Coates v. Nova Scotia (Labour Board), 2013 NSCA 52

NOVA SCOTIA COURT OF APPEAL Citation: Coates v. Nova Scotia (Labour Board) , 2013 NSCA 52 Date: 20130501 Docket: CA 407885 Registry: Halifax Between: Rosanne Coates Appellant v. Brian Sharp (Review Officer of Nova Scotia Labour Board), Nova Scotia Labour Board, and Nova Scotia Government and General Employees Union Respondents Judge: The Honourable Justice Joel E. Fichaud Appeal Heard: March 28, 2013, in Halifax, Nova Scotia Subject: Labour law - Trade Union Act - exhaustion of internal union appeal before complaints to Labour Board

Summary: Ms. Coates was dismissed from her position as a nurse. Her union filed a grievance and initiated an arbitration, but discontinued the arbitration because of what the Union described as Ms. Coates ’ uncooperative attitude. Ms. Coates filed complaints with the Labour Board that the Union had violated its duty of fair representation under s. 54A(3) and committed an unfair labour practice under s. 54 (

g) of the Trade Union Act . The Board ’ s Review Officer dismissed the duty of fair representation complaint under s. 56A(4), because Ms. Coates had not exhausted her internal union appeal, as required by s. 55(3). The Labour Board then dismissed the unfair practice complaint, as being duplicative of the dismissed duty of fair representation complaint. Ms. Coates applied to the Supreme Court of Nova Scotia for judicial review. The judge dismissed her application, and upheld the dismissals of her complaints by the Review Officer and Labour Board. Ms. Coates appealed to the Court of Appeal.

Issue: Did the reviewing judge err in his selection and application of the standard of review? Result: The Court of Appeal dismissed the appeal. The reviewing judge correctly applied the reasonableness standard of review to the decisions of the Review Officer and Labour Board. Section 55(3) of the Trade Union Act said that “ no complaint shall be made to the Board ” if there exists an internal union appeal procedure that is readily accessible. The Union had notified Ms. Coates of the internal appeal process. Ms. Coates had initially appealed under that process, but then unequivocally withdrew that appeal.

The decisions of the Review Officer and Labour Board were intelligible. Their findings based on evidence. Their conclusions were

appropriate

interpretations drawn from the provisions of the Trade Union Act . Their dismissals of Ms. Coates ’ complaints were reasonable under the standard of review. This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 24 pages. NOVA SCOTIA COURT OF APPEAL Citation: Coates v. Nova Scotia (Labour Board) , 2013 NSCA 52 Date: 20130501 Docket: CA 407885 Registry: Halifax Between: Rosanne Coates Appellant v. Brian Sharp (Review Officer of Nova Scotia Labour Board), Nova Scotia Labour Board, and

Nova Scotia Government and General Employees Union Respondents Judges: Fichaud, Beveridge and Farrar, JJ.A. Appeal Heard: March 28, 2013, in Halifax, Nova Scotia Held: Appeal dismissed without costs, per reasons for judgment of Fichaud, J.A.; Beveridge and Farrar, JJ.A. concurring Counsel: Rosanne Coates, Appellant in Person Raymond Larkin, Q.C., for the Respondent Nova Scotia Government and General Employees Union Edward A.Gores, Q.C., for the Respondent Brian Sharp and the Nova Scotia Labour Board, not appearing Reasons for judgment : [ 1 ] The Capital District Health Authority dismissed Ms.

Coates from her employment as a nurse. Her union filed a grievance and referred the matter to arbitration. After the arbitration hearing had begun, the Union discontinued the arbitration because of what the Union described as Ms. Coates’ uncooperative attitude. Ms. Coates filed complaints with the Nova Scotia Labour Board that the Union had breached its statutory duty of fair representation and had committed an unfair practice under the Trade Union Act . The Labour Board’s Review Officer dismissed the duty of fair representation complaint, without a hearing before the Labour Board, because Ms.

Coates had not exhausted her internal union appeal process against the discontinuance of the arbitration. The Labour Board then dismissed her unfair practice complaint, as being a reiteration of the dismissed duty of fair representation complaint. [ 2 ] Ms. Coates sought judicial review of the dismissals of her complaints. The Supreme Court of Nova Scotia held that the decisions of the Review Officer and Labour Board satisfied the reasonableness standard, and dismissed her motion for judicial review. Ms. Coates appeals. Background [ 3 ] Ms.

Coates is a registered nurse, and was employed by the Capital District Health Authority (“Health Authority”). She was in a bargaining unit represented by the Nova Scotia Government and General Employees Union (“NSGEU”) and was subject to a collective agreement. [ 4 ] On July 23, 2009, the Health Authority terminated her employment. The NSGEU grieved, then took her unresolved grievance to arbitration. The arbitration hearing began in July 2010. [ 5 ] Before the hearing concluded, the NSGEU withdrew the grievance. The NSGEU explained its reason

in a letter of December 30, 2010 to Ms. Coates: I write to advise you that, subject to your right to appeal to the Grievance Appeal Committee, the Union will not continue the arbitration of your present termination grievance. As a result of your continuing mistrustful, uncooperative, accusatory, and antagonistic behavior toward the Union and, most recently, your allegations against its counsel, the Union is unable to continue to represent you in your termination arbitration hearing.

