Nova Scotia Union of Public & Private Employees, Local 13 Applicant v. Halifax Regional Municipality, Augustus M. Richardson, QC, Arbitrator v. Attorney General for the Province of Nova Scotia, 2022 NSSC 54

SUPREME COURT OF Nova Scotia Citation: Nova Scotia Union of Public & Private Employees, Local 13 v. Halifax Regional Municipality , 2022 NSSC 54 Date: 20220217 Docket: Hfx , No. 492718 Registry: Halifax Between: Nova Scotia Union of Public & Private Employees, Local 13 Applicant v. Halifax Regional Municipality, Augustus M.

Richardson, QC, Arbitrator and Attorney General for the Province of Nova Scotia Respondents Decision on Judicial Review Judge: The Honourable Justice Peter Rosinski Heard: February 3, 2022, in Halifax, Nova Scotia Counsel: Nancy Elliott, for the Applicant Justin Luddington, for the Respondents (HRM) By the Court: Introduction [1] [ 1 ] “Local 13” is the certified bargaining agent for employees colloquially known as the “inside workers” of the Halifax Regional Municipality [“HRM”].

A collective agreement pursuant to the Trade Union Act , c. 475 RSNS 1989, as amended, governs the labour relationship between these two parties. [ 2 ] CC was an employee of HRM at its Waverley garage for many years, and a member of Local 13. [2] [ 3 ] In August 2016, CC and her immediate supervisor Mr. H entered mediation and resolved their ongoing discord. Mr. H relocated temporarily to another workplace. CC was aware that in the Spring of 2017, Mr.

H was due to return to the workplace where CC had remained. [ 4 ] On March 28, 2017, shortly before his return, CC posted an anti-bullying sticker on the outside of her office door where it could be seen by all the employees coming and going. [3] [ 5 ] Her supervisor Mr. W directed CC to remove the sticker as he was concerned it might re-ignite the conflict that had only recently been quelled by means of mediation. CC twice refused, over a period of two days, but then relented. [ 6 ] On April 5, 2017, a meeting was held between CC, a union representative, Mr.

W, her immediate supervisor, and a human resources representative. The meeting was held to address her behaviour and resistance to removing the sticker, which required her to make answer although it involved potential disciplinary action against her. On April 24, 2017, CC was advised that no discipline was warranted in relation to her conduct. [ 7 ] One day later, Mr. W filed a complaint against CC arising from her responses during the April 5, 2017, meeting in which she confirmed that she felt bullied and unsafe under his supervision. CC filed a response and claimed Mr.

W’s complaint was retaliation for her actions and statements.

[ 8 ] Augustus M. Richardson, Q.C., conducted ten days of arbitration hearings in relation to four grievances between these parties. He authored a 297 paragraphs-long written decision in which he dismissed each of the Union’s grievances. [ 9 ] Local 13 has made application for judicial review to this Court, seeking that his decisions be quashed. [ 10 ] I have concluded that his decisions should be upheld. Arbitrator Richardson’s Decision [4] [ 11 ] Local 13 had filed four grievances against HRM.

Two of the grievances related specifically to employee CC (“the Sticker grievance”, and “the Union Representation grievance”). The Union’s judicial review arguments are focused on the two individual grievances, and the policy grievance in relation to HRM’s Harassment Policy. [5] [ 12 ] The Applicant Union summarized the two individual grievances as follows: First Grievance 1. On May 19, 2017, the Union filed a grievance that included claims that: - The direction to Ms. CC to remove the sticker from her office door was an improper exercise of management rights, discriminatory, and

an act of harassment against Ms. CC; - Mr. Dunphy had not responded appropriately to Ms. CC’s concerns about being required to remove the anti-bullying sticker; - Mr. W’s complaint did not disclose prima facie harassment and that either the Employer’s Harassment Policy was an invalid policy or the policy was being applied in a manner contrary to the Collective Agreement; - Mr. W’s complaint against Ms. CC was retaliatory. The Union later added in a claim that there had been a violation of Ms. CC’s freedom of expression under the Charter of Rights and Freedoms . … Second Grievance 2.

On November 8, 2017, the Union filed a second grievance. It included claims that the application of HRM’s Harassment Policy to Ms. CC had been unreasonable and that employees were unable under the policy to access a fair, impartial, and competent process. 3. On December 20, 2017, Ms. CC was advised that the investigation into Mr.

W’s complaint against her had determined the complaint to be unfounded. [ 13 ] In his decision, Arbitrator Richardson stated: “…[Grievance 13 – 02 – 2017] the “sticker grievance” stemmed from the Employer’s decision on or about March 28, 2017 to order CC , the grievor, to remove a small anti-bullying sign (in reality a sticker) from the outside of her office door. The grievor first resisted or at least questioned that order , but eventually obeyed it the next day . The Employer investigated the incident for possible insubordination but ultimately decided not to impose discipline.

The grievor and the Union say the direction should not have been given in the first place, and that it violated her rights under the Charter and the Collective Agreement.

[Grievance 13 – 06 – 2017] the “Union Representation grievance” stemmed from a decision by the Employer to investigate a formal complaint of harassment pursuant to the Employer’s “Workplace Rights: Harassment Prevention Policy” (the “Harassment Policy”). The complaint had been filed against the grievor by one of her managers Mr. W. The investigation, which proceeded over roughly 6 months in the latter part of 2017 eventually concluded that the complaint was not made out. The grievor and the Union say the complaint should never have been investigated in the first place. It should have been dismissed out of hand.

They say that the decision to proceed with an investigation was a product of sexual discrimination, or retaliation, or both . They also say the Employer’s decision to proceed as it did was evidence of systemic problems with the Harassment Policy . The grievor and the Union allege that the grievor went off work in the Spring of 2017 because of the stress and anxiety caused by this wrongful conduct on the Employer’s part. They say that the grievor should be reimbursed the vacation and sick time she took during her time off work.

The Union also says that the policy is significantly flawed, and it seeks a declaration that the Employer either scrap, or at least significantly revamp, the Policy .’ [My bolding added] [ 14 ] Under the title “Analysis and Award” Arbitrator Richardson concluded in relation to each of the individual grievances: “What we have then was an employee who not only resisted a direct order [from] her manager but went on to challenge the merits and rationality of his decision. Moreover, she insisted, at least initially, that the Employer comply with conditions that she laid down before she would comply with the direction.

All of this amounted in my view to insubordination. None of it recognized the well-known rule in labour relations of ‘obey now, grieve later’. W’s [her immediate supervisor] decision to investigate the possibility that the grievor had been insubordinate was thus one that was based on a fair and reasonable assessment of the facts before him (para. 240)… [ 15 ] For context, I insert paragraph 236 of his Decision here: “To recap, upon receiving Mr. W’s direction on March 28, the grievor, in her own words,

a) laughed and said she was in the biggest bullying area in the Employer’s operations;

b) said she was fearful because Mr. H was coming back to work at the garage in April;

c) told Mr. W that the Employer did nothing to help her;

d) told him she would not take the sign down until Mr. Dunphy and Mr. Dube, the Employer’s CAO all, knew of Mr. W’s direction.” [ 16 ] As to whether the grievor’s right to “freedom of expression” pursuant to

section 2(

b) of the Canadian Charter of Rights and Freedoms protected her in the circumstances, the arbitrator stated: Dealing with the first question, [does

section 2 (

b) of the Charter apply to the facts of this case?] I accept that the grievor’s decision to post the sticker was a form of ‘expression’. However, that does not in itself mean that it was entitled to the protection afforded ‘expression’ pursuant to

section 2 (

b) of the Charter within the guidelines laid down by the Supreme Court of Canada in Montréal v. 2952 – 1366 Québec Inc., 2005 SCC 62 . The sticker was placed on the outside of an interior door that was within a privately owned workplace (the Waverley garage). Notwithstanding that the Employer’s property might be called ‘public’ (in the sense of being owned and operated by a public government entity) the door and the garage were not in the public eye.

