, Principal, Director of Saanich Adult Education Centre, Operations Manager, Financial Controller, and Child Development Manager. [Emphasis in original] [ 5 ] The bargaining unit is comprised of professional employees (certified teachers and early childhood educators), para- professionals (mainly teaching assistants and special education assistants), support, operations and maintenance staff.

At the time the W SB made its application to the CIRB, there were 9 SENĆOŦEN employees in the bargaining unit of approximately 110 employees. [ 6 ] The traditional language of the W SÁNEĆ people is SENĆOŦEN. Until recently, it was an entirely oral language. In the mid-1980’s, the W SB began to teach some basics of the SENĆOŦEN language to students by having SENĆOŦEN exposure teachers attend English classes periodically to teach students the SENĆOŦEN alphabet and some basic SENĆOŦEN words.

These exposure teachers are part of the bargaining unit. [ 7 ] More recently, the W SB developed a SENĆOŦEN Immersion Program, which is focussed on the revitalization of the SENĆOŦEN language in accordance with the ĆELÁ N EN, the traditional beliefs and teachings of the W SÁNEĆ people. The SENĆOŦEN Immersion Program is taught by the SENĆOŦEN employees. At paragraphs 15 and 16 of its memorandum of fact and law, the W SB describes the ĆELÁ N EN and its impact on the roles and responsibilities of the SENĆOŦEN employees as follows: 15.

At the risk of oversimplification, ĆELÁ N EN refers to and encompasses the beliefs and teachings of the W SÁNEĆ People. It includes, among other important matters, specific rules, rights and responsibilities associated with the transmission of knowledge of the SENĆOŦEN language and W SÁNEĆ culture, beliefs and teachings.

More specifically, it includes rules, rights and responsibilities that relate to, inter alia , who has the right and responsibility to teach which aspects of the language, culture and beliefs, how, and in what circumstances, as well as the responsibility of the Member Nations and the W SÁNEĆ community to care for, support and protect those who keep and transmit the language and cultural knowledge. [Citation omitted] 16.

In other words, the rights and responsibilities of these SENĆOŦEN Employees and the employer vis a vis each other, as well as the students and the broader W SÁNEĆ community are seen by the W SÁNEĆ People to be governed by their teachings, which teachings belong to the W SÁNEĆ People.

Accordingly, this aspect of the ĆELÁ N EN has a profound impact on the way in which the employment relationship with the SENĆOŦEN Employees must be governed – both on the part of the employer and on the part of the SENĆOŦEN Employees. [Citation omitted]. [ 8 ] In 2015, at approximately the same time as it gave notice to bargain for a renewal of the collective agreement applicable to the W SB unit, the BCGSEU learned that the W SB had been treating the SENĆOŦEN employees as falling outside the bargaining unit and had not been deducting union dues from their wages.

Shortly thereafter, the W SB sought to have the BCGSEU agree to the exclusion of the SENĆOŦEN employees from the bargaining unit. The BCGSEU declined to do so and the W SB therefore applied on October 1, 2015 to the CIRB under sections 18 and 18.1 of the Canada Labour Code , R.S.C. 1985, c. L-2 (the Code) to amend the bargaining unit description to exclude the SENĆOŦEN employees.

Prior to making the application to the Board, the W SB did not attempt to negotiate different terms and conditions of employment for the SENĆOŦEN employees. [ 9 ] In its application to the CIRB, the W SB outlined its reasons for seeking the exclusion of the SENĆOŦEN employees. These focussed on the assertion that inclusion of these employees in an all-employee bargaining unit would negatively impact the constitutional rights of the W SÁNEĆ First Nations under sections 25 and 35 of the Constitution Act , 1982 being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ( Constitution Act, 1982 ) to control the transmission of their language and culture. [ 10 ] More specifically, the W SB submitted that the Code must be interpreted and applied in a manner that respects these constitutional rights and takes into account the values and principles that underpin them, including the need for reconciliation.

