The City of Saskatoon Appellant (Respondent) v. Amalgamated Transit Union, Local, 2017 SKCA 96

Court of Appeal for Saskatchewan Docket: CACV3015 Citation: Saskatoon (City) v Amalgamated Transit Union, Local 615 , 2017 SKCA 96 Date: 2017-11-06 Between: The City of Saskatoon Appellant (Respondent) And Amalgamated Transit Union, Local 615 Respondent (Applicant) Before: Richards C.J.S., Herauf J.A. and Wilkinson J. ( ad hoc ) Disposition: Appeal allowed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr.

Justice Herauf The Honourable Madam Justice Wilkinson On Appeal From: 2016 SKQB 396 , Saskatoon Appeal Heard: May 18, 2017 Counsel: Jon Danyliw for the Appellant Gary Bainbridge for the Respondent Richards C.J.S. I. Introduction [ 1 ] The respondent, Amalgamated Transit Union, Local 615, is the certified bargaining agent for a unit of transit workers employed by the appellant, City of Saskatoon. [ 2 ] This appeal is rooted in a 2014 lockout of transit workers. In response to the lockout, the Union filed an unfair labour practice application with the Labour Relations Board.

It alleged that both the lockout notice and the lockout were illegal because, at the time the notice had been given, an unfair labour practice application, known as the “Mongovius ULP”, had been pending before the Board. The Board agreed and ordered the City to pay damages to the Union’s members in respect of monetary losses caused by the lockout up to the date when the Mongovius ULP had been decided. [ 3 ] The lockout continued for approximately two weeks after the Mongovius ULP decision was released. In due course, the Union made another unfair labour practice application to the Board.

It was based on the ground that the City had never served a valid lockout notice. This time the Union sought damages for its members in relation to the balance of the lockout, i.e., for the period from the date of the Mongovius ULP decision to the end of the lockout. The Board dismissed the Union’s application on the basis that the Union was improperly attempting to collaterally attack its original decision, the one that had awarded damages for the period ending with the Mongovius ULP decision. [ 4 ] The Union then brought a judicial review application asking that the Board’s decision be set aside.

It contended the Board had denied it an opportunity to make submissions about whether damages should be paid for the period following the Mongovius ULP decision. The Chambers judge effectively agreed with the Union’s position and held that, as things had played out, the Union had not been given a chance to put forward its case on the question of the damages that might be payable to its members after the date of the Mongovius ULP ruling. He quashed the Board’s decision and remitted the Union’s application back to the Board to be reheard. [ 5 ] The City now appeals from the decision of the Chambers judge.

It submits the judge applied the wrong standard of review, misinterpreted the Board’s decision and erred in finding the Union had not had a proper opportunity to make its case. [ 6 ] As explained below, I conclude that the City’s appeal must be allowed. The Chambers judge misunderstood the Board’s original decision on the damages issue and was thereby led into error. The Union did in fact attempt to collaterally attack that original decision.

II. background [ 7 ] The Union and the City began collective bargaining in the fall of 2013. [ 8 ] The City served a lockout notice on the Union on September 18, 2014, and initiated the lockout itself on September 20, 2014. [ 9 ] The Union filed an unfair labour practice application regarding the lockout, LRB 210-14, on September 22, 2014. I will refer to this as the “Lockout Application”. The Lockout Application alleged that the City had committed unfair labour practices by (

a) serving a lockout notice on the Union, (

b) locking out the Union’s members, and (

c) changing conditions of employment (a pension plan), all while the Mongovius ULP was before the Board. In this regard, the Union relied on s. 6 - 62(1) (l)(

i) of The Saskatchewan Employment Act , SS 2013, c S-15.1, which provides that a lockout may not be declared or caused while “any application is pending before the Board”. The Union sought damages for the monetary losses suffered by its members because of the lockout and an order restraining the

City from any further lockout action pending the resolution of the Mongovius ULP. [ 10 ] On September 22, 2014, the Union also filed an application seeking interim injunctive relief aimed at requiring the City to end the lockout and to refrain from making any changes to conditions of employment, benefits or privileges. [ 11 ] The Board heard the interim application on September 26, 2014, and rendered a decision the same day. It refused to enjoin the lockout but it did enjoin the City from implementing or making any further changes to the pension plan.