They were not spots or areas that members of the public were accustomed to being able to view – or which commonly contain posters or flyers inviting the public gaze.… That being the case , I was not persuaded that posting a sign on the outside of the grievor’s door in the Employer’s Waverley garage fell within the scope of the ‘freedom of expression’ protected by

section 2(

b) of the Charter . (para. 244)… Turning to the second question [if

section 2 of the Charter applies, did the direction [by Mr. W] breach the grievor’s freedom of expression?] (which I have found it did not) then it seems clear that there would have been a breach of the grievor’s freedom of expression. But that conclusion, had I drawn it, would have taken me to the third question [if there is a breach of the grievor’s freedom of expression, did the Employer establish that any such breach was justified as a ‘reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society’ under

section 1 of the Charter ?], which I would have answered in the affirmative. [On March 28, 2017, Mr. W] as a representative of the Employer was entitled by law and by the Collective Agreement to manage the Employer’s operations. He had a valid concern, based on the history between the grievor and Mr. H, another employee who was due to return to work at that location after a mediation in 2016 had resolved interpersonal difficulties between CC and Mr.

H, that the grievor’s actions, in posting the sticker when and where she did, would re-ignite conflict in the workplace that had only recently been quelled by means of a mediation (and Mr. H’s temporary absence from the workplace). The grievor’s actions threatened the uneasy peace that had reigned since August 2016. Its removal did not threaten, diminish or erode the Employer’s overall anti-bullying policy.

I was satisfied then that the direction would have been a reasonable limit on the grievor’s freedom of expression, had I found that the freedom had been engaged.” (para 246) … It was shortly after this decision of Mr. W that the grievor relented and told the Union’s President that she would take down the sticker. She copied the email to Mr. W, so he knew at this point that she had decided to comply with his direction… it might have gone some way to defuse the situation. Yet the grievor then decided to up the ante . In her email … on March 29 to Mr. Dunphy [Organization

Effectiveness Specialist, who manages conflict under the Employer’s Harassment Policy], copied to Ms. Pryor [Mr. W reported to her- her title is Manager of Procurement (para. 26), and ”she had considered that this was a complex matter that warranted referral to an OEL specialist (i.e. Mr. Dunphy)…” para. 112] (Mr. W’s report) and Ms. Chandler (the mediator from 2016) she alleged, in effect, that Mr.

W’s direction with respect to the sticker was ‘clearly… a bullying scenario targeting me’ [bolding in original], that the Harassment Policy applied to management and not employees like her; and that the Employer ‘did not care’ about its employees. These were serious allegations.… It is not surprising then that Mr. Dunphy would have replied, the next day to assure her that the policy applies to managers and employees alike. Even then the grievor did not resile from earlier comment. Instead, she stated in response that she would ‘continue with my head low and work in fear as an HRM employee’.

Nor is it surprising that Mr. W should have made these allegations a topic in the meeting that he asked [Human Resources] to set up with the grievor. Indeed, for him not to have done so would have been a dereliction of his duties as a manager. The grievor’s allegations were serious. They had to be taken seriously. And Mr. W, to his credit, did. (para. 257) All of this is to say that I was not persuaded that Mr.

W’s decision to initiate a meeting to discuss the grievor’s conduct was anything but a fair and reasonable response of a manager – both as a manager whose direction had been refused, and as a manager who had been accused of bullying behaviour.” (para. 259) … The Union’s position here is that the Employer (and in particular, Mr. Dunphy) should never have given Mr. W’s complaint sufficient credit to warrant a formal investigation of Mr. W’s complaint. It says the complaint failed to meet the criteria of harassment under the Harassment Policy; or that it was retaliatory or infected with bias. Mr.

Dunphy’s decision, in other words, was not a fair and reasonable exercise of his discretion to make such a decision. It further says that Mr. W’s harassment complaint against her was made in retaliation to her seeking Mr. Dunphy’s assistance when the former and asked her to take down the anti-bullying sticker – and that Mr.

Dunphy ought to have realized that it was retaliation ” … To conclude that such a response was retaliatory just because it was made in response to a complaint would be to prejudge the issue of whether the grievor’s complaint was accurate… But that issue had yet to be determined… Indeed, the Harassment Policy recognizes, as do most if not all such policies, the existence of such a possibility by prohibiting bad faith or vexatious complaints… All this is not to say that the grievor was not sincere in her belief (no matter how unfounded) that she was being harassed – but it is to say that the accuracy or merits of that belief had yet to be determined until that determination was made, the respondent (i.e.

Mr.

W) was equally entitled to raise questions, whether in response or in a separate complaint, about the merits and motives underlying the complaint being made against him. (para. 264) The allegation of retaliation also highlights one of the logical faults in the grievor’s reasoning.… The question in such cases is not and cannot be whether the decision ultimately proved to be the correct one. The question rather is whether the decision, at the time it was made, and based on the facts and circumstances that then existed, was a fair and reasonable one to make. What then, was the situation Mr.

Dunphy found himself in when he received Mr. W’s complaint on April 25, 2017? (para. 267) … These facts and the questions and issues they raise would appear on a fair and reasonable analysis to meet the definition of ‘complex’ in the Harassment Policy and to support a decision to initiate a formal investigation. …(para. 272) These then were the facts confronting Mr. Dunphy at the time of his decision to refer Mr. W’s complaint to a formal investigation. I was not persuaded on these facts that his decision was anything other than a fair and reasonable exercise of his duties under the Harassment Policy.

It may not in retrospect based on the eventual result have been the right decision. But that is not the test. I am satisfied that at the time it was a rational decision based on a fair and reasonable assessment of the situation.” (para. 274) [My bolding added except where otherwise stated]

[ 17 ] In the “Conclusion and Award”, he stated: For the foregoing facts and reasons, and with respect to the grievor’s individual complaints contained within the two grievances, a. I was not persuaded on a balance of probabilities that any of the decisions made by the Employer (and in particular of Mr. W or Mr. Dunphy) were made in an unfair and unreasonable fashion; or that they breached any of the relevant provisions of the Collective Agreement; b. I was not persuaded on a balance of probabilities that the grievor’s time off sick was caused by any conduct on the Employer’s part; and accordingly c.

I dismiss those components of both grievances. With respect to the policy component of the two grievances, a. I was not persuaded on a balance of probabilities by the evidence before me that the representation provisions in the Harassment Policy breached the rights to Union representation set out in the Collective Agreement; b. the Union’s request for an order or declaration that the Harassment Policy required significant revision in order to be considered a policy that otherwise complies with the Collective Agreement was premature; and accordingly, c. I dismiss the policy components of both grievances.

I accordingly dismiss Union grievance 13 – 02 – 2017 (the “Sticker grievance”).

