Amalgamated Transit Union, Local 615 Appellant (Applicant) v. The City of Saskatoon, 2021 SKCA 93

Court of Appeal for Saskatchewan Docket: CACV3480 Citation: Amalgamated Transit Union, Local 615 v Saskatoon (City),2021 SKCA 93Date: 2021-06-25Between:Amalgamated Transit Union, Local 615Appellant (Applicant)AndThe City of SaskatoonRespondent (Respondent)Before: Jackson, Schwann and Tholl JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Madam Justice JacksonIn concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice ThollOn appeal from: QBG 279 of 2019, SaskatoonAppeal heard: October 6, 2020Counsel: Gary Bainbridge, Q.C., for the Appellant Kevin Wilson, Q.C., for the Respondent Jackson J.A. I. Introduction [1] In the midst of negotiating a new collective bargaining agreement, the City of Saskatoon [City] locked out its transit workersin September of 2014. The union representing those workers, Amalgamated Transit Union, Local 615 [Union], successfully persuaded theSaskatchewan Labour Relations Board [Board] that the lockout was unlawful.

By way of a remedy, the Board ordered the City to paycompensation to the Union for only part of the lockout period: Amalgamated Transit Union, Local 615 v Saskatoon (City), (Sask LRB) [Lockout Decision]. [2] Since the Lockout Decision, the Union has applied twice to the Board, twice to the Court of Queen’s Bench and once to thisCourt in an effort to recover compensation for the whole of the lockout period.

In all of these proceedings, the Union has asserted,variously, that it has not been heard on that question or the Board has breached the duty of procedural fairness in some fashion. [3] This time, the Union applied to the Court of Queen’s Bench for judicial review of the following: (

a) the Lockout Decision, and (

b) the Board’s refusal to reconsider the Lockout Decision, i.e., Amalgamated Transit Union, Local 615 v City of Saskatoon, (Sask LRB) [Refusal Decision], dated November 23, 2018. [4] The Chambers judge dismissed the Union’s application for judicial review of both decisions: Amalgamated Transit Union,Local 615 v City of Saskatoon (16 August 2019) Saskatoon, QBG 279 of 2019 (Sask) [Chambers Decision]. [5] With respect to the Refusal Decision, the Chambers judge applied a standard of review of reasonableness (at para 36) andfound that the Board’s refusal to reconsider the Lockout Decision was reasonable (at para 42).

With respect to the Lockout Decision itself,the Chambers judge held that the delay in bringing the application was undue and that to allow the matter to proceed would be contrary togood administration as that phrase is defined in the case law (at para 28). The Union now appeals both aspects of the Chambers Decisionto this Court. [6] The factual background is complex, but only two issues determine the outcome of this appeal: (

a) What is the standard of review to apply to a refusal to reconsider when the applicant alleges procedural unfairness in the priordecision for which reconsideration is being sought? (

b) Whether the refusal to hear the judicial review application because of undue delay is sustainable? [7] I have concluded there is no basis to challenge the Chambers judge’s choice of reasonableness as the standard of review or hisapplication of that standard to the Refusal Decision. Accordingly, the Union’s appeal of that aspect of the Chambers Decision isdismissed. [8] With respect to the Lockout Decision, I see no basis to interfere with the Chambers judge’s decision to refuse to hear theUnion’s application for a judicial review of that decision. Accordingly, this aspect of the Chambers Decision is also dismissed. II. Background

[9] The history of this appeal spans six years of City and Union labour relations applications, Board decisions, Queen’s Benchdecisions and one decision from this Court. Because the history of this dispute is complex and protracted, the following tables provide (a)a list of the decisions and associated short forms, and (

b) a chronology of relevant dates. Following these tables, I provide more detailedinformation about each decision under headings associated with the short form assigned.

Because Board file numbers are frequently usedin quoted material, I will repeat those numbers in the headings. [10] These are the short forms used in these reasons: Short Form Citation Information and Board Number (if any) Associated Actions and Short FormsSummaryDismissalApplication LRB File No 097-14 (15 May 2014) (Sask) Interim Order Amalgamated Transit Union, Local 615 v Saskatoon (City) (26 September2014) Regina, LRB File No 211-14 (Sask) Mongovius OralDecision Amalgamated Transit Union, Local 615 v Saskatoon (City) (3 October2014) Regina, LRB File No 079-14 (Sask) Mongovius Application MongoviusDecision Amalgamated Transit Union, Local 615 v Saskatoon (City), (Sask LRB), LRB File No 079-14 (5 November 2014) Mongovius Application Lockout InterimOrder Amalgamated Transit Union, Local 615 v Saskatoon (City) (17 October2014) Regina, LRB File No 210-14 (Sask) Lockout Application Lockout DecisionAmalgamated Transit Union, Local 615, v Saskatoon (City), (Sask LRB), LRB File No 210-14 (21 October 2014) Lockout Application, Lockout Interim Order,Lockout Final Order, Lockout BoardInterim DecisionAmalgamated Transit Union, Local 615 v Saskatoon (City), (Sask LRB), LRB File No 211-14 (29 October 2014) Interim Order Pension Order Amalgamated Transit Union, Local 615 v Saskatoon (City) (30 January2015) Regina, LRB File No 210-14 (Sask) Pension Board Pension DecisionAmalgamated Transit Union, Local 615 v Saskatoon (City), (Sask LRB), LRB File No 210-14 (3 March 2015) Pension Board, Pension Order DamagesDecision Amalgamated Transit Union, Local 615 v Saskatoon (City), (Sask LRB), LRB File No 269-14 (24 February 2016) Damages Application, Damages Board AmalgamatedTransit QB Amalgamated Transit Union, Local 615 v Saskatoon (City), 2016 SKQB396, 18 Admin LR (6th) 349 (8 December 2016) AmalgamatedTransit CA Saskatoon (City) v Amalgamated Transit Union, 2017 SKCA 96, [2018] 4 WWR 822 (6 November 2017) Refusal DecisionAmalgamated Transit Union, Local 615 v.

City of Saskatoon, (Sask LRB), LRB File No 263-17 (23 November 2018) Reconsideration Application, Refusal Board ChambersDecision Amalgamated Transit Union, Local 615 v City of Saskatoon (16 August2019) Saskatoon, QBG 279 of 2019 (Sask) [11] This is a chronology of all relevant events: Year Month Day Event2012 December 31 Collective Bargaining Agreement [CBA] between the City and Union ends2013–2014 Bargaining for a new CBA is ongoing2014 April 14 Union files the Mongovius Application – unrelated to bargainingMay 15 City files the

Summary Dismissal Application in response to the Mongovius ApplicationJune 3 Board hears the City’s

Summary Dismissal Application in an in camera hearing and reservesdecisionSeptember 18 City serves lockout notice on transit workers20 City locks out some 350 transit workers22 Union files the Lockout Application and applies for interim relief23 City withdraws the

Summary Dismissal Application and consents to most of the reliefclaimed in the Mongovius Application26 Board fixes the date for the Mongovius Application and makes the Interim Order,responding to the Lockout ApplicationOctober 3 Board hears the Mongovius Application and releases the Mongovius Oral Decision14 Board hears the Lockout Application17 Board issues the Lockout Final Order with reasons to follow (matter no longer pending)20 Lockout ends for all transit workers21 Board issues reasons for the Lockout Final Order in the Lockout Decision29 Board issues the Interim Decision (providing written reasons for the Lockout Interim Order)December 12 Union files the Damages Application with the Board2015 January 30 The Board holds a hearing to consider effect of the Mongovius Application on the City’spension Bylaw No. 9224, which was passed during the lockout periodMarch 3 Board issues the Pension Decision2016 February 24 Board issues the Damages DecisionDecember 8 Court of Queen’s Bench issues Amalgamated Transit QB2017 November 6 Saskatchewan Court of Appeal releases Amalgamated Transit CADecember 15 Union applies to amend the Lockout Interim Order and the Lockout Decision – Board treatsthese as a reconsideration application2018 November 23 Board issues the Refusal Decision2019 February 19 Union applies for judicial review of the Refusal Decision and the Lockout Decision August 16 Court of Queen’s Bench releases the Chambers Decision

A. Unfair labour practice application LRB File No 079-14 – the MongoviusApplication [12] In 2013 and 2014, the City and the Union were negotiating a new collective bargaining agreement for the City’s transitworkers. The prior agreement had expired at the end of 2012. [13] In April of 2014, the City took steps to discipline Doug Mongovius, a transit worker, wrongfully as the City later agreed. TheCity’s discipline of Mr. Mongovius led to the Union’s filing of an unfair labour practice application on his behalf on April 14, 2014[Mongovius Application]. The Board granted an order in Mr.