According to the W SB, it is incompatible with these values and principles to include the SENĆOŦEN employees in an all-employee bargaining unit because so doing offends some of their traditional beliefs and leads to a fundamental loss of control over the way in which those beliefs and the SENĆOŦEN language are transmitted. [ 11 ] As examples of such incompatibility, the W SB listed the grievance and arbitration procedure and the provisions in the collective agreement regarding eligibility, hiring, seniority and hours of work.

The W SB submitted that the foregoing provisions would need to be fundamentally altered to allow the SENĆOŦEN employees to perform their tasks in accordance with the ĆELÁ N EN.

The W SB also took the position that strikes are foreign to the W SÁNEĆ culture and expressed concern that exercise of the right to strike would deprive W SÁNEĆ children of their birthright to learning their language and culture. [ 12 ] Given the minority status of the SENĆOŦEN employees in the all-employee bargaining unit, the W SB submitted that the only way to retain the control the First Nations were entitled to exercise over the way in which their traditional beliefs and the SENĆOŦEN language are transmitted would be by excluding the SENĆOŦEN employees from the bargaining unit. [ 13 ] The W SB requested that the Board hold a hearing into its application if the BCGSEU contested the application and stated that

a hearing would allow for an explanation of the W SÁNEĆ beliefs and teachings in accordance with the oral traditions of the W SÁNEĆ people. However, no details were provided as to the nature of the oral evidence that the W SB intended to call and no explanation was given regarding the importance of oral testimony in the W SÁNEĆ culture. In a supplemental submission to the CIRB, counsel for the W SB further nuanced the request for an oral hearing by stating that the request was made in alternative and that a hearing was requested only in the event that the CIRB were disinclined to grant the application.

Counsel wrote in this regard as follows: The W SB takes the position that it has indeed supplied sufficient information for the CIRB to find that the SENĆOŦEN Employees ought not to be included in the bargaining unit.

However, if more detailed information is required in regard to the social, cultural, legal and historical context and in regard to the teachings and beliefs of the W SÁNEĆ People, in order to properly consider and apply the constitutional values identified above, the W SB takes the position that the CIRB must hear evidence about the teachings and beliefs of the W SÁNEĆ People, which can only properly be conveyed in the oral tradition and in the SENĆOŦEN language.

It is for that reason that an oral hearing has been requested, and it is the W SB’s position that in the circumstances the W SB’s application cannot be dismissed without an oral hearing. (Application Record, pages 122-123) II. The Decision of the CIRB [ 14 ] In the decision under review, the CIRB first outlined the background to the application and the relevant facts. It then moved to address and dismiss the W SB’s request for an oral hearing. Noting that

section 16.1 of the Code provides it discretion to decide any case before it without an oral hearing, the Board concluded that the documents filed were sufficient to allow it to rule on the W SB’s application without an oral hearing. Citing NAV Canada v.

International Brotherhood of Electrical Workers , 2001 FCA 30 , 267 N.R. 125 [ NAV Canada ], the CIRB underscored that it was entitled to decide the case based on the parties’ written submissions without providing advance notice of its intention to do so. [ 15 ] The Board then considered the merits of the W SB’s application to exclude the SENĆOŦEN employees from the bargaining unit. It began its analysis by summarizing the relevant principles from its case law, which favour the maintenance of all-employee bargaining units and require that an applicant show compelling reasons to fragment such a unit.

It further noted that such compelling reasons might include matters such as a diverging community of interest, geographic factors, specific statutory provisions and the likelihood that a larger unit may not be viable.

The Board further stated that these factors must be weighed against interests that favour maintenance of the existing unit, such as the need to avoid dilution of a trade union’s bargaining power, the need to promote industrial stability and the need to ensure that employees do not lose their access to union representation. [ 16 ] Turning to the specifics of the W SB’s application, the CIRB identified the decision of the Supreme Court of Canada in Doré v. Barreau du Québec , 2012 SCC 12 , [2012] 1 S.C.R. 395 [ Doré ] as the governing legal framework for its analysis given the nature of the W SB’s claims.

