Saskatchewan Labour Relations Board Appellant (Non-party) v. SCH Maintenance Services Ltd., 2021 SKCA 151

Court of Appeal for Saskatchewan Docket: CACV3807 Citation: Saskatchewan Labour Relations Board v SCH Maintenance Services Ltd. , 2021 SKCA 151 Date: 2021-11-25 Between: Saskatchewan Labour Relations Board Appellant (Non-party) And SCH Maintenance Services Ltd. Respondent (Applicant) And Teamsters Local Union No. 395 Respondent (Respondent) Before: Ottenbreit, Schwann and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Tholl On appeal from: QBG 2096 of 2020, Regina Appeal heard: September 10, 2021 Counsel: Charita Ohashi for the Saskatchewan Labour Relations Board Jeffrey Grubb, Q.C. and Kayla Romanow for SCH Maintenance Services Ltd. Heather Robertson for Teamsters Local Union No. 395 Ottenbreit J.A. I. INTRODUCTION [ 1 ] The Saskatchewan Labour Relations Board [Board] appeals the decision of a Court of Queen’s Bench Chambers judge: SCH Maintenance Services Ltd. v Teamsters Local Union No. 395 (22 March 2021) Regina, QBG 2096 of 2020 [ Chambers Decision ].

The Chambers Decision orders the Board to immediately include a spoiled ballot in the return of the Board’s record for the purposes of a review application of its decision certifying Teamsters Local Union No. 395 [Union] as the bargaining agent for the employees of SCH Maintenance Services Ltd. [SCH]: SCH Maintenance Services Ltd. v Teamsters Local Union No. 395 (6 November 2020) Regina, LRB File No 069-20 and 038-20 [ Certification Decision ]. [ 2 ] Unlike many other cases where a tribunal participates in a matter that is being litigated between two or more parties, in this case, the Board alone directly appeals the Chambers Decision , claiming the Chambers judge had no jurisdiction to make it.

I conclude for the reasons hereinafter set forth that the Board does not have standing to bring this appeal. I would dismiss the appeal of the Board. II. FACTS AND BACKGROUND [ 3 ] On March 2, 2020, the Union filed an application for certification as the bargaining agent for the employees of SCH. The Board ordered that a representation vote of eligible employees of SCH pursuant to ss. 6 - 9 and 6 - 12 of The Saskatchewan Employment Act , SS 2013, c S-15.1 [ SEA ] be held to determine the employees’ support for the Union’s application.

The vote was conducted by way of mail-in ballot. [ 4 ] The Board Registrar [Board Agent] counted the representation vote in April of 2020. Both SCH and the Union had a scrutineer attend the vote count. The Board Agent opened and viewed each ballot cast and briefly showed it to the scrutineers. At the conclusion of the count, there were eight ballots cast in favour of certification of the Union and seven against it. The Board Agent determined one ballot was spoiled [Disputed Ballot].

[ 5 ] SCH filed an objection to the conduct of the vote and to the Board Agent’s determination the Disputed Ballot was spoiled. SCH then requested that the Board provide the parties with a copy of the Disputed Ballot. The parties filed written submissions on this issue.

After reviewing the submissions, the Board, in a written decision, determined it would be inappropriate to provide a copy of the Disputed Ballot to the parties but held that it would examine the Disputed Ballot and provide a description thereof to the parties for the purposes of facilitating their representations on the Union’s certification application: SCH Maintenance Services Ltd. v Teamsters Local Union No. 395 (31 August 2020) Regina, LRB File No 069-20. [ 6 ] Neither SCH nor the Union applied to judicially review the Board’s decision to provide only a description of the Disputed Ballot for the purposes of the certification application. [ 7 ] After reviewing the Disputed Ballot, the Board gave the parties the following written representation of the Disputed Ballot: There is white-out covering one of the boxes, with a small pen mark extending outside the box at its top right-hand corner, not covered by the white-out.

There is an “X” in pen in the other box. That X is repeated multiple times, superimposed on itself. There is a hand printed word “YES” or “NO” in pen, to the right of the box containing the visible “X”. That word is consistent with the typed word “YES” or “NO” to the left of that same box that is part of the format of the ballot. [ 8 ] The parties requested no further particulars. This description was not challenged as being inadequate in any way by the parties. [ 9 ] The parties proceeded with the certification application using the description provided to them by the Board.

After first hearing argument about the effect of the Disputed Ballot, the Board ruled that the decision of the Board Agent that the Disputed Ballot was spoiled was reasonable and affirmed that decision. In the result, the Board certified the Union as bargaining agent for the employees of SCH. [ 10 ] SCH then applied to judicially review and quash the Certification Decision . The Board forwarded its record to the court pursuant to Rule 3-57 of The Queen’s Bench Rules [ Rules ]. However, the Board’s return did not include the Disputed Ballot as part of the record.

When the review application came before the Chambers judge, he raised an initial concern about the completeness of the record received from the Board and whether the Disputed Ballot should be part of that record. The Chambers judge invited submissions on the issue. [ 11 ] SCH argued in favour of production of the Disputed Ballot as part of the record. The Union argued against production on the basis that “the sanctity of secrecy respecting union certification would be imperilled” ( Chambers Decision at para 7).

