Labourers International Union of North America, Local 615 Appellant v. Grafton Developments Inc. Respondent v. Nova Scotia Labour Board, 2023 NSCA 25

Nova Scotia Court of Appeal Citation: Labourers International Union of North America, Local 615 v. Grafton Developments Inc. , 2023 NSCA 25 Date: 20230405 Docket: CA 517217 Registry: Halifax Between: Labourers International Union of North America, Local 615 Appellant v. Grafton Developments Inc. Respondent -and- Nova Scotia Labour Board Respondent Judge: The Honourable Justice Joel Fichaud Appeal Heard: March 8, 2023, in Halifax, Nova Scotia Subject: Judicial review of a Decision of the Labour Board

Summary: Local 615 of the Labourers International Union applied for certification for construction labourers employed by Grafton Developments Inc. After a hearing, the Labour Board determined that some cleaners were not performing labourers’ construction work and were not in the bargaining unit. Grafton sought judicial review. The judge of the Supreme Court of Nova Scotia held the Labour Board’s Decision offended the reasonableness standard of review. Local 615 appealed to the Court of Appeal. Issue: Did the Labour Board’s Decision offend the reasonableness standard of review?

Result: The Court of Appeal allowed the appeal and restored the Labour Board’s Decision. The Board’s reasons were rational, logical and internally consistent, its findings of fact were justified based on the evidence and its legal conclusions were consistent with the applicable principles. The Board’s reasons were responsive to the submissions. The Decision was transparent, intelligible and justified, and therefore was reasonable. 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 33 pages.

Nova Scotia Court of Appeal Citation: Labourers International Union of North America, Local 615 v. Grafton Developments Inc. , 2023 NSCA 25 Date: 20230405 Docket: CA 517217 Registry: Halifax Between: Labourers International Union of North America, Local 615 Appellant v. Grafton Developments Inc.

Respondent -and- Nova Scotia Labour Board Respondent Judges: Farrar, Fichaud and Bourgeois, JJ.A. Appeal Heard: March 8, 2023, in Halifax, Nova Scotia Held: Appeal allowed with costs per reasons for judgment of Fichaud J.A., Farrar and Bourgeois JJ.A. concurring Counsel: Jillian Houlihan and Bettina Quistgaard for the Appellant Bradley D.J. Proctor and Alex Warshick for the Respondent Grafton Developments Inc.

Edward Gores, K.C., and Terrilyn Kennedy, articled clerk, for the Respondent Nova Scotia Labour Board, appearing but not participating Reasons for judgment: [ 1 ] This case applies the reasonableness standard of review, as discussed in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, to the Labour Board’s determination of a bargaining unit in the construction industry. Local 615’s Application for Certification [ 2 ] The Respondent Grafton Developments Inc. (“Grafton”) develops properties.

In April 2021, Grafton was constructing two residential projects called The Jade and The Green Lantern. The buildings face each other across Barrington Street in Halifax. This proceeding focuses on The Jade. 3258146 Nova Scotia Limited (“Numbered Company”) owns The Jade. Grafton and the Numbered Company are controlled by the same family. [ 3 ] Work on The Jade began in 2017.

On May 7, 2021, The Jade received a partial occupancy permit for floors 6 to 15. [ 4 ] The Appellant Labourers International Union of North America, Local 615 represents labourers in the construction industry in Mainland Nova Scotia. [ 5 ] On April 23, 2021, Local 615 filed with the Nova Scotia Labour Board an application to be certified as the bargaining agent for all labourers employed by Grafton in the construction industry on Mainland Nova Scotia. The application was under

Part II of the Trade Union Act , R.S.N.S 1989, c. 475 .

Part II governs the construction industry. [ 6 ] Bargaining units in the construction industry are defined by the applicant union’s craft or trade. The reasons for this practice were discussed in Construction and Allied Union (CLAC), Local 154 v. Nova Scotia (Labour Relations Board, Construction Industry Panel) , 2002 NSCA 73 , at para. 4 and Labourers International Union of North America, Local 615 v.

CanMar Contracting Ltd. , 2016 NSCA 40 , paras. 81-86 , leave to appeal to the Supreme Court of Canada refused March 2, 2017, [2016] S.C.C.A. 358. [ 7 ] Local 615’s application defined the scope of the proposed bargaining unit as “work in the trade jurisdiction of the Labourers International Union of North America, Local 615”. [ 8 ] Section 95(1), in

Part II of the Act , permits a union to apply for certification for “employees”.

Section 92(

e) defines a

Part II “employee” as someone “employed in the construction industry”.

Section 92(

c) defines “construction industry” as the “on-site” construction, alteration or demolition of a structure. [ 9 ] From those parameters, several decades ago the Labour Board derived its “date of application” rule (sometimes called the “snapshot” rule) to determine who occupies the unit on an application for certification in the construction industry. On the day the union files its application for certification, the employee must be “on-site” and over 50% of the employee’s on-site work that day must be in the craft or trade of the proposed unit. Here, that means the work of a construction labourer.

The provenance and rationale for the rule are discussed in Labourers v. CanMar , paras. 87-100 and International Union of Operating Engineers, Local 721 v. Granite Environmental Inc. , 2005 NSCA 141 , paras. 10 , 54-55, 79. Labour Board’s Initial Dismissal Based on Filings [ 10 ] Regulation 9(2)(

c) of the Trade Union Procedure Regulations, N.S. Reg. 101/1972 , amended N.S. Reg . 191/2020, under the Trade Union Act , requires that a union’s application for certification include a list of employees in the proposed bargaining unit who

were members of the union and evidence of their membership in the union. [11] Local 615’s application included the list. [12] Regulation 12 required Grafton to respond by filing with the Board a statutory declaration naming: (1) in

Schedule A, itsemployees who, on the day of union’s application for certification, were labourers at the work site, and (2) in

Schedule B, its labourerswho were not at work on that day. [13] On May 18, 2021, Grafton filed its statutory declaration, sworn by Jordan Ghosn. Mr. Ghosn’s

Schedule A named 18employees as “Labourers … who were at work on April 23, 2021”. The names included the following 8 individuals: Nera Abella,Theresa Abella, Roselle Bangayan, Modesto Cawal-O, Ofelia Cawal-O, Jean Javilloner, Shirley Javilloner and Kyle MacDonald. Mr.Ghosn’s

Schedule B contained no names. [14] The purpose of the lists from Local 615 and Grafton was to enable the Board to calculate the level of support by constructionlabourers who were employed by Grafton on-site at the date of Local 615’s application for certification, in order to apply the Board’sdate of application rule.

Then the Board could summarily dispose of the application for certification under s. 95(3) of the Trade UnionAct. [15] Section 95(3) says: (1) if the union’s membership is under 35% of the employees in the unit, the Board shall dismiss theapplication, (2) if the union’s membership exceeds 50%, the Board may certify without a vote, and (3) if the union’s membership isbetween 35% and 50%, the Board shall order a vote of employees in the unit. [16] Based on the filings and without a hearing, the Board determined Local 615’s membership was under 35%.

On May 21, 2021the Board dismissed Local 615’s application for certification under s. 95(3) (Order – LB-1880, 2021 NSLB 39). Local 615’s Challenge to the Initial Dismissal [17] Section 96(1) of the Act says, after a dismissal under s. 95(3), on the union’s request the Board shall conduct a hearing. Oftenthese hearings re-assess the composition of the unit. The re-assessment may alter the percentage under s. 95(3). On May 21, 2021, Local615 requested a hearing. It disputed that the eight individuals named above were (1) employed by Grafton, (2) on site April 23 and (3)performing labourers’ construction work.