In applying this framework, the CIRB approached the decision it was required to make as one that required it to balance its overarching position that broader bargaining units “protect the stability of labour relations” and “the fundamental right of employees to associate and bargain collectively” (CIRB Reasons at paras. 36, 39) against the constitutional interests of the W SÁNEĆ First Nations, which the CIRB described as “[t]he aboriginal right to self-determination and the crucial importance to the WSANEC people of preserving their language and culture. […] in accordance with their own teachings” (CIRB Reasons at para. 37). [ 17 ] In conducting this balancing exercise, the CIRB characterized the W SB’s application as invoking a claim that the SENĆOŦEN employees had a distinct community of interest in light of their unique role and responsibilities.

It noted that, in other contexts, the Board has dealt with arguments regarding a claimed lack of community of interest by assessing whether a group’s unique characteristics may be addressed through the inclusion of specific provisions in the collective agreement. The CIRB held that the W SB had not established that a similar approach would not be open to address the concerns expressed regarding the SENĆOŦEN employees.

The Board made reference to provisions in the existing collective agreement that already afforded a certain degree of flexibility in respect of the matters that the W SB claimed required the exclusion of the SENĆOŦEN employees. It noted in this regard that the collective agreement already contained a purpose clause that reflects “the uniqueness of the workplace and incorporates access to a dispute resolution mechanism that may be more appropriate for the WSANEC People” (CIRB Reasons at para. 42).

The Board also noted that it was open to the parties to negotiate additional provisions to address the needs of the SENĆOŦEN employees “to permit them to perform and fulfill their duties in the manner deemed appropriate” (CIRB Reasons at para. 44).

The CIRB therefore concluded that, while the SENĆOŦEN employees might have interests that diverge from those of other employees in the unit, there were no sufficiently compelling reasons to exclude them from the unit. [ 18 ] The Board also highlighted the fact that allowing the application would leave the SENĆOŦEN employees without trade union representation – a factor which further favoured dismissal of the application. [ 19 ] The Board thus concluded that “balancing its policy against fragmentation which supports freedom of association and industrial stability with the WSANEC People’s ability to protect their language and culture through the SENCOTEN Employees’ manner of teaching, does not preclude it from including the SENCOTEN Employees in the existing bargaining unit” (CIRB Reasons at para. 47).

It accordingly dismissed the W SB’s application. III. Analysis A. Standard of Review [ 20 ] I turn now to the W SB’s application to this Court to set aside the CIRB decision and begin by considering the standard of review this Court should apply. The CIRB’s decision involves two determinations, each of which is challenged by the W SB, namely, the CIRB’s decision to dispose of the application without a hearing and its determination on the merits. [ 21 ] In terms of the former determination, as the CIRB noted in its reasons,

section 16.1 of the Code provides the Board authority

to decide any matter without an oral hearing. To borrow the words of Evans, J.A. in paragraph 14 of Boshra v. Canadian Association ofProfessional Employees, 2011 FCA 98, 415 N.R. 77 when describing the effect of a similar provision in the Public Service LabourRelations Act, S.C. 2003, c. 22,

section 16.1 of the Code “trumps the common law” and leads to the conclusion that the dictates ofprocedural fairness do not require that a hearing be held by the Board in all cases. Rather, the

section specifically leaves it to the Board todecide when it will hold a hearing. [22] The case law of this Court recognizes that determinations by the CIRB that it will not hold a hearing should be affordeddeference unless there has been a failure to allow a party to put forward its position on the merits of a case: see. e.g., NAV Canada atparas. 9-11, Madrigga v. Teamsters Canada Rail Conference, 2016 FCA 151 at paras. 26-27, 486 N.R. 248; Grain Services Union(ILWU-Canada) v. Friesen, 2010 FCA 339 at paras. 22-24, 414 N.R. 171.