I also dismiss Union grievance 13 – 06 – 2017 (the “Union Representation grievance”) subject to it being without prejudice to any future policy grievance regarding the Harassment Policy that is grounded on a different factual foundation.” (para. 297) The grounds for challenging the Arbitrator’s decision [ 18 ] Local 13 filed an Application for Judicial Review which cited the following grounds as the basis for quashing arbitrator Richardson’s decision(s): that he erred: 1. in finding there would be no infringement of the grievor’s freedom of expression under

section 2(

b) of the Canadian Charter of Rights and Freedoms (” Charter ” or “ Charter of Rights ”) when she was ordered by her employer to remove an anti-bullying sticker from her office door; 2. in finding that any infringement of the grievor’s freedom of expression was a reasonable limit under

section 1 of the Charter ; 3. in finding that a harassment complaint made against the grievor by her manager, Mr. W, did not constitute “retaliation”; 4. in not carrying out a review of the Employer’s Harassment Policy [which went into effect on November 1, 2016 – para. 38 Decision] to determine whether the Policy was valid; 5. in considering evidence that he had previously determined irrelevant and inadmissible, and in drawing adverse inferences from such evidence with respect to material facts relevant to many of the issues before him.

The Union’s arguments in relation to each ground of review [ 19 ] Firstly however, I will address the dispute between the parties regarding the proper standard of review in relation to the s. 2(

b) Charter of Rights issue herein.

1-the standard of review in relation to all issues is the one of reasonableness [20] The parties agreed that the standard of review is reasonableness, except in relation to the standard to be applied to the s. 2(b)Charter argument.

The Union says a “correctness” standard is appropriate in scrutinizing the arbitrator’s decision on the Charter ofRights issues. [21] I am satisfied that a reasonableness standard also applies to those issues. [22] The Union says that, as Vavilov, 2019 SCC 65, makes clear at paragraphs 83, 86 and 96, the court must focus on both thereasoning process and the outcomes of the relevant decision-maker. I agree. [23] The Union further relies on paragraphs 53 and 54 of Vavilov in support of its argument that a standard of correctness applies tothe Charter of Rights issues.

Given the importance of this issue, I will include paragraphs 53-62: C. The Applicable Standard Is Correctness Where Required by the Rule of Law 53 In our view, respect for the rule of law requires courts to apply the standard of correctness for certain types of legalquestions: constitutional questions, general questions of law of central importance to the legal system as a whole and questionsregarding the jurisdictional boundaries between two or more administrative bodies.

The application of the correctness standardfor such questions respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able toprovide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer isnecessary: Dunsmuir , at para. 58. 54 When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker'sdetermination or to substitute its own view: Dunsmuir , at para. 50.

While it should take the administrative decision maker's reasoninginto account — and indeed, it may find that reasoning persuasive and adopt it — the reviewing court is ultimately empowered to come toits own conclusions on the question.

(1) Constitutional Questions 55 Questions regarding the division of powers between Parliament and the provinces, the relationship between the legislatureand the other branches of the state, the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982, and otherconstitutional matters require a final and determinate answer from the courts. Therefore, the standard of correctness must continueto be applied in reviewing such questions: Dunsmuir , para. 58; Westcoast Energy Inc. v.

Canada (National Energy Board), (SCC), [1998] 1 S.C.R. 322 (S.C.C.) . 56 The Constitution — both written and unwritten — dictates the limits of all state action. Legislatures and administrativedecision makers are bound by the Constitution and must comply with it. A legislature cannot alter the scope of its ownconstitutional powers through statute. Nor can it alter the constitutional limits of executive power by delegating authority to anadministrative body.

In other words, although a legislature may choose what powers it delegates to an administrative body, it cannotdelegate powers that it does not constitutionally have. The constitutional authority to act must have determinate, defined and consistentlimits, which necessitates the application of the correctness standard. 57 Although the amici questioned the approach to the standard of review set out in Doré c.

Québec (Tribunal des professions),2012 SCC 12, [2012] 1 S.C.R. 395 (S.C.C.) , a reconsideration of that approach is not germane to the issues in this appeal.However, it is important to draw a distinction between cases in which it is alleged that the effect of the administrative decisionbeing reviewed is to unjustifiably limit rights under the Canadian Charter of Rights and Freedoms (as was the case in Doré ) andthose in which the issue on review is whether a provision of the decision maker's enabling statute violates the Charter (see,e.g., Martin v.

Nova Scotia (Workers' Compensation Board), 2003 SCC 54, [2003] 2 S.C.R. 504 (S.C.C.) , at para. 65). Ourjurisprudence holds that an administrative decision maker's

interpretation of the latter issue should be reviewed for correctness,and that jurisprudence is not displaced by these reasons.

(2) General Questions of Law of Central Importance to the Legal System as a Whole 58 In Dunsmuir , a majority of the Court held that, in addition to constitutional questions, general questions of law which are "bothof central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise" will require theapplication of the correctness standard: para. 60, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R.

77 (S.C.C.) , at para. 62 , per LeBel J., concurring. We remain of the view that the rule of law requires courts to have the final word with regard to general questions of law that are "of central importance to the legal system as a whole". However, a return to first principles reveals that it is not necessary to evaluate the decision maker's specialized expertise in order to determine whether the correctness standard must be applied in cases involving such questions.

As indicated above (at para. 31) of the reasons, the consideration of expertise is folded into the new starting point adopted in these reasons, namely the presumption of reasonableness review. 59 As the majority of the Court recognized in Dunsmuir , the key underlying rationale for this category of questions is the reality that certain general questions of law "require uniform and consistent answers" as a result of "their impact on the administration of justice as a whole": Dunsmuir , para. 60.

In these cases, correctness review is necessary to resolve general questions of law that are of "fundamental importance and broad applicability", with significant legal consequences for the justice system as a whole or for other institutions of government : …[citations omitted] For example, the question in University of Calgary could not be resolved by applying the reasonableness standard, because the decision would have had legal implications for a wide variety of other statutes and because the uniform protection of solicitor-client privilege — at issue in that case — is necessary for the proper functioning of the justice system: University of Calgary , at paras. 19-26.

As this shows, the resolution of general questions of law "of central importance to the legal system as a whole" has implications beyond the decision at hand, hence the need for "uniform and consistent answers ". 60 This Court's jurisprudence continues to provide important guidance regarding what constitutes a general question of law of central importance to the legal system as a whole.

For example, the following general questions of law have been held to be of central importance to the legal system as a whole: when an administrative proceeding will be barred by the doctrines of res judicata and abuse of process ( Toronto (City) , at para. 15 ); the scope of the state's duty of religious neutrality ( Saguenay , at para. 49); the appropriateness of limits on solicitor-client privilege ( University of Calgary , at para. 20); and the scope of parliamentary privilege ( Chagnon , at para. 17).

We caution, however, that this jurisprudence must be read carefully, given that expertise is no longer a consideration in identifying such questions : see, e.g., CHRC , at para. 43. 61 We would stress that the mere fact that a dispute is "of wider public concern" is not sufficient for a question to fall into this category — nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue : … [citations omitted] The case law reveals many examples of questions this Court has concluded are not general questions of law of central importance to the legal system as a whole .

These include whether a certain tribunal can grant a particular type of compensation ( Mowat , at para. 25); when estoppel may be applied as an arbitral remedy ( M.A.H.C.P. v. Nor-Man Regional Health Authority Inc. , 2011 SCC 59 , [2011] 3 S.C.R. 616 (S.C.C.) , at paras. 37-38 ); the

interpretation of a statutory provision prescribing timelines for an investigation ( Alberta Teachers , at para. 32); the scope of a management rights clause in a collective agreement ( Irving Pulp & Paper , at paras. 7, 15-16 and 66, per Rothstein and Moldaver JJ., dissenting but not on this point); whether a limitation period had been triggered under securities legislation ( McLean , at paras. 28-31); whether a party to a confidential contract could bring a complaint under a particular regulatory regime ( Canadian National Railway , at para. 60); and the scope of an exception allowing non-advocates to represent a minister in certain proceedings ( Barreau du Québec , at paras. 17-18).