Mongovius’s favour on October 3, 2014, largely with the City’s consent(Amalgamated Transit Union, Local 615 v Saskatoon (City) (3 October 2014) Regina, LRB File No 079-14 [Mongovius Oral Decision])and subsequently issued reasons on November 4, 2014, in letter form (Amalgamated Transit Union, Local 615 v Saskatoon (City), (Sask LRB) [Mongovius Decision]). While this application was unrelated to the collective agreement negotiations, it hadimplications for that bargaining process and is at the core of the issues in this appeal. [14] The Mongovius Application is significant because s. 6-62(1)(

l) of The Saskatchewan Employment Act, SS 2013, c S-15.1[SEA], as it existed in 2014, provides that it is an unfair labour practice for an employer to take certain actions while any application ispending before the Board: DIVISION 12 Unfair Labour Practices Unfair labour practices – employers 6-62(1) It is an unfair labour practice for an employer, or any person acting on behalf of the employer, to do any of the following: … (

l) to declare or cause a lockout or to make or threaten any change in wages, hours, conditions or tenure of employment, benefits orprivileges while: (

i) any application is pending before the board; or (ii) any matter is pending before a labour relations officer, special mediator or conciliation board appointed pursuant to this Part … . (Emphasis added) [15]

Section 6-62(1)(

l) creates what is known as a statutory freeze, which prevents an employer from locking out employees while amatter is pending before the Board. During the period of the statutory freeze, the City did exactly that. It served a lockout notice onSeptember 18, 2014, and locked out its transit workers on September 20, 2014. Then, on September 22, 2014, the City voted to amendCity of Saskatoon, Bylaw No. 8226, General Superannuation Plan Bylaw, 2003 (Codified to Bylaw No. 9224, 22 September 2014)[Bylaw No. 9224], governing its workers’ pension entitlements.

The City’s actions led to the Union’s next application, discussed below. B. Unfair labour practice application LRB File No 210-14 – the LockoutApplication [16] On September 22, 2014, the Union filed an unfair labour practice application with the Board (Lockout Application, LRB FileNo 210-14). The Union submitted that the City “has been or is engaging in an unfair labour practice (or a contravention of the Act) withinthe meaning of

section 6-62(1)(l)(

i) of The Saskatchewan Employment Act”. The Union claimed damages and payment for monetarylosses and irreparable pension losses and sought a restraining order respecting any further lockout as follows:

i) The Union and its members have suffered and are suffering monetary losses and irreparable pension losses as a result of this unlawfullockout, and the Union seeks damages and payment for the said losses pursuant to

section 6-104(2)(

e) of the Act and section 14(1)(

d) ofthe Regulations, as well as a restraining order respecting any further lockout action pending final resolution of LRB File Nos. 079-14[Mongovius Application] and 097-14 [Summary Dismissal Application]. (Emphasis added) [17] In addition to filing its Lockout Application, the Union applied to the Board, on the same day, for an interim order in theseterms: An interim order immediately restraining the employer from continuing or commencing any lockout proceedings of whatever nature, ormaking or threatening any changes to wages, or working conditions of any nature, pending the final resolution of the within application[i.e., the Lockout Application]. [18] On September 23, 2014, the City wrote to the Board: (

a) withdrawing its

Summary Dismissal Application of the Mongovius Application; (

b) withdrawing its reply filed in respect of the Mongovius Application; (

c) admitting the facts alleged in the Mongovius Application; and

(

d) attaching a “consent Order for the Board acknowledging that the City committed an unfair labour practice in violation ofclauses 11(1)(

a) and 11(1)(e) [of] The Trade Union Act [now clauses 6-62(1)(

a) and 6-62(1)(

g) of The Saskatchewan Employment Act], asalleged by the Union in its [Mongovius Application], and confirming that it would cease and desist from this conduct”. On the same day, the Union objected to the City’s withdrawal of its reply to the Mongovius Application and asked that the question ofremedy continue to be heard by the Board. [19] On September 26, 2014, the Board issued the Interim Order in response to the Lockout Application. This order restrained theCity from enacting any further changes to the pension plan but did not restrain further lockout action: 1.

DETERMINES that the Amalgamated Transit Union, Local 615 has made out an arguable case that the Respondent, the City ofSaskatoon, has engaged in a potential violation of s. 6-62(1) of The Saskatchewan Employment Act; 2. ORDERS that, effective this day, the City of Saskatoon is enjoined from implementing or making any further changes to the pensionplan affecting members of the Amalgamated Transit Union, Local 615 until such time as this Board disposes of the application bearingLRB File No. 210-14; 3.

DETERMINES that the Applicant shall have leave to renew its application for an interim Order enjoining the City of Saskatoon fromlocking out members of the Amalgamated Transit Union, Local 615 on or after October 3, 2014 or on the day the Board begins hearingthe application bearing LRB File No. 210-14 [i.e., the Lockout Application]. [20] The Union asked the Board for written reasons for this order. The Board gave those reasons on October 26, 2014:Amalgamated Transit Union, Local 615 v Saskatoon (City), (Sask LRB) [Interim Decision].

On the same day as theInterim Order, the Board fixed October 3, 2014, as the day that it would hear the Mongovius Application. [21] On October 3, 2014, the Board heard the Mongovius Application and rendered an oral decision (i.e., the Mongovius OralDecision). In the end result, the Board did not award any further relief than what the City had already consented to on September 23,2014. [22] On October 14, 2014, the Board held a hearing with respect to the Lockout Application. The Board heard the Union’s witnessand received written and oral submissions.

On October 17, 2014, the Board announced the result of its decision in a detailed order[Lockout Final Order]. The Board made these findings: 1. that application bearing LRB File No. 079-14 [Mongovius Application] was pending before the Saskatchewan Labour Relations Boardwithin the meaning of

Section 6-111(2)(

a) of The Saskatchewan Employment Act and that said application was pending from the day onwhich that application was first considered by an in camera panel of the Board on June 3, 2014 until the day on which the decision of thisBoard was made disposing of that application, being October 3, 2014; 2. that the Respondent Employer did unlawfully give notice of its intentions to lockout members of the Applicant Union when anapplication was pending before the Board in contravention of

Section 6-62(1)(l)(

i) of The Saskatchewan Employment Act; 3. that the Respondent Employer did unlawfully lockout members of the Applicant Union when an application was pending before theBoard in contravention of

Section 6-62(1)(l)(

i) of The Saskatchewan Employment Act; 4. that the Respondent Employer did unlawfully make changes to the conditions of employment, benefits and privileges of members of theApplicant Union when an application was pending before the Board in contravention of

Section 6-62(1)(l)(

i) of The SaskatchewanEmployment Act; and 5. that the within application is no longer pending before the Board. [23] The Board went on to make these orders: 6. ORDERS the Respondent Employer to cease and desist from its current lockout of members of the Applicant Union and to refrain fromdeclaring another lockout until such time as it has complied with

Section 6-34 of The Saskatchewan Employment Act; 7. ORDERS the Respondent Employer to pay compensation to the members of the Applicant Union for monetary loss suffered as a resultof the unlawful actions of the Employer in locking out said members while an application was pending before the Board for the periodduring which the said application was pending before the Board; 8.