It also directed that the Mongovius ULP be heard on an expedited basis. In Reasons for Decision released on October 29, 2014, the Board explained that the main reason it had refused to enjoin the lockout was because, if the lockout was ultimately found to be unlawful, Union members could be compensated with damages. [ 12 ] The Mongovius ULP, dealing with a Union member’s discipline, was heard and decided on October 3, 2014. [ 13 ] The hearing for the Lockout Application took place on October 14, 2014, and the Board issued its Order on October 17, 2014.

The Order declared that the City had unlawfully given the lockout notice, and had unlawfully locked out Union members, contrary to s. 6 - 62(1) (l)(

i) of The Saskatchewan Employment Act , because the Mongovius ULP had been before the Board at the relevant times. The Order obliged the City to pay damages to the Union’s members for the period during which the Mongovius application had been pending.

The Order, in relevant part, said this: ORDERS the Respondent Employer to pay compensation to the members of the Applicant Union for monetary loss suffered as a result of the unlawful actions of the Employer in locking out said members while an application was pending before the Board for the period during which the said application was pending before the Board[.] [ 14 ] The Order also directed the City to cease the lockout and to refrain from declaring another lockout until such time as it had complied with s. 6 - 34 of The Saskatchewan Employment Act .

Section 6-34 says no lockout is to be declared unless an employer gives a union at least 48 hours’ written notice and notifies the Minister of the date and time the lockout will commence. [ 15 ] The City served a new lockout notice in the afternoon of October 17, 2014, but it was subsequently rescinded by the City without being acted upon. [ 16 ] The Board released its Reasons for Decision in the Lockout Application on October 21, 2014.

They explained that the Union’s members were entitled to damages up to October 3, 2014 – the date the Mongovius ULP application had been decided – but that they were not entitled to damages after October 3, 2014. Paragraph 68 of the Board’s Reasons said this: In our opinion, compensation for monetary losses suffered by members of the Union must be limited to the period commencing with the City’s actions in locking out members of the Union on September 20, 2014 until October 3, 2014, when this Board made its decision with respect to the appropriate disposition of LRB No. 079-14.

We were not satisfied that compensation for monetary loss is appropriate or necessary for the period after the statutory freeze has been lifted. (Emphasis added) [ 17 ] On December 12, 2014, the Union filed a new unfair labour practice application with the Board, LRB 269-14. This is the proceeding that directly underpins this appeal. I will refer to it as the “Damages Application”. The Union sought damages for its members in respect of the period from October 3, 2014, to October 19, 2014, the date the lockout had ended.

The application was based on a contention that the City had continued the lockout without ever having served a valid lockout notice. The particulars of the Union’s argument on this point are not directly relevant to the disposition of this appeal and need not be canvassed. [ 18 ] The City responded by applying to the Board for

summary dismissal of the Damages Application on the basis that the Board had already addressed the issue of damages for the post-October 3, 2014 period in the Lockout Application decision. The Board dismissed the City’s application without providing reasons. [ 19 ] The Damages Application then proceeded to a hearing before the Board. III. the Board’s decision [ 20 ] The Board dismissed the Damages Application. It explained that, in the Lockout Application, it had decided compensation would be payable to the Union’s members only for the period ending October 3, 2014.

The Board therefore found the Damages Application to be an impermissible collateral attack on its decision in the Lockout Application. The Board then went on to deal with the Union’s application as if it was an application for the Board to reconsider its decision in the Lockout Application and determined that the criteria for reconsideration were not met. In the end, the Board dismissed the Union’s application. IV. the chambers decision [ 21 ] The Union took issue with the Board’s decision in the Damages Application by bringing judicial review proceedings in the Court of Queen’s Bench.

The Chambers judge summarized the various developments leading to the Damages Application. In so doing, he proceeded on the basis that the Lockout Application had not determined Union members’ entitlements to damages for the period after October 3, 2014.