As these comments and examples indicate, this does not mean that simply because expertise no longer plays a role in the selection of the standard of review, questions of central importance are now transformed into a broad catch-all category for correctness review. 62 In short , general questions of law of central importance to the legal system as a whole require a single determinate answer.

In cases involving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows. [My bolding added] [ 24 ] I draw from these paragraphs that the present state of jurisprudence from the Supreme Court of Canada is to the effect that the relevant reasoning in Dore remains valid. [ 25 ] Recall, as well the issues in Dore and what Justice Abella for the court stated: 1 The focus of this appeal is on the decision of a disciplinary body to reprimand a lawyer for the content of a letter he wrote to a judge after a court proceeding. 2 The lawyer does not challenge the constitutionality of the provision in the Code of ethics under which he was reprimanded.

Nor, before us, does he challenge the length of the suspension he received. What he does challenge, is the constitutionality of the decision itself, claiming that it violates his freedom of expression under the Canadian Charter of Rights and Freedoms .

3 This raises squarely the issue of how to protect Charter guarantees and the values they reflect in the context of adjudicated administrative decisions. Normally, if a discretionary administrative decision is made by an adjudicator within his or her mandate, that decision is judicially reviewed for its reasonableness.

The question is whether the presence of a Charter issue calls for the replacement of this administrative law framework with the Oakes test, the test traditionally used to determine whether the state has justified a law's violation of the Charter as a "reasonable limit" under s. 1 . 4 It seems to me to be possible to reconcile the two regimes in a way that protects the integrity of each. The way to do that is to recognize that an adjudicated administrative decision is not like a law which can, theoretically, be objectively justified by the state, making the traditional s. 1 analysis an awkward fit.

On whom does the onus lie, for example, to formulate and assert the pressing and substantial objective of an adjudicated decision, let alone justify it as rationally connected to, minimally impairing of, and proportional to that objective? On the other hand, the protection of Charter guarantees is a fundamental and pervasive obligation, no matter which adjudicative forum is applying it.

How then do we ensure this rigorous Charter protection while at the same time recognizing that the assessment must necessarily be adjusted to fit the contours of what is being assessed and by whom? 5 We do it by recognizing that while a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence works the same justificatory muscles: balance and proportionality. I see nothing in the administrative law approach which is inherently inconsistent with the strong Charter protection — meaning its guarantees and values — we expect from an Oakes analysis.

The notion of deference in administrative law should no more be a barrier to effective Charter protection than the margin of appreciation is when we apply a full s. 1 analysis. 6 In assessing whether a law violates the Charter , we are balancing the government's pressing and substantial objectives against the extent to which they interfere with the Charter right at issue. If the law interferes with the right no more than is reasonably necessary to achieve the objectives, it will be found to be proportionate, and, therefore, a reasonable limit under s. 1 .

In assessing whether an adjudicated decision violates the Charter , however, we are engaged in balancing somewhat different but related considerations, namely, has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right. In both cases, we are looking for whether there is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are not unreasonably limited. 7 As this Court has noted, most recently in Catalyst Paper Corp. v.

North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5 (S.C.C.) , the nature of the reasonableness analysis is always contingent on its context. In the Charter context, the reasonableness analysis is one that centres on proportionality, that is, on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives. If the decision is disproportionately impairing of the guarantee, it is unreasonable.

If, on the other hand, it reflects a proper balance of the mandate with Charter protection, it is a reasonable one. 8 In this case, the discipline committee's decision to reprimand the lawyer reflected a proportionate balancing of its public mandate to ensure that lawyers behave with "objectivity, moderation and dignity" with the lawyer's expressive rights.

It is, as a result, a reasonable one. [My bolding added] [ 26 ] Specifically, I conclude that the case at Bar is of a nature that it is analogous to one “in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit rights under the Canadian Charter of Rights and Freedoms (as was the case in Doré )”. [ 27 ] The standard of review in the case at Bar is reasonableness in all respects. [ 28 ] As the Applicant, the Union has the persuasive burden to establish the arbitrator’s reasoning process, or outcome, were not reasonable. [ 29 ] I bear in mind throughout, the court’s reasons in Vavilov , including: 83 It follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker's reasoning process and the outcome.

The role of courts in these circumstances is to review , and they are, at least as a general rule, to refrain from deciding the issue themselves. … …

86 Attention to the decision maker's reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir , at paras. 47-49. In Dunsmuir , this Court explicitly stated that the court conducting a reasonableness review is concerned with "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes": para. 47.

Reasonableness, according to Dunsmuir , "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process", as well as "with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": ibid. In short, it is not enough for the outcome of a decision to be justifiable . Where reasons for a decision are required, the decision must also be justified , by way of those reasons, by the decision maker to those to whom the decision applies.

While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis. 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": Khosa , at para. 59; Catalyst , at para. 18; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) , 2012 SCC 10 , [2012] 1 S.C.R. 364 (S.C.C.) , at para. 44 ; Wilson , at para. 22, per Abella J.; Canada (Attorney General) v. Igloo Vikski Inc. , 2016 SCC 38 , [2016] 2 S.C.R. 80 (S.C.C.) , at para. 57 , per Côté J., dissenting but not on this point; Law Society of British Columbia v.

Trinity Western University , 2018 SCC 32 , [2018] 2 S.C.R. 293 (S.C.C.) , at para. 53 . 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 factual context of the particular decision under review. These 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.

The fact that the contextual constraints operating on an administrative decision maker may vary from one decision to another does not pose a problem for the reasonableness standard, because each decision must be both justified by the administrative body and evaluated by reviewing courts in relation to its own particular context. … 95 That being said, reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it.

It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party. 96 Where , even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision.

Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome : Delta Air Lines , at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion.

This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision .

To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken. [My bolding added] [ 30 ] I will next examine the Union’s argument that the arbitrator erred in considering evidence that he had previously determined irrelevant and inadmissible, and in drawing inferences from such evidence. 2-In concluding that the 2017 grievances should be dismissed, did the arbitrator “err” in relying on pre-2017 evidence he had previously determined was irrelevant and inadmissible, to draw adverse inferences against the grievor, with respect to material facts relevant to many of the issues before him? [ 31 ] Arbitrator Richardson rendered an interim decision of November 24, 2018, in relation to evidence of the previous workplace discord between CC and Mr.

H (which is a significant aspect of what the parties have referenced as “the pre-2017 evidence”). [ 32 ] It is important to set out an expansive amount of his short decision. Therein, he stated:

1 This is a ruling regarding the scope of cross-examination of the grievor by counsel for the Employer and, collateral to that, the relevance of certain documents that were placed before me at the beginning of the hearing of this matter . … 5 At the beginning of the hearing the parties each entered a large tabbed and paginated book of documents: Ex. U1 and E2. The documents were entered subject to being referenced during the course of testimony, and subject to any objections that might arise to individual tabs or documents in either book. 6 The Union’s first witness was the grievor….

Most if not all of her testimony focused on events during the period January to May 2017 and her reaction to them. However, from time to time during her testimony she made passing references to her previous history with her supervisor and others at her workplace. That history encompassed events in 2016 and earlier. As part of that testimony , she was referred at one point to a 21-page letter she had provided to the Employer on February 18, 2016 … The grievor did not testify as to the contents of the letter, other than to say that she had authored it.