ORDERS the Respondent Employer and Applicant Union to meet to attempt to resolve quantum of monetary losses arising from theunlawful lockout; failing which either party shall have leave to request the Board reconvene at a set time and place to hear evidence andargument on the issue of quantification of losses occasioned by the lockout … . (Emphasis added) [24] On the pension issue, the Board granted leave to the parties to file submissions as to the appropriate relief, if any, with respectto the enactment of Bylaw No. 9224. The Board then reserved jurisdiction to determine the following: (

a) the amount of compensation for monetary loss payable by the Respondent Employer under paragraph 7 above in the event the partiesare unable to agree on this issue; and (

b) the appropriate remedial relief, if any, arising out of the enactment of Bylaw No. 9224 and the changes made to the conditions ofemployment, benefits and privileges of members of the Applicant Union when an application was pending before the Board. (Emphasis added)

[ 25 ] Since the Lockout Final Order declared the lockout unlawful, the City immediately issued a new lockout notice. The City then withdrew that notice. The lockout therefore came to an end. In total, the workers were continuously locked out from September 20, 2014, until October 19 or 20, 2014, depending on the shift. [ 26 ] On October 21, 2014, the Board released reasons for the Lockout Final Order in the form of the Lockout Decision .

On the question of compensation for the unfair labour practice of locking out workers while a matter (the Mongovius Application) was pending, the Board wrote as follows ( Lockout Decision ): [67] In its application, the Union seeks compensation for monetary losses suffered by its members as a result of the unlawful conduct of the City. In our opinion, such compensation is appropriate. An Order was issued directing the City to pay compensation to the members of the Union for monetary loss suffered in being locked in contravention of s. 6 - 62(1) (l)(

i) of The Saskatchewan Employment Act . However, by agreement of the parties, this Board heard no evidence or argument as to the quantification of such losses other than as to the period of time during which this compensation would be payable . [68] 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 . … [70] We remain seized and retain jurisdiction with respect to: (

a) the amount of compensation for monetary loss payable by the City, in the event that the parties are unable to agree on this issue; and (

b) the appropriate remedial relief, if any, arising out of the enactment of Bylaw No. 9224 and the changes made to the conditions of employment, benefits and privileges of members of the Applicant Union when an application was pending before the Board. [71] Finally, and for purpose of clarity, we are satisfied that the within application was no longer pending before this Board as of October 17, 2014, the day on which the decision of this Board was made with respect to the within application. (Emphasis added) [ 27 ] The Lockout Decision ended the lockout, but it did not end the parties’ dispute.

The Union believed that it was entitled to compensation not just to the date that the Mongovius Application was decided, i.e., October 3, 2014, but for the balance of the lockout period as well, i.e., until October 20, 2014. In monetary terms, according to the Union, this amounts to approximately $600,000 in wages. [ 28 ] The proceedings before the Board, the Court of Queen’s Bench and this Court have all been directed to determining what the Board had decided in the Lockout Decision and whether the Union had been heard on its claim for damages following October 3, 2014.

Specifically, all other proceedings turn, in some form or another, on this part of the Lockout Decision : “However, by agreement of the parties, this Board heard no evidence or argument as to the quantification of such losses other than as to the period of time during which this compensation would be payable” (at para 67). [ 29 ] Phrased succinctly, the questions at the heart of the continuing dispute after the release of the Lockout Decision are these: (

a) Did the Board’s Lockout Decision foreclose a claim for damages beyond October 3, 2014? (

b) If so, had the Union been properly heard on that question? The Union took the position that it still had the right to claim damages for the lockout period beyond October 3, 2014, as is apparent from their next application, described below. C. Unfair labour practice application (LRB File No. 269-14) – the Damages Application [ 30 ] On December 12, 2014, the Union filed a new unfair labour practice application with the Board: LRB No. 269-14 (Damages Application). The Union sought damages for its members for the period from October 3, 2014, to October 20, 2014, the date the lockout had ended.

This application claimed that because no lockout notice had been given after October 3, 2014, the City had committed a new unfair labour practice – continuing to lockout the transit workers while the lockout was unlawful – contrary to s. 6 - 34 of the SEA : Notice re strikes or lockouts 6-34 No strike is to be commenced and no lockout is to be declared unless the union or employer: (

a) gives the other party at least 48 hours’ written notice of the date and time that the strike or lockout will commence; and (

b) promptly, after service of the notice, notifies the minister of the date and time that the strike or lockout will commence. [ 31 ] The Union described this new claim in these terms (quoted in Amalgamated Transit Union, Local 615 v Saskatoon (City) , 2016 SKQB 396 at para 30 , 18 Admin LR (6th) 349) [ Amalgamated Transit QB ]: 3 …

f) The application that was pending – LRB File No. 079-14 [Mongovius ULP] – was fully and finally decided on the afternoon of October

3, 2014, by virtue of an oral disposition of the same at that time by a panel of this Board;

g) However, the employer continued to lockout the employees after that time, notwithstanding that no valid lockout notice had ever beenserved, nor was any fresh notice of lockout served 48 hours in advance of October 3, 2014.

In fact, no notice of lockout apart from the firstnotice served on 18 September 2014 – subsequently declared invalid – was ever provided (except for a lockout notice served on theafternoon of 17 October 2014, which was subsequently rescinded by the employer prior to it being implemented), yet the employerdeclared and continued a lockout from October 3, 2014 to October 20, 2014 (or the evening of October 19, 2014 for certain employees),all without any legal notice of lockout as required under

section 6-34 in writing to the Union, and by notification to the Minister; …

i) The Union therefore seeks a declaration that the employer has violated the Act by declaring or continuing a lockout after October 3,2014, and seeks full redress for all monetary and benefit losses suffered by its members, with interest. (Emphasis added) [32] In short, the Union asserted that the Lockout Board had heard only one unfair labour practice application, i.e., the MongoviusApplication.

The fact that the lockout was unlawful opened the door for a new unfair labour practice application under s. 6-34 of the SEAafter the Mongovius Oral Decision issued – when the City did not serve a new lockout notice after October 3, 2014. In support of itsposition, the Union pointed to the Board’s October 17, 2014, Lockout Final Order, which said “that the Respondent Employer didunlawfully give notice of its intentions to lockout members of the Applicant Union when an application was pending before the Board incontravention of

Section 6-62(1)(l)(

i) of The Saskatchewan Employment Act” (at para 2). From this, the Union reasoned that it could nothave known that the Board would declare the lockout invalid, and therefore the lockout notice unlawful, before the Lockout Decisionissued. [33] In response to this new application, the City applied for

summary dismissal of it on the basis that the Board’s Lockout Decisionhad addressed the issue of damages for the post-October 3, 2014 period – no matter what unfair labour practice claim might be made. Inother words, the City contended that the Mongovius Application drove the claim for damages for the whole of the period. There were not,as the Union submitted, two separate unfair labour practice claims. The Board dismissed the City’s application without providing writtenreasons. [34] The Damages Application then proceeded to a hearing before the Board.

After a full hearing, the Board accepted the City’ssubmissions. In the result, the Board dismissed the Union’s claim of a second unfair labour practice application: Amalgamated TransitUnion, Local 615 v Saskatoon (City), (Sask LRB) [Damages Decision]. [35] The Board dealt with the argument as to a second unfair labour practice by saying that the Union presumed the City wasrequired to serve a new lockout notice after October 3, 2014. The Board did not accept the Union’s analysis.

It reasoned in this way: [26] The Union argued that it limited its claim for relief in that application because that application dealt with the illegality of the lockoutnotice and it did not contemplate in that application that the lockout notice would be struck down by the Board.

It further argued that sincethe lockout notice was void ab initio, that they were entitled to bring this subsequent application to cover the period during which theunlawful lockout continued to the date the Board dealt with the issue by its Order dated October 17, 2014. [27] By extension, in our opinion, this rationale requires that the Board presume that the City was required to serve a fresh lockout noticefollowing the Board concluding the Mongovius ULP.