Moreover, even if the hearing continued, it is unlikely that you would be successful because of your antagonistic and uncooperative attitude toward the employer. Your lack of cooperation with, and antagonistic attitude toward, the Union also render it unable to represent you in your other grievances as well. We are, therefore, advising you that the Union is withdrawing the above-noted grievances.

The decision not to proceed further with these grievances may be appealed by writing to the Grievance Appeal Committee within fifteen (15) calendar days of the date of this letter to the following address: ... [ 6 ] The appeal process, cited in the letter, refers to the NSGEU’s Policy Manual, Policy 6.4, that says: If the decision is made not to proceed to arbitration/adjudication, the member will be notified, in writing, of the reason(

s) why the union is not proceeding with the grievance by the Employee Relations Officer or Servicing Coordinator handling the grievance. The letter will include notice that the member will be given fifteen (15) calendar days to notify the Grievance Appeal Committee in c/o the NSGEU President’s Office of her/his wishes to appeal the decision of the union not to proceed. [ 7 ] On January 5, 2011, the NSGEU emailed Ms. Coates to remind her of the appeal process: We have not advised the Arbitrator in your case that we will not be proceeding; we have asked for an adjournment only.

Your file remains active and you remain a Union member until the Appeal process referred to in our December 30th correspondence has concluded. In other words, if you fail to appeal our decision not to proceed with your grievances within the 15 day calendar period, then your Union membership expires at that time. If you do appeal, you remain a member throughout the process and, thereafter depending upon the outcome of your appeal. [ 8 ] By a letter of January 9, 2011, within the fifteen days mentioned by Policy 6.4, Ms. Coates notified the NSGEU of her intention to appeal the NSGEU’s decision.

Her letter began: “Please accept the following as my formal appeal ...”. Her letter also disputed the characterizations of her behaviour and attitude in the NSGEU’s letter of December 30. [ 9 ] The next events in the chronology involved the following provisions of the Trade Union Act , R.S.N.S. 1989, c. 475 (“ Act ”): (

a) The Act , in s. 54A(3) [added by S.N.S. 2005, c. 61, s. 7 ], prescribes a statutory duty of fair representation, in the following terms: 54A(3) No trade union ... shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in a bargaining unit for which that trade union is the bargaining agent with respect to the employee’s rights under a collective agreement. (b) Section 55(1) says that, “[s]ubject to subsections (2) to (5)” of s. 55, an employee may file with the Labour Board a complaint that a Union has “failed to comply with

Section 53 or 54 [unfair labour practices] or subsection (3) of

Section 54A”. Subsections 55(3) (

a) and (

b) and 55(4)(a) - the provisions that are pivotal to Ms. Coates’ case - state:

55(3) Subject to subsection (4), no complaint shall be made to the Board under subsection (1) or under subsection (3) of

Section 54A on the ground that a trade union or any person acting on behalf of a trade union has failed to comply with clause (

f) or (

g) of

Section 54 or subsection (3) of

Section 54A unless (

a) the complainant has presented a grievance or appeal in accordance with any procedure (

i) that has been established by the trade union, and (ii) to which the complainant has been given ready access; (

b) the trade union (

i) has dealt with the grievance or appeal of the complainant in a manner unsatisfactory to him, or (ii) has not, within six months from the date on which the complainant first presented his grievance or appeal pursuant to clause (a), dealt with his grievance or appeal; ... 55(4) The Board may, on application to it by a complainant, hear a complaint in respect of an alleged failure by a trade union to comply with clause (

f) or (

g) of

Section 54 that has not been presented as a grievance or appeal to the trade union, if the Board is satisfied that (

a) the action or circumstance giving rise to the complaint is such that the complaint should be dealt with without delay; ... (

c) Subsections 54(

f) and (g), cited in ss. 55(3) and 55(4), are under the heading “Unfair Practices” and provide: 54 No trade union and no person acting on behalf of a trade union shall ... (

f) expel or suspend an employee from membership in the trade union or deny membership in the trade union to any person by applying to him in a discriminatory manner the membership rules of the trade union; (

g) take disciplinary action against or impose any form of penalty on an employee by applying to him in a discriminatory manner the standards of discipline of the trade union; [ 10 ] On January 10, 2011, Ms. Coates filed with the Labour Board a complaint that the NSGEU had breached its duty of fair representation under s. 54A(3) (“DFR Complaint”). The DFR Complaint form asked “What internal union appeals have taken place?”, to which Ms. Coates wrote in the margin “No appeal since I know it will be rejected!” [ 11 ] Also on January 10, 2011, Ms. Coates filed with the Labour Board an addendum to her DFR Complaint.

This letter referred to s. 55(3) , then said: The Board may, on application to it by a complainant, hear a complaint in respect of an alleged failure by a trade union to comply with

clause (

f) or (

g) of

Section 54 that has not been presented as a grievance or appeal to the trade union, if the Board is satisfied that (

a) the action or circumstance giving rise to the complaint is such that the complaint should be dealt with without delay; or (b) ... the trade union has not given the complainant ready access to a girevance or appeal procedure. Under the present circumstance of an aborted arbitration process that I submit was done in violation of s. 54A(3) serving to further delay and thwart my ability to become employed and earn a viable living consistent with my nursing practice and wages earned prior to an unjust termination by the employer on July 23 rd , 2009, I appeal to the Board to have my s. 54A(3) DFR complaint considered and processed pursuant to s. 55(4)(

a) of the Act without delay. [ 12 ] On January 13, 2011, a Program Officer with the Labour Board wrote to Ms. Coates: In follow-up to our phone conversation on January 11, 2011, it is my understanding that you have appealed the union’s decision to not continue with your grievance. The Board will hold your Duty of Fair Representation complaint in abeyance until that appeal process has concluded. ... [ 13 ] On January 20, 2011, Ms.