It said those eight should be excluded from the unit. Local 615 maintained that it had majoritysupport among the remaining ten employees who properly comprised the bargaining unit. [18] On June 7 and June 22, 2021, the Board’s Vice Chair, Susan Ashley, conducted case management conferences with counsel forGrafton and Local 615. The conferences sought to identify the issues and streamline the presentations. After the second conference, Ms.Ashley sent counsel a letter of June 24, 2021. The letter included the following: • Ms.

Ashley noted that only seven individuals remained in dispute, Kyle MacDonald having been dropped. The Board’s laterDecision of October 22, 2021 (para. 30) recited that Grafton had acknowledged he was not on-site on April 23. • Ms.

Ashley’s letter directed the parties to file pre-hearing written submissions that “should address the issue as to who thetrue employer of the other 7 individuals named above [Nera Abella, Theresa Abella, Roselle Bangayan, Modesto Cawal-O, OfeliaCawal-O, Jean Javilloner and Shirley Javilloner] is and provide information as to what work those 7 workers were doing, where, and forhow long, on the date of the application (such information can be a

summary of evidence anticipated to be led by each party at thehearing)”. [19] On July 16 and July 28, respectively, Grafton and Local 615 filed pre-hearing written submissions. On August 4, 2021, Graftonfiled a reply. The submissions provide context for the reasoning in the Board’s later Decision. [20] Grafton’s submission of July 16, 2021 included: 9. The Evidence will show that on the Date of Application the above-noted seven (7) employees were engaged in the followingactivities: a.

Cleaning up various construction debris in the Jade and Green Lantern in anticipation of the buildings receiving their first tenants; b. Picking up an [sic] disposing of various scraps, garbage and other discarded and left over construction materials; c. Cleaning up various dust from other trades (i.e. dry wallers, tapers, painters, etc.); 10. In carrying out their duties on April 23, 2021, these seven (7) employees worked along-side the other eleven (11) employees listed onthe Employer’s

schedule A and performed duties that were the very same as and indistinguishable from what all eighteen (18) employeeswere performing. … 23. As such, the issue herein falls to be determined based on the principles established by Ellis-Don, Magic Maid and Mobil Services[Labourers’ International Union of North America, Local 1036 v. Ellis-Don Limited, , [1993] OLRB Rep. July 589;Labourers’ International Union of North America, Local 1089 v. 646849 Ontario Ltd., (OLRB) (“Magic Maid”);Labourers International Union of North America, Local 1059 v. Mobil Services Inc., 2018 Can LII 37671 (OLRB)].

Grafton says that theevidence establishes that: a. There was a nexus between the clean up and the construction project; b. On the date of Application, all eighteen

(18) Grafton Developments employees were engaged in this general construction cleanup and

site readiness work; c. This the clean up work [ sic ] a necessary aspect of the construction project; d. This clean up work was being undertaken to finish the construction project so the project can be used for its intended (i.e. permitting residents to begin moving into the building). 24. Grafton says that, once the evidence is fully canvassed, there will be no room for doubt.

The work being performed by the seven (7) employees, and the other employees on the date of Application was necessary to the continuation of the construction project, enabled the other trades to proceed with their work, contributed to bringing the project to completion so that it could be used for its intended purpose, and, accordingly, was labourers’ work within the jurisdiction of the Appellant Union. [ 21 ] Local 615’s submission of July 28 summarized its position: The Union denies Grafton’s claim that the seven people in question were at work on the date of application, that they were engaged in labourers’ work, and that Grafton is their true employer.

The Union puts Grafton to the strict proof thereof. 1. The Seven Disputed Persons Did Not Work as Labourers on the Date of Application Grafton has the onus to prove that the seven people in question were working on site performing labourers’ work on the date of application. The Labour Board has held that the onus with respect to a worker’s status on the date of application lies with the party asserting that the worker was engaged in bargaining unit work: [14] The onus of proof with respect to a material fact lies on the party alleging that fact to be true.

The onus of establishing that any given employee was working as a labourer will lie on the party asserting that fact to be true; see, for e.g., United Brotherhood of Carpenters and Joiners of America, Local 83 v. M & Buddy Company Limited CIP Decision 2410C. Labourers International Union of North America, Local 615 v Stavco Construction Limited , 2017 NSLB 81 (Tab A of Grafton’s Book of Authorities) … Grafton’s claim that the workers were working “alongside” the construction labourers on site is expressly denied.

The Union agrees that clean-up of construction materials on a construction site is generally work within the jurisdiction of the Union. Whether cleaning performed in any given circumstance is construction work in the Union’s jurisdiction depends on the facts. [ 22 ] Local 615’s submission quoted Ellis-Don, a decision of the Ontario Labour Relations Board that Grafton’s brief had cited.

The OLRB had said it was “significant” that the cleaning work was included in the construction contract because: 36. … the inclusion of the cleaning work into the general contract is an indication of the integration of this work into the general obligations undertaken by Ellis Don to construct the Lotto Centre. Ellis Don would not have undertaken an obligation to have maintenance cleaning performed after the building was constructed, because clearly, this has nothing to do with its obligation to construct the building.

It did accept the obligation to have this cleaning work performed, because this cleaning work was related to the construction. [OLRB’s italics] Local 615’s brief said the point was material to the issue before Nova Scotia’s Labour Board: That situation is different from one as here where 3258146 Nova Scotia Limited ostensibly pays Ofelia Cawal-O to provide cleaning services for a building it owns, while Grafton is responsible for construction. [ 23 ] Grafton’s reply of August 4, 2021 included: 5. … There can be no question that the cleaning work performed by these employees on the Date of Application is related to the construction , as described in the Ellis-Don decision cited by both the Union and Respondent [Tab B of the Employer’s original Book of Authorities], and was for the purpose of finishing Grafton Development Inc.’s construction project. 6.

Finally, the evidence will show that the work performed by the disputed employees on the Date of Application was similar to, if not the same, as that performed by the Employer’s other employees working in the Union’s trade jurisdiction and, critically, was for the same purpose – namely, the construction itself. [ 24 ] On August 24 and 25, 2021, the Board heard the matter by video conference before a three member panel, comprised of Ms. Ashley, and employee and employer representatives. Grafton and Local 615 were represented by counsel. [ 25 ] Grafton called three witnesses.

Jordan Ghosn had signed the Statutory Declaration of May 18, 2021. Mr. Ghosn’s family owns Grafton and the Numbered Company. Trevor MacDonald was one of Grafton’s employees on the project. Ofelia Cawal-O was one of the disputed employees. [ 26 ] Local 615 called two witnesses. Ben Soucy and Christian Gajadhar had been employed by Grafton as labourers and worked at The Jade on April 23, 2021. [ 27 ] The witnesses testified and were cross-examined.

[ 28 ] There is no transcript. The Board’s practice is not to transcribe hearings unless requested by a party, who must pay for the service. The only recitation of the testimony is the

summary in the Board’s Decision. [ 29 ] Counsel’s post-hearing oral submissions to the Board are summarized in the Board’s Decision, but not transcribed. There were no written submissions after the hearing. The Labour Board’s Decision [ 30 ] On October 22, 2021, the Board issued a Decision (LB- 1921, 2021 NSLB 97 ). [ 31 ] The Decision (para. 2) noted that Grafton conceded Nera Abella should not have been listed on Mr. Ghosn’s

Schedule A. Six cleaners remained in dispute. [ 32 ] The Board identified three issues: [2] The issues in this hearing are whether the cleaners in question were in fact on site on the date of application, and if so, whether they were doing work in the trade jurisdiction of the Union, and whether Grafton Developments is in fact their Employer. … [ 33 ] On these, the Board reasoned as follows. [ 34 ] First Issue: Who was on-site April 23? The Board said (para. 8) “Mr. Ghosn testified that the cleaners were at The Jade on April 23” and (para. 22) Ms.