However that would, in our opinion, require an impossible degree of prescience onthe part of the City, since the Board did not issue its Order declaring the lockout notice unlawful until October 17, 2014. [36] On the question of whether the Union was entitled to claim compensation after October 3, 2014, the Board held that theLockout Decision had decided that question.

Damages would be payable to the Union’s members from September 20, 2014, to October 3,2014, only (Damages Decision): [29] In its [Lockout Final Order], the Board made it clear that compensation would be payable by the City to members of the Union onlyfor that period during which the lockout was precluded by the Mongovius ULP. The [Lockout Final 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 ascompensable. It did not.

In our opinion, the Board’s Order on October 17, 2014 clearly established that compensation would be due onlyfor the period up to October 3, 2014 and not thereafter. [37] Thus, with this reasoning, the Damages Application became an impermissible collateral attack on the Lockout Decision: [30] The Board agrees with the City that this application represents a collateral attack on the Board’s earlier Order, which, in thecircumstances, should have been final.

If the Union was unhappy with the result, and unhappy with the Order made by the Board, anapplication for reconsideration of the Board’s decision could have been made. Additionally, the Board remained seized on the issue ofcompensation granted by virtue of paragraph 7 of its Order.

It is our understanding that the parties have resolved that issue between them. [38] The Board then went on to deal with the Union’s application as if it were an application to reconsider the Lockout Decision: [31] This application, without saying so, clearly asks the Board to reconsider its October 17, 2014 Order to add addition compensation forthe period after the date that the Mongovius ULP was resolved and was no longer pending before the Board. We would decline to do so.The Board’s Order was final and complete on October 17, 2014.

The City responded immediately to impose a fresh lockout upon receiptof the Board’s Order. [39] Having thus converted the Damages Application into an application to reconsider, the Board determined that the criteria forreconsideration had not been met and dismissed the Union’s unfair labour practice claim. [40] The Union applied for judicial review of the Damages Decision. Between the Lockout Decision and the Damages Decision,

which was issued on February 24, 2016, the Board issued another decision directed to the question of remedy for the lockout, i.e., thePension Decision described next. It is placed here for the purposes of following the chronology and, as I will discuss later, indicating whatall of the parties must be taken to have understood after that particular decision issued, which is the effect of the statutory freeze on theremedies the Board was prepared to provide. D.

Hearing to determine the remedy for the enactment of Bylaw No. 9224 –Pension Decision [41] In this decision, the Board held that Bylaw No. 9224 was of no force and effect for members of the Union for the period ofJune 3, 2014, to October 3, 2014 only: Amalgamated Transit Union, Local 615 v Saskatoon (City), (Sask LRB)[Pension Decision] (LRB File No. 210-14).

For that period of time, employees would be “entitled to the benefits and privileges affordedby Bylaw No. 8226, being the General Superannuation Plan Bylaw, of the City of Saskatoon as that Bylaw existed prior to the enactmentof Bylaw No. 9224” (January 30, 2015, Pension Order). E.

Judicial Review of the Damages Decision [42] In its earlier judicial review application before the Court of Queen’s Bench, the Union argued that the Damages Board madetwo errors. [43] First, the Union argued that the Damages Board had erred by finding its new unfair labour practice application constituted acollateral attack on the Lockout Decision. It was the Union’s position that paragraph 7 of the October 17, 2014, Lockout Final Ordercorrectly dealt with damages associated with the statutory freeze only: i.e., “7.

ORDERS the Respondent Employer to pay compensation… for the period during which the said application was pending before the Board”. According to the Union, the problem was withparagraph 68 of the Lockout Decision, i.e., “We were not satisfied that compensation for monetary loss is appropriate or necessary for theperiod after the statutory freeze has been lifted”.

With these words in paragraph 68, the Union submitted that the Board had not addressedthe actual question before it, which was whether there had been a violation of s. 6-34 of the SEA. [44] Second, the Union submitted that the Damages Board had committed a second error by converting its unfair labour practiceclaim into an application for reconsideration. [45] The Chambers judge in Amalgamated Transit QB agreed with the Union on the first ground. He found that paragraph 7 of theOctober 17, 2014, Lockout Final Order governed the

interpretation of what happened (and not paragraph 68 of the Lockout Decision).Having made this finding, that Chambers judge concluded as follows: [64] In short, the Union has not had an opportunity to fully make its case respecting compensation for the period of October 3 to October19/20, 2014. The Board’s decision in LRB 269-14 misapprehended the debate. In that sense, there has been a breach of audi alterampartem, and the Union deserves its “day in court”.

In addition, it cannot be said that the Board’s decision, in all the circumstances, isreasonable. [46] He reasoned that, by dismissing the Damages Application, the Board had denied the Union an opportunity to make its caseabout compensation for its members for the period from October 3, 2014, to October 20, 2014 (when the lockout had ended).

With thisconclusion, it was not necessary for the Chambers judge to consider the Union’s argument that the Damages Board had breached its rightto be heard on the question of reconsideration. [47] In the result, the Chambers judge quashed the Damages Decision and remitted the matter to the Board with the direction todetermine what, if any, compensation the Union members should receive in relation to the lockout for the period after October 3, 2014.The Court of Queen’s Bench issued its decision on December 8, 2016. F.

Appeal of Amalgamated Transit QB to this Court [48] The City appealed Amalgamated Transit QB to this Court on the ground that the Chambers judge had erred by misinterpretingthe Board’s Lockout Decision and thereby wrongly found the Union had been denied the right to be heard for the period beyond October3, 2014.

On November 6, 2017, the Court allowed the appeal: Saskatoon (City) v Amalgamated Transit Union, Local 615, 2017 SKCA 96,[2018] 4 WWR 822 [Amalgamated Transit CA]. [49] This Court agreed with the City: the Chambers judge had misinterpreted the October 17, 2014, Lockout Final Order, and theLockout Decision removed any ambiguity in that regard. The Court held the following: [40] … the wording of the Board’s Order is also wholly consistent with the notion that damages were payable until October 3, 2014, andnot thereafter.

Saying damages are “payable to date X” fits equally comfortably with both the idea that such damages will be payable onlyto 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 surroundingwhat it had decided. Those Reasons made it clear that damages would be payable to October 3, 2014 – full stop.

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

Here, thedecision and the reasons were to the same effect. (Emphasis added)

[50] The Court found that “the Chambers judge’s approach involved a clear misreading of what the Board had resolved in theLockout Application” (at para 45). This was so because the Lockout Decision had decided “that damages would not be payable in thepost-October 3, 2014, period”. [51] The Court then went on to consider whether the Damages Board had denied the Union its right to be heard on the question ofwhether the Lockout Decision should be reconsidered – this was the Union’s second argument before the Chambers judge.

On this point,the Court agreed with the Union: the Board had raised that issue on its own initiative and resolved it against the Union without hearingsubmissions. [52] In the result, the Court held that the Union would be entitled to bring an application to have the Lockout Decision reconsidered,if it wished to do so: [48] To recap, the Board did not violate the audi alteram partem principle in deciding to dismiss the Damages Application on the basisthat 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 bereconsidered. This is so because the Board raised that issue on its own initiative and resolved it against the Union without hearing fromthe Union. Accordingly, and as just explained above, although the Board’s decision to dismiss the Damages Application must stand, theUnion is nonetheless entitled to bring an application to have the Lockout Application decision reconsidered if it so wishes. (Emphasis added) G.

Application to the Board to reconsider the Lockout Decision and the City’sapplication to dismiss for delay [53] On December 15, 2017, the Union applied to the Board to amend the October 17, 2014, Lockout Final Order and the LockoutDecision. Specifically, the Union asked that paragraph 7 of the Lockout Final Order be amended to add the underlined words in thepassage below: 7.