Coates wrote to the NSGEU, stating: ...this is to advise that I will not be proceeding with an Appeal [concerning the Union’s withdraw [ sic ] of my grievances and termination of the arbitration process dated December 30 th , 2011] via the NSGEU Appeal Process at this time. With this, I wish to make a request that my Appeal be held in “abeyance” until I advise otherwise. [ 14 ] Also on January 20, Ms.

Coates wrote to the Arbitrator, copied to the NSGEU and to the Labour Board: Although I did file an internal appeal with the NSGEU, I will be withdrawing and aborting this process opting to exercise my legal rights pursuant to s. 55(4) of the Act and proceed with my s. 54A(3) DFR complaint based on the fact that I believe I have strong sufficient grounds pursuant to s. 55(4)(a). [ 15 ] On January 24, 2011, Ms. Coates wrote to the Board’s Program Officer. The letter explained why, in Ms. Coates’ view, the Board should proceed under s. 55(4)(

a) without the need for Ms. Coates to exhaust her internal union appeal. [ 16 ] On January 27, 2011, the Board’s Program Officer replied to Ms. Coates: ... You indicate in your letter that you are seeking an expedited Labour Relations Board hearing under the provisions of s. 55(4) of the Trade Union Act . To do that, you will need to file a complaint pursuant to s. 54 of the Act. ... Subsection 55(4) of the Trade Union Act gives the Board discretion to hold expedited hearings of complaints filed pursuant to s. 54(

f) and 54(g). You should be aware that s. 55(3) (

a) requires complainants under either s. 54 or 54A(3) to have presented appeals to any union appeal process to which they “have been given ready access”. You should also be aware that complainants must satisfy the Board that they have not been “given ready access to a grievance or appeal procedure” before the Board may exercise its discretion to hold an expedited hearing under s. 55(4). Evidence that you have been given access to a union appeal process, but have not exhausted the process, could have significant implications for both:

• your compliance with the conditions s. 55(3) establishes for filing complaints under s. 54 and s. 54A(3); and • your ability to persuade the Board to grant you an expedited hearing under s. 55(4) . You may wish to seek independent legal advice regarding your obligations as a complainant under the Act, and your legal rights generally. [ 17 ] On January 28, 2011 the NSGEU replied to Ms. Coates’ letter of January 20 to the NSGEU. The NSGEU denied Ms. Coates’ request to hold her internal appeal, under Policy 6.4, in abeyance. [ 18 ] Ms.

Coates responded to the NSGEU with a letter of February 3, 2011: So, with the above. No, I will not be participating in any appeal. I will not lower myself by becoming a subject of a process that is intended for no other purpose but to further harass and use me to serve the needs and interest of the Union, the employer, and their associates. [ 19 ] At the hearing in this Court, Ms. Coates acknowledged that, with her letter of February 3, her internal appeal under NSGEU Policy 6.4 was withdrawn, and not merely in abeyance. [ 20 ] The Board’s Review Officer then considered Ms. Coates DFR Complaint.

The Act ’s provisions, pertinent to the powers of the Review Officer and Board, include: Settlement or hearing of complaint required 56(1) Subject to subsection (2), upon receipt of a complaint made under

Section 55 the Board (

a) may assist the parties to the complaint to settle the complaint; and (

b) where the Board does not act under clause (

a) or the complaint is not settled within such period as the Board considers to be reasonable in the circumstances, shall hear and determine the complaint.

(2) The Board may refuse to hear and determine any complaint made pursuant to

Section 55 in respect of a matter that, in the opinion of the Board, could be referred by the complainant pursuant to a collective agreement to an arbitrator or arbitration board. ...

(4) The Board may refuse to hear and determine any complaint made pursuant to

Section 55 in respect of an alleged failure by a trade union or a person acting on behalf of a trade union to comply with

Section 54A if the Board considers the complaint to be frivolous, vexatious or otherwise not worthy of a hearing. Review officer

56A(1) Where the Board receives a written complaint that a trade union or a person acting on behalf of a trade union has contravened subsection (3) of

Section 54A, the Board shall appoint an employee within the Department of Environment and Labour, or a person appointed by the Minister, as a review officer to review the complaint to determine whether there is sufficient evidence of a breach of the duty of fair representation.

(2) Where a review officer appointed pursuant to subsection (1) is not satisfied on initial review that there is sufficient evidence of a failure to comply with subsection (3) of

Section 54A, the review officer shall dismiss the complaint.

(3) Where a review officer decides not to dismiss the complaint pursuant to subsection (2), the review officer shall serve notice of the complaint on the trade union against which the complaint is made and request a response from the trade union.

(4) Where a review officer has received a response from a trade union to a request made pursuant to subsection (3) and is not satisfied that there is sufficient evidence of a failure to comply with subsection (3) of

Section 54A, the review officer shall dismiss the complaint.