Cawal-O testified that “she and the others were working at The Jade on April 23”. [ 35 ] However, as the Board noted, their testimony disagreed with Grafton’s records. [ 36 ] Mr. Ghosn would instruct Ms. Cawal-O when and in which unit to work, and the two communicated by text. The exhibits included the text messages. The Board (para. 10) referred to two text messages from Ms. Cawal-O to Mr. Ghosn (1) on Friday, April 23 asking “if there’s a unit to be cleaned tomorrow” and (2) on Sunday, April 25, saying she cleaned “yesterday”. No text cited work on April 23.

The texts evidenced the cleaners worked on April 24, not April 23. [ 37 ] The Board (para. 26) said Ms. Cawal-O “testified that the April 23 text asking if there was a unit to be cleaned ‘tomorrow’, i.e. Saturday, was a mistake, as she was referring to Friday, not Saturday”. [ 38 ] The Board turned to the time records that were required for payment to the cleaners: [13] In cross-examination he [Mr. Ghosn] confirmed that generally, when there was a time record kept by Ms. Cawal-O for herself and the others, it was quickly following by a pay stub from the numbered company which referenced “cleaning”.

The record for April 23, which contained no totals, when totalled did not match the amount of the pay stub to which it apparently referred, was dated May 18. [ sic ] ‘’’ [25] … [Ms. Cawal-O] agreed that the record that was submitted for the cleaners for April 23, which contained no monetary amounts, when totalled did not match the cheque that she was given on May 18. [ 39 ] The 25 days between April 23 and May 18 exceeded the typical quick interval between the cleaners’ time record and pay stub. However, May 18, 2021 was the date of Mr.

Ghosn’s statutory declaration to the Labour Board, naming the cleaners who worked at the site on April 23. [ 40 ] The Board (para. 17) recited Trevor MacDonald’s testimony that “on April 23 she [Ms. Cawal-O] was on her way to The Jade to do cleanup” and “there were a number of labourers working on the patio stones that day, including Kyle MacDonald”. [ 41 ] According to Grafton’s time records, Kyle MacDonald was not on-site April 23. The Board noted (para. 30) that “counsel for the Employer agreed that Kyle MacDonald was not at the workplace on April 23”.

The Board said (para. 18) Trevor MacDonald “confirmed that he was speaking from memory and that he had no notes of what was being done on April 23”, and “[a]fter looking at the time sheets, he agreed that it perhaps was not Kyle he saw on site that day”. [ 42 ] Dave Mio was Grafton’s on-site foreman April 23. He supervised the labourers. Mr. Mio did not testify. The other five cleaners, i.e. all except Ms. Cawal-O, did not testify. [ 43 ] Mr. Gajadhar testified he worked on-site as a labourer on April 23 and, as to the disputed cleaners, “[h]e could not recall seeing them on April 23” (Decision, para. 36).

Similarly, Mr. Soucy was in the labourers’ crew, worked on-site April 23 and did not recognize the cleaners (Decision, paras. 31-33). [ 44 ] The Board (para. 55) found it had ”significant doubts” as to the attendance of the disputed cleaners on April 23. After reviewing the testimony, the Board continued: [57] Further, the discrepancies regarding the time records of the six cleaners suggest that it is as likely as not that they worked on Saturday April 24 rather than Friday April 23. We do not accept the evidence of Ms.

Cawal-O that the reference in the text message on April 23 asking if they should clean “tomorrow”, and the text of April 25 saying that they cleaned certain units “yesterday” indicates that they were not working at The Jade on Saturday April 24. [Board’s italics] [58] The evidence supports that Mr. and Mrs. Cawal-O may have been on site on April 23. In our view, there is insufficient reliable evidence to conclude that the others were there on the date of application.

[ 45 ] Second Issue: Did they perform construction labourers’ work? The Board’s recital of evidence included the following from Mr. Ghosn: [4] Jordan Ghosn, who is the project manager on site, testified that these two projects are the largest to date for the company, which also developed an apartment building known as the Pearl. He testified that Dave Mio was site foreman on April 23, though he no longer works there. …. [6] Construction at The Jade began in 2017, and it is across the street from the Green Lantern Building. It was granted a partial occupancy permit in early May 2021, for floors 6 to 15.

It is not yet fully occupied. The two buildings use most of the same contractors. There is a free flow of workers between the two buildings. There are no sign-in cards, foreman notes, or work records as such. Payroll for Grafton employees, including the six in question, comes from a numbered company that Mr. Ghosn referred to as ‘325’. Grafton invoices the numbered company monthly for all services, including wages. The numbered company owns The Jade. [7] There is a construction office on site at The Jade, where there are regular construction meetings with the contractors.

The cleaners do not attend such meetings, and are not supervised by the foreman. The ‘regular’ labourers fill in bi-weekly timesheets showing their hours per day, which are submitted for payment. Ms. Cawal-O submits a weekly tally of the hours worked by the cleaners; a cheque is made out to her from the numbered company, which she cashes, and distributes to the other cleaners. There are no formal records of these workers, and no remittances are deducted. Their work is more sporadic in nature than the ‘regular’ labourers. … [15] He [Mr.

Ghosn] agreed that the other workers on site would have been hired by the foreman, though these six were not. They do not receive safety training. … [ 46 ] Ms. Cawal-O testified. According to the Board’s recitation of her evidence (para. 20), she testified as to what she “would” do, instead of stating what she actually did on April 23. She said she would clean construction debris. [ 47 ] Mr. Soucy worked as a labourer at The Jade on April 23. The Board’s recital of his testimony included: [31] … In April 2021, they would meet in the office in the morning to discuss the flow of work.

Typically, Dave Mio [the foreman] would be there with the labourers. The labourers wore hard hats and steel toed boots, and old clothes. They would also meet in the office for lunch. The labourers submitted their own hours on a weekly basis. They were paid by direct deposit for the wage amount, less deductions. [32] He testified that he did not recall exactly what he did on April 23, though on any given day they would be cleaning for the bricklayer for the elevator work, and cleaning out an area around the sandstone in the garage. [33] He did not recognize the names of the six cleaners in dispute.

He had on occasion seen a few people here and there who did finer detailed cleaning, different from what the labourers were doing. The labourers were wearing heavy boots, and working with a lot of dust. He thought the work the six were doing was more like a professional cleaning. He never dealt directly with them, though he may have seen one or two in passing. [34] In cross-examination he agreed that at Grafton, the labourers worked from 7 a.m. to 4:30 p.m., with a half hour unpaid lunch, and breaks.

Typically, they left at 3 p.m. on Friday. … [35] In terms of the cleaning the labourers did, he testified that they would do a sweep through, but would not mop or use a vacuum. [ 48 ] Mr. Gajadhar worked as a labourer at The Jade on April 23. The Board’s recital of his testimony included: [36] … On a typical day in April, at The Jade, they would go to the office, and Dave Mio would tell them what to do. He testified that on April 23, he was doing appliances, pulling the trailer with garbage to go to the trash, so it could be taken to the dump. He delivered appliances to approximately two floors.

He never really knew of the six workers in question, and had not met them. He saw one man and a lady cleaning the stairwell a few days. He could not recall seeing them on April 23. [ 49 ] The Board summarized the submissions of Grafton’s counsel, including: [39] Counsel for the Employer argued that all six of the cleaning crew were doing work in the trade jurisdiction of the labourers on April 23. The Jade was a construction site, and a partial occupancy permit was issued on May 7. On April 23 the floors in question were in the final stages, awaiting inspection, for rental.