Counsel for the Union, in taking the grievor to that document, had indicated that she did so not for the purpose of proving the events discussed in the letter, but only to ‘provide context’ for what happened in 2017. I did not read the letter. 7 The grievor completed her direct testimony… Counsel for the Employer commenced his cross-examination. He began to delve into the events involving the grievor and the Employer’s supervisors and Human Resources staff. In doing so it became apparent that he intended to refer to Tab 1 of Ex.

E2, which appeared to include at least 213 pages of email and text correspondence dated prior to January 2017 and going back to October 2013. Counsel for the Union objected on the grounds of relevance. She submitted that the grievance related to events in the period January – May 2017, and that anything before that was irrelevant.

Counsel for the Employer, on the other hand, submitted that it was relevant given that the grievor had in her testimony referenced her history with the Employer prior to January 2017, and given paragraph 3 of the grievance which stated that: ‘[w]ithin the last three years, [the grievor] has raised concerns of harassment, participated in a mediation with a male co- worker, and participated in a workplace assessment.

This has made her generally aware of, and sensitive to, issues of discrimination harassment and workplace bullying’ Ex U1, Tab 2, p.2’ Counsel for the Union submitted that paragraph 3 was not intended to provide anything other than context to explain the grievor’s reaction to the events of January – May 2017 . As I understood it, it was there to explain the grievor’s sensitivity to what it happened in the period January – May 2017. It was not intended to open the door to evidence going to prove what had happened or been happening prior to January 2017. … Analysis and Ruling 10 I have reviewed both grievances.

I read them as being concerned with what happened to the grievor in the period January – May 2017; with the Employer’s decisions or conduct during that period; and with the Employer’s response to the grievor’s request that it defer or stop the harassment complaint the supervisor had filed against her. I do not read the grievances as being a complaint about an ongoing, generalized toxic workplace. Nor do I read them as being complaints that the past events constitute harassment or bullying in their own right.

That being the case, evidence as to what did or did not happen, or what should or should not have happened, prior to January 2017 is not relevant to the proceedings before me. Hence the pre-2017 emails in the Employer’s book of documents at pages 1– 237 in Ex. E2, Tab 1, are not relevant. Nor is the grievor’s letter of February 18, 2016 and the attached mediation documents in Ex. U1, Tab 2 . While I will leave them in the books (subject to the concerns of counsel) I will not read them.

Nor will I accept them as evidence relevant to the grievances before me. 11 I turn now to the question of the scope of cross examination of the grievor, and by extension, of any of the other witnesses who may be called. It is impossible to provide a blanket ruling… I would have to hear the question before I could rule on its relevance. However, I can make the following observations by way of guidance. 12 These grievances are rooted in an interpersonal relationship between the grievor and a particular supervisor in the context of a particular worksite. That relationship has a history .

That history may be understood or interpreted in different ways by the grievor and the supervisor. And each of them may in their direct testimony offer their particular understanding of that history to explain

or justify why they did or did not take a particular step. To that extent some limited cross-examination may be necessary to test the sincerity of their belief in their particular version of that history. I emphasize, however, that the grievances do not require me to decide as a matter of fact which of those histories is correct. That being the case the focus of cross-examination should always be on the grievor’s and the Employer’s actions during the period to January – May 2017; on why those actions were taken; and on whether they where appropriate.

My ruling regarding the pre- 2017 documents should guide and sharpen that focus. 13 I accept that the grievor did make passing reference to the history of her interactions with her supervisor prior to January 2017. That being the case, it may be necessary from time to time to touch on that history during her cross-examination, or during the examination of cross-examination of her supervisor (should he testify).

But I would be loathe to let any such examination or cross-examination venture beyond the limited scope of relevance I have outlined above.” [My bolding added] [ 33 ] Sections of the arbitrator’s final decision are cited by the Union in its written brief in support of their position, which the Union summarized as: In the final award, it was evident that, contrary to what he had said in his interim award, the arbitrator had read the mediation agreement, the grievor’s letter, and the excluded pages from the Employer’s Book, and accepted them as highly relevant evidence. [ 34 ] His final decision refers to and quotes from the impugned documents: [31] Exhibits U1 (filed by the Union) and E2 (filed by the Employer) both contained a fair amount of pre-2017 documentation.

It consisted mostly of emails, together with various meeting notes and reports: Ex. UI, Tab 5; Ex. E2, Tabs 1, 3… [33] …The context provided by the pre-2017 materials suggests that the grievor and some of the other employees (and in particular, one of the mechanics) did not always adhere to these principles… [35] …The grievor agreed that there was a history of friction but believed that “the situation has been misrepresented and misconstrued to cast me in a negative and unfair light:” Ex. U1, Tab 5, p.2. In a 21-page, single-spaced, typed letter she outlined the historical “context” from her point of view.

The history went back to January 2005 and included employees other than Mr. [H]. One thread that ran through the subsequent history as recounted by the grievor concerned the lack of support she felt she had received from Mr. [W], who, in her words, “did not deal with the offending people, but merely consoled me and said things would get better:” Ex. U1, Tab 5, p.3. [36] …At the conclusion of the mediation process the grievor and Mr. [H] agreed on August 17, 2016 to the following:

(1) Conversation Protcol: (

A) work related only (

B) no personal exchanges (

C) practice professionalism (

D) keep comments about each other confidential (to ourselves)

(2) Overcome anticipating negativity toward each other

(3) If the agreement (any part) breaks down, both parties may contact their supervisor and/or their designated Union representative: Ex. U1, Tab 5, p.27. [229] …However, the grievor and Mr [H] had entered into an agreement “to settle matters in dispute between them without resorting to the adversarial process.” The parties had agreed, with the assistance of Ms Chandler, to work “to isolate points of agreement and

disagreement, to identify their interests, to explore alternative solutions and to consider compromises or accommodations.” And at the end of that process the two of them had agreed on August 17, 2016, to the following:

(1) Conversation Protcol: (

A) work related only (

B) no personal exchanges (

C) practice professionalism (

D) keep comments about each other confidential (to ourselves)

(2) Overcome anticipating negativity toward each other

(3) If the agreement (any part) breaks down, both parties may contact their supervisor and/or their designated Union representative: Ex. U1, Tab 5, p.27. [233] In taking this step [of posting the sticker] the grievor was contravening what she herself had promised not to do in August 2016 at the conclusion of the mediation. She was engaging in a pre-emptive personal exchange with Mr. [H]. She was not practising professionalism.

She was not making any effort to “overcome anticipating negativity” toward Mr. [H]... [234] Given that history, I do not find it surprising that Mr. [W] should have thought that the grievor was being “advers[ar]ial” as well as “a bit pre-emptive” in posting the sign.

The grievor and Mr. [H] had signed a truce [the mediation agreement] in August 2016, but the grievor seemed to be making a pre-emptive strike in breach of that truce [in posting the sticker]…. [My italicization added] [ 35 ] I am satisfied that in his interim decision, Arbitrator Richardson posited that the pre-2017 evidence could be relevant to the events of 2017: “… evidence as to what did or did not happen, or what should or should not have happened, prior to 2017 is not relevant … These grievances are rooted in an interpersonal relationship between the grievor and a particular supervisor in the context of a particular worksite.

That relationship has a history.… each of them may in their direct testimony offer their particular understanding of that history to explain or justify why they did or did not take it particular step.