(5) Where a review officer has received a response from a trade union to a request made pursuant to subsection (3) or the trade union has failed to respond to the request within such period of time as the review officer considers necessary, and where the review officer believes that there has been a failure to comply with subsection (3) of

Section 54A, the review officer shall (

a) effect a settlement, if possible; or (

b) where not possible, refer the complaint to the Board for disposition.

(6) A review officer appointed pursuant to subsection (1) has the power to order the parties to produce any documents or other things that the review officer considers necessary for the full review of the complaint without holding a hearing.

(7) A decision of a review officer under this

Section is final and conclusive and not open to question or review. [ 21 ] On February 21, 2011, the Review Officer, Mr. Brian Sharp, wrote to the NSGEU, copied to Ms. Coates: As required by s. 56A(1) of the Act , I have reviewed Ms. Coates’ complaint, and concluded that it should not be dismissed, at this time. I am therefore enclosing your formal Notice of Complaint (Form DFR-24), and asking you to respond to it in writing. ...

This enclosure of the Notice of Complaint to the NSGEU, and request for a reply was further to s. 56A(3) of the Act . [ 22 ] The NSGEU filed a response on March 31, 2011, then an amended response on May 5, 2011. [ 23 ] Ms. Coates’ Rebuttal of May 31, 2011 included: 179. Being that the complainant firmly submits that the appeal process was intended for the purpose to further harass, bully, and coerce her into abandoning her legal processes, she unequivocally declined in participating in any Union Appeal process stated in the last paragraph of page two (2) of hers dated February 3rd, 2011 stating “No.

I will not be participating in any appeal” and again in hers dated February 10th , 2011 in the second last paragraph on page four (4) stating “... I am not participating in any process with the NSGEU that has no merit or legal justification”. ... [ 24 ] On October 26, 2011, the Review Officer, Mr. Sharp, issued a written decision that dismissed Ms. Coates’ DFR complaint. His reason was that Ms. Coates had contravened s. 55(3) (

a) by failing to exhaust the NSGEU’s internal appeal process. The Review

Officer’s decision included: This review has been conducted pursuant to s. 56A(4) of the Trade Union Act ... ... in my opinion, the issues raised before me are: 1. Does the Act permit the Board to take jurisdiction over this complaint? 2. If the answer to Issue 1 is “yes ”, is the evidence on file in this complaint sufficient to satisfy me that the Board could conclude that the Respondents may have failed to comply with s. 54A(3) of the Trade Union Act ? ANALYSIS: 1. Does the Act permit the Board to take jurisdiction over this complaint? ... I have concluded that the Review Officer ought to consider compliance with s. 55(3) (

a) in the course of the complaint review required by s. 56A(1) of the Act . In this situation, I have concluded that there is insufficient evidence to permit a finding that the Complainant complied with s. 55(3) (

a) before she filed her complaint. Since there is insufficient evidence to establish that she filed her complaint in compliance with s. 55(3) (a), I am not satisfied that there is sufficient evidence to permit the Board to find that s. 54A(3) has been breached. ...

I have concluded that the Legislature’s purposes in enacting the Nova Scotian DFR legislative scheme were to: • include a formal screening procedure within the DFR adjudicative scheme; • give the Review Officer sole and final jurisdiction over that screening procedure; • ensure that the Board only adjudicates complaints raising a satisfactorily supported, arguable case that the DFR may have been breached; while • minimizing the disruption DFR complaints can cause within workplaces and bargain [ sic ] units. Given those purposes, I am satisfied that the Review Officer has jurisdiction to apply s. 55(3) (

a) in the course of reviewing complaints. ... ... By reviewing compliance with s. 55(3)(a), the Review Officer screens out complaints that the Board need not determine on the

... By reviewing compliance with s. 55(3)(a), the Review Officer screens out complaints that the Board need not determine on the merits. If there is insufficient evidence to raise a possibility that a complainant has complied with s. 55(3)(a), there is also insufficient evidence to raise a possibility place that the Board could find that s. 54A(3) has been breached. ... Since the evidence reflects that the Complaint did not present an appeal to the Union’s Grievance Appeal Committee, I am not satisfied that there is sufficient evidence to establish that she complied with s. 55(3)(

a) of the Act . Since the Complainant did not comply with s. 55(3)(

a) of the Act , I am not satisfied that there is sufficient evidence to permit the Board to find a DFR complaint in her favour. Complainants must comply with s. 55(3)(

a) to file complaints alleging breach of s. 54A(3) . ... CONCLUSION: The Complainant’s complaint is dismissed. I am not satisfied that there is sufficient evidence before me to establish that the Complainant has made a valid complaint that the Respondents may have breached s. 54A(3) of the Act . [ 25 ] The above chronology discusses Ms. Coates’ DFR Complaint. Ms. Coates also filed with the Board a concurrent complaint of an unfair labour practice by the NSGEU. [ 26 ] As noted earlier (para 16), on January 27, 2011, the Board’s Program Officer informed Ms. Coates that, if Ms.