Construction cleaning is traditionally labourers’ work: [listing authorities, including the decisions of the Ontario Labour Relations Board in Magic Maid , Ellis-Don and Mobil Services , cited supra in Grafton’s brief of July 16, 2021, above para. 23]. … [40] … While the cleaning work of the cleaners in question is different from the type of cleaning normally done by labourers, it is a seamless part of the activity of construction.

These ‘finishing touches’ are a component that is distinct from what some of the other labourers were doing, but is part of the continuum of construction. [ 50 ] The Board recited that Local 615’s counsel sought to distinguish the decisions of the Ontario Labour Relations Board, cited by Grafton: [49] She argued that the circumstances here can be distinguished from the context in which Magic Maid ( supra ) and Ellis-Don ( supra ) were decided. The labourer work is separate from that of these cleaners, and from the construction project management. …

[ 51 ] On this issue, the Board’s Decision “Analysis and Finding” concluded: [ 52 ] On the first question – whether the work being done by these cleaners was within the trade jurisdiction of the Labourers’ Union – several contextual factors are relevant. The company operated informally. The systems for keeping track of hours is very loose, and unlike at many other construction sites, the time sheets do not note the nature or location of the work being done. The ‘regular’ labourers are paid by direct deposit, and the required remittances were made; this is in sharp contrast to how this group of cleaners were paid.

Ms. Cawal-O kept track of their hours, and submitted it to the Employer. She received a cheque in her own name, which she allotted to the other workers in cash, No statutory deductions were made. [ 53 ] The point of these comments is not to chide the Employer for its payroll practices, but rather to point out the difference in treatment between the ‘regular’ labourers crew, and the cleaners in dispute.

Further differences include the fact that the ‘regulars’ generally eat and take breaks together, keep the same regular hours, meet in the morning to discuss the days work, receive safety training, and wear the usual safety gear. These cleaners do not. The ‘regular’ labourers do a variety of tasks as required; the six cleaners sole job is to clean up the space, prior to rental, using some tools and supplies that the regular labourers would not use.

These are real and significant differences between the two groups of workers. [ 54 ] Based on all the evidence, the Board concludes that the cleaning being done by this crew was not the type of cleaning that construction labourers typically do. Mr. Soucy described it as more like professional cleaning, that is, ensuring that the completed spaces are ready for rental. We are satisfied that this constituted the bulk of the work that these six cleaners were doing, and that it does not fall within the jurisdiction of the Union. [52] Third Issue: Was Grafton the “true employer”?

The Board (para. 59) cited the factored control test of employment set out in Labourers’ International Union of North America, Local 183 v. York Condominium Corporation Number 46 , [1977] OLRB Rep. October 645, para. 10. [53] The Board applied the evidence to the test: [60] The only one of the workers in question who testified was Ms. Cawal-O. The Board accepts that the above factors [from York Condominium ] support the conclusion that Grafton is her Employer. She and her husband operate as a team; one could also consider him to be an employee of Grafton.

It is not so easy to reach that conclusion about the others. We have no evidence at all whether they perceive Grafton to be their employer (factor 6), or whether there was an intent to create an employer/employee relationship (factor 7). There is really no evidence of a relationship between Grafton and any of them. While the employer does tell Ms.

Cawal-O what units are to be cleaned, it is she who chooses which of her friends do the work, she who determines when the work will be done, she who in fact pays them (through a cheque from the numbered company made out to her), and she who would likely deal with disciplinary problems, though this has not arisen. [54] The Board (para. 61) found Ofelia Cawal-O and her husband Modesto Cawal-O were Grafton’s employees, but the other four cleaners were not. Rather, they were Ms. Cawal-O’s friends whom Ms. Cawal-O would enlist as needed.

The Board found the other four cleaners were controlled and employed by Mr. and Ms. Cawal-O. [ 55 ] Board’s conclusion: The Board excluded the 8 employees ( i.e. the six in dispute at the hearing plus Kyle MacDonald and Nera Abella, further to Grafton’s acknowledgements) from the unit. The Board compared the membership evidence to the properly constituted bargaining unit ( i.e. the ten remaining employees from Mr. Ghosn’s

Schedule A), determined that Local 615 had more than 50% support, revoked its earlier dismissal (Order LB-1880) and certified Local 615 as the bargaining agent for Grafton’s labourers on Mainland Nova Scotia. The Judicial Review [ 56 ] Grafton applied to the Supreme Court of Nova Scotia for judicial review. Justice Denise Boudreau heard the application on May 16, 2022 and issued a Decision on July 25, 2022 ( 2022 NSSC 208 ). [ 57 ] Justice Boudreau held that the Board’s Decision was unreasonable under Vavilov , supra .

The judge did not question the Board’s findings as to who was on site April 23 and who was employed by Grafton. Rather, the judge focused on whether the cleaners had performed the work of construction labourers. She concluded: [116] I am satisfied that this Decision does not meet the standards of Vavilov . It does not demonstrate an intelligible and reasonable path of logic towards its conclusions, in particular that the work of the disputed workers was not construction labourers work and that the disputed workers were not performing such work on the date of application.

The Decision fails to address relevant authorities, and references factors without explanation to their relevance. [117] In my view, the only appropriate remedy under the circumstances is for the Decision to be quashed and the matter to be sent back to the Board for reconsideration. The Board will have the present decision as guidance in dealing with this matter further. Issue on Appeal [ 58 ] On August 23, 2022, Local 615 appealed to the Court of Appeal. There is no Notice of Cross-Appeal or Notice of Contention from Grafton.

The reviewing judge rejected several of Grafton’s submissions that challenged the Board’s ruling. Absent a Notice of Contention, those submissions are not before this Court. [ 59 ] The Board found (para. 54) that “the bulk” of “the cleaning being done by this crew was not the type of cleaning that construction labourers typically do”, but (accepting Mr. Souci’s testimony) is “more like professional cleaning, that is ensuring that the completed spaces are ready for rental”. The reviewing judge ruled the Board’s analysis on this point was unreasonable.

On appeal, the issue is whether the judge’s ruling is incorrect.

Appellate Standard to Reviewing Judge [ 60 ] There is no statutory right of appeal from the Board’s Decision. The presumption of reasonableness, discussed in Vavilov , paras. 16-17, 23, 34-52 , is not rebutted. Both parties accept, as did the reviewing judge, that the reasonableness standard governs this matter. [ 61 ] Whether the reviewing judge correctly applied the reasonableness standard is a question of law. The appeal court reviews the Board’s Decision afresh. In Agraira v.

Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559, Justice LeBel for the Court summarized the appellate approach: [46] In Merck Frosst Canada Ltd. v. Canada (Health) , 2012 SCC 3 , [2012] 1 S.C.R. 23, at para. 247 , Deschamps J. aptly described this process as “ ‘step[ping] into the shoes’of the lower court” such that the “appellate court’s focus is, in effect, on the administrative decision”. [ 62 ] To the same effect Northern Regional Health Authority v. Horrocks , 2021 SCC 42 , paras. 10-12 , per Brown J. for the majority and Labourers v. CanMar , paras. 30-31.

Reasonableness Under Vavilov [ 63 ] In Vavilov , the majority’s ruling set out the framework for reasonableness review. [ 64 ] First, the terms of reference: [12] … Reasonableness review is methodologically distinct from correctness review.

It is informed by the need to respect the legislature’s choice to delegate the decision-making authority to the administrative decision maker rather than to the reviewing court. … reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions …. [13] Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. … [15] In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified.

What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place. … [75] … Our colleagues emphasize that reviewing courts should respect administrative decision makers and their specialized expertise, should not ask how they themselves would have resolved an issue and should focus on whether the applicant has demonstrated that the decision is unreasonable: paras. 288, 289 and 291.