It was common ground between the parties – and the Chambers judge agreed – that the production of the Disputed Ballot was not an issue in the judicial review of the Certification Decision . [ 12 ] After hearing the submissions of the parties, the Chambers judge determined that for him to properly fulfill his duty to judicially review the Certification Decision , the Disputed Ballot must be produced as part of the record. He ordered: [8] Having heard the parties’ respective positions, I order as follows: (

a) The Board shall immediately undertake to include in the court record the impugned ballot. It shall be sealed on the court file so that only I will open and view the ballot. Upon the rendering of a decision by this court and the expiry of an appeal period, the ballot shall be retuned to the Board. (

b) As well, the Board shall provide an electronic photograph of the ballot to SCH and to the Union via their legal counsel but that the photographic image shall not be forwarded to anyone, printed or reproduced in any manner. Upon the rendering of a decision by this court and the expiry of an appeal period, the photographic image will be permanently deleted. [ 13 ] Neither the Union nor SCH have appealed the Chambers Decision .

The Board, however, sought leave to appeal the Chambers Decision and leave was granted: Saskatchewan Labour Relations Board v SCH Maintenance Services Ltd. (7 May 2021) Regina, CACV3807 (Sask). As a result, both SCH and the Union appear as respondents in this appeal, although on opposite sides of the matter. SCH submits that the appeal should be dismissed. The Union argues that it should be allowed. III. ISSUES [ 14 ] Pursuant to the order of this Court granting the Board leave to appeal, the following issues are to be determined: (

a) Is this an appropriate case for the Saskatchewan Labour Relations Board to appear and prosecute the appeal? (

b) Did the Learned Chambers judge err in law in requiring the production of a secret ballot governed by s. 6 - 22 of The Saskatchewan Employment Act ? (

c) Did the Learned Chambers judge err in law in failing to provide the Saskatchewan Labour Relations Board with an opportunity to address the issue of production of the ballot before so ordering? [ 15 ] The Board was denied leave to appeal on the question of whether it was necessary for the Chambers judge to order production of the Disputed Ballot. Accordingly, that is not an issue in this appeal. [ 16 ] Given my conclusion that follows in respect of the first issue, it is not strictly necessary to address the others. I will nevertheless deal with the second issue. I decline to deal with the third one.

IV. ANALYSIS A. Is this an appropriate case for the Saskatchewan Labour Relations Boardto appear and prosecute the appeal? [17] The Board purports to appeal on a principled basis to set aside the order directing it to produce the Disputed Ballot and providephotographic copies of it to the parties in accordance with the Chambers Decision. [18] In its factum, the Board sets out why it is engaging in this appeal as follows: 30.

However, when the Board is served with an order compelling it to produce a secret ballot, as it was in this case, it is put in a situationof conflict: how can it both fulfil its obligations under the Act, and comply with the order of the Court? 31. The production of a secret ballot, or ballots, has the potential to impact the integrity of the voting process under the Act – in this case,and in those going forward. 32. The Board, as the body responsible for conducting various types of votes under

Part VI of the Act, the keeper of the ballot in question,and also as the party who has been ordered to produce said ballot, has an obvious interest here separate and apart from that of the parties. 33. This appeal is one that is unlikely to have been initiated by anyone but the Board. Certainly, the questions in issue would not be beforethis Court now but for the Board seeking leave to appeal. [19] As I will explain, the Board’s primary submission in this matter is that the Chambers judge lacked jurisdiction to compelproduction of the Disputed Ballot in light of the provisions of the SEA.

More specifically, the Board argues that pursuant to s. 6-22 of theSEA and s. 23 of The Saskatchewan Employment (Labour Relations Board) Regulations, RRS c S-15.1 Reg 1 [Regulations] as repealed bys. 27 of The Saskatchewan Employment (Labour Relations Board) Regulations, 2021, RRS c S-15.1 Reg 11, ballots cast in the course of acertification vote are secret. It submits that these provisions mandate that it must not produce the Disputed Ballot to anyone – includingthe Chambers judge – otherwise the secrecy of the vote would be imperilled. [20] The Board argues there is ample precedent for its appeal.

It cites the following decisions in support of its position:Saskatchewan (Labour Relations Board) v Saskatoon (City), [1994] 8 WWR 667 (Sask CA); United Food and Commercial Workers,Local 1400 v Wal-Mart Canada Corp., 2010 SKCA 123, [2011] 1 WWR 220; United Food and Commercial Workers, Local 1400 vWal-Mart Canada Corp., 2012 SKCA 131, [2013] 6 WWR 255; as well as Canada Labour Relations Board v Halifax Longshoremen’sAssociation, Local 269, (SCC), [1983] 1 SCR 245 [Halifax Longshoremen’s Association]. [21] However, none of these cases assist the Board.