ORDERS the Respondent Employer to pay compensation to the members of the Applicant Union for monetary loss suffered as a resultof the unlawful actions of the Employer in locking out said members while an application was pending before the Board for the periodduring which the said application was pending before the Board.

Compensation for the balance of the lockout after the said application(LRB File 079-14) [Mongovius Application] ceased being pending before the Board has not been determined or decided at this time; [54] The Union asked that paragraph 68, which limits damages to October 3, 2014, be struck from the Lockout Decision and that aremedy be ordered “for the balance of the October 2014 lockout of the Amalgamated Transit Union, Local 615; or alternatively,permission to bring a new application in regards to the 2014 lockout of Amalgamated Transit Union, Local 615 workers by the City ofSaskatoon”. [55] With the Union’s acquiescence, the Board treated the matter before it as an application to reconsider the Lockout Decision.

Inresponse to the Union’s application, the City applied to the Board to dismiss it on the basis of delay. I will review the Board’s reasons inresponse to the City’s application to dismiss for delay and the Reconsideration Application separately. 1.

The City’s application to dismiss the Reconsideration Application for delay [56] The Board noted that s. 33 of The Saskatchewan Employment (Labour Relations Board) Regulations, RRS c S-15.1 Reg 1[Regulations], in force at the time, required a party to file and serve an application for reconsideration within 20 days of the decision ororder with respect to which reconsideration is sought.

According to the City’s calculations, the Union’s application “was filed 1155 daysafter the October 17, 2014 Order” (Refusal Decision at para 12). [57] The City referred the Board to Hartmier v Saskatchewan Joint Board Retail, Wholesale and Department Store Union andRetail, Wholesale and Department Store Union, Local 955, (Sask LRB) [Hartmier].

In Hartmier, the Board reviewedpast decisions considering undue delay applications in duty of fair representation claims and drew these conclusions: [120] This survey of relevant Board Decisions reveals that while each decision turned on the particular facts of the case, nevertheless anumber of factors figure prominently in the Board’s analysis of undue delay applications in duty of fair representation claims. The moreprominent factors include: • Length of Delay: The length of delay is critical.

An applicant will bear the burden to explain the reasons for any delay and the longerthe delay, the more compelling must be the reasons for the delay in filing the application. Now that the Legislature has mandated astatutorily prescribed time limit for the filing of unfair labour practice applications, the Board’s tolerance for exceptionally long delays hasdecreased significantly. • Prejudice: Labour relations prejudice is presumed in cases of delay; however, if the delay is extensive or inordinate this factor willweigh more heavily in the analysis.

The longer the delay, the greater the prejudice to a respondent. Evidence of actual prejudice to arespondent likely will result in the main application being dismissed. • Sophistication of Applicant: An applicant’s knowledge of labour law and labour relations matters, generally is an importantconsideration when assessing the veracity of the reasons for the delay. • The Nature of the Claim: The issues at stake for an applicant will be weighed in the balance.

If the consequences of dismissing anapplication for reasons of delay are significant to an applicant, this will weigh in favour of permitting the application to proceed despite alengthy delay in its initiation.

(Emphasis in original) [ 58 ] The Board indicated that Hartmier applies generally to matters before the Board, but concluded that all of the factors did not weigh against the Union ( Refusal Decision at para 32 ). In the same paragraph, it reasoned in this manner: (

a) in light of the inordinate length of time that the issues surrounding the Lockout Decision had been before the Board and the courts, it gave serious consideration to dismissing the application for delay; (

b) while the length of the delay is inordinate, the Union had been pursuing its claim throughout; and (

c) while time is of the essence in labour relations disputes, given the clear statements by the Court of Appeal, and the fact that the Board’s error contributed to the delay, “justice can best be achieved by considering the reconsideration application”. [ 59 ] Having decided against the City on the question of delay, the Board then gave its reasons why it refused to reconsider the Lockout Decision . 2.

The Union’s application for reconsideration [ 60 ] In the Refusal Decision , the Board outlined the factors that are relied upon to determine if a case for reconsideration has been demonstrated: [34] A reconsideration application is a two-step process: first, the Board must determine if the Union has made out a case for reconsideration on one of the factors set by the Board; second, if it has, the Board will review the decision on those grounds. The factors that the Board has relied on since 1993 are as follows: 1.

If there was no hearing in the first instance and a party subsequently finds that the decision turns on a finding of fact which is in controversy and on which the party wishes to adduce evidence. 2. If a hearing was held, but certain crucial evidence was not adduced for good and sufficient reasons. 3. If the order made by the Board in the first instance has operated in an unanticipated way, that is, has had an unintended effect on its particular application. 4.

If the original decision turned on a conclusion of law or general policy under the code which law or policy was not properly interpreted by the original panel. 5. If the original decision is tainted by a breach of natural justice. 6.

If the original decision is precedential and amounts to a significant policy adjudication which the Board may wish to refine, expand upon, or otherwise change. (Footnotes omitted) [ 61 ] These factors, which I will call the Remai factors, were first stated by the Board in Remai Investment Corporation (o/a Imperial 400 Motel) v Saskatchewan Joint Board, Retail, Wholesale and Department Store Union & Sharon Ruff (1993), 3d Qtr Sask Labour Rep 103, LRB File No 132-93 (Sask LRB) [ Remai Investment ] , and have been applied since.

See Wilson v Construction Workers Union (CLAC, Local 151) (2013), 232 CLRBR (2d) 1 (WL) (Sask LRB) (LRB File No 005-13, 31 July 2013), and Kennedy v Canadian Union of Public Employees, Local 3967 (2015), 268 CLRBR (2d) 239 (WL) , cited by the Refusal Board (at para 34). [ 62 ] The Board applied the Remai factors to determine whether it should reconsider the Lockout Decision .

The Union submitted that factors 2, 3, 5 and 6 applied; but the principal issue was whether it had been heard on the question of the remedy after October 3, 2014, which engaged factor 5. [ 63 ] The Board concluded that the Lockout Decision panel had not breached its duty of fairness because the parties had agreed to the following: “no evidence or argument as to the quantification of such losses other than as to the period of time during which this compensation would be payable” (quoting from the Lockout Decision at para 67 ).

It refuted the proposition that the pleadings could not have “alleged or claimed that the lockout was unlawful until the lockout notice was invalidated by the Board in October 2014” (at para 57) by pointing directly to the pleadings. As indicated previously, those pleadings claimed, “The said lockout and purported changes are unlawful, and in violation of

section 6-62(1)(l)(

i) of the Act …” (Lockout Application at para 4(h)). [ 64 ] The Board observed that the Union had claimed in its application that it suffered “monetary losses … as a result of this unlawful lockout” and that the Union was seeking damages “for the said losses” ( Refusal Decision at para 58 ). The Board treated the Union’s application for reconsideration as a disagreement with a decision “that it does not like” (at para 60).

The Board observed in relation to factor 6 that while “the Union may have preferred that the Board provide further elaboration with respect to why it did not consider it necessary to award damages for the period of the unlawful lockout after October 3, 2014, sparse reasons is not a ground for reconsideration” (at para 63). [ 65 ] In conclusion, the Board noted that if the Union had “further evidence or argument that it wanted the Board to consider in determining the period of time during which compensation would be payable, but chose not to provide it, a reconsideration application is not an opportunity to correct that error” (at para 60).

On this point, the Board referred to page 9 of its decision in Remai Investment and confirmed that the “jurisdiction to reconsider a decision is intended instead to redress an injustice which would be perpetrated by failing to take into account evidence which, for reasons beyond the control of the party making the application, was not presented at the first hearing” (at 111). In short, the Board was of the view that if the Union had other arguments that it wanted to make or other evidence that it wanted to put forward, it should have done so during the hearing of the Lockout Application.