To that extent some limited cross-examination may be necessary to test the sincerity of their belief in the particular version of that history .” [My bolding added] [ 36 ] Arbitrator Richardson used the pre-2017 history as a contextual reference point for what came later in 2017. [ 37 ] I am satisfied that in his final decision, he did not contradict himself in a manner that would render his use of the pre-2017 evidence as unreasonable. [6] [ 38 ] I will next examine the reasonableness of the arbitrator’s decisions (both the reasoning process and outcome) in relation to the s. 2(

b) Charter issue. 3-

Section 2(

b) Charter of Rights grounds of review [7] [ 39 ] I conclude that the arbitrator did not “err” in finding: 1. the claimed s. 2(

b) of the Charter protection to freedom of “expression” was not engaged on these facts – including consideration of both the location of the sticker inside the HRM fire garage and the audience to which Ms. CC’s expression was addressed; 2. [even if there were protection to freedom of expression on these facts] there was no infringement of the grievor’s freedom of expression under

section 2(

b) of the Canadian Charter of Rights and Freedoms (” Charter ”, or “ Charter of Rights ”) when she was ordered by her employer to remove an anti-bullying sticker from her office door;

3. if there was any infringement of the grievor’s freedom of expression, that infringement was a reasonable limit under section1 of the Charter. [40] Regarding s. 2(

b) of the Charter, I have the benefit of Justice Bourgeois’ reasons for the court in Grabher v. Nova Scotia(Registrar of Motor Vehicles), 2021 NSCA 63, which set out the relevant principles: 28 As they did before the hearing judge, the parties on appeal rely upon the same legal principles and Supreme Court of Canadaauthorities.

Section 2(

b) of the Charter provides: 2. Everyone has the following fundamental freedoms: . . . (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; 29 Like the other rights and freedoms guaranteed by the Charter, a generous and purposive approach must be taken to theinterpretation of s. 2 freedoms (Ford c. Québec (Procureur général), (SCC), [1988] 2 S.C.R. 712; Irwin Toy Ltd. c.Québec (Procureur général), (SCC), [1989] 1 S.C.R. 927). The meaning of "freedom" as contemplated in s. 2 is broadand encompasses the absence of constraint. It was described by Chief Justice Dickson in R. v.

Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295 as follows: 95 Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will ofanother to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot besaid to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint.

Coercionincludes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercionincludes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad senseembraces both the absence of coercion and constraint, and the right to manifest beliefs and practices.

Freedom means that, subjectto such limitations as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others, no one is to be forced to act in a way contrary to his beliefs or his conscience.2 (Emphasis added) 30 With respect to s. 2(

b) specifically, in Ford, supra the Supreme Court noted that freedom of expression included the right toexpress oneself in their language of choice: 40. ... Language is so intimately related to the form and content of expression that there cannot be true freedom of expression bymeans of language if one is prohibited from using the language of one's choice.

Language is not merely a means or medium ofexpression; it colours the content and meaning of expression. ... [T]hat "freedom of expression" is intended to extend to more than thecontent of expression in its narrow sense. (Emphasis added) 31 Freedom of expression has also been interpreted to include the right to express oneself in "certain public locations" (GreaterVancouver Transportation Authority v.

Canadian Federation of Students-British Columbia Component, 2009 SCC 31; Montréal (City) v.2952-1366 Québec Inc., 2005 SCC 62). 32 The parties both rely upon Montréal (City) as confirming a three-part test to determine whether there has been an infringementof s. 2(b). That test requires consideration of: • whether the activity in question has expressive content;

• whether the activity is excluded from s. 2(

b) protection as a result of either the location or the method of expression; and • if the activity is found to be protected, whether s. 2(

b) is infringed by either the purpose or the effect of the government action. 33 It is the second prong of the above test that is at the centre of this appeal and, in particular, how it should be applied to government-owned property. As noted in Montréal (City) , there is no automatic application of the freedom of expression in public spaces: 71 We agree with the view of the majority in Committee for the Commonwealth of Canada that the application of s. 2(

b) is not attracted by the mere fact of government ownership of the place in question. There must be a further enquiry to determine if this is the type of public property which attracts s. 2(

b) protection. (Emphasis in original) 34 Writing for the majority, McLachlin C.J. and Deschamps J. then articulated how to determine whether public property attracts s. 2(

b) protection: 73 We therefore propose the following test for the application of s. 2(

b) to public property; it adopts a principled basis for method or location-based exclusion from s. 2(

b) and combines elements of the tests of Lamer C.J. and McLachlin J. in Committee for the Commonwealth of Canada. The onus of satisfying this test rests on the claimant. 74 The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(

b) is intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors should be considered: (

a) the historical or actual function of the place; and (

b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression. 35 They described the relevance of the historical and actual functioning of the space as follows: 75 The historical function of a place for public discourse is an indicator that expression in that place is consistent with the purposes of s. 2( b ) . In places where free expression has traditionally occurred, it is unlikely that protecting expression undermines the values underlying the freedom.

As a result, where historical use for free expression is made out, the location of the expression as it relates to public property will be protected. 76 Actual function is also important. Is the space in fact essentially private, despite being government-owned, or is it public? Is the function of the space — the activity going on there — compatible with open public expression ? Or is the activity one that requires privacy and limited access ? Would an open right to intrude and present one's message by word or action be consistent with what is done in the space? Or would it hamper the activity?

Many government functions, from cabinet meetings to minor clerical functions, require privacy. To extend a right of free expression to such venues might well undermine democracy and efficient governance. 77 Historical and actual functions serve as markers for places where free expression would have the effect of undermining the values underlying the freedom of expression. The ultimate question, however, will always be whether free expression in the place at issue would undermine the values the guarantee is designed to promote. Most cases will be resolved on the basis of historical or actual function.

However, we cannot discount the possibility that other factors may be relevant. Changes in society and technology may affect the spaces where expression should be protected having regard to the values that underlie the guarantee. The proposed test reflects this, by permitting factors other than historical or actual function to be considered where relevant.

(Emphasis added) 36 McLachlin C.J. and Deschamps J. explained although the protections afforded in s. 2(

b) are broad, the above test recognizes the appropriateness of excluding some places from Charter scrutiny: 79 Another concern is whether the proposed test screens out expression which merits protection, on the one hand, or admits too much clearly unprotected expression on the other. Our jurisprudence requires broad protection at the s. 2(

b) stage, on the understanding that governments can limit that protection if they can justify the limits under s. 1 of the Canadian Charter . The proposed test reflects this. However, it also reflects the reality that some places must remain outside the protected sphere of s. 2( b ) . People must know where they can and cannot express themselves and governments should not be required to justify every exclusion or regulation of expression under s. 1 . As six of seven judges of this Court agreed in Committee for the Commonwealth of Canada , the test must provide a preliminary screening process.

Otherwise, uncertainty will prevail and governments will be continually forced to justify restrictions which, viewed from the perspective of history and common sense, are entirely appropriate. Restricted access to many government-owned venues is part of our history and our constitutional tradition. The Canadian Charter was not intended to turn this state of affairs on its head. (Emphasis added) 37 The Supreme Court of Canada returned to the application of s. 2(

b) to public spaces in Greater Vancouver v. Canadian Federation of Students , supra . There, the question was whether policies precluding political advertising on the sides of city buses violated the guarantee of freedom of expression. The Court adopted the reasoning and test outlined in Montréal (City) . In considering the historical or actual functioning of the space, Justice Deschamps noted: [42] The question is whether the historical or actual function or other aspects of the space are incompatible with expression or suggest that expression within it would undermine the values underlying free expression.