In so holding, this Court (notwithstanding the dissent ofStratas, J.A. in Maritime Broadcasting System Ltd. v.

Canadian Media Guild, 2014 FCA 59, 455 N.R. 115) has applied the correctnessstandard to the assessment of whether there has been a violation of procedural fairness by the CIRB. [23] Thus, on the first question, the applicable standard of review is correctness, and the circumstances where a violation of aparty’s procedural fairness rights may be said to be violated are narrow and are limited to situations where the Board has not allowed theparty to put its position forward. [24] Turning to the Board’s determination on the merits, it is well-established that the reasonableness standard applies generally tothe review of CIRB decisions interpreting and applying provisions in the Code in light of the function of the CIRB, the nature of thequestions remitted to it and the very strictly-worded privative clause found in

section 22 of the Code: see, for example, CanadianBroadcasting Corp. v. Canada (Labour Relations Board), (SCC), [1995] 1 S.C.R. 157 at paras. 34, 43-44, 121 D.L.R. (4th) 385; International Longshoremen’s and Warehousemen’s Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., (SCC), [1996] 2 S.C.R. 432 at paras. 24 and 42, 135 D.L.R. (4th) 385; Dumont v. Canadian Union of Postal Workers,Montréal Local, 2011 FCA 185 at paras. 33-34, 423 N.R. 143; Cadieux v. Amalgamated Transit Union, Local 1415, 2014 FCA 61 atpara. 23, 458 N.R. 325; McAuley v.

Chalk River Technicians and Technologists Union, 2011 FCA 156 at para. 13, 420 N.R. 358. In myview, there is no reason to reach a different conclusion in this case, despite the invocation by the WSB of sections 25 and 35 of theConstitution Act, 1982. [25] More specifically, in the present case, the WSB did not seek to have the CIRB rule on the scope of its aboriginal rights tocontrol education nor did it advance an argument to the effect that such rights brought the labour relations of the SENĆOŦEN employeesoutside the purview of the Code.

Had it done so, the CIRB’s decision on these issues would have been reviewable on the correctness standard: see, for example, Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, 411 D.L.R. (4th) 571; Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, 411 D.L.R. (4th) 596; NIL/TU,O Child and Family Services Society v.B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696; Paul v.

British Columbia (Forest AppealsCommission), 2003 SCC 55 at para. 31, [2003] 2 S.C.R. 585. [26] Rather, the WSB instead argued that the principles and values enshrined in sections 25 and 35 of the Constitution Act, 1982required the Board to determine that the SENĆOŦEN employees should be excluded from the all-employee bargaining unit representedby the BCGSEU.

Indeed, it submitted as follows to the Board: To be clear, although the WSB and its Member Nations do take the position that the WSÁNEĆ People have the right, protected unders.35 of the Constitution, to maintain and protect their language and culture in accordance with their own teachings, the WSB’sapplication is not dependent on such a finding and the WSB will not be seeking to establish that s.35 right at a hearing of this matter.Rather, the WSB takes the position that in interpreting and applying the concept of what makes an appropriate bargaining unit (orconversely what would make a bargaining unit inappropriate), the CIRB must consider the underlying social, cultural, legal and historicalcontext of the WSB and the Member Nations as well as the constitutional values enshrined in s.35 and s.25 of the Constitution. [27] This argument is entirely analogous to the position advanced by the appellant in Doré, who argued that the DisciplinaryCouncil of the Barreau du Québec could not sanction him for comments he made without violating his freedom of expression guaranteedunder subsection 2(

b) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11 (the Charter).

In Doré, the Supreme Court determined that the reasonableness standard applied tothe review of the decision of the Disciplinary Council and described the content of such review at paragraph 57 as requiring thedetermination of whether “the decision reflects a proportionate balancing of the Charter protections at play” in light of “the nature of thedecision and the statutory and factual contexts”. [28] The approach outlined in Doré has been applied by both the Supreme Court and this Court to similar administrative decisionsin situations where an applicant contends that the decision does not respect the values enshrined in the Charter: see, for example, LoyolaHigh School v.