H. Application to the Court of Queen’s Bench to judicially review the LockoutDecision and the Refusal Decision – Chambers Decision [66] As I have indicated, following receipt of the Refusal Decision on November 23, 2018, the Union applied on February 19, 2019,to judicially review that decision and the Lockout Decision. [67] In

summary form, the Chambers judge reached these conclusions: (

a) with respect to the Refusal Decision, he applied a standard of reasonableness and found the decision to be reasonable; and (

b) on an application by the City, he declined to judicially review the Lockout Decision because of the delay in bringing theapplication. [68] I will review the Chambers Decision as part of my analysis. III. Issues [69] As the Chambers judge reviewed two decisions of the Board, it is convenient to divide the issues according to which decisionhe considered. In relation to the Chambers judge’s review of the Refusal Decision, these are the issues: (

a) Did the Chambers judge err by applying the reasonableness standard of review? (

b) If the answer to (

a) is no, did the Chambers judge err in his application of the reasonableness standard? (

c) If the answer to (

a) or (

b) is yes, what is the remedy? As I have concluded that the Chambers judge chose the correct standard of review and applied it correctly, it is not necessary to considerthe third issue. [70] With respect to the Chambers judge’s decision declining to judicially review the Lockout Decision, these are the issues: (

a) What is the applicable standard of review? (

b) Having regard for the appropriate standard of review, did the Chambers judge commit a reversible error? (

c) If the answer to (

b) is yes, what is the remedy? Since I have decided that the Chambers judge did not commit a reversible error, I will not consider the third issue. IV. Judicial Review of the Refusal Decision A. The Chambers judge did not err by applying the reasonableness standardof review to the Refusal Decision 1. Chambers Decision [71] The Union submitted that the applicable standard of review was correctness because the Board, in its Refusal Decision, wasconsidering whether the Lockout Board had breached the audi alteram partem rule by deciding a matter not before it, i.e., damages for theperiod after October 3, 2014.

The Chambers judge did not accept the Union’s submission. He found that the standard of review wasreasonableness because the Union’s procedural fairness allegation was with respect to the Lockout Decision not the Board’s RefusalDecision: [32] In this case, I am satisfied that there is no question of the Board having the jurisdiction to make the ruling it did. The issue is whetherthere was procedural fairness in the reconsideration decision. However, the Union’s procedural fairness allegations were in respect to theBoard’s previous decision in LRB 210-14 [Lockout Decision], not LRB 263-17 [Refusal Decision].

In respect to the reconsiderationdecision, I am satisfied that the standard of review is reasonableness. See United Food and Commercial Workers, Local 1400 v Wal-MartCanada Corp., 2010 SKQB 61 at para 11, 352 Sask R 132. (Emphasis added) 2. The parties’ submissions in this Court [72] The Union submits that the standard of review that the Chambers judge should have applied to the Refusal Decision iscorrectness because Remai factor 5 looks at the procedural fairness of the prior decision: Was there a breach of natural justice?

As part ofits argument, the Union relies on jurisprudence that holds the standard of review to apply to a tribunal decision where procedural fairnessis at issue is correctness: Mission Institute v Khela, 2014 SCC 24 at para 79, [2014] 1 SCR 502; United Food and Commercial Workers,Local 1400 v Saskatchewan Joint Board Retail, Wholesale and Department Store Union, 2016 SKCA 94 at para 19, 484 Sask R 157,leave to appeal to SCC refused, ; and Amalgamated Transit CA at para 32.

[73] From these decisions, the Union argues that the Board “should be held to a standard of correctness whether in the first instance(i.e., did it de facto deny procedural fairness in the original hearing?) or upon reconsideration (i.e., did it correctly decide whether it haddenied procedural fairness in the original hearing?)”. In support of this proposition, the Union asserts that granting deference to suchquestions on reconsideration would act as a substantive or qualitative disincentive to proceeding expeditiously and minimally with areconsideration application.

It would mean that any party aggrieved by a failure of procedural fairness or natural justice would be ill-advised to seek reconsideration of such decisions. Instead, the Union insists that it would be better to move directly to judicial review,which would be contrary to such authorities as Harelkin v University of Regina, (SCC), [1979] 2 SCR 561 at 593, whichrequires a person seeking a remedy from the courts to first exhaust alternative remedies.

Put most simply, the Union suggests that areasonableness review of a reconsideration decision, where the complaint is that the original decision was procedurally unfair, demands acorrectness review. [74] In the alternative, the Union argues that the reasonableness standard of review lies along a spectrum that required the Chambersjudge to conclude that the Refusal Decision was not reasonable because the Board was addressing a matter of procedural fairness. [75] For its part, the City relies on the Chambers judge’s decision and Canada (Minister of Citizenship and Immigration) v Vavilov,2019 SCC 65, 441 DLR (4th) 1 [Vavilov], for the proposition that the standard of review is reasonableness. 3.

Analysis [76] In Vavilov, the Supreme Court outlined that the presumptive standard of review for judicial review applications isreasonableness (at para 16). The presumption applies both to the

interpretation of the enabling statute and more broadly to other aspects ofthe decision (at para 25). The majority reasons in Vavilov provide three categories of questions that rebut the presumption ofreasonableness: (

a) constitutional questions, (

b) general questions of law central to the importance of the legal system as a whole, and (c)questions regarding the jurisdictional boundaries between two or more administrative bodies (at para 53). [77] Pre-Vavilov, the Court of Queen’s Bench has consistently applied the reasonableness standard of review to the Board’sreconsideration decisions: UFCW, Local 1400 v Wal-Mart Canada Corp., 2010 SKQB 61 at para 11, 352 Sask R 132; IBEW, Local 529 vSaunders Electric Ltd., 2010 SKQB 75 at paras 30 and 33, 351 Sask R 250; UFCW Local 1400 v Saskatchewan (Labour Relations Board),2010 SKQB 470 at para 43, 379 Sask R 162, rev’d 2011 SKCA 100 (but not on this point); UFCW v Saskatchewan (Labour RelationsBoard), 2011 SKCA 100 at paras 24–25, 341 DLR (4th) 168; and Saskatchewan Regional Council of Carpenters, Drywall, Millwrightsand Allied Workers v CEP, 2012 SKQB 375 at paras 13, 14 and 71, 406 Sask R 32. [78] The Union would have us carve out a new category that would require the reviewing court to apply a standard of review ofcorrectness when the Board is considering whether there has been a breach of natural justice in the prior decision.

The Union submits thatthe Board should have concluded that the Lockout Decision was “tainted by a breach of natural justice” such that the Board should havegranted it the right to a reconsideration hearing. From there, the Union reasons that the Chambers judge should have held the Board to astandard of correctness and asked himself the following: Did the Refusal Board correctly determine whether the Lockout Board hadbreached the audi alteram partem rule? [79] Notwithstanding the Union’s cogent arguments to the contrary, the Chambers judge’s review of the Refusal Decision was not acorrectness review.

I reach this conclusion for two reasons. [80] First, in my respectful view, the Union’s arguments misunderstand the nature of a reconsideration decision. The Unionconceptualizes reconsideration as the equivalent of an appeal or judicial review, such that the tribunal reconsidering a decision were itselfapplying standards of appellate review or conducting a judicial review in the form of correctness.

This conceptualization is incorrect andmisinterprets the purpose of a reconsideration. [81] A reconsidering body does not review according to administrative law principles, but according to the jurisprudence that hasbeen developed for the particular tribunal in question. In the case of the Board, it has a defined jurisprudence as to when and whether itwill reconsider a prior decision.

The Board reviewed and confirmed that jurisprudence, which, as I have said, looks primarily to the Remaifactors. [82] It is critical to understand that this Court is considering the reasonableness of a refusal to reconsider, which itself is aconstrained review. The Board’s own jurisprudence recognizes that legal fact. In Remai Investment, the Board discussed the policy reasonin support of that conclusion: “Though the Board has the power under

Section 5(i) [now s. 6-115 of the SEA] to reopen decisions it hasarrived at, this power must be exercised sparingly, in our view, and in a way which will not undermine the coherence and stability of therelationships which the Board seeks to foster” (emphasis added, at 107). [83] Similarly, in Canadian Union of Public Employees, Local 600-3 v Government of Saskatchewan (Community Living Division,Department of Community Resources), (SK LRB), 178 CLRBR (2d) 195 (Sask LRB), the Board stated asfollows: [21] The Board has consistently applied the same stringent test in determining whether or not a reconsideration application should beallowed.