We agree. As we have noted above, at para. 13, reasonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision makers. Moreover, as explained below, reasonableness review considers all relevant circumstances in order to determine whether the applicant has met their onus. … B.

Reasonableness Review Is Concerned With the Decision-making Process and Its Outcomes [82] Reasonableness review aims to give effect to the legislature’s intent to leave certain decisions with the administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law … [83] … The role of courts in these circumstances is to review [SCC’s italics], and they are, at least as a general rule, to refrain from deciding the issue themselves.

Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. … Instead, the reviewing court must consider only whether the decision made by the administrative decision maker – including both the rationale for the decision and the outcome to which it led – was unreasonable. [ 65 ] Vavilov ’s majority ruling explained how reasonableness accounts for the varying degrees of discretionary authority assigned by statute to different tribunals: C.

Reasonableness Is a Single Standard That Accounts for Context [88] … The administrative decision makers whose decisions may be subject to judicial review include specialized tribunals exercising adjudicative functions, independent regulatory bodies, ministers, front-line decision makers, and more. Their decisions vary in complexity and importance, ranging from routine to the life-altering. These include matters of “high policy” on the one hand and “pure law” on the other. Such decisions will sometimes involve complex technical considerations.

At other times, common sense and ordinary logic will suffice. [89] Despite this diversity, reasonableness remains a single standard, and elements of a decision’s context do not modulate the standard or the degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case.

This is what it means to say that “[r]easonableness is a single standard that takes its colour from the context” [citations omitted]. [90] The approach to reasonableness review that we articulate in these reasons accounts for the diversity of administrative decision

making by recognizing that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factualcontext of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which thedecision maker may act and the types of solutions it may adopt. … [66] The majority’s ruling turned to the methodology of reasonableness review. [67] Foremost, the reviewing court should focus on the tribunal’s reasons: [84] … A principled approach to reasonableness review is one which puts the reasons first.

A reviewing court must begin its inquiryinto the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand thereasoning process followed by the decision maker to arrive at its conclusion: [citing Dunsmuir v. New Brunswick, 2008 SCC 9 ,[2008] 1 S.C.R. 190]. [85] Developing an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whetherthe decision as a whole is reasonable.

As we will explain in greater detail below, a reasonable decision is one that is based on aninternally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker.The reasonableness standard requires that a reviewing court defer to such a decision. [86] … In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decisionmust also be justified, by way of those reasons, by the decision maker to those to whom the decision applies.

While some outcomes maybe so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwisereasonable outcome also cannot stand if it was reached on an improper basis. [68] The reviewing court should: (1) strive to understand the tribunal’s reasoning, (2) assign the onus to the party challenging thedecision and (3) rule a decision to be unreasonable only for a “sufficiently central” flaw: [99] A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether thedecision as a whole is reasonable.

To make this determination, the reviewing court asks whether the decision bears the hallmarks ofreasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legalconstraints that bear on the decision [citations omitted]. [100] The burden is on the party challenging the decision to show that it is unreasonable.

Before a decision can be set aside on thisbasis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said toexhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merelysuperficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decisionsimply because its reasoning exhibits a minor misstep.

Instead, the court must be satisfied that any shortcomings or flaws relied on by theparty challenging the decision are sufficiently central or significant to render the decision unreasonable. [69] Vavilov’s majority explained two central or “fundamental flaws”: (1) lack of internal coherence and (2) lack of justification inlight of the relevant legal and factual constraints: [101] What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first isa failure of rationality internal to the reasoning process.

The second arises when a decision is in some respect untenable in light of therelevant factual and legal constraints that bear on it. …

(1) A Reasonable Decision Is Based on an Internally Coherent Reasoning [102] To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respectmay lead a reviewing court to conclude that a decision must be set aside. Reasonableness is not a “line-by-line treasure hunt for error”:[citation omitted].

However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatalflaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonablylead the tribunal from the evidence before it to the conclusion at which it arrived” [citation omitted].

Reasons that “simply repeatstatutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court inunderstanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment”[citation omitted]. …

(2) A Reasonable Decision Is Justified in Light of the Legal and Factual Constraints That Bear on the Decision [105] In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to theconstellation of law and facts that are relevant to the decision; [citations omitted]. … [106] … in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a givendecision is reasonable …. These elements are not a checklist for conducting reasonableness review, and they may vary in significancedepending on the context. … … (

a) Governing Statutory Scheme [108] Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the mostsalient aspect of the legal context relevant to a particular decision. …

… [110] … If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language – for example, “in the public interest” – it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. All of this is to say that certain questions relating to the scope of a decision maker’s authority may support more than one

interpretation, while other questions may support only one, depending upon the text by which the grant of statutory authority is made. What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its

interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limit set out by the statutory language it is interpreting. (

b) Other Statutory or Common Law … [112] Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide. An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision had been interpreted. … (

c) Principles of Statutory

Interpretation … [121] The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. … [122] It can happen that an administrative decision maker, in interpreting a statutory provision, fails entirely to consider a pertinent aspect of its text, context or purpose. Where such an omission is a minor aspect of the interpretive context, it is not likely to undermine the decision as a whole.

It is well established that decision makers are not required “to explicitly address all possible shades of meaning” of a given provision: [citation omitted]. … Like other aspects of reasonableness review, omissions are not stand-alone grounds for judicial intervention: the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker. (

d) Evidence Before the Decision Maker [125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings.

The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker” [citations omitted]. … [126] That being said, a reasonable decision is one that is justified in light of the facts. [citation omitted] The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: [citation omitted]. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. …. (

e) Submissions of the Parties [127] The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. ...

The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties. [Court’s italics] [128] Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis”, or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” [citations omitted].

To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. … (

f) Past Practices and Decisions [129] Administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis . …Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. … … [131] Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable.

Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable. ….

… (

g) Impact of the Decision on the Affected Individual [133] … The principle of responsive justification means that if a decision has particularly harsh consequences for the affectedindividual, the decision maker must explain why its decision best reflects the legislature’s intention. This includes decisions withconsequences that threaten an individual’s life, liberty, dignity or livelihood. … [70] With those principles in mind, I will turn to Labour Board’s Decision. Application of Reasonableness [71] The Board began by listing the three issues.

The Board’s conclusions on the first and third are not disputed on this appeal. Thesecond issue, which is disputed, was “if so [i.e. if they “were in fact on site” on April 23], whether they were doing work in the tradejurisdiction of the Union” – i.e. the work of a labourer in the construction industry. (Board Decision, para.2). [72] Burden of proof: Grafton asserted the six disputed cleaners occupied the unit.

This meant Grafton had the burden to prove thefacts that supported its assertion. [73] Local 615’s brief to the Board cited the Board’s precedent that the burden rests with the party (whether the union or employer)who seeks to include someone in the unit: Labourers International Union of North America, Local 615 v. Stavco Construction Limited,2017 NSLB 81, para. 14 (Local 615’s brief quoted above, para. 21). Stavco applied the general principle that he who alleges has theburden to prove. This principle is well-established: Snell v.

Farrell, (SCC), [1990] 2 S.C.R. 311, at p. 321, per Sopinka J.for the Court; MacNeil v. Kajetanowicz, 2019 NSCA 35, leave to appeal to the Supreme Court of Canada refused Nov. 28, 2019, [2019]S.C.C.A. 287, at paras. 47 and 54. [74] At the hearing in this Court, Grafton’s counsel agreed that Grafton had the burden of proof. [75] The disputed issue involves two questions: (1) what did the disputed cleaners do on April 23, and (2) was their output the workof a labourer in the construction industry? The first is purely factual.