One way to answer this question is to look at past or present practice. This can help identify any incidental function that may have developed in relation to certain government property. Such was the case in the locations at issue in Committee for the Commonwealth of Canada , Ramsden and City of Montréal , where the Court found the expressive activities in question to be protected by s. 2(b) .

While it is true that buses have not been used as spaces for this type of expressive activity for as long as city streets, utility poles and town squares, there is some history of their being so used, and they are in fact being used for it at present.

As a result, not only is there some history of use of this property as a space for public expression, but there is actual use — both of which indicate that the expressive activity in question neither impedes the primary function of the bus as a vehicle for public transportation nor, more importantly, undermines the values underlying freedom of expression. 38 Deschamps J. further concluded there was nothing about the public venue, the side of a city bus, that would result in undermining the purposes of s. 2(b) : [43] The second factor from City of Montréal is whether other aspects of the place suggest that expression within it would undermine the values underlying the constitutional protection.

TransLink submits that its buses should be characterized as private publicly owned property, to which one cannot reasonably expect access. This position is untenable. The very fact that the general public has access to the advertising space on buses is an indication that members of the public would expect constitutional protection of their expression in that government-owned space. Moreover, an important aspect of a bus is that it is by nature a public, not a private, space.

Unlike the activities which occur in certain government buildings or offices, those which occur on a public bus do not require privacy and limited access . The bus is operated on city streets and forms an integral part of the public transportation system. The general public using the streets, including people who could become bus passengers, are therefore exposed to a message placed on the side of a bus in the same way as to a message on a utility pole or in any public space in the city. Like a city street, a city bus is a public place where individuals can openly interact with each other and their surroundings.

Thus, rather than undermining the purposes of s. 2(b) , expression on the sides of buses could enhance them by furthering democratic discourse, and perhaps even truth finding and self- fulfillment. (Italics in original; bolding added) 39 In Canadian Broadcasting Corp. v. Canada (Attorney General) , 2011 SCC 2 , the three-part test was again reiterated. In that instance, a prohibition against journalists undertaking recordings in certain areas of a courthouse was challenged as being contrary to the s. 2(

b) guarantees of freedom of the press and freedom of expression. Writing for the Court, Justice Deschamps also re-stated the view that there are limits to the application of s. 2(b) : [32] This Court has noted on numerous occasions that the protection of s. 2(

b) of the Charter is not without limits and that governments should not be required to justify every exclusion or regulation of a form of expression — whether it concerns the

location or the means of employing that form of expression — under s. 1 (City of Montréal, at para. 79; Baier v. Alberta, 2007 SCC31, [2007] 2 S.C.R. 673, at para. 20; Greater Vancouver Transportation Authority v. Canadian Federation of Students — BritishColumbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 28; Ontario (Public Safety and Security) v. Criminal Lawyers'Association, 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 30). This is just as true in the context of freedom of the press. Therefore, whatmust be determined in the case at bar is whether the activities the media organizations want to engage in are protected by s. 2(

b) and, ifso, whether the limits on engaging in those activities that are imposed by the impugned provisions are justified. (Emphasis added) 40 With respect to considering whether a location should be excluded from s. 2(

b) protections, Justice Deschamps observed: [37] For either the method or the location of the conveyance of a message to be excluded from Charter protection, the court mustfind that it conflicts with the values protected by s. 2(b), namely self-fulfilment, democratic discourse and truth finding (City ofMontréal, at para. 72). The following factors are relevant in this respect: (

a) the historical or actual function of the location of the activityor the method of expression; and (

b) whether other aspects of the location of the activity or the method of expression suggest thatexpression at that location or using that method would undermine the values underlying free expression (City of Montréal, at para. 74).However, the analysis must not be limited to the primary function of the method of expression or the location of the activity. Forexample, in Committee for the Commonwealth of Canada v.

Canada, (SCC), [1991] 1 S.C.R. 139, Ramsden v.Peterborough (City), (SCC), [1993] 2 S.C.R. 1084, City of Montréal and Greater Vancouver, this Court found thatairports, hydro poles, city streets and buses are locations where engaging in certain expressive activities is not inconsistent with the othervalues s. 2(

b) is meant to foster even though their primary function is not expression.

Although conveying messages was not of coursethe primary purpose of these locations, the fact that they were historically used for expression showed that neither aspects of them northeir functions made them unsuitable for exercising the right to freedom of expression. (Emphasis added) [My bolding added] [41] The parties agree that Arbitrator Richardson should have used in the 3-part test set out in Montréal (City) v. 2952 – 13666Québec Inc., 2005 SCC 62, which was referenced in Grabher. [42] His decision is succinct in relation to these issues: 243-The Union in its submissions argues that Mr.

W’s direction [to take down the sticker] contravened the grievor’s freedom ofexpression. This submission raises a three-part question: a. Does s.2(

b) of the Charter apply to the facts of this case? b. If so, did the direction breach the grievor’s freedom of expression? And c. If so, did the Employer establish that any such breach was justified as a ‘reasonable limit prescribed by law as can be demonstrablyjustified in a free and democratic society’ under

section 1 of the Charter? 244-Dealing with the first question I accept that the grievor’s decision to post the sticker was a form of ‘expression’. However, that doesnot in itself mean that it was entitled to the protection afforded ‘expression’ pursuant to s. 2(

b) of the Charter within the guidelines laiddown by the Supreme Court of Canada in Montréal (Ville) v 2952 – 1366 Québec Inc., 2005 SCC 62.… I was not persuaded that postinga sign on the outside of the grievor’s door in the Employer’s Waverley garage fell within the scope of the ‘freedom of expression’protected by s. 2(

b) of the Charter. … 246-Turning to the second question, if the grievor’s door had attracted s. 2(

b) protection (which I have found it did not) then it seemsclear that there would have been a breach of the grievor’s freedom of expression. But that conclusion, had I drawn it, would have takenme to the third question, which I would have answered in the affirmative. Mr. W as a representative of the Employer was entitled by lawand by the Collective Agreement to manage the Employer’s operations. He had a valid concern, based on the history between the grievorand Mr.

H, that the grievor’s actions in posting the sticker when and where she did would re-ignite conflict in the workplace that hadonly recently been quelled by means of a mediation (and Mr. H’s temporary absence from the workplace). The griever’s actionsthreatened the uneasy peace that had reigned since August 2016. Its removal did not threaten, diminish or erode the Employer’s overallanti-bullying policy. I was satisfied then that the direction would have been a reasonable limit on the grievor’s freedom of expression,had I found that the freedom had been engaged.”[8]

[ 43 ] Arbitrator Richardson’s reasoning process and outcome were reasonable. 4-Did the arbitrator err with respect to the considerations to be applied when ‘retaliation’ is claimed (or in the outcome)? [ 44 ] As summarized by the Applicant in its brief, the first and second grievances claimed: Mr. W’s complaint did not disclose prima facie harassment and that either the Employer’s Harassment Policy was an invalid policy, or the policy was being applied in a manner contrary to the Collective Agreement; Mr. W’s complaint against Ms. CC was retaliatory. The application of HRM’s Harassment Policy to Ms.

CC had been unreasonable, and that employees were unable under the policy to access a fair, impartial and competent process. [ 45 ] In its written brief the Union stated (para. 53): “The Applicant originally framed this ground of review to be that the learned arbitrator had erred in not finding Mr. W ’s harassment complaint against CC to constitute harassment. However, the Applicant’s submissions here are more focused on the reasoning process used than the outcome.