As set out by the Board in Grain Services Union v. Saskatchewan Wheat Pool et al. ([2003] Sask. L.R.B.R. 454, L.R.B. File No.003-02, at 456): A request for reconsideration is not an appeal or a hearing de novo, nor is it an opportunity to reargue a case, raise new arguments orpresent new evidence, but rather, it generally allows important policy issues to be addressed, such as evidence to be presented that was notpreviously available, or errors to be corrected. [22] The reason why such a stringent test is applied by the Board was set out in City of North Battleford v.

Canadian Union of PublicEmployees, Local 287 ([2003] Sask. L.R.B.R. 288, L.R.B. File No. 054-01, at 291): [T]he policy behind such a restrictive approach to reconsideration is to accord a serious measure of certainty and finality to the decisions

of the Board , while affording “a fulsome degree of flexibility to respond to exigencies of fact and circumstance which may militate against the continued governance of determinations earlier made”. (Emphasis added) [ 84 ] The Board derives its authority to reconsider from its governing statute, which draws a clear distinction between the power to reconsider and judicial review, which itself is proscribed. The Legislature has declared that Board decisions are final and not subject to question or review in any court. Instead, the Board has the power to reconsider any matter as outlined in the following sections of the SEA : No appeals from board orders or decisions 6-115

(1) Every board order or decision made pursuant to this

Part is final and there is no appeal from that board order or decision .

(2) The board may determine any question of fact necessary to its jurisdiction.

(3) Notwithstanding subsections (1) and (2), the board may: (

a) reconsider any matter that it has dealt with ; and (

b) rescind or amend any decision or order it has made.

(4) The board’s decisions and findings on all questions of fact and law are not open to question or review in any court, and any proceeding before the board must not be restrained by injunction, prohibition, mandamus, quo warranto , certiorari or other process or proceeding in any court or be removable by application for judicial review or otherwise into any court on any grounds. (Emphasis added) [ 85 ] The Union would import into these provisions a judicial review power as a form of internal review.

According to the Union, where an allegation of procedural fairness is made, the Board is required to review the prior decision on a standard of review of correctness. This is not what the Legislature intended when it stated that the Board’s decisions are final, not subject to appeal or review. It would place the reconsidering board in the position of an appellate body, which would seriously undermine the authority of the first board. [ 86 ] Importing the concept of judicial review in this way misconstrues constitutional oversight by the courts and the Legislature’s ability to create administrative law regimes.

Courts review administrative tribunal decisions in accordance with administrative law principles to fulfill a constitutional principle. Legislatures are permitted to create administrative regimes as they see fit. The power to reconsider is a form of internal review. Reconsideration falls far short of an appeal and is not some form of judicial review.

The internal review contemplated by s. 6-115 is narrow and clear: there is no right of appeal or review, every board decision is final, and there is a right to apply to a board to reconsider only. [ 87 ] The second reason why I conclude that the reasonableness standard of review applies is that the Chambers judge was not being asked whether the Refusal Board had breached the duty of procedural fairness. He was asked to review the Board’s refusal to reconsider the Lockout Decision , notwithstanding an allegation of a breach of natural justice.

To me, that is a significant difference, which points to the application of a reasonableness review. The question for the Chambers judge was whether the Board applied the Remai factors reasonably. The Union does not say the Remai factors are wrong; but rather, it questions how those factors were applied to the Lockout Decision . In such circumstances, the Chambers judge was not entitled to step into the shoes of the Refusal Board and substitute his view as to whether the Lockout Board had breached the audi alteram partem rule.

He could only assess the reasonableness of the Refusal Board’s assessment of that decision. [ 88 ] Thus, while the Chambers judge did not give extensive reasons, he nonetheless got the matter exactly right. He was not reviewing a first instance allegation of procedural fairness. He was reviewing an allegation of procedural fairness, one-step removed, and that too was limited by the nature of the application and the Board’s resulting decision. [ 89 ] In conclusion, the Chambers judge did not err in his selection of the standard of review of reasonableness to review the Refusal Decision . B.

The Chambers judge applied the reasonableness standard of review in a correct manner 1. Chambers Decision [ 90 ] The Union’s central argument before the Chambers judge was that the Board erred because it had not found a breach of natural justice. On this point, the Chambers judge wrote as follows: [40] … the Union did not limit the scope of damages it sought in its pleadings in LRB 210-14 [Lockout Application] even though the Union was well aware that the lockout it alleged was unlawful had continued well past October 3, 2014, as it was already October 14, 2014, when it argued LRB 210-14.

Furthermore, in s. 4 of its application in LRB 210-14, the Union sought damages without making any temporal restrictions or limitations. Finally, the Union sought monetary compensation without placing any limit on the amount of its damages. There was no lack of opportunity to provide whatever evidence the Union wanted the Board to consider. Accordingly, the Union had the opportunity to raise the issue of the extent of damages suffered. The fact that it did not do so was not due to the actions of the City or the Board.

The Board dealt with the issue of damages at paragraph 68 of its original decision in LRB 210-14 when it stated at paragraph 68: [68] … We are not satisfied that compensation for monetary loss is appropriate or necessary for the period after the statutory freeze has

been lifted. 2. Positions of the parties [ 91 ] On appeal, the Union’s position is that, even if the standard of review is reasonableness, the Chambers judge misapplied that standard by granting the Board much too large a margin of appreciation in the Refusal Decision . As part of its argument, the Union submits that even within the reasonableness standard, the stringency of the standard will vary, based on context.

For this proposition, the Union relies upon Asad v Canada (Citizenship and Immigration) , 2015 FCA 141 at para 28 , 474 NR 258. [ 92 ] To some extent, the City agrees with Union that context is essential but submits that context cannot move the needle to a correctness standard when such a standard is not warranted.

With respect to the importance of context, the City cites this paragraph from Vavilov : [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. (Emphasis added) 3.

Analysis [ 93 ] Since Vavilov , this Court has discussed, considered and applied the reasonableness standard of review in numerous contexts, including the area of labour relations matters: see, for example, Service Employees International Union – West v Saskatchewan Health Authority , 2020 SKCA 113 , 454 DLR (4th) 363 [ SEIU-West ]; The Real Canadian Superstores v United Food and Commercial Workers Union Local 1400 , 2020 SKCA 102 [ Real Canadian Superstores ]; and Teamsters Canada Rail Conference v Canadian National Railway Company , 2021 SKCA 62 .

I have relied heavily on these three decisions, their analysis of Vavilov and their approach to reasonableness review. [ 94 ] At paragraph 24 of Real Canadian Superstores , this Court confirmed that Dr. Q v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at para 43 , [2003] 1 SCR 226 [ Dr. Q. ], continues to apply. In Dr.

Q. , the Supreme Court held that “[t]he role of the Court of Appeal was to determine whether the reviewing judge had chosen and applied the correct standard of review, and in the event she had not, to assess the administrative body’s decision in light of the correct standard of review, reasonableness” (at para 43). [ 95 ] The effect of Dr. Q. means that an appellate court asks not only whether the Chambers judge identified the appropriate standard of review, but also whether the judge applied it correctly.

This requires an appellate court to conduct its own review of the tribunal decision in question in order to determine whether the Chambers judge decided the matter correctly according to the standard of review in play. In other words, I must repeat the Chambers judge’s exercise of determining whether the Refusal Decision is reasonable.