Quebec (Attorney General), 2015 SCC 12 at para. 35, [2015] 1 S.C.R. 613; Divito v. Canada (Public Safety andEmergency Preparedness), 2013 SCC 47 at para. 49, [2013] 3 S.C.R. 157; Lewis v. Canada (Public Safety and EmergencyPreparedness), 2017 FCA 130 at para. 43, 280 A.C.W.S. (3d) 130; Canadian Arab Federation v. Canada (Minister of Citizenship andImmigration), 2015 FCA 168 at paras. 19-21, 475 N.R. 380. [29] I do not believe there is any basis to adopt a different analytical framework when the values invoked arise under

section 35 ofthe Constitution Act, 1982 instead of under the Charter. In both cases, the basis of the argument is the same, namely, that a particularconstitutionally-protected right mandates that the administrative decision-maker reach a particular result. Likewise, in both cases, similarconsiderations must be weighed by the administrative decision-maker. I thus believe that the analytical framework set out in Doré appliesto the review of the Board’s assessment of the merits of the WSB’s application and that, accordingly, this Court is tasked withdetermining whether or not that assessment was reasonable. B.

Did the CIRB err in Proceeding without a Hearing? [30] Having settled the applicable standards of review, I move now to consider whether the Board violated the WSB’s procedural

fairness rights and conclude that it did not do so for several reasons. [31] First, and perhaps most importantly, the WSB did not clearly request a hearing nor clearly explain why it felt one wasrequired. I agree with the WSB that the case law recognizes that the rules of evidence should be adapted to allow for oral histories ofaboriginal peoples to be brought before the courts to elucidate the aboriginal perspective in cases where that perspective is relevant: Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010 at paras. 84-87, 153 D.L.R. (4th) 193.

However, suchrecognition does not translate to a right to present oral history in every case merely upon making a request to do so. Rather, as theSupreme Court of Canada recognized in Mitchell v.

Minister of National Revenue, 2001 SCC 33, [2001] 1 S.C.R. 911 at paragraph 31, itremains incumbent on those who seek to call such evidence to satisfy the decision-maker of the need to hear the evidence in question. [32] In the instant case, WSB provided very little detail as to the nature of the evidence it intended to call and virtually noexplanation as to why it believed it was important for the CIRB to hold a hearing for purposes of presenting oral history.

Moreover, therequest for a hearing was equivocal as the WSB’s primary position was that it had provided sufficient details in writing to allow theBoard to decide in its favour. [33] Secondly, the WSB must be taken to have been aware of the Board’s ability to decide cases without a hearing and of the needto therefore provide fulsome written submissions. As noted,

section 16.1 of the Code expressly provides the Board the authority todecide cases without hearing. In addition, sections 7 and 9 of the Canada Industrial Relations Board Regulations, 2012, SOR/2001-520contemplate that cases will be decided based on the materials filed unless the Board decides to order a hearing. [34] Further, by letter to the parties of October 9, 2015, the Board’s Regional Director (and Registrar) for the Western Regionconfirmed that the Board was empowered to rule on the application without a hearing based on the parties’ written submissions and thereport of the investigating officer.

In light of this, the Director cautioned that it was “in the parties’ best interests to file complete,accurate and detailed submissions in support of their respective positions” (Application Record, page 46). The WSB was therefore onnotice of the need to fully outline all aspects of its case, including the reasons why it was requesting an oral hearing. [35] Third, the WSB was afforded the opportunity to put forward as much evidence as it wished in writing and filed two sets ofwritten submissions, in which it detailed its position.

It was therefore not denied the opportunity to put a case forward in writing. [36] Finally, the Board accepted the veracity of the matters in respect of which the WSB stated that it wished to call oral historytestimony and, in particular, accepted that the constitutional interests of the WSÁNEĆ First Nations included the importance ofpreserving their language and culture in accordance with their own teachings. [37] In light of the foregoing factors, the determination of the Board to proceed without a hearing cannot be said to have violatedthe WSB’s rights to procedural fairness. C.