Coates intended to seek an expedited hearing under s. 55(4), then Ms. Coates would need to file a complaint of an unfair labour practice under s. 54. [ 27 ] Accordingly, on February 11, 2011, Ms. Coates filed with the Board a formal Complaint of Unfair Labour Practice (“ULP Complaint”). The ULP Complaint alleged that the NSGEU violated s. 54(

g) of the Act [quoted above, para 9(c)], by taking a discriminatory disciplinary action against her. The ULP Complaint said: 1. ...

It is my contention that the adjournment of scheduled January hearings (without reason) and the reasons provided for in the termination of my arbitration process meets the definition of “disciplinary” and “discriminatory” of a retaliatory nature on part of the Union punishing me for my refusal submit to acts of coercion and intimidations to agree to terms that serve the needs and interest of the Union, employer, and third party associates, ... [ 28 ] The Board’s vice chair held a telephone conference with the NSGEU’s counsel and Ms.

Coates, respecting the ULP Complaint, then issued a written Procedural Ruling (LB-0004, 2011 NSLB 49 ) dated May 11, 2011. The Ruling adjourned the ULP Complaint without day, pending the Review Officer’s ruling on Ms. Coates’ DFR Complaint. The Board’s Procedural Ruling said: 10 ... the Review Officer of the Board appears to have the matter well in hand. The DFR Complaint was not dismissed at the initial stage. A stage two response from the Respondent Union has been received and forwarded for reply to the Complainant.

In this very real sense, the Complainant is already being “dealt with without delay” by the Board through its appropriate statutory channels. There is nothing to be gained, and much to be risked in policy terms, in acceding to the Complainant’s request for a hearing in the ULP Complaint at this time. The Board is not satisfied that it should exercise its discretion under section 55(4)(a), because we do not believe that the factual preconditions for its use have been met. 11 The Respondent Union requested that the Board dismiss the ULP Complaint without a hearing. This, however, we are not prepared to do.

Depending upon facts which might emerge from the findings of the DFR process, it is possible that the Complainant might meet an evidential burden concerning “constructive discipline” or “constructive denial of access” to the Respondent Union’s appeal process. Were this to be the case, it might be appropriate to revive the ULP Complaint, in a joint hearing with the DFR matter, were the latter to be referred to the Board by the Review Officer. All of this is entirely speculative at this point and would be subject to argument were

these possibilities to arise in fact. However, an adjournment without day on the ULP Complaint, pending the outcome of the DFR Complaint, would preserve any remedies which she might have under the ULP Complaint, if any, at that later point in time. It also meets the Respondent Union’s interest in not having to deal simultaneously with two overlapping, if not identical, proceedings which, quite rightly, it characterizes as unnecessary and vexatious. The Board therefore orders the matter be adjourned sine die . [ 29 ] As noted earlier, on October 26, 2011, the Board’s Review Officer dismissed Ms.

Coates’ DFR Complaint. On November 14, 2011, the Board’s Chief Executive Officer asked Ms. Coates to advise of her intentions with the ULP Complaint. On November 28, 2011, Ms. Coates replied with a letter to the Board, stating: ... I regret to inform the Board that I have no confidence in any fair or impartial review or processing of my ULP complaint. ...

Please be advised and consider this formal notice in withdraw [ sic ] of my (ULP) LB File No.# 0004 from review or processing by NS Labour Relations Board (LRB) relevant to my claims of “Unfair Labour Practices” (ULP) and “Duty of Fair Representation” (DFR) violations on part of the NSGEU and “ULP” on part of former employer, Capital District Health Authority (CDHA). ... [ 30 ] On November 29, 2011, the NSGEU’s counsel wrote to the Board and to Ms. Coates, and requested that the Board dismiss the ULP Complaint, instead of allowing Ms.

Coates to withdraw it. [ 31 ] On December 7, 2011, the Board issued a decision (LB-0004, 2011 NSLB 144 ) that dismissed Ms. Coates’ ULP Complaint. The Board’s Decision said: 4. The Board’s published policy on “Withdrawal/Dismissal Orders” is as follows: ... II. When all Applicants or Complainants request permission to withdraw an application or complaint, prior to the matter having been set down for hearing, normally the Board or Panel shall give its consent; ... IV.

Notwithstanding paragraphs I and II, the Board or the Panel may reject a request to withdraw and insist upon dismissal if in its opinion special circumstances merit such an approach; and V. Where a party to an Application or Complaint seeks to assert special circumstances in requesting that the Board or Panel derogate from the general rules in paragraphs I, II and III, that party shall bear the burden of persuasion in the matter. ... 5. The Board has concluded that there are special circumstances in this case which warrant a dismissal rather than merely allowing for a withdrawal of the ULP Complaint.

The Preliminary Ruling allowed for an adjournment based on the possibility that the DFR process would unearth evidence on “constructive discipline” or a “constructive denial of access” by the Respondent Union to the detriment of the Complaint. No such evidence emerged. Revival of the ULP is simply not warranted. The findings of the Review Officer cover the same ground which would have to be covered in the ULP Complaint were it to go forward. The Union’s arguments on the unnecessary and vexatious nature of the ULP Complaint thus remain highly plausible.

The Union has thus met the burden of persuasion which allows the Board to conclude that this is an appropriate case to exercise its discretion to dismiss the Complaint rather than merely to allow it to be withdrawn. The ULP Complaint is hereby dismissed.