He reasoned that, by dismissing the Damages Application, the Board had denied the Union an opportunity to make its case about compensation for its members for the period from October 3, 2014, to October 19, 2014, when the lockout had ended. [ 22 ] The Chambers judge quashed the Board’s decision in the Damages Application and remitted the matter to the Board with a direction for the Board to determine what, if any, compensation Union members should receive in relation to the lockout during the

period after October 3, 2014. See: 2016 SKQB 396 . V. analysis [ 23 ] As noted earlier, the City contends the Chambers judge (

a) applied the wrong standard of review, and (

b) misconstrued the basis of the Board’s decision in the Lockout Application and thereby wrongly found the Union had been denied an opportunity to make a case for damages post-October 3, 2014 in the Damages Application. I will deal with each of these matters in turn. A. What is the applicable standard of review? [ 24 ] Before the Chambers judge, the City and the Union agreed that the standard of review applicable to questions of procedural fairness is correctness.

The City now seeks to resile from that position, arguing that the proper standard of review is reasonableness and that the Chambers judge erred in thinking differently. [ 25 ] The City bases its position solely on Humboldt Electric Ltd. v Workers’ Compensation Board , 2016 SKQB 234 [ Humboldt Electric ].

In that case, a Chambers judge relied on Fraser Health Authority v Workers’ Compensation Appeal Tribunal , 2014 BCCA 499 , 380 DLR (4th) 204 [ Fraser Health ], in concluding, at paragraph 33, that “correctness is no longer the standard of review on issues of procedural fairness and … the applicable test is the reasonableness test”. [ 26 ] I do not accept the City’s position on this issue.

Humboldt Electric cannot be relied on for the all-encompassing proposition that reasonableness is the standard of review with respect to questions of procedural fairness. [ 27 ] The first problem with Humboldt Electric is that it misunderstands or misinterprets Fraser Health . That case was an appeal from judicial review of a “reconsideration” decision of the British Columbia Workers’ Compensation Appeal Tribunal [WCAT] on the question of whether a certain individual’s cancer was work-related and hence compensable.

One of the issues before the Court of Appeal for British Columbia was how to construe s. 253.1 of the Workers Compensation Act , RSBC 1996, c 492.

Section 253.1(1) identifies very specific circumstances in which WCAT can reconsider a decision. Subsection (5) then provides that this enumeration of circumstances is not to be construed as limiting WCAT’s ability to “reopen an appeal in order to cure a jurisdictional defect”. This led the Court of Appeal to consider whether the reasonableness of a previous decision was a question of “jurisdiction” for the purposes of s. 253.1(5).

The Court rejected this view by writing as follows: [158] In my view, the common law power of an administrative tribunal to reopen a proceeding to cure an error of jurisdiction does not extend to a review for reasonableness. It is limited to addressing errors of what today is called “true jurisdiction” to enable the tribunal to undertake fully the task it was mandated to do. [159] I see no basis for limiting what was said in Dunsmuir, and subsequent cases, simply because Dunsmuir concerned judicial review as is suggested by the WCAT.

Because there had been confusion about what errors should be reviewed on a correctness standard, the Court in Dunsmuir defined what was jurisdictional and required a standard of correctness. In that sense, errors that result in a loss of jurisdiction are not jurisdictional. They are reviewed on a reasonableness standard. … [161] I cannot read the words “reopen to cure a jurisdictional defect” as granting a broad review jurisdiction. This would fly in the face of the basic legal principle that the jurisdiction of an administrative tribunal is spent once it decides the issues entrusted to it.

At common law, that a tribunal may be wrong substantively is for the courts to determine on judicial review, not for the tribunal itself. [ 28 ] The Chambers judge in Humboldt Electric relied on paragraphs 158 and 159 of Fraser Health to reason, beginning at paragraph 31 of his decision, that because “lack of procedural fairness is not true jurisdictional error”, then “the lack of procedural fairness must be assessed under the reasonableness test infused with fairness considerations”. This line of thinking is flawed.

To begin, the passages from Fraser Health relied on by the Chambers judge were concerned with issues of reasonableness, not procedural fairness. Moreover, and more significantly, Fraser Health was aimed at the proper

interpretation of a specific statutory provision, s. 253.1 of the Workers Compensation Act , and the comments of the Court of Appeal referenced by the Chambers judge were made in that very specific context. The Court of Appeal was not dealing with a standard of review issue. It was dealing with the scope of WCAT’s authority to reconsider one of its own decisions and the Court did not purport to map out, in general terms, the standard of review applicable to questions of procedural fairness.