I conclude, for the reasons that follow, that the Board does not have standing toprosecute this appeal. This is because it is not a participant in an appeal by the litigants of a Board decision. Its prosecution of this appealis inappropriate because it acts as a party litigant that improperly and directly challenges the jurisdiction of a Court of Queen’s Benchjudge to make procedural orders within judicial review proceedings. [22] The following excerpt summarizes the generally accepted view of the concerns about standing for a tribunal.

In “Updating theProcedural Law of Judicial Review of Administrative Action” (2018) 51 UBC L Rev 705–737 (QL), Paul Daly states: A. Tribunal Standing The law of tribunal standing concerns the extent to which tribunals can participate in judicial reviews of their own decisions. On someoccasions, tribunals may wish to participate, for instance, to defend their positions or to offer insight unlikely to be put forward by partiesto the judicial review proceedings.

Tribunal participation in the judicial review arena may, however, raise concerns about the tribunal’simpartiality and the proper functioning of the judicial review process. (Emphasis added) [23] The law governing tribunal standing is not in dispute. It is set out in Ontario (Energy Board) v Ontario Power Generation Inc.,2015 SCC 44, [2015] 3 SCR 147 [Ontario Power].

The Court explained that the following factors should be taken into account indetermining whether a tribunal ought to be granted standing: [59] In accordance with the foregoing discussion of tribunal standing, where the statute does not clearly resolve the issue, the reviewingcourt must rely on its discretion to define the tribunal’s role on appeal. While not exhaustive, I would find the following factors, identifiedby the courts and academic commentators cited above, are relevant in informing the court’s exercise of this discretion:

(1) If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunalstanding.

(2) If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fullymake and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes.

(3) Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making,regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised.

Suchconcerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal,while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns. [24] In short, standing may be granted to a tribunal and it may be entitled to participate in an appeal or review of its decision incircumstances where the tribunal is best suited to make submissions on certain points, such as the

interpretation of a statutory provision or

where there is simply no one else to oppose the party challenging a tribunal’s decision (see Ontario Power at paras 53–54).

However, theintervention of the Board in this matter does not fall into either of those categories or the criteria set out in Ontario Power. [25] The Ontario Power criteria are premised on a tribunal participating in an appeal initiated by a party litigant that is aggrieved bythe tribunal’s decision and not on a tribunal initiating the appeal because it is aggrieved by a decision of a court that it perceives to be atodds with its mandate or contrary to its view of the law or because it wishes to raise and have determined an issue that is not legally indispute between party litigants. [26] The Board’s appeal in this matter is based on the implicit characterization of the Chambers Decision as a judicial review thatdetermined its decision to not disclose the Disputed Ballot to the parties was wrong.

As noted above, that decision of the Board was notchallenged by either SCH or the Union. There was no judicial review of that decision. [27] Production of the Disputed Ballot is also not an issue in the judicial review of the Certification Decision. It may be inferredthat both SCH and the Union are content to proceed with the judicial review on the basis set out in the Chambers Decision.

Thejurisdiction of the Chambers judge to order production of the Disputed Ballot will likewise not be in issue in that proceeding when it isheard. [28] The Union could have appealed the Chambers Decision specifically on the basis that the Chambers judge lacked jurisdiction toorder production of the Disputed Ballot, as the Board has done in this appeal. It did not do so. The parties have not raised the issue ofproduction of their own accord.

Whether the Disputed Ballot should be produced as part of the record is, therefore, not legally in issue inthis Court between the Union and SCH in the same way as it would be had one of those parties appealed that decision. [29] Although the parties have taken sides on the matter in dispute in this appeal, i.e., the jurisdiction of the Chambers judge toorder production, they have done so and are parties to this appeal only because it is a point of importance to the Board which has raised itab initio. [30] As I see it, the Board, of its own motion, attempts to litigate and call into question the jurisdiction of the Chambers judge andthe Court of Queen’s Bench to order the production of the Disputed Ballot as part of the Board record.

The underlying issues regarding thesecrecy of the Disputed Ballot and the

interpretation of the relevant Rules and the SEA are admittedly valid questions of law. However,they are not questions that have been raised in the course of the dispute between SCH and the Union as to whether the Certification Ordershould stand. [31] It cannot therefore be said that the Board’s initiation of this appeal falls into the Ontario Power framework and criteria.

But forthe Board obtaining leave to appeal the matter, the Chambers Decision would not be reviewed by this Court and the matter of theChambers judge’s jurisdiction respecting the extent of the record would not be in issue, as explained above. [32] This is not a case such as Halifax Longshoremen’s Association where a tribunal was also the appellant in proceedings initiatedby the parties.

The Supreme Court noted there that a “unique feature of these appeals is that neither of the unions who were applicants forreview by the Federal Court of Appeal … participated in the appeals” before it, nor did the employers’ association (at 248). In that case,the parties litigating the matter failed to appear.

Although the Court did not comment on the standing of the tribunal, it can be justified onthe basis that, but for the tribunal, there was no other party present to speak to the issues. [33] The Board can also not be said to be participating in an appeal of a judicial review that raised issues that it would be uniquelyplaced to address and would be consistent with the “importance of having a fully informed adjudication of the issues before the court”(Ontario Power at para 48, quoting Children’s Lawyer for Ontario v Goodis, (ON CA), 75 OR (3d) 309 (CA) atpara 23).