The applicant’s position is that the outcome on the issue, whether correct or not, was reached on an improper basis. … In any event, the Applicant’s position is that issues of retaliation, however raised, should be dealt with in the same manner as human rights legislation. Accordingly, to establish retaliation, a complainant must show: 1.

They have made a complaint; 2. they experienced adverse treatment following the filing of their complaint from the person they filed a complaint against or any person acting on their behalf; 3. the complaint was a factor in the adverse treatment ( Dixon v Sandy Lake First Nation , 2018 CHRT 18 para. 22 ) Further: “Proof of intent is not required to make out a retaliation complaint.

A complainant must demonstrate that the human rights complaint was a factor in the alleged adverse treatment received following the filing, based on the complainant’s reasonable act perception of the incident or otherwise see First Nations Child and Family Caring Society of Canada v. Canada (Atty. Gen.) 2015 CHRT 14 at paras. 3– 30 ; see also Tabor v Millbrook First Nation, 2015 CHRT 18 at paras. 5-12 ; affirmed by the Federal Court 2016 FC 894 , as in Dixon at para.26 And: a.

There is no strict requirement that the complainant file a complaint or application under the Code, and b. there is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination ( McConaughie v. Systemgroup Consulting Inc ., 2014 HRTO 295 at para. 103 ) [note: the test for retaliation in McConaughie includes a requirement to show intent, but this predated the Federal Court’s decision in Millbrook] .

57- The learned arbitrator took a more restrictive approach to retaliation than that set out above.

First, he questioned whether a harassment complaint about or in response to a harassment complaint could be something that was considered as ‘adverse treatment’… Applicant’s position is that there are, and should be, no limitation on what forms ‘adverse treatment’ might take… Retaliation may exist in almost any form including a harassment complaint. 58- More problematic… is the learned arbitrator’s statements that retaliation cannot be found to occur in response to a complaint until the complaint had been determined valid : ‘264 To conclude that such a response was retaliatory just because it was made in response to a complaint would be to prejudge the issue of whether the grievor’s complaint was accurate … All this is not to say that the grievor was not sincere in her belief (no matter how unfounded) that she was being harassed – but it is to say that the accuracy or merits of that belief had yet to be determined.

Until that determination was made the respondent (i.e., Mr.

W) was equally entitled to raise questions, whether in response or in a separate complaint, about the merits and motives underlying the complaint being made against him .’ 59-The Applicant strenuously disagrees with this assertion… for retaliation to be shown, there is no requirement that a complainant’s original complaint of discrimination, or in this case harassment, be found to be valid … by taking such a restrictive approach to the issue of retaliation the learned arbitrator committed an error that meets the standard of unreasonableness.” [My bolding added] [ 46 ] Arbitrator Richardson referred to the Union’s position before him in part as follows: [9] The Union’s position here is that the Employer (and in particular Mr.

Dunphy) should never have given Mr. W’s complaint sufficient credit to warrant a formal investigation of Mr. W’s complaint. It says the complaint failed to meet the criteria of harassment under the Harassment Policy; or that it was retaliatory or infected with bias … It further says that Mr. W’s harassment complaint against her was made in retaliation to her seeking Mr. Dunphy’s assistance when the former had asked her to take down the anti-bullying sticker – and that Mr. Dunphy ought to have realized that it was retaliation.” [My bolding added] [ 47 ] “Harassment” is defined in

Article 4 of the Policy.

It reads, in part: [10] “For the purposes of this policy, harassment is conduct, considered by the Employer to be unacceptable in the workplace, in which an employee exhibits offensive behaviour to another employee, or group of employees, and where that individual knew, or ought reasonably to have known, the behaviour would cause offence or harm.” [ 48 ] The ‘harassment’ definition incorporates the following: • Harassment may consist of verbal, written or physical behaviours employed directly (e.g. in person) or indirectly (e.g. via social media) • A reasonable person would know that the harassing behaviour is unwelcome • Harassment generally stems from a pattern of offensive behaviour; however it can result from a one-time incident if that incident is reasonably severe • Lack of intent to harass does not alter a finding of harassment • The person being harassed does not have to voice objections for a harassment complaint to be established • The prohibited behaviour does not have to be directed at a specific employee; it can include the workplace in general, creating a poisoned workplace environment [ 49 ] The Union’s objections to the arbitrator’s reasoning are set out above at paras. 57 and 58 of its brief.

In relation to these two items and the general associated context, Arbitrator Richardson stated: 261 I deal here first with the submission that Mr. W’s harassment complaint was a form of retaliation against the grievor for her having complained about working in fear under him. In making this submission the Union relies in part on the discussion in Dixon v Sandy Lake First Nation 2018 CHRT 18 , wherein it was suggested that, at least under the Canadian Human Rights Act (“CHRA”),

retaliation was made out where: a. The person had made a complaint under the CHRA; b. the person experienced adverse treatment following the filing of their complaint from the person they filed a complaint against, orany person acting on their behalf; and c. the complaint was a factor in the adverse treatment: see also the discussion in NB Porter, “Ending Harassment by Starting withRetaliation”, (June 2018), 71 Stanford Law Review online 49 – 61 at pages 58 – 59. 262 The Union argues that the first condition is satisfied by the fact that the grievor made a complaint. It then says that Mr.

W’scomplaint constituted ‘adverse treatment’ (condition two), and that it was made expressly in reaction to her complaint (condition three).Hence Mr. W’s complaint was clearly retaliatory, and Mr. Dunphy ought to have recognized it as such right at the start. 263 It is not clear to me, however, that a complaint about or in response to a complaint (which in a sense is what we had here) isthe type of ‘adverse treatment’ that one would normally consider retaliatory. The grievor was not shunned; she was not demoted;she was not suspended; a pay raise was not denied to her. The only step that Mr.

W took in response to the grievor’s complaint was a steppermitted of all employees under the Harassment Policy – the filing of a complaint that he himself was being harassed by the grievorwhen she made allegations to others (not just him) that she was working in fear under him. 264 To conclude that such a response was retaliatory just because it was made in response to a complaint would be to prejudgethe issue of whether the grievor’s complaint was accurate (that assumption is where I

part company with the argument in NB Porter,‘Ending Harassment by Starting with Retaliation’…). But that issue had yet to be determined. Not all complaints of harassment areaccurate, fair or sincere. Some merely reflect a tendency to interpret the normal interpersonal frictions of the workplace as harassment– an

interpretation that sometimes expresses itself in ‘dueling complaints’ of harassment between employees: see for example CanadianUnion of Public Employees Local 1259 v White Hills Long-Term Care Centre (NS LA Richardson). Some reflect anattempt by a complainant to weaponize an employer’s anti-harassment policy against a co-worker or a manager.

Indeed, the HarassmentPolicy recognizes, as do most if not all such policies, the existence of such a possibility by prohibiting bad faith or vexatiouscomplaints… All this is not to say that the grievor was not sincere in her belief (no matter how unfounded) that she was beingharassed – but it is to say that the accuracy or merits of that belief had yet to be determined. Until that determination was madethe respondent (i.e. Mr.

W) was equally entitled to raise questions, whether in response or in a separate complaint, about themerits and motives underlying the complaint being made against him. 265 The allegation of retaliation also highlights one of the logical faults in the grievor’s reasoning. She argues that Mr. Dunphy shouldhave appreciated that Mr. W’s complaint was in retaliation to her ‘true an

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