Thus, to summarize, Humboldt Electric misreads Fraser Health , the decision said to establish that reasonableness is the standard of review applicable to procedural fairness questions. [ 29 ] The second main problem with Humboldt Electric is that it ignores the significant body of case law to the effect that the correctness standard of review is applicable to questions of procedural fairness.

In this regard, and perhaps most notably, the majority of the Supreme Court of Canada in Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12 , [2009] 1 SCR 339, declared, at paragraph 43, that “ Dunsmuir says that procedural issues (subject to competent legislative override) are to be determined by a court on the basis of a correctness standard of review”. Various other comments from the Supreme Court in recent years have been to the same effect.

See: Ellis-Don Ltd. v Ontario (Labour Relations Board) , 2001 SCC 4 at para 65 , [2001] 1 SCR 221; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at para 82 , [2011] 3 SCR 654. So have the decisions of numerous appellate courts. See, for example: R v Elliott , 2016 MBCA 70 at para 5 ; The Cambie Malone’s Corporation v British Columbia (Liquor Control and Licensing Branch) , 2016 BCCA 165 at para 14 , 87 BCLR (5th) 219; and Henri v Canada (Attorney General) , 2016 FCA 38 at para 16 , 395 DLR (4th) 176. [ 30 ] Overall, this Court has taken the same view.

Thus, for example, in Eagle’s Nest Youth Ranch Inc. v Corman Park (Rural Municipality #344) , 2016 SKCA 20 at para 20 , 395 DLR (4th) 24 [ Eagle’s Nest ], and citing Mission Institution v Khela , 2014 SCC 24 , [2014] 1 SCR 502, Caldwell J.A., Herauf J.A. concurring, indicated that the correctness standard best reflected the proper approach to be

used in the context of procedural fairness inquiries. Writing in dissent with respect to the bottom line of the appeal, I said, at paragraph 83, that “[t]he well-established view is that questions of procedural fairness are reviewed without deference to the choices made by an administrative tribunal. This is usually referred to as review using the ‘correctness’ standard”. See also: SEIU-West v Heartland Regional Health Authority , 2017 SKCA 84 at para 6 .

The decision in Humboldt Electric fails to account for any of this case law. [ 31 ] All of this said, I recognize that this is a difficult and somewhat evolving corner of the law. There is an alternate view in some quarters that, at least in relation to certain kinds of procedural fairness questions, there should be a measure of deference shown to statutory decision-makers. See, for example: Maritime Broadcasting System Limited v Canadian Media Guild , 2014 FCA 59 , 373 DLR (4th) 167.

Elsewhere, there have been suggestions that questions of procedural fairness are simply not amenable to a traditional standard of review analysis. See, for example: Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee) v Barry , 2016 ABCA 354 at para 5 ; and Saskatoon Co-operative Association Limited v Saskatchewan Joint Board, Retail, Wholesale and Department Store Union , 2016 SKCA 94 , 484 Sask R 157.

The emerging debate in this area is canvassed in a number of academic writings including Derek McKee, “The Standard of Review for Questions of Procedural Fairness” (2016) 41 Queen’s LJ 355; Simon Ruel, “What Is the Standard of Review to Be Applied to Issues of Procedural Fairness?” (2016) 29 CJALP 259; Christopher D. Bredt & Alice Melcov, “Procedural Fairness in Administrative Decision-Making: A Principled Approach to the Standard of Review” (2015) 28 CJALP 1; and John M.

Evans, “Fair’s Fair: Judging Administrative Procedures” (2015) 28 CJALP 111. [ 32 ] In Eagle’s Nest , I indicated that I would not want to wholly foreclose the possibility of considering, in some future case, whether there might be procedural fairness issues that should be reviewed using something other than a strict “correctness” standard of review. However, this is not the case to do that.

Among other things, the City is reversing the position it took in Chambers about the proper standard of review and it is doing so on the strength of a single dubious authority, Humboldt Electric , which had been decided well in advance of the Chambers hearing. In addition, because the standard of review issue was not contested in Chambers, this Court does not have the benefit of a lower court decision. Moreover, the City and the Union have not canvassed this issue at any depth in their submissions.