The Board is not in the position of merely contributing to a fully informed adjudication of issues raised by the parties. It isassiduously promoting its own interests. As mentioned, there is no appeal by the parties challenging the jurisdiction of the Chambersjudge in which the Board might participate and bring its unique views. [34] It is abundantly clear that the Board has been driving the appeal and not SCH or the Union.

That this approach is not permittedis explained well in the two cases that follow. [35] In Imperial Oil Limited v Alberta (Information and Privacy Commissioner), 2014 ABCA 231, 374 DLR (4th) 489, the Courtwas faced with a situation where the Privacy Commissioner appealed the decision of a Chambers judge setting aside one of its orders. Therespondent, the City of Calgary, supported the Privacy Commissioner’s appeal. The respondent, Imperial Oil Limited, argued that thePrivacy Commissioner had no standing to bring its appeal.

The Court concluded that: [30] This appeal is indistinguishable from [Brewer v Fraser Milner Casgrain LLP, 2008 ABCA 160, 292 DLR (4th) 750], which isbinding authority in this province. An appeal from the decision of the chambers judge was available to the City of Calgary, whichdeclined. Even if the City was unwilling or unable to launch an appeal, that does not establish a right of appeal in the Commissioner. … [36] Notably, this was a case where the order of the tribunal had actually been set aside by the court.

As explained above, thedecision of the Board regarding the disclosure of the Disputed Ballot has not been set aside. [37] The position of the Board as a party litigant in this appeal and the non-application of the Ontario Power framework is bestexplained through Brewer v Fraser Milner Casgrain LLP, 2008 ABCA 160, 292 DLR (4th) 750. The Chief Commissioner of the AlbertaHuman Rights and Citizenship Commission sought to appeal from a superior court decision quashing the Commissioner’s decision.

TheCourt explained as follows: [53] … It is one thing to let the tribunal submit some argument on a topic like jurisdiction when someone else is pursuing a validappeal. The role of that argument is directed only to the Court of Appeal’s law-making (precedential) powers, not to the result in theparticular case. That extra argument costs the other parties little. It is very different to let a tribunal itself appeal when no one else wants toappeal. That appeal would be directed at changing the result in this case, and would create litigation, delay, uncertainty, and expense.

Itwould turn the tribunal into a litigant pure and simple, the enemy of a citizen (or government), just because he or she won in the superiorcourt.

[ 38 ] The appeal by the Board strikes at the very heart of our legal system. That system consists of various levels of adjudicative bodies providing citizens and, in our federal system, government bodies, forums to determine disputes that arise between them.

There is a hierarchy of adjudicative bodies, each of which sits in appeal or review of the tribunal or court lower in the hierarchy, and each of which has prescribed jurisdiction and obligations based either or both on statute law, the common law or, in the case of superior courts, inherent jurisdiction. [ 39 ] That system does not allow a tribunal at one level of the hierarchy to directly challenge a decision of an adjudicative body higher in the hierarchical sphere that the tribunal considers to have failed to accord with its views on an issue.

Implicit in this system is the premise that there is no internecine struggle between bodies at differing levels in the adjudicative hierarchy. The Board’s appeal is just such a conflict; it is not merely participating in an appeal commenced by SCH or the Union, but it commenced one where none existed. [ 40 ] In conclusion, I find that the Board lacks standing for the reasons set out above.

On this basis, I would dismiss the appeal. [ 41 ] That said, this is an appropriate case to nevertheless provide some guidance on the nature of secret ballots and the authority of the courts to order their production in judicial review applications. I therefore turn to the Board’s arguments regarding the second issue upon which leave to appeal was granted. B.

Did the Learned Chambers judge err in law in requiring the production of a secret ballot governed by s. 6-22 of The Saskatchewan Employment Act? [ 42 ] The Board argues that because the SEA provides for a process that requires the certification vote be taken by secret ballot, that secrecy prevents the production of the ballots cast to anyone other than the Board and its agents.

The Board submits that the provisions at issue are a complete code dealing with the conduct of the vote and the secrecy of the ballots thereafter. [ 43 ] The crux of the Board’s argument relies on s. 6-22 of the SEA and s. 23 of the Regulations . [ 44 ]

Section 6-22 reads as follows: Votes by secret ballot 6-22

(1) All votes required pursuant to this Part or directed to be taken by the board must be by secret ballot.

(2) A vote by secret ballot is not required among employees in a bargaining unit consisting of two employees or fewer.

(3) An employee who has voted at a vote taken pursuant to this

Part is not competent or compellable to give evidence before the board or in any court proceedings as to how the vote was cast.

(4) The results of the vote mentioned in subsection (1), including the number of ballots cast and the votes for, against or spoiled, must be made available to the employees who were entitled to vote. [ 45 ] The Board can appoint an agent to supervise, conduct or scrutinize a vote pursuant to s. 6-23. The process is governed by s. 23 of the Regulations , which reads: Conduct of votes 23

(1) In this section, “agent” means a person appointed pursuant to subsection (3).