An added wrinkle, however, is that the Chambers judge did not have the benefit of Vavilov , which arguably requires a more robust review than that contemplated by Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190. [ 96 ] In SEIU-West , Barrington-Foote J.A., dissenting but not on this point, summarized those parts of Vavilov that bear directly on the questions of what constitutes a review for reasonableness: [102] … In Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , 441 DLR (4th) 1 [ Vavilov ], the majority confirmed the reasonableness standard requires the reviewing court to answer two questions; that is, “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir , at paras. 47 and 74 ; Catalyst , [2012 SCC 2] at para. 13” (at para 99).

For analytical purposes, the Court described two kinds of fundamental flaws as a convenient way to discuss the issues that may show a decision to be unreasonable (at para 101). First, is there “a failure of rationality internal to the reasoning process”? Second, is the decision “in some respect untenable in light of the relevant factual and legal constraints that bear on it”? (at para 101).

The Court emphasized that in order to justify setting aside a decision, the flaws must be “sufficiently central or significant”, not superficial or peripheral (at para 100). [103] The first category of flaws reflects the principle that a reasonable decision must be based on internally coherent reasoning; that is, reasoning that is both rational and logical. As the majority put the matter, “the reviewing court must be able to trace the decision-maker’s reasoning without encountering any fatal flaws in its overarching logic” ( Vavilov at para 102 ).

A decision will be unreasonable if it fails to reveal a rational chain of analysis or exhibits an irrational chain of analysis.

While administrative decision makers must not be held “to the formalistic constraints and standards of academic logicians”, a decision may be unreasonable if it exhibits “clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise” ( Vavilov at para 104 ). [104] As to the second category, “a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision … Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers” ( Vavilov at para 105 ).

The relevant constraints depend on the facts. In Vavilov , the majority discussed what they characterized as “a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely the governing statutory scheme; other relevant statutory or common law; the principles of statutory

interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies” (at para 106). The Court cautioned that these elements are not a checklist and vary in significance depending on the context. [105] I would finally note that reasonableness is a deferential standard and must be sensitive and respectful of the role of the delegated decision maker.

It is not a “line-by-line treasure hunt for error” ( Vavilov at para 102 ). The court’s function is to “ensure the legality, the reasonableness and the fairness of the administrative process” ( Dunsmuir v New Brunswick , 2008 SCC 9 at para 28 , [2008] 1 SCR 190).

However, reasonableness review must also be robust. [ 97 ] In my review of the Refusal Decision , I have been guided by the above analysis. In doing so, I have asked myself these questions: (

a) Does the Refusal Decision bear the hallmarks of reasonableness – justification, transparency and intelligibility – and is it justified in relation to the relevant factual and legal constraints that bear on the decision? (

b) Is there “a failure of rationality internal to the reasoning process”? (

c) Is the decision “in some respect untenable in light of the relevant factual and legal constraints that bear on it”? [ 98 ] While these are the questions to ask, I must not lose sight of the fact that I am conducting a review of a decision of a labour relations board, which is accorded considerable deference by virtue of the privative clause contained in s. 6 - 115 of the SEA . As discussed above, s. 6 - 115 provides that (

a) there is no appeal from Board orders or decisions, and (

b) the Board’s decisions and findings on all questions of fact and law are not open to question or review in any court. It is only the Board that has a statutory power to reconsider its own decisions. The Court must be careful not to elevate its review of the refusal to reconsider to a higher standard than would be accorded to the actual decision to reconsider. [ 99 ] Applying the standard of review of reasonableness, I come to the conclusion that the Chambers judge did not err by finding the Refusal Decision to be reasonable.

That decision clearly passes the tests of transparency, intelligibility and rationality. When I consider the relevant factual and legal constraints that bear on it, I conclude that it is justified. I expand on these findings below. As the Refusal Board and the Chambers judge observed, a review for reasonableness begins with the pleadings read in context. [ 100 ] The Refusal Board interpreted the Union as having asked the Lockout Board to declare the lockout unlawful and to provide compensation for that unlawful act.

The Union contests that it did not put forward its whole case before the Lockout Board, believing it would be able to come back to the Board. Yet, there is nothing in the pleadings or the Lockout Application that would have prevented the Lockout Board from concluding that the parties had asked it to decide whether compensation was payable for the whole of the lockout period. Moreover, the Union was not the only party before the Board.

The City submitted to the Board that it should settle the period for which compensation would be paid and it should be limited to, at most, one day. [ 101 ] To reiterate, the Union filed an unfair labour practice application seeking (

a) a declaration that the City had engaged in an unfair labour practice by locking out its employees while the Mongovius Application was pending, and (

b) an order directing the City to refrain from engaging in the aforesaid unfair labour practice. In this application, the Union made the following monetary claim (repeated here for reference):

i) The Union and its members have suffered and are suffering monetary losses and irreparable pension losses as a result of this unlawful lockout, and the Union seeks damages and payment for the said losses pursuant to

section 6-104(2)(

e) of the Act and section 14(1) (

d) of the Regulations , as well as a restraining order respecting any further lockout action pending final resolution of LRB File Nos. 079-14 and 097-14 [these two file numbers pertain to the Mongovius Application]. Also on September 22, 2014, the Union applied for an interim order in these terms (again, repeated for reference): An interim order immediately restraining the employer from continuing or commencing any lockout proceedings of whatever nature, or making or threatening any changes to wages, or working conditions of any nature, pending the final resolution of the within application [Lockout Application].

The Lockout Board took the Union’s pleadings at face value and granted the Union the remedy it sought: a declaration that the lockout was unlawful. [ 102 ] That left the question of the period of time for which compensation should be paid. In its Lockout Application, the Union did not indicate whether its claim was for any particular period of time. Counsel for the Union, in his opening statement during the Lockout Application hearing, made these remarks: You’ll recall, Mr.

Chairman, the parties have agreed or through direction of the Board to bifurcate the issue of quantification of any losses , and so today, as I understand it, and tomorrow if necessary, the issue will be, in our view, whether the unfair labour practice has been established, and any sort of consequential remedy flowing from that period of time, but in terms of any monetary losses or benefit losses, I understand that the parties have agreed to bifurcate that issue and address that at another time by evidence and argument if necessary . (Emphasis added) [ 103 ] Counsel’s statement that “the parties have agreed … to bifurcate the issue of quantification of any losses” is capable of two meanings.

It could mean that the parties had agreed that only the question of the dollar amount would be remaining. It is also possible he believed that the period of time and the dollar amount were both being left for another day. [ 104 ] In order to resolve this

interpretation question, the Board Chair interjected at several points during the proceedings to ask questions. In the following exchange, the Union’s witness alluded to the possibility of a future claim: THE CHAIR: You also indicated that it was ATU’s position that the lockout was unlawful when you were indicating ATU’s position, and I thought you said it was unlawful until -- and I believe you -- I thought I heard you say until the Mongovius unfair labour practice application was determined by the Board on October -- which would have been October 3rd.

Did I understand you correctly or -- I’m not trying to put words in your mouth. I’m just -- I tried to capture what I thought you said, and I didn’t -- I don’t know if I did it very well, so - - [Answer:] I made reference to the date by which the Board essentially dealt with the Mongovius incident, that’s essentially what I was

referring to, but in no way am I stating that -- you know, any period beyond that may or may not be . THE CHAIR: Okay. [Answer:] That’s what I was referring to because obviously the issue that was before the Board, in our opinion, was the Doug Mongovius unfair labour practice, and so at minimum, you know, the lawfulness of the lockout was what I was referring to there. (Emphasis added) [ 105 ] In addition, in closing argument, counsel for the Union also appeared to be leaving something for another application to be made in the future: 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 . [ 106 ] In other exchanges with the Board chair, counsel for the Union was not as clear as to the Union’s intentions: 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 [counsel for the Union]: 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 follow-up 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. (Emphasis added) In the last underlined portion in the above quotation, counsel for the Union appears to suggest there may be “another phase in other proceedings”, but it is not certain; and, what is meant by it, is never made clear in this unfair labour practic

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