[32] The Policy cited in the Ruling is Labour Board Policy 1.6, “Policy Statement on Withdrawal/Dismissal Orders”, (016-006-00). [33] Ms. Coates applied to the Supreme Court of Nova Scotia for judicial review of both the Review Officer’s dismissal of herDFR Complaint and the Labour Board’s dismissal of her ULP Complaint. Justice Moir heard the matter on July 24, 2012. He issued awritten decision on August 20, 2012 (2012 NSSC 311) that dismissed Ms. Coates’ applications. The judge applied a reasonablenessstandard of review, and concluded that the decisions of the Review Officer and the Board were reasonable.

The judge’s reasonsincluded: [13] Ms. Coates is hostile toward the suggestion of an internal appeal. ... To this day, Ms. Coates has difficulty seeing that an internalappeal would have had at least one merit. It would have satisfied a condition that stood in the way of her complaint. [34] Ms. Coates appeals to the Court of Appeal. Issues [35] Ms. Coates initially moved to add fresh evidence.

At the hearing in this Court she withdrew that motion. [36] The issues are whether the judge erred in his selection or application of the standard of review to the decisions of the ReviewOfficer, for the DFR Complaint, or the Board, for the ULP Complaint. Standard of Review [37] The reviewing judge must be correct on issues of law, that include the selection and application of his standard of review tothe decision of the administrative tribunal: Dr. Q v.

College of Physicians and Surgeons of British Columbia, 2003 SCC 19 ,[2003] 1 S.C.R. 226, paras 43-44. [38] It is established that the standard of review by a judge to a Labour Board decision, that applied the Trade Union Act, isreasonableness: Casino (Nova Scotia) v. Nova Scotia (Labour Relations Board), 2009 NSCA 4, paras 26-28, and authorities there cited;Cape Breton Island Building & Construction Trades Council v.

Nova Scotia Power Inc., 2012 NSCA 111, para 36. [39] Before this case, there has been no decision of a Nova Scotia court that conducted a standard of review analysis to a decisionof a Review Officer under the recently enacted s. 56A of the Trade Union Act. So a standard of review analysis is appropriate: Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, paras 54, 57, 62. [40] Justice Moir (paras 24-49) examined Dunsmuir’s factors and concluded that the Review Officer’s decision was entitled todeference, meaning a reasonableness standard of review.

I adopt the judge’s analysis of the factors, and note particularly s. 56A(7) ofthe Trade Union Act: A decision of a review officer under this

Section is final and conclusive and not open to question or review. [41] There is one point that merits particular attention. The Review Officer’s decision said that “the Review Officer hasjurisdiction to apply s. 55(3)(

a) in the course of reviewing complaints”. He considered s. 55(3)(

a) under the heading “Does the Actpermit the Board to take jurisdiction over this complaint?”, and concluded “The Board has no ability to take jurisdiction over hercomplaint.” Dunsmuir, (paras 29-31, 52, 57, 59) discusses jurisdictional error and states that “true” questions of jurisdiction are reviewed

for correctness. See also the discussion in Canadian Union of Public Employees, Local 2434 v. Port Hawksbury (Town), 2011 NSCA28, paras 25-45, and Canadian Union of Public Employees, Local 108 v. Halifax (Regional Municipality), 2011 NSCA 41, paras 22-25. The Review Officer’s express references to the “jurisdictional” nature of his ruling pose the question whether his decision is “trulyjurisdictional” under Dunsmuir and therefore attracts a correctness standard of review. [42] In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 , [2011] 3S.C.R. 654, Justice Rothstein for the plurality addressed whether a tribunal’s

interpretation of its home statute was “truly jurisdictional”for standard of review analysis: [33] ... Experience has shown that the category of true questions of jurisdiction is narrow indeed. ... [34] The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance whenthe tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the

interpretation of its home statuteinvolves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However,since Dunsmuir, this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that thetime has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessaryto identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in thesereasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the

interpretation by thetribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should bepresumed to be a question of statutory

interpretation subject to deference on judicial review. ... [38] These examples demonstrate that the “true questions of jurisdiction” category has caused confusion to counsel and judges alike andhas unnecessarily increased costs to clients before getting to the actual substance of the case. ... [39] What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly fromAlliance [Smith v. Alliance Pipeline Ltd., 2011 SCC 7 , [2011] 1 S.C.R. 160] (para 26). True questions of jurisdiction are narrowand will be exceptional.

When considering a decision of an administrative tribunal interpreting or applying its home statute, it should bepresumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, theparty seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s

interpretation of its home statuteon the deferential standard of reasonableness. Justice Binnie, with whom Justice Deschamps concurred, and Justice Cromwell preferred different approaches. But Justice Rothstein’sdecision represented the view of six justices, and binds this court. [43] The Review Officer interpreted ss. 55(3) and 56A of his home statute. The reasons for judicial deference exist for his rulingon the preliminary issue, just as they would for the Review Officer’s

interpretation of another provision in the Trade Union Act furtheralong in his analysis. In Dunsmuir (para 59) and Alberta Teachers’ Association, the Supreme Court of Canada rejected decisionaljurisdiction - i.e. the notion that a judicially perceived “incorrect” ruling early in the chain of reasoning necessarily deprives the tribunalof “jurisdiction” to move to the next analytical link. [44] The Review Officer’s use of the word “jurisdiction” is not determinative.