(2) On the filing of an application respecting a matter for which the board is authorized or required to conduct a vote pursuant to the Act or these regulations, the board may: (

a) if the board considers it to be appropriate, direct that a vote of employees be conducted by secret ballot before the application is heard by the board; and (

b) provide any directions respecting the conduct of the vote that the board considers appropriate.

(3) The board may appoint as its agent the registrar or any other person who the board is satisfied is independent from the parties to the application to conduct a vote required or authorized by the Act.

(4) If the registrar is appointed by the board as its agent: (

a) the registrar may delegate to one or more other persons the exercise of any of his or her powers, or the fulfilling of any of his or her duties, as agent pursuant to this

section and impose any terms and conditions on the delegation that the registrar considers appropriate; and (

b) the exercise of any powers or the fulfilling of any duties by a delegate mentioned in clause (

a) is deemed to the exercise of those powers or the fulfilling of those duties by the registrar.

(5) An agent shall: (

a) act as the returning officer for the vote; (

b) comply with any directions given by the board respecting the vote; (

c) establish a list of employees who are eligible to vote; (

d) determine the form of the ballot to be used in the vote;

(

e) determine whether the vote is to be conducted: (

i) at one or more polling places; or (ii) using a mail-in balloting procedure; (

f) if the vote is to be conducted at one or more polling places, determine the place or places where the vote is to be conducted, together with the dates and hours for conducting the vote; (

g) if the vote is to be conducted using a mail-in balloting procedure, determine the date by which completed ballots must be returned to the returning officer; (

h) prepare a notice of vote in accordance with Form 20 (notice of vote) and issue directions to the employer respecting posting the notice of vote; (

i) appoint any persons whom the agent considers necessary as deputy returning officers and poll clerks; and (

j) if the vote is to be conducted at one or more polling places, invite the employer, any other person and the union named in the application to appoint one scrutineer for each polling place establish pursuant to clause (

f) and allow those scrutineers to be present at the polling place during the hours the vote is conducted; (

k) if the vote is to be conducted using a mail-in balloting procedure, determine the place for counting of the ballots and invite the employer, any other person and the union named in the application to appoint one scrutineer to be present while the ballots are counted.

(6) An agent may issue any directions or instructions that the agent considers necessary respecting the conduct of the vote.

(7) No person shall: (

a) fail to comply with any directions or instructions given by an agent respecting the conduct of the vote; or (

b) if the vote is to be conducted at one or more polling places: (

i) interfere, or attempt to interfere, with a person who is voting; (ii) attempt to obtain information at a polling place as to how a person has voted or is about to vote; (iii) canvass or solicit votes within 20 metres of a polling place while the vote is being conducted; or (iv) display, distribute or post a campaign sign, button or other similar material within 20 metres of a polling place while the vote is being conducted.

(8) In counting ballots, the agent: (

a) shall reject every ballot on which anything is written or marked that identifies the person voting or on which no vote is marked; and (

b) shall accept a ballot if the employee has marked the ballot in a manner that clearly indicates the choice of the employee and notwithstanding that the employee may have marked his or her vote out of, or partly out of, its proper space or with a mark other than an “X”.

(9) On completion of the vote, the agent shall: (

a) if there is no direction of the board to the contrary and if there is no impediment to doing so, promptly count the ballots and complete Form 21 (Report of Agent of the Board Respecting the Conduct of Vote and Counting of Ballots); or (

b) if the agent does not count the ballots promptly after the vote, complete Form 22 (Report of Agent of the Board Respecting the Conduct of Vote).

(10) Immediately after completing Form 21 or 22 as required by subsection (9), the agent shall file a copy of the completed Form with the registrar and the registrar shall give a copy of the completed Form to an employer, to a union directly affected by the vote and, if the applicant who filed the application is not an employer or union, to the applicant.

(11) An employer, other person or union directly affected by the vote that intends to object to the conduct of the vote or the results from the counting of the ballots shall file an application in Form 23 (Objection to Conduct of the Vote) within three business days after the conduct of the vote or the counting of the ballots, as the case may be. [ 46 ] It is common ground that the only persons who view the ballots in the normal course of a vote are the Board Agent and the parties’ scrutineers. Employees are not entitled to see the ballots. They receive only the results of the vote.

Neither are employees compellable to testify as to how they cast their ballot.

The aforementioned sections of the SEA and the Regulations do not indicate who takes and maintains possession of the ballots cast, but it is acknowledged that practically it is the Board that does so. [ 47 ] It is also common ground that all of the foregoing provisions of the SEA and the Regulations are rooted in the concept that the employees who vote should not have their choice identified to ensure they can make the choice that is best for them. [ 48 ] On the basis that s. 6-22 of the SEA and s. 23 of the Regulations require the cast ballots to remain secret, the Board submits as a corollary that the Chambers judge has no jurisdiction to order it to produce the Disputed Ballot as part of the record on the judicial review.