Was the Decision on the Merits Reasonable? [38] Turning to the merits of the Board’s decision, in my view, it cannot be said to be unreasonable as the Board followed andapplied its existing case law and made reasonable factual conclusions based on the evidence before it. [39] In declining to fracture an existing all-employee bargaining unit, the CIRB followed a long and well-established line ofauthority in which it has held that larger units are preferable to smaller ones and should not be fractured in the absence of compellingreasons: see, for example, Trade of Locomotive Engineers v.

Canadian Pacific Ltd., [1976] 1 Can. L.R.B.R. 361 at paras. 57-60, 76C.L.L.C. 16, 018; Canadian Aircraft Maintenance Assn. v. Air Canada, 2005 CIRB 341 at paras. 46-47, 128 C.L.R.B.R. (2d) 157;Syndicat des employé-es de TV5 - CSN v. Consortium de télévision Québec Canada Inc., [2003] C.I.R.B. No. 235 at paras. 30-32,105 C.L.R.B.R. (2d) 109; I.U.O.E., Local 904 v. Oceanex

(1997) Inc., 2000 CIRB 83 at para. 39, [2000] C.I.R.B.D. No. 37. [40] The CIRB applied these principles in a reasonable fashion as the Board’s conclusion that the WSB had not offered compellingreasons for the exclusion of the SENĆOŦEN employees was well-supported by the evidence.

Given that the WSB had previouslysucceeded in negotiating special provisions in the collective agreement to address the cultural needs of the WSÁNEĆ First Nations, itwas open to the Board to conclude that further flexibility could have been obtained in respect of the SENĆOŦEN employees, particularlyin circumstances where the WSB had not even tried to bargain about obtaining such flexibility. [41] In many ways, the WSB’s application to the Board was premature as the WSB simply had no way of knowing whether or notthe BCGSEU would have acceded to the terms and conditions the WSB wished to have applied to the SENĆOŦEN employees.

Concernsabout an eventual strike were also premature and theoretical in the absence of any evidence that a strike was likely. Further, it might wellhave been possible for the parties to have agreed to settle collective bargaining disputes other than by way of a strike, as is contemplatedby

section 79 of the Code. [42] In the absence of evidence that the WSÁNEĆ First Nations would actually have lost control over the way in which theSENĆOŦEN employees performed their duties, it was not unreasonable for the Board to have concluded that the balancing exercise itwas required to conduct needed to weigh in favour of maintaining the all-employee bargaining unit. I therefore believe that the CIRB’sreasoning and result are reasonable and, consequently, that there is no basis to interfere with its decision. IV.

Proposed Disposition [43] In light of the foregoing, I would dismiss this application for judicial review. While costs would normally follow the event,both parties submitted that no costs award should be made against it in the event it were unsuccessful. In light of the nature of the issues,I agree that no costs award should be made.

“Mary J.L. Gleason” J.A. “I agree. J.D. Denis Pelletier J.A.” “I agree. Richard Boivin J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-417-16 STYLE OF CAUSE: W SÁNEĆ SCHOOL BOARD v. B.C. GOVERNMENT AND SERVICE EMPLOYEES’ UNION PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: September 13, 2017 REASONS FOR JUDGMENT BY: GLEASON J.A. CONCURRED IN BY: PELLETIER J.A. BOIVIN J.A. DATED: OCTOBER 24, 2017 APPEARANCES : Robin J.

Gage For The Applicant Jitesh Mistry Rebecca Kantwerg For The Respondents SOLICITORS OF RECORD : Underhill, Boies Parker, Gage & Latimer LLP Victoria, British Columbia For The Applicant B.C. Government and Service Employees’ Union Burnaby, British Columbia For The Respondents