The issue here is whether the matter is “trulyjurisdictional” under the Supreme Court of Canada’s jurisprudence for a court’s standard of review analysis, not whether the ReviewOfficer thought it was jurisdictional. By analogy, despite that labour arbitrators treat arbitrability as jurisdictional, issues of arbitrabilitythat turn on

interpretation of the collective agreement are reviewed by the courts for reasonableness: see Canadian Union of PublicEmployees, Local 108 v. Halifax, paras 24-25 and authorities there cited. [45] There is nothing exceptional, as Justice Rothstein required in Alberta Teachers’ Association, to justify a correctness standard.

I agree with Justice Moir in the decision under appeal: [47] In my view the question is a straight one of law. It is not a true question of jurisdiction. ... [48] We have here a question of statutory

interpretation about the home statute of the regime of which the review officer is an integralpart. An administrative decision that determines such a question usually deserves deference: [citing Alberta Teachers’ Association] [46] In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 ,[2011] 3 S.C.R. 708, paras 11, 14-17, Justice Abella for the Court discussed the meaning of “reasonableness” (quoted below, para 57). In Jivalian v.

Nova Scotia (Community Services), 2013 NSCA 2, para 15, this Court recently summarized those principles: Reasonableness is neither mechanical acclamation of the tribunal’s conclusion nor a euphemism for the court to impose its own view. Rather the reviewing court shows respect for the Legislature’s choice of a decision maker, by analysing that tribunal’s reasons todetermine whether the result, factually and legally, occupies the range of possible outcomes. [citing Newfoundland and LabradorNurses’ Union]. The Review Officer’s DFR Decision [47] The Review Officer’s reasons clearly state his reasoning path.

He found as a fact that Ms. Coates had ready access to aninternal union appeal, and did not utilize it. He interpreted s. 55(3) to mean that, in those circumstances, Ms. Coates could not take hercomplaint to the Board. The Review Officer interpreted his mandate under s. 56A as screening out complaints where there wasinsufficient evidence to support an arguable case to the Board. This function, in his view, included screening out complaints where therewas insufficient evidence that the complainant had satisfied s. 55(3) by exhausting the internal union appeal process.

The ReviewOfficer’s reasoning is intelligible, and I have no difficulty understanding it. [48] Each component of the Review Officer’s reasoning occupies the range of permissible outcomes, factually and legally. [49] There was clear evidence that Ms. Coates had ready access to the NSGEU’s internal appeal process, and that, after initiallyfiling an appeal, she had unequivocally withdrawn her appeal. That evidence is quoted earlier in these reasons (paras 10, 13-14, 18-19,23). [50] The Review Officer’s

interpretation of s. 55(3) is reasonable. That provision bluntly says that, in the circumstances of thiscase, “no complaint shall be made to the Board”. [51] This leaves the Review Officer’s

interpretation of the scope of his power to dismiss. The Trade Union Act does not explicitlyassign the assessment of non-compliance with s. 55(3) to either the Board proper or the Review Officer. So that assessment must be anecessarily incidental function. Clearly it would be incidental to the Board’s general power to dismiss under s. 56 (above para 20). Butis it also necessarily incidental to the Review Officer’s authority? [52]

Section 56A(4) says that if there is insufficient evidence of “a failure to comply with subsection (3) of

Section 54A” theReview Officer “shall dismiss the complaint”. The Review Officer interpreted his mandate from s. 56A as meaning he is to “ensure thatthe Board only adjudicates complaints raising a satisfactorily supported, arguable case that the DFR may have been breached”. In hisview, this means the Review Officer should screen out a complaint in circumstances where s. 55(3) states “no complaint shall be made tothe Board”. The alternative would have the Review Officer decide that a complaint which by law could not be made to the Board shouldnonetheless proceed to the Board ostensibly for a hearing on the merits, only to have the Board then abort that hearing because the

complaint could not have been made in the first place. In the Review Officer’s view, which makes sense to me, such a disoriented process would thwart the simplifying purpose of s. 56A ’s screening function. [ 53 ]

Section 56A(4) entitles the Review Officer to decide whether there is “sufficient evidence of a failure to comply with subsection (3) of

Section 54A”. The Review Officer interpreted s. 56A(4) as entitling him to consider whether there was “sufficient evidence” that a complainant had satisfied a condition precedent, expressed in s. 55(3), for making a complaint of failure to comply with s. 54A(3). In my view, the Review Officer’s view is a legally possible

interpretation of ss. 54A(3), 55(3) and 56A, and is reasonable under the standard of review. [ 54 ] In the Court of Appeal, Ms. Coates asked - If her complaint “could not be made” in the first place because of her failure to exhaust the internal union appeal, then why would the Review Officer not say so at the outset? Instead, the Review Officer wrote on February 21, 2011 “I have reviewed Ms.

Coates’ complaint, and concluded that it should not be dismissed, at this time” (above, para 21). [ 55 ] The answer is that the Review Officer could have dismissed her complaint on February 21, 2011, further to s. 56A(2) of the Act . But, once he decided to proceed, s. 56A(3) directed the Review Officer to request a formal response from the Union. He made that request in his letter of February 21. Then, by s. 56A(4) , after receiving the Union’s response, the Review Officer again may dismiss the complaint.