[49] Although the process of voting must be a secret exercise to ensure the choices of the employees are protected, I am not satisfiedthat these provisions constitute the Board as the sole custodian of the Disputed Ballot to the extent that it prevents the ballot from beingproduced to the Chambers judge as part of the record. [50] In interpreting s. 6-22 of the SEA and s. 23 of the Regulations, I turn to and apply the principles set out in s. 2-10 of TheLegislation Act, SS 2019, c L-10.2, which reads as follows: Acts and regulations remedial 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that bestensures the attainment of its objects. [51] The grammatical and ordinary sense of the words in the above provisions of the SEA and the Regulations describe the processand procedure of how a secret vote of employees will be conducted by the Board. However, both s. 6-22 of the SEA and s. 23 of theRegulations are silent about what transpires after the vote is concluded, except for how the results of the vote may be communicated tothe employees and how objections to the vote may be taken.

The text of these provisions is also silent about who maintains custody of theballots cast, although it may be inferred from the provisions that, as a practical matter, it is the Board.

The text also does not deal withhow, as the Board suggests, the ballots shall be kept secret after the vote nor does it deal with production or disclosure of the cast ballots. [52] Even if s. 6-22 of the SEA and s. 23 of the Regulations can be considered a complete code about how the secret vote is to beconducted (I need not determine that), the words thereof in their ordinary and grammatical sense imply generally that the ballots cast are tobe kept secret to the extent necessary to keep the individual voters’ choices confidential.

There is nothing in the scheme and object of theSEA or its other sections that would change the foregoing conclusions. [53] The Board appears to equate the concept of secrecy of the vote with an absolute prohibition against production of the ballots toanyone, including a Queen’s Bench judge sitting in review of its certification order.

However, the crux of the secrecy of a secret ballot isclearly the maintenance of the confidentiality of the individual voters’ selections and not non-production. [54] In Opitz v Wrzesnewskyj, 2012 SCC 55 at para 23, [2012] 3 SCR 76, the Court was asked to annul an election in a federalriding on the basis that ineligible electors had cast votes. The Court stated that because the vote was done by secret ballot, the assessmentof the validity of the election could not involve any investigation into individual voters’ actual choices.

Although the Court did not expandon the meaning of the term “secret ballot”, its only reference to this phrase indicates that the secrecy in question relates to the actualdecision of any individual voter. [55] In Lukaszuk v Kibermanis, 2005 ABCA 26 at para 31, 250 DLR (4th) 577, the Court explained that a secret ballot is designedto protect those voters who choose not to select a particular candidate and to avoid the potential harm that could arise from a voter beingable to signal to a candidate that he or she had voted for that person. [56] A helpful definition of the term “secret ballot” can also be found in Propak Systems Ltd. v U.A., Local 488, [1991] Alta LRBR432 at 442, wherein the Alberta Labour Relations Board stated that, for labour relations purposes, “the meaning of a secret ballot is thatthe voter secretly marks his choice and, so long as the voter does not reveal that information to others, it is not capable of beingascertained by subsequent examination of the ballots, nor can the voter be required to state that information”. [57] The foregoing descriptions of the purpose behind a secret ballot were specifically accepted by the Board in Amenity HealthCare L.P. v Workers United Canada Council, (Sask LRB) at paras 112 and 116.

The Board held that the anonymityof those engaged in the voting process, and freedom from pressure, is precisely what a secret ballot is designed to protect. [58] That said, secrecy of the ballot is a flexible concept and there is no absolute guarantee of perpetual secrecy, as illustrated by thefollowing excerpt from U.F.C.W. Local 401 v Westfair Foods Ltd., [2005] Alta LRBR LD-012 (WL): [8] The requirement of s. 15(2) that votes be by a secret ballot does not restrict this authority. We read the case of Propak Systems Ltd.v. PPF, Loc. 488 [1991] Alta. L.R.B.R. 432, affd. [1992] Alta.

L.R.B.R. 221 (Q.B.), as saying only that a secret ballot is one where thevoter secretly marks his or her choice, the voter cannot be compelled to disclose that choice, and voter wishes cannot be ascertained byexamination of the ballot paper itself. That is, there must be no identifying marks or system of voter identification on the ballot papers. Therequirement of secrecy is not a requirement that a voter’s choice must remain forever secret, no matter what the circumstances.

In thelabour relations field, where eligibility often depends on the facts peculiar to an identified employee and bargaining units are often small, itis simply impossible to guarantee complete and perpetual secrecy of every voter’s wishes. The circumstance of a unanimous result – andmany representation votes in small units end that way – is only the most obvious illustration.

There are other cases in which well-informed parties can accurately deduce an individual voter’s wishes: the facts set out in the Board Officer’s report, information fromemployees who do not wish to preserve secrecy of their own ballots, knowledge of which employee groups furnished the petition or cardsupport that led to the representation vote, the disposition of objections and sealed ballots, the small size of a bargaining unit, and otherfactors, all make this possible. (Emphasis added) [59] Based on the above

definitions alone, the Board’s arguments insofar as they are based on the need to maintain secrecy orconfidentiality of the voters’ preferences must fail. The decision of the Chambers judge compelling the Board to produce to the Court theDisputed Ballot would not reveal the identity of the voter, nor the voter’s choice. In this sense, I am satisfied the secrecy of the votingprocess is not threatened by the Chambers Decision. [60] The Board submits that the Chambers judge simply had no jurisdiction to order it to produce the Disputed Ballot. It argues that,as a matter of law, there is no avenue whereby the production of a ballot, even for the purposes of a judicial review, may be compelled by

a court.