The second is partly factual and partly a judgment about themeaning of “construction industry” in

Part II of the Trade Union Act. [76] First Question – What did the cleaners do on April 23? Under the Board’s date of application rule, Grafton had to provethat on April 23 the disputed cleaners worked on-site as construction labourers for at least 51% of their workday at the site (authoritiesdiscussed below, paras. 111-112). [77] The Board rejected Ms.

Cawal-O’s testimony and found “it is as likely as not they worked on Saturday April 24 rather thanFriday April 23” (Decision, para. 57). [78] The Board could have concluded with this finding, as Grafton had not satisfied its burden to prove on the balance ofprobabilities the cleaners were on site April 23.

However, the Board also considered the alternative scenario – i.e. “if” any were on-siteApril 23, what did they do? (Decision, para. 51) [79] Grafton submits that the Board’s consideration of an alternative factual scenario is hypothetical and unreasonable, meaning thewhole matter should be remitted for a new hearing. [80] I respectfully disagree. [81] Vavilov, paras. 127-28, directs the decision maker to give responsive reasons.

Notwithstanding the alternative factual premises,Grafton and Local 615 led evidence and made submissions on both issues: whether the cleaners were on-site and, if they were on-site,what they did. That the Board responded in kind with its views on both submissions is not unreasonable. [82] The Board knew the issue – what work did the disputed cleaners perform on the date of application? The Board’s answerswere: • None, because Grafton had not proven on the balance of probabilities that any of the disputed cleaners attended the site onApril 23. • However, “Mr. and Mrs.

Cawal-O may have been on site on April 23” (Decision, para. 58). If so, they performed theirusual work. Their usual work was professional finish cleaning to ready the spaces for rental, which is not construction. In either scenario, the result was the same – i.e. the disputed cleaners were not in the unit. [83] What evidence supported the Board’s findings? [84] The Board reviewed the evidence of Grafton’s three witnesses. [85] Grafton called Jason Ghosn and Ms. Cawal-O.

Their evidence on this point contradicted Grafton’s documentary records.Noting the inconsistencies, the Board expressed “significant doubts” as to their version (Board Decision, para. 55). [86] Grafton did not call as witnesses five of the six disputed cleaners. Of the cleaners, only Ms. Cawal-O testified. The Board said“[w]e do not accept the evidence of Ms. Cawal-O” about whether she even worked April 23 (Board’s Decision, para 57).

[87] Neither did Grafton call Dave Mio, who was Grafton’s foreman for the labourers at The Jade on April 23. Instead, Graftoncalled Trevor MacDonald who testified he saw Kyle MacDonald working on-site that day. This contradicted Grafton’s written record.After being shown Grafton’s written record, Trevor MacDonald withdrew the statement. Grafton withdrew its assertion that KyleMacDonald was on site as a labourer. (Board’s Decision, paras. 18 and 30). [88] Clearly, the Board found much of Grafton’s testimony on this point to be unreliable. [89] Then the Board reviewed the evidence of Local 615’s witnesses. [90] Mr.

Gajadhar worked in the labourers’ crew on April 23 and “could not recall seeing them [the disputed cleaners] on April 23”.(Board’s Decision para. 36). [91] Local 615’s second witness was Ben Soucy. He was on site working as a labourer on April 23. He knew the others who wereworking in the labourers crew at The Jade. The six cleaners were not among them. Mr. Soucy testified that, in the past, he had seenpeople doing “finer detailed cleaning”.

He said “the work the six were doing was more like a professional cleaning”. (Board’s Decision,para. 33). [92] The Board expressed no concern about the credibility or reliability of Messrs. Gajadhar or Soucy (Board’s Decision, paras. 31-35, 54). They were on-site April 23, working in the labourers’ crew, and saw no sign of the disputed cleaners at the location ofconstruction. [93] The exhibit books include texts between Mr. Ghosn and Ms. Cawal-O, on other days, that refer to cleaning units apparently inpreparation for rental. [94] In its “Analysis and Finding”, the Board adopted Mr.

Soucy’s testimony: [54] Based on all the evidence, the Board concludes that the cleaning being done by this crew was not the type of cleaning thatconstruction labourers typically do. Mr. Soucy described it as more like a professional cleaning, that is, ensuring that the completedspaces are ready for rental.

We are satisfied that this constituted the bulk of the work that these six cleaners were doing, and that it doesnot fall within the jurisdiction of the Union. [95] At the hearing in this Court, Grafton’s counsel agreed that Grafton does not challenge the Board’s finding of fact in para. 54.Counsel agreed that the Court should start with that finding, and analyze the matter from there. [96] We are left with a finding that, if any cleaners were on-site April 23, they were doing “professional cleaning, that is, ensuringthe completed spaces were ready for rental”. [97] Vavilov’s majority said (para. 125) “absent exceptional circumstances, a reviewing court will not interfere with factualfindings”.

Here, the reviewing court does not even have a transcript as a resource to assess factual findings. This is not the exceptionalcase where the reviewing court should interfere with the Board’s finding of fact. [98] Second Question – Is this the work of a “construction” labourer? The Board’s Decision cited the submission of Grafton’scounsel on this point: [40] … While the cleaning work of the cleaners in question is different from the type of cleaning normally done by labourers, it is aseamless part of the activity of construction.

These “finishing touches” are a component that is distinct from what some of the otherlabourers were doing, but it is part of the continuum of construction. [99] The Board disagreed. The Board said (para. 54): “ensuring that the completed spaces are ready for rental … does not fallwithin the jurisdiction of the Union”. [100] The Trade Union Act, ss. 19(1)(

a) and (

g) say the Board’s decisions as to who is an “employee” and who occupies a “unit” are“final and conclusive and not open to question, or review”. [101] Here, the question is whether the cleaners performed “construction” work. The Act says: 94(1) When a question arises as to whether a matter is a matter related to the construction industry, the question must be finallydetermined by the Board. [102] This terminology governs the core issue of access to collective bargaining.

The Legislature intended that the Labour Boardexercise its expertise over such gateway principles to implement the purposes of the Trade Union Act. See: Granite Environmental,paras. 21-29; Cape Breton Island Building & Construction Trades Council v. Nova Scotia Power Inc., 2012 NSCA 111, para. 75; EggFilms Inc. v. Nova Scotia (Labour Board), 2014 NSCA 33, para. 24, leave to appeal to the Supreme Couyrt of Canada refused [2014]S.C.C.A. 242, and authorities there cited; Labourers v.

CanMar, paras. 32-34. [103] The assignment to the Board of broad authority over labour relations in the construction industry was the Legislature’s advertentresponse to a series of disruptive events in Nova Scotia’s construction industry that were followed by expert commissions andrecommendations. Those events leading to the enactment of

Part II are described in Municipal Contracting Ltd. v. International Union ofOperating Engineers, Local 721 (1989), (NS CA), 91 N.S.R. (2d) 16 (C.A.), at paras. 5-8, per Clarke, C.J.N.S. andEgg Films, paras. 59-62. [104] The Trade Union Act’s scheme and context afford significant discretionary leeway for the Labour Board to assess what is, or isnot “construction” work that demarcates the unit under

Part II. We are not applying the correctness standard. The Act does notcontemplate a judge will second-guess the Board to pinpoint an activity on the “continuum” between construction and operations.

[ 105 ] Section 95(1) permits a union to apply for certification for a unit of “employees”.

Section 92(

e) defines “employee” as “a person employed in the construction industry”.

Section 92(

c) says: 92(c) “construction industry” means the on-site constructing, erecting, altering, decorating, repairing or demolishing of buildings, structures, roads, sewers, water mains, pipe-lines, tunnels, shafts, bridges, wharfs, piers, canals or other works. [bolding added] [ 106 ] In the Board’s view, the “finishing touch” professional cleaning of a rental unit for a tenant’s occupation was not “constructing” a building. Rather, it was a landlord’s operational function for its tenant. The conclusion is rational.