On the whole of things, therefore, this is not a situation where it would be appropriate to reconsider a self-evidently difficult aspect of the law. Accordingly, I will proceed on the basis that, as per the leading authorities, the standard of review is correctness, i.e., that no deference should be shown to the Board’s decision insofar as it involves procedural fairness. B. Was there a denial of procedural fairness? [ 33 ] The City submits the Chambers judge erred in finding that the Union had been denied procedural fairness.

It contends the judge misunderstood the Board’s decision in the Lockout Application and that this misunderstanding led him to improperly strike down the Damages Application decision on the basis that the Union had not been given an opportunity to make submissions about whether its members were entitled to compensation for the period after October 3, 2014. In order to address the City’s argument, it is necessary to start by revisiting the Chambers judge’s reasoning in some additional detail. [ 34 ] The relevant part of the Chambers judge’s decision is found at paragraphs 53–67 under the heading “Conclusion”.

He began by describing the Board’s Order in the Lockout Application as the “lynchpin” of the Union’s argument. In particular, he emphasized the part of the Order that directed the City to compensate the Union’s members for monetary losses suffered when “… an application was pending before the Board for the period during which the said application was pending before the Board”.

The Chambers judge then repeated the Union’s belief that it had correctly understood the Order to mean compensation was payable for the period ending on October 3, 2014, with the determination of whether compensation was payable after that date left for another day. [ 35 ] The Chambers judge next referred to paragraph 68 of the Board’s Reasons for Decision in the Lockout Application. As will be recalled, this was the paragraph in which the Board had explained it was “… not satisfied that compensation for monetary loss is appropriate or necessary for the period after [October 3, 2014]”.

However, while noting paragraph 68, the Chambers judge effectively dismissed what the Board had said there by (

a) characterizing the Order in the Lockout Application as having been “quite specific in restricting compensation to the period during which the Mongovius ULP was before the Board, i.e., October 3, 2014”, and (

b) observing that appeals, and by implication judicial review applications, must be concerned with results rather than reasons. In other words, the Chambers judge accepted the Union’s reading of the Board’s Order in the Lockout Application and declined to place any practical significance on the Board’s Reasons for Decision. [ 36 ] This view of what the Board had done in deciding the Lockout Application led directly to the Chambers judge’s conclusion that the Union had never had an opportunity to make an argument about the compensation payable to its members for the period after October 3, 2014. In essence, the Chambers judge reasoned along the lines that (

a) the Board had left the issue of post-October 3, 2014 compensation open in its Lockout Application decision, (

b) the Board had then wrongly proceeded to deal with the Damages Application on the basis that the post-October 3, 2014 damages issue had been decided against the Union in the Lockout Application, and (

c) the Board, by dismissing the Damages Application, had improperly denied the Union a chance to address the question of compensation after October 3, 2014. The key passages of the Chambers judge’s reasons are set out below: [63] It is clear that when the Union argued LRB 269-14 [the Damages Application], the Board was of the view that the conceptual space of compensation both before and after October 3 had been occupied.

This resulted in the Board concluding that the Union must be asking for a reconsideration of LRB 210-14 [the Lockout Application decision], notwithstanding that reconsideration was not set out in the unfair labour practice, nor was it argued at the hearing. [64] In short, the Union has not had an opportunity to fully make its case respecting compensation for the period of October 3 to October 19/20, 2014. The Board’s decision in LRB 269-14 [the Damages Application] misapprehended the debate. In that sense, there has been a breach of audi alteram partem , and the Union deserves its “day in court”.

In addition, it cannot be said that the Board’s decision, in all the circumstances, is reasonable. [65] Accordingly, I make an order in the nature of certiorari quashing the decision of the Saskatchewan Labour Relations Board dated February 24, 2016 in LRB 269-14 [the Damages Application]. [ 37 ] As will be apparent, the problem with the reasoning of the Chambers judge is that he misunderstood the meaning and effect of

the Board’s Order in the Lockout Application. In saying this, I acknowledge that, when the Lockout Application was before the Board, the Union was clear that it was seeking damages only to October 3, 2014, the day the Mongovius ULP was decided. In his final submission on behalf of the Union in the Lockout Application hearing, counsel stated as follows: And it’s our view, Mr. Chairman, that this application was not granted or dismissed until whatever time it was, 2 or 2:30 p.m. on October the 3rd, at which point the Doug Mongovius matter had, A, been granted; and, B, been granted by a decision of the Board.