The Trade Union Act entitles the Review Officer either to dismiss after an initial review, or to keep his review alive until he reads the Union’s response, and then once more decide whether to dismiss. The latter occurred in Ms. Coates’ case. In perfect retrospect, a dismissal in February, 2011 may have been more economical. But there is nothing legally erroneous or judicially reviewable with the Review Officer’s chosen course. Further, it should be recalled that Ms.

Coates initially had filed an internal union appeal, then sought to hold it in “abeyance”, and eventually withdrew it outright (above, paras 10, 12-14, 17-18). The status of her internal appeal was in flux during the Review Officer’s initial review under ss. 56A(1) and (2). It was reasonable that the Review Officer wait for the dust to settle, and seek the Union’s response before issuing his decision. [ 56 ] Ms. Coates also submitted to the Court of Appeal that, as she sees it, the reviewing judge did not squarely address her arguments that the Review Officer had erred.

Rather, she said, any merits analysis was muffled by judicial deference. She characterized this outcome as a denial of procedural fairness. [ 57 ] With respect, there is no issue of procedural fairness. What Ms. Coates characterizes as diluted analysis is the effect of the reasonableness standard of review. A correctness standard would involve a strict analysis of the “merits”.

But, as Justice Abella said in Newfoundland and Labrador Nurses ’ Union , reasonableness means something different: [11] It is worth repeating the key passages in Dunsmuir that frame this analysis: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable , referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process . But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. . . .

What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their

interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference “is rooted in

part in respect for governmental decisions to create administrative bodies with delegated powers” . . . . We agree with David Dyzenhaus where he states that the concept of “deference as respect ” requires of the courts “not submission but a respectful

attention to the reasons offered or which could be offered in support of a decision” . . . . [Justice Abella’s emphasis; citations omitted;paras. 47-48.] ... [15] In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respectfor the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48).

This meansthat courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessingthe reasonableness of the outcome. [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judgewould have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.

Adecision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its finalconclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., (SCC),[1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made itsdecision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [17] The fact that there may be an alternative

interpretation of the agreement to that provided by the arbitrator does notinevitably lead to the conclusion that the arbitrator’s decision should be set aside if the decision itself is in the realm of reasonableoutcomes.

Reviewing judges should pay “respectful attention” to the decision-maker’s reasons, and be cautious about substituting theirown view of the proper outcome by designating certain omissions in the reasons to be fateful. [58] Justice Moir’s decision correctly applied the deferential approach of the reasonableness standard. [59] I would dismiss the appeal respecting the judicial review of the Review Officer’s dismissal of Ms. Coates’ DFR Complaint. The Board’s ULP Decision [60] After the Review Officer’s decision to dismiss the DFR Complaint, the Board’s Chief Executive Officer asked Ms.

Coates toadvise of her intention respecting the ULP Complaint. Ms. Coates replied with a letter of November 28, 2011 that formally withdrew herULP Complaint (quoted above, para 29). The NSGEU then asked the Board to dismiss the ULP Complaint. Ms. Coates objected to adismissal. The Board dismissed the ULP Complaint. [61] To frame the issue - the point before the Board was not whether Ms. Coates’ ULP Complaint should succeed, but whether theBoard should substitute a dismissal for a withdrawal. [62] The Board’s reasons (above, para 31) are clear and intelligible.

The Board followed its written “Policy Statement onWithdrawal/Dismissal Orders”, that a dismissal would be appropriate if the party requesting dismissal showed “special circumstances”. The Board found that the NSGEU had shown special circumstances in this case. Those were that: (1) the Board’s preliminary ruling ofMay 11, 2011 had contemplated that the ULP Complaint would proceed if the overlapping DFR Complaint process elicited evidence thatMs.

Coates had suffered “constructive discipline” or “constructive denial of access” to the NSGEU’s internal appeal process; and (2) theReview Officer’s decision that dismissed the DFR Complaint did not show that such evidence had been elicited. There is no ambiguityin the Board’s reasoning. [63] The Board’s conclusion is permissible, factually and legally. The record supports the Board’s findings of fact. Section 11(3)of the Labour Board Act, S.N.S. 2010, c. 37 says that “[t]he Board shall determine its own procedure”.

The Policy Statement onWithdrawal/Dismissal Orders exercised the Board’s discretion to establish its procedure, and prescribed a dismissal if the NSGEU

showed “special circumstances”. The Board’s decision in Ms. Coates’ case applied the standard from the Policy. Section 55(3) of the Trade Union Act provided that, subject to s. 55(4), “no complaint shall be made to the Board” respecting a violation of s. 54A(3) [duty of fair representation] and ss. 54(

f) and (g) [unfair labour practice] unless the complainant first followed the internal union appeal process. Ms. Coates had not done so. The Board was entitled to treat this as a “special circumstance” which linked the dismissal of the DFR Complaint to the fate of the mostly duplicative ULP Complaint. [ 64 ] The Board’s dismissal of the ULP Complaint was reasonable under the standard of review. The reviewing judge correctly dismissed Ms. Coates’ motion for judicial review.

Conclusion [ 65 ] I would dismiss the appeal, and affirm the dismissal of the motions for judicial review of the decisions of the Review Officer and the Labour Board. The NSGEU did not seek costs, and I would award none. Fichaud, J.A. Concurred: Beveridge, J.A. Farrar, J.A.