Whether or not there is construction somewhere in the building, a landlord cleans the unit for its new tenant. [ 107 ] Vavilov ’s majority said: “the governing statutory scheme is likely to be the most salient aspect of the legal context” relevant to the reasonableness of a tribunal’s decision (para. 108); the “contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt” (para. 90); and statutory language may contemplate that “the decision maker is to have greater flexibility in interpreting the meaning of such language” (para. 110). [ 108 ] Here, the Board’s judgment occupied the activity space and exercised the flexibility contemplated by the scheme of the Trade Union Act . [ 109 ] The Board reasonably interpreted “construction”. [ 110 ] “Bulk” of work on April 23: I will address a concern expressed by the reviewing judge.

Justice Boudreau was troubled that the Board’s para. 54 referred to “the bulk” of the cleaners’ work: [57] Paragraph 54 does not speak of “exclusive” work; it speaks of work that was “typically” done by the disputed workers. Paragraph 54 goes on to say that the finish cleaning work was the “bulk of the work” that the six cleaners were doing. Those phrases, by definition, seem to show that the Board concluded that most of the disputed workers work was of a certain type (i.e. not construction labourers work).

This would further suggest that the Board must have found other work done by these same people (albeit rarely). If that is the case, what is that work, and where would it fall in terms of jurisdiction? The Decision does not address these issues; in fact, there was no evidence of any such “other” work before them. In my view, the wording of this part of the Decision leads to uncertainty. [Reviewing judge’s underlining] [ 111 ] With respect, the concern is misplaced.

Under the Board’s date of application rule: to be in the labourers unit it must be shown that, on the date of application, the employee was on site and that at least 51% of the employee’s on-site work that day was construction labourers’ work. “Exclusivity” is unnecessary. Nor does it matter that the employee performed “other” work that comprised less than 50% of the employee’s on-site work day. [ 112 ] This element of the date of application rule is discussed in International Union of Operating Engineers, Local 721 v.

Granite Environmental Inc. , Decision # 2287C of the Construction Industry Panel, March 18, 2003 (Professor Peter Darby – Chair), para. 6, which was upheld in Granite Environmental , paras. 10, 54-55, 79; and Labourers v. CanMar, paras. 90-93.

In CanMar , this Court said: [90] … The “date of application rule” means that, on the day of the application for certification, the employee must be “on site”, as required by the Trade Union Act ’s definition of “construction industry”, and most of his site work that day must be in the craft or trade of the proposed unit. [bolding added] [ 113 ] Here, the Board found (para. 54) “the bulk of the work” they were doing was not construction labourers work. Given that at least 51% ( i.e. the “bulk”) of the employee’s work that day was not labourers’ construction, the employee did not qualify for the labourers’ unit.

The Board’s finding applied the date of application rule. [ 114 ] Responsiveness: Vavilov , paras. 127-28 says the tribunal’s Decision should meaningfully account for the central issues and concerns raised by the parties. [ 115 ] The Board’s reasons were alert to and dealt with Grafton’s central issues and concerns. The Board simply did not accept Grafton’s submission. The Board disagreed because: (1) much of the evidence predicted by Grafton’s pre-hearing submission did not materialize, and (2) much of the evidence actually presented by Grafton was, in the Board’s view, unreliable.

In particular: • The Chair’s letter of June 24, 2021 to counsel requested pre-hearing submissions that summarized the anticipated evidence on “what work those seven workers were doing, where, and for how long, on the date of application” [above, para. 18]. • Grafton’s pre-hearing brief of July 16, 2021 responded by stating (paras. 9 and 10): “[t]he Evidence will show that on the Date of Application the above-noted seven (7) employees … worked along-side the other eleven (11) employees listed in the Employer’s

schedule A and performed duties that were the very same as and indistinguishable from what all eighteen (18) employees were performing.” The brief continued (para. 24) “… once the evidence is fully canvassed, there will be no room for doubt.” [quoted above, para. 20]. • Grafton’s pre-hearing reply brief of August 4, 2021 reiterated “[t]here can be no question” on the matter. [above, para. 23] • As discussed above, Grafton’s evidence at the hearing did not match its forecast and much of it, in the Board’s view, was unreliable. Key witnesses were not called.

The testimony of Grafton’s three witnesses conflicted with Grafton’s documentary records. Meanwhile, Local 615’s witnesses testified the disputed cleaners did not work “along side” them ever and, on April 23, were nowhere to be seen. • Grafton’s post-hearing submission no longer contended the disputed cleaners’ work was “indistinguishable” and “along side” the regular labourers. Grafton now acknowledged the disputed cleaners’ work was “different” and “distinct” from the type

of cleaning normally done by labourers. However, Grafton maintained their “finishing touches” were “part of the continuum ofconstruction”. That was the revised proposition left for the Board’s analysis. (Board Decision, para. 40) • The Board considered, but rejected that submission.

It found the “finishing touches” for a new tenant were notlabourers’ construction work on that continuum (Board Decision, para. 54). [116] Vavilov’s majority said: [94] The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in whichthey were rendered. … [117] With respect, the reviewing judge’s reasons paid insufficient attention to the ebb and flow of the evidence and submissions andthe Board’s assessment of the testimony, as reported in the Board’s reasons.

Grafton’s submission to this Court skipped over the Board’snegative assessment of the testimony from Grafton’s witnesses. [118] The Board’s consideration of OLRB cases: The reviewing judge faulted the Board for not grappling with the decisions of theOntario Labour Relations Board cited by Grafton. Justice Boudreau’s Decision said: [81] The two cases in that last quote had been put forward by the applicant [Grafton] to the Board (Labourers’ International Union ofNorth America, Local 1036 v.

Ellis-Don Limited, (ON LRB); and Labourers’ International Union of North America,Local 1089 v. 646849 Ontario Ltd. (c.o.b. as Magic Maid Cleaning Service), (ON LRB). [82] Both of those cases (from Ontario), contained factual circumstances that were not dissimilar to the one at bar.

The cleaners in thoseOntario cases were performing tasks which were at least comparable to those accomplished by the disputed workers in the present case.In both cases, the Ontario Labour Board had found that those cleaners’ work was, in fact, “construction work”. [reviewing judge’sunderlining] [83] Here the Board concluded that the work being performed by the disputed workers was not construction work and was not withinthe jurisdiction of the applicant Union (see paras. 52-54 of the Decision). Interestingly, no further mention was made of the Ellis-Don orMagic Maid cases.

No effort was made to distinguish them, or explain why their reasoning did not apply. [reviewing judge’sunderlining] … [88] The applicant [Grafton] notes that, in some of the Ontario cases, other factors have been deemed relevant in making thedetermination of whether cleaning work is construction work. These factors were not addressed in the Decision. [89] For example, the case of Labourers’ International Union of North America, Local 1059 v. Mobil Services Inc., (ON LRB), was a case involving the question of whether particular cleaning work can be considered “construction” work.

The OntarioLabour Relations Board engaged in a review of past cases dealing with the issue, and provided the following

summary: 22. To summarize, the cases referenced above establish the following principles: 1. clean up of a construction site can be construction work; 2. in making this determination the nexus between the clean up and the construction activity is a key consideration; 3.