And so it is our submission that for that entire period of time the lockout and any changes made in that period of time were unlawful. Now, what happens after that fact may be the -- you know, may have -- there may be other legal problems with that, but that’s not before you today. What’s before you today is the unfair that relates to Mongovius. [ 38 ] The question of the timeframe in which damages were to be paid was also raised by the Board itself during the argument of the Lockout Application.

In the relevant exchange, counsel for the Union again confirmed his client was seeking damages only to October 3, 2014: THE CHAIR: Fair enough. I believe at the outset you acknowledged that one of the arguments on remedies was the time constraint for potential monetary compensation. Was it your intention to leave that for reply? MR. BAINBRIDGE: Well -- THE CHAIR: Because I believe the City had indicated they wanted to bring that up at this stage, not deal with quantification, but potentially seeking direction from the Board. MR. BAINBRIDGE: Fair enough. And it seems to me, Mr.

Chairman, that our case rises or falls on that. I mean, if you find that there was an application pending, and you find that the Employer was in breach at some point, then the followup question would be, well, how long was the application pending? And the answer to that question, which we say is the afternoon of October the 3rd, to me, answers the quantification issue for this phase of the proceedings. There may be another phase in other proceedings, but on this unfair labour practice related to the stat freeze, we would not be seeking as part of a remedy here a monetary loss beyond 2:00 on October 3rd.

THE CHAIR: Thank you, Mr. Bainbridge. That’s very helpful . [ 39 ] But, of course, the Union’s position (as would be the case for any litigant) did not control or define what the Board ultimately elected to do in light of that position. [ 40 ] This takes me to what the Board actually decided in the Lockout Application. As noted above, its Order provided that damages were payable by the City “while an application was pending before the Board for the period during which the said application was pending before the Board”.

The Union, and the Chambers judge in turn, took this to mean, as per the Union’s position at the hearing, that damages were payable to October 3, 2014, and that the question of whether they would be payable for any period after that date was to be determined in a new proceeding. However, the wording of the Board’s Order is also wholly consistent with the notion that damages were payable until October 3, 2014, and not thereafter.

Saying damages are “payable to date X” fits equally comfortably with both the idea that such damages will be payable only to date X and with the idea that they will be payable to date X and perhaps longer if so decided in a later proceeding. [ 41 ] As also indicated above, the Board’s Reasons for Decision in the Lockout Application removed any arguable ambiguity surrounding what it had decided. Those Reasons made it clear that damages would be payable to October 3, 2014 – full stop.

As noted, in paragraph 68 of its Reasons, the Board said “[w]e were not satisfied that compensation for monetary loss is appropriate or necessary for the period after the statutory freeze has been lifted [i.e., after October 3, 2014]”. Contrary to the Chambers judge’s apparent view, this statement was entirely consistent with the terms of the Board’s Order. Thus, there was no room for the judge to engage the idea that judicial review applications must take issue with the decisions of administrative decision-makers, not with the reasons given for those decisions.

Here, the decision and the reasons were to the same effect. [ 42 ] It is readily apparent, therefore, why the Board proceeded as it did in the Damages Application decision, or at least as it did in the first part of its reasoning in that decision. The City, in responding to the Damages Application, had argued that the question of compensation for the lockout had been fully and finally resolved in the Lockout Application decision.

As a result, the City had contended, among other things, that the Damages Application offended the rule against collateral attack as per British Columbia (Workers’ Compensation Board) v Figliola , 2011 SCC 52 , [2011] 3 SCR 422 [ Figliola ].

In Figliola , the Supreme Court explained, at paragraph 28, that the rule against collateral attack attempts to protect the fairness and integrity of the justice system by preventing duplicative proceedings and, more specifically, “… prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than through the designated appellate or judicial review route”. [ 43 ] In light of its belief that it had already resolved the question of compensation post-October 3, 2014, the Board accepted the City’s argument.

It held that the Damages Application was an impermissible collateral attack on the Lockout Application decision and explained as follows: [29] In its Order, the Board made it clear that compensation would be payable by the City to members of the Union only for that period during which the lockout was precluded by the Mongovius ULP. The Order was issued on October 17, 2014 and could have, if that panel of the Board had so wished, included the period between October 3 and October 17, 2014 as compensable. It did not.