It points out there are no provisions in the SEA for judicial oversight or a recount of the vote that would allow the ballots to leaveits custody and be viewed by another adjudicative body, as some election legislation does. [61] While it is true that the jurisdiction of the Chambers judge to order production of the Disputed Ballot is not set out in the SEAor the Regulations, as I will explain below, he has that jurisdiction at common law. [62] The terms of s. 6-22 of the SEA and s. 23 of the Regulations do not alter the common law jurisdiction of the Court of Queen’sBench to order that the record be completed to allow it to properly conduct a judicial review.

Had the Legislature intended to oust thatjurisdiction, it would have said so unequivocally. [63] That clear words are necessary to do so, is explained in Sullivan on the Construction of Statutes, 6th ed (Markham, Ont:LexisNexis, 2014): §17.5 Presumption against changing the common law. Although legislation is paramount, it is presumed that legislatures respect thecommon law. It is also presumed that legislatures do not intend to interfere with common law rights, to oust the jurisdiction of commonlaw courts, or generally to change the policy of the common law.

As explained in Halsbury, in a formulation adopted by many Canadiancourts: Except in so far as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration inthe common law or to change any established principle of law. These presumptions permit the courts to insist on precise and explicit direction from the legislature before accepting any change. Thecommon law is thus shielded from inadvertent legislative encroachment. (Footnotes omitted) [64] The court’s judicial review jurisdiction is firmly and historically rooted in the common law.

This was admitted by the Board. Inmy view, the wording of the provisions in issue clearly do not oust the court’s common law jurisdiction. Moreover, the right of SCH torequest a judicial review is also constitutionally protected by s. 96 of The Constitution Act, 1867, 30 & 31 Vict, c 3, which precludeslegislatures from completely insulating administrative decision-making from judicial scrutiny (see Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 at para 24, 441 DLR (4th) 1).

The wording of the provisions in issue clearly are not capable ofousting the court’s constitutionally guaranteed jurisdiction to hear judicial reviews. [65] The Board further argues that the Rules governing the return of the record in a judicial review are merely delegated rulesenacted pursuant to The Queen’s Bench Act, 1998, SS 1998, c Q-1.01, and must give way to the statutory and more specific decree of theLegislature regarding voting and ballots.

It says, pursuant to Friends of the Oldman River Society v Canada (Minister of Transport), (SCC), [1992] 1 SCR 3 at 38, that the Rules are subordinate to the SEA and of no effect where the two instruments conflict. Itargues that the SEA is paramount in that respect. However, this contention lacks merit as well. [66] As noted above, there is nothing in the aforementioned provisions that specifically addresses the secrecy or confidentiality ofthe ballots cast after the vote has been taken.

There is likewise no specific decree of the Legislature that, after the vote, the ballots must bekept secret and not produced to anyone other than the Board and its agents. There is nothing in the SEA which specifically precludes areviewing court from being able to compel production of the evidence considered by the Board in making its decisions. Thus, there is noconflict between the SEA and the Rules, as argued by the Board.

Given the lack of express statutory language either authorizing orprohibiting the production of the ballots like the Disputed Ballot, the ordinary evidentiary and procedural principles related to the “record”in judicial reviews must apply. [67] The Rules, and specifically Rules 3-57(2) and (3), 3-58 and 3-59, provide the Court with ample jurisdiction to make an ordercompelling the production of the Disputed Ballot as part of the record on the terms and conditions that the court sees fit. [68] The governing rules read: Notice to obtain record of proceedings 3-57(1) An originating applicant for judicial review who seeks an order to set aside a decision or act must include with the originatingapplication a notice in Form 3-57, addressed to the person or body that made or possesses the record of proceedings on which the decisionor act sought to be set aside is based, to send the record of proceedings to the local registrar named in the notice.

(2) The notice must require the following to be sent or require an explanation of why an item cannot be sent: (

a) the written record, if any, of the decision or act that is the subject of the originating application for judicial review; (

b) the reasons given for the decision or act, if any; (

c) the document that started the proceeding; (

d) the evidence and exhibits filed with the person or body, if any.

(3) The Court may add to, dispense with or vary anything required to be sent to the local registrar under this rule. Sending in certified copy of record of proceedings 3-58(1) On receipt of an originating application and a notice in accordance with rule 3-57, the person or body named in the notice shall, assoon as is practicable: (

a) comply with the notice and send to the local registrar a certified copy of the record of proceedings in Form 3-58; or

(

b) provide in Form 3-58 a written explanation as to why the notice cannot be complied with or fully complied with.

(2) The certified copy of the record of proceedings sent to the local registrar pursuant to this rule constitutes part of the Court file of the originating application.