This is a fact specific inquiry; 4. in describing and commenting on the nexus or connection between the clean up and the construction activity required under thesecond level analysis the Board has stated as follows: a. it is not just the kind of debris that is important (Magic Maid); b. if the clean up is necessary to enable the various trades on site to perform their work, then this constitutes construction work (MagicMaid); c. is the clean up work required in order to carry out the tasks that constitute the enumerated activity (Catch Basin); d. is the clean up work a necessary aspect of the construction project (Ellis-Don); e. merely because work takes place at a construction site does not necessarily mean that such work is within the construction industry(Magic Maid); f. clean up work that is done to finish a construction project so the project can be used for its intended purpose is part of the constructionproject (A-1 Hydrant Services); g. the clean up work must be done on the object under construction or to support the work being done on the work under construction(Catch Basin) … [102] None of these cases [the OLRB Decisions in Mobil, Ellis-Don and Magic Maid] were dealt with in the Decision, other than beingsummarily mentioned.

None of the considerations or “factors” they list were addressed, or even mentioned, by the Board. As I havealready noted, the Board chose to assess this application by examining other factors. It is unclear to me why they chose those factors, or

if they relied on any authority for doing so. … [105] This issue was of major importance to the parties. The Board clearly had a duty to “grapple” with the arguments and authorities put forward with respect to it, in a meaningful and explanatory way. While the Board was obviously entitled to disagree with either party’s submissions, the Decision does not provide any explanation whatsoever as to how the Board dealt with the applicant [Grafton]’s arguments and authorities. [106] In my view, for these reasons, the Decision lacks reasonableness.

In the words of Vavilov , I am unable to discern, trace, or understand an “internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrained the decision-maker”.

I also find that this is a “fundamental gap” in reasoning, as well as a “fail[ure] to reveal a rational chain of analysis on a crucial point”. [ 119 ] In my view, the reviewing judge’s conclusion is mistaken for three reasons. [ 120 ] First, in Vavilov , the majority ruling said: [112] … An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision had been interpreted. [bolding added] [ 121 ] Decisions of the Ontario Labour Relations Board of course may assist, but do not bind Nova Scotia’s Labour Board. [ 122 ] Neither is the same provision involved.

Ontario’s Labour Relations Act, 1995 , S.O. 1995, c. 1, s. 126(1) says “employee” in the construction industry “includes an employee engaged in whole or in

part in off-site work but who is commonly associated in work or bargaining with on-site employees”. Nova Scotia’s ss. 92(

c) and 92(e), on the other hand, define “employee” in the “construction industry” as someone who works “on-site”. Nova Scotia’s definition generated the Nova Scotia Board’s sui generis date of application test. [ 123 ] Second, the reviewing judge, at para. 89, cites the OLRB’s

summary from Mobil Services , para. 22. The OLRB’s

summary began: 1. clean up of a construction site can be construction work; 2. in making this determination the nexus between the clean up and the construction activity is a key determination; 3. this is a fact specific inquiry; … [ 124 ] Nova Scotia’s Board applied the same principles. The resolution of a fact specific inquiry depends on the evidence in that case. Mobil Services ’ para. 22 listed some facts that helped to determine several Ontario cases. Here, the outcome turned on the evidence Nova Scotia’s Board heard from Grafton and Local 615.

The Board reviewed their evidence, discounted the reliability of much of Grafton’s oral testimony and accepted the testimony of Local 615’s witnesses. [ 125 ] Third, Nova Scotia’s Board did draw guidance from OLRB authority. The chronology is: • On June 24, 2021, the Board’s vice-chair wrote to counsel to request pre-hearing submissions. (above, para. 18) • Grafton’s submission of July 16, 2021 cited the Decisions of the OLRB in Ellis-Don , Magic Maid and Mobil Services . (above, para. 20) • Local 615’s reply of July 28, 2021 sought to distinguish these authorities by quoting para. 36 from Ellis-Don.

The cleaning work was included in the Ellis-Don’s construction contract.

The OLRB found this to be “significant” because: 36 … the inclusion of the cleaning work in the general contract is an indication of the integration of this work into the general obligations undertaken by Ellis Don to construct the Lotto Centre. … It did accept the obligation to have this cleaning work performed, because this cleaning work was related to the construction. [OLRB’s italics] Local 615’s brief explained why the point was material: That situation is different from one as here where 3258146 Nova Scotia Limited ostensibly pays Ofelia Cawal-O to provide cleaning services for a building it owns, while Grafton is responsible for construction. (above, para 22). • At the hearing, the Board heard evidence that, administratively and operationally, the disputed cleaners were separated and treated differently than the “regular” labourers crew.

The “regular” labourers, who routinely cleaned up the construction site, worked together, were assigned work and were supervised by Grafton’s construction foreman, and were paid by Grafton’s direct deposit like other construction workers. The disputed cleaners worked separately from the construction crew, were assigned work and directed by Mr. Ghosn’s texts, and were paid by the Numbered Company, the owner and landlord of the building. The Board’s reasons recited this evidence as I have summarized earlier. • Local 615’s post-hearing submission again cited Ellis-Don and reiterated the point.

In Ellis-Don , the disputed cleaners were performing work expressly incorporated into the construction contract, which the OLRB found “significant” to its finding they worked in

construction. Here, according to Local 615, that criterion pointed in the other direction because the disputed cleaners were managed by the landlord separately from the administration of construction. The Board’s Decision summarized Local 615’s submission: [49] She argued that the circumstances here can be distinguished from the context in which Magic Maid ( supra ) and Ellis-Don ( supra ) were decided. The labourer work is separate from that of these cleaners, and from the construction project management. … • The Board accepted Local 615’s submission.

The Decision, paras. 52-53, cited the differences in treatment between the “regular” labourers and disputed cleaners, and found: These are real and significant differences between the two groups of workers. [ 126 ] Nova Scotia’s Board applied the evidence to the criterion, drawn from the OLRB’s Decision in Ellis-Don , that the degree of administrative integration or separation between the cleaning and the construction was significant.

As to assistance from Decisions of the OLRB, the Labour Board preferred Local 615’s submission to Grafton’s. [ 127 ] The reviewing judge’s Decision cited Ellis-Don and Magic Maid , then said: (para. 83 ): “No effort was made to distinguish them, or explain why their reasoning did not apply.” She added (para. 102): “None of these cases ( Mobil , Ellis-Don and Magic Maid ) were dealt with in the Decision, other than being summarily mentioned.” She said (para. 86) “[i]t is difficult to understand” how the Board’s paras. 52 and 53 fit into the Board’s analysis. [ 128 ] With respect, the judge appeared to misapprehend the Board’s reasoning. [ 129 ] The Board’s treatment of the decisions of the Ontario Labour Relations Board did not offend the reasonableness standard. [ 130 ]

Summary – Reasonableness: The Board’s reasons are rational, logical and internally coherent.

There is a line of analysis within the Board’s reasons that reasonably leads from the evidence before the Board to the findings, through the law, to the Board’s conclusion. [ 131 ] The factual findings are justified in light of the evidence cited in the Board’s Decision and the Board’s assessment of weight to that evidence. [ 132 ] As for the legal issues, the Board’s Decision is consistent with, and justified in light of: (1) the Board’s precedents that establish the date of application rule for construction certifications, (2) the Board’s precedent and the general law of evidence for assigning the burden of proof to the party who asserts a fact, and (3) the provisions of the Trade Union Act that define who is an “employee” in the “construction industry”. [ 133 ] The Board’s reasons were responsive to the submissions. [ 134 ] The Board’s Decision was transparent, intelligible and justified as required by Vavilov , and therefore reasonable.

Conclusion [ 135 ] I would allow the appeal, overturn the reviewing judge’s Order and restore the ruling of the Labour Board. Any costs paid to Grafton for the proceeding in the Supreme Court of Nova Scotia should be repaid. I would order Grafton to pay Local 615 costs of $4,000 for the judicial review in the Supreme Court plus $6,000 for the appeal, both amounts all-inclusive. Fichaud J.A. Concurred: Farrar J.A. Bourgeois J.A.