In our opinion, the Board’s Order on October 17, 2014 clearly established that compensation would be due only for the period up to October 3, 2014 and not thereafter. [30] The Board agrees with the City that this application represents a collateral attack on the Board’s earlier Order, which, in the circumstances, should have been final. If the Union was unhappy with the result, and unhappy with the Order made by the Board, an

application for reconsideration of the Board’s decision could have been made. … [ 44 ] Parenthetically, I note that the Board did not refer to Danyluk v Ainsworth Technologies Inc. , 2001 SCC 44 , [2001] 2 SCR 460 [ Danyluk ], when it dealt with the collateral attack issue. No doubt for good reasons known to it, the Union made no reference to Danyluk in its submissions to this Court or, it would seem, in its submissions to the Chambers judge.

Accordingly, the possible significance, if any, of the principles outlined at paragraphs 62 to 67 of that case forms no part of my assessment of the merits of this appeal. [ 45 ] With that aside, I return to the main line of my analysis. The point is straightforward. The Board’s conclusion on the collateral attack issue is unassailable unless what the Board decided in the Lockout Application is seen as meaning the question of whether damages were payable to the Union’s members after October 3, 2014, was something to be determined in a subsequent proceeding. As noted, this was the view of the Chambers judge.

But, as explained above, the Chambers judge’s approach involved a clear misreading of what the Board had resolved in the Lockout Application. The Board decided there that damages would not be payable in the post- October 3, 2014 period. As a result, the essential premise of the Chambers judge’s reasoning was misplaced and, as a consequence, his approach to the Board’s decision in the Damages Application was misplaced as well. [ 46 ] This is not to say that the Damages Application decision is free of difficulty.

In my view, the Board erred by taking the initiative to frame the Application as a reconsideration application and to then find no merit in such an application without any input or submissions from the Union. But, this does not affect the bottom line of the Board’s Order with respect to the Damages Application because the Order simply provides that “… this application be dismissed”. As explained, this result is fully and independently sustainable on the basis that the Damages Application was an impermissible collateral attack on the decision in the Lockout Application.

However, the Board’s error in relation to the reconsideration issue does mean that, should the Union now choose to apply for reconsideration of the Lockout Application decision, it may do so.

The Board will be obliged to adjudicate any such application afresh and in light of whatever submissions might be made by the City and the Union. [ 47 ] I would also observe that, although the matter was not framed in these terms by counsel, it is obviously possible to see the denial of the Union’s right to make submissions about its members’ entitlement to compensation post-October 3, 2014 as having taken place in the context of the Lockout Application, not in the context of the Damages Application.

This is so because, in the Lockout Application, apparently without being asked to do so and apparently without hearing submissions on the matter, the Board decided the damages question in relation to the period after October 3, 2014. If this is in fact what happened, the Union’s options were to (

a) seek judicial review on the basis that the Board had decided a matter not before it and had done so without giving the Union an opportunity to make submissions, or (

b) ask the Board to reconsider its decision. However, the Union did not pursue either of these options. Rather, it chose to stand by the notion that the Board’s Order meant damages were payable to October 3, 2014, and that the question of whether they were payable after that date was yet to be determined.

This was ill advised because, to put the matter simply, the Union did not get to determine what the Board had or had not decided. [ 48 ] To recap, the Board did not violate the audi alteram partem principle in deciding to dismiss the Damages Application on the basis that it was an impermissible collateral attack on the Lockout Application decision. That issue had been fully argued before the Board. Nonetheless, the Board did deny the Union its right to be heard on the question of whether the Lockout Application decision should be reconsidered.

This is so because the Board raised that issue on its own initiative and resolved it against the Union without hearing from the Union. Accordingly, and as just explained above, although the Board’s decision to dismiss the Damages Application must stand, the Union is nonetheless entitled to bring an application to have the Lockout Application decision reconsidered if it so wishes. VI. conclusion [ 49 ] The City’s appeal is allowed with costs in the usual way. The Union may bring an application asking the Board to reconsider the Lockout Application decision if the Union so chooses. “Richards C.J.S.” Richards C.J.S.

I concur. “Herauf J.A.” Herauf J.A. I concur. “Richards C.J.S.” for Wilkinson J. ( ad hoc ) as per authorization