(3) If the Court is not satisfied with the explanation for not sending all or part of the record of proceedings, the Court may order any or all of the following: (

a) a better explanation; (

b) a certified copy of a document to be sent to the local registrar; (

c) the person or body to take any other action the Court considers appropriate. Other circumstances when a record of proceedings may be required 3-59

(1) The Court may order a person having custody or control of any material or evidence in any proceeding to produce at or before the hearing: (

a) the whole or any part of the record of proceedings or a copy of the record of proceeding; or (

b) the whole or any part of the evidence in the proceeding or a copy of the evidence.

(2) Unless the Court orders otherwise, if compliance with the order would require a transcription of evidence or unusual expense, no transcription shall be required or expense incurred unless the proper fees for the transcription have been paid.

(3) If the Court orders the record of proceedings to be sent to the local registrar, rules 3-57 and 3-58 apply, unless the Court orders otherwise. [ 69 ] Rule 3-57 specifically contemplates an administrative body being required to send the evidence and exhibits filed with that body to the local registrar named in the notice or to provide an explanation of why that evidence or exhibits cannot be sent. [ 70 ] The law governing production of the record is set out by this Court in Hartwig v Commission of Inquiry into matters relating to the death of Neil Stonechild , 2007 SKCA 74 , [2007] 10 WWR 689: [32] As indicated, I prefer to base my conclusion in this regard on the straightforward proposition that the parties to a judicial review application should be able to put before a reviewing court all of the material which bears on the arguments they are entitled to make.

If a tribunal decision can be challenged because it involves a patently unreasonable finding of fact, then the evidence underpinning that finding should be available for the Court to consider.

This is ultimately a sounder and more transparent approach to this issue than one couched in terms of the sometimes elusive notion of “jurisdiction” or framed around the complex and rather uncertain and unsatisfactory body of case law relating to the concept of decisions based on “no evidence”. [33] Thus, in all of the circumstances, the best course in this area for now is to simply recognize the right of participants in judicial review proceedings to bring forward the evidence which was before the administrative decision-maker.

This may be done by way of an affidavit which identifies how the evidence relates to the issues before the court and which otherwise lays the groundwork for its admission. That was the general approach taken by Hartwig. [ 71 ] The above passage is a clear and unequivocal statement that supports the premise that all evidence considered by an administrative decision-maker ought to be put before a court conducting a judicial review.

Anything short of the full evidentiary record being submitted to the court opens the door to the potential injustice cautioned against by Richards J.A. (as he then was) in Hartwig , whereby the factual findings of an administrative decision-maker can be challenged but the evidence behind those findings is not before the court. [ 72 ] A good

summary of the principles related to the evidentiary record that must be available on judicial review is found in Tsleil- Waututh Nation v Canada (Attorney General) , 2017 FCA 128 at para 71 , where Stratas J.A. characterized the evidentiary record before the administrative decision-maker as being “indispensable” to the court reviewing an administrative decision, and stated that the reasons must be compared to the result in light of the legislative scheme and the evidentiary record.

Justice Stratas noted: [72] For example, a key evidentiary finding made without anything in the evidentiary record in circumstances where evidence was necessary can render an administrative decision unreasonable. … So can a finding that is completely at odds with the evidentiary record.

In the case of reasonableness review, where a key part of the record—for example, any evidence on an essential element—is missing and, as a result, the reviewing court cannot assess whether the decision is within the range of acceptability and defensibility and, thus, reasonable, sometimes the reviewing court has no choice but to quash the administrative decision …. (Emphasis added; citations omitted) [ 73 ] Further, Stratas J.A. identified the importance of the evidentiary record in preventing administrative decision-makers from being immunized from review (see Tsleil-Waututh at para 73). [ 74 ] There can be no argument that the Board, as part of its deliberations, reviewed the Disputed Ballot.

It is therefore evidence in respect of the Board’s decision under review and it must be produced as part of the record. [ 75 ] The Board’s argument before this Court verges on an attempt to immunize its decisions from a full judicial review by controlling the content of the record produced under the guise of maintaining the secrecy of the Disputed Ballot. The jurisdiction of the

Court of Queen’s Bench to review decisions of the Board cannot be attenuated based on the Board’s view that it alone controls who may see or possess the Disputed Ballot.

Moreover, there is nothing in the SEA and the Regulations provisions that would constitute the Board as the sole custodian of ballots cast for all purposes. [ 76 ] Based on all the foregoing, there is, in my view, no conflict between the production of the Disputed Ballot and the obligation of the Board to keep the choice of the employee confidential. [ 77 ] The production of the Disputed Ballot as part of the record will not impact that confidentiality in any substantial way.

The Chambers judge, in making the production order he did, was clearly aware of the need to uphold the secrecy of the voter’s choice in carrying out his judicial review. In discharging his task, he is no less the guardian of the secrecy of the vote than the Board and no less capable of doing so. [ 78 ] For the reasons set out above, the Board’s arguments on this ground must fail. V. CONCLUSION [ 79 ] The appeal is dismissed. There will be no order for costs in this matter. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.