AlumaSafway Inc. Appellant (Applicant) v. The International Association of, 2022 SKCA 99

Court of Appeal for Saskatchewan Docket: CACV3921 Citation: AlumaSafway Inc. v The International Association of Heat &Frost Insulators and Asbestos Workers, Local 119, 2022 SKCA 99Date: 2022-09-14Between:AlumaSafway Inc.Appellant (Applicant)AndThe International Association of Heat & Frost Insulators and Asbestos Workers, Local 119 and Saskatchewan Labour Relations BoardRespondents (Respondents)Before: Schwann, Tholl and Kalmakoff JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice KalmakoffIn concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice ThollOn appeal from: 2021 SKQB 253, SaskatoonAppeal heard: June 10, 2022Counsel: Chris Lane, K.C., for the Appellant Greg D. Fingas for the Respondents Kalmakoff J.A. I. INTRODUCTION [1] AlumaSafway Inc. [Aluma] is a contractor that carried out work at the Husky Upgrader in Lloydminster, Saskatchewan. TheInternational Association of Heat & Frost Insulators and Asbestos Workers, Local 119 [Union] is the certified bargaining agent for a unitof insulators employed by Aluma.

In late 2018, Aluma wished to submit a bid on shutdown work at the Upgrader for Husky for 2019,2020 and 2021, and negotiated with the Union respecting the terms upon which it would engage the insulators. Aluma then submitted itsbid to Husky, based on the agreement it thought it had reached with the Union. [2] Husky did not accept Aluma’s bid for the 2019 shutdown work but accepted its bid for the 2020 job.

When Aluma contactedthe Union’s representative in January of 2020 to obtain the signatures necessary to bring the agreement between the parties into effect, theUnion took the position that no agreement had been reached and refused to sign. [3] Aluma applied to the Saskatchewan Labour Relations Board [Board] for a determination that the Union had engaged in anunfair labour practice, by failing to bargain in good faith. The Board dismissed Aluma’s application (Alumasafway Inc. v The InternationalAssociation of Heat & Frost Insulators and Asbestos Workers, Local 119, (Sask LRB) [Board Decision]).

Aluma thensought judicial review of the Board Decision in the Court of Queen’s Bench. That application was also dismissed (Alumasafway Inc. v TheInternational Association of Heat & Frost Insulators and Asbestos Workers, Local 119, 2021 SKQB 253 [Chambers Decision]). [4] Aluma now appeals against the Chambers Decision. For the reasons that follow, I would dismiss the appeal. II. BACKGROUND A.

The interactions between Aluma and the Union [5] As set out above, the Union is the certified bargaining agent for a bargaining unit of insulators employed by Aluma. [6] Aluma had a long-standing relationship with Husky and, for many years, carried on work at the Lloydminster Upgrader,including maintenance and shutdown work performed by insulators. The Union’s supply of workers to Aluma’s projects is governed bymultiple collective agreements, some of which are general in nature, and others that are site-specific.

Two are of particular relevance tothis appeal: the National Maintenance Agreement [NMA], and the Allied Council Agreement [ACA]. The NMA applies to maintenancework on sites which are not the subject of a site-specific collective agreement, while the ACA is a site-specific agreement. [7] Over the course of its relationship with the Union, Aluma had previously carried out work for Husky at the LloydminsterUpgrader under the terms of the ACA.

In broad strokes, the ACA contained some terms that amounted to concessions by the Union, inthat they served to reduce costs that Aluma would incur under the ordinary terms of the collective agreement. [8] In September of 2018, Husky invited Aluma and other contractors to submit bids for shutdown and turnaround maintenancework at the Upgrader for the upcoming three years [Work].

To that end, Neil Nilson, Rick Moran and Matthew Sell, on behalf of Aluma,engaged in discussions with Vince Engel of the Allied Council, and Chuck Rudder on behalf of the Union, for the purpose of structuring acollective agreement with terms specific to that Work. Of particular interest to Aluma were the Union’s expectations regarding wage ratesand overtime premiums for its members. As indicated in an e-mail sent by Mr. Moran to Mr. Engel on September 14, 2018, certainty as tothose costs was important to Aluma’s decision whether to bid on the Work. The e-mail read:

Hello Could you … send me the rate sheets and agreements that you will be working with for the 2020- 2022 shutdown bid for the Husky upgrader. As a note we will not accept any rate changes once you have submitted these rates as the contract is for the time period noted and we are not allowed any alterations to the bid during that time period. If you do not forward an agreement or rates we will not bid this project to Husky for your trade. Need them asap. Thanks Rick Moran | General Manager Central Alberta [ 9 ] Mr. Moran sent another e-mail to Mr. Engel three days later.

It read as follows: This is the week the bids go in. Have you made any inroads to dropping the double time and maybe .75 cents off the rate to appease Husky. Same as last time if we do nothing then the odds of maintaining current market share dwindle and because this is a 2 trade bid, if nothing has changed, Husky may very well hold out on the carpenters award. Leaving the Building trades with no presence on site. So this is the final request from me. I need the actual rate sheet that you are willing to use for the next 3 years and of course the use of double time.

Wednesday at the latest to give us time to fill out the myriad of complicated rate sheets that Husky is using these days. [ 10 ] Mr. Engel forwarded the e-mails to Mr. Rudder. On September 19, 2018, Mr. Rudder replied by e-mail on behalf of the Union. The e-mail, which was sent to Mr. Nilson and copied to Mr. Moran, read as follows: Attached is an agreement for the Shutdown turnaround work for 2019 to 2021, which is confidential in Nature Highlights or low lights, which ever you want to call them are; 39.00 per hr Mon -Friday 1 ½ O.T. Sat & Sun with a hourly shift premium attached of 3.00 per hr.

Ratio is 1-1 for first 16, the 2 JM -1 there after. Read through it all, and if you have any questions, do not hesitate to contact me. [ 11 ] As noted in the text of the e-mail, it contained an attachment entitled “DRAFT Husky Shutdown, Turnaround Agreement 2018 – Ver1.pdf”.

The face page of that document read as follows: SHUTDOWN/TURNAROUND MAINTENANCE AGREEMENT FOR THE HUSKY LLOYDMINSTER HEAVY OIL UPGRADER SITE LLOYDMINSTER, SASKATCHEWAN BETWEEN: THE INTERNATIONAL ASSOCIATION OF HEAT & FROST INSULATORS & ALLIED WORKERS, LOCAL UNION 119 ___________________________________ (Hereinafter referred to as the “Union”) And ___________________________________ (Hereinafter referred to as the “Employer” Purpose: For the SHUTDOWN/TURNAROUND work for the Husky Oil Heavy Upgrader Site located at Lloydminster, Saskatchewan. Effective Date of signing.

Expires JANUARY 31, 2022. [ 12 ] The proposed agreement set out in the attachment contained comprehensive terms and, in general, was economically

advantageous to Aluma when compared to the ACA. [ 13 ] Shortly after having received the proposed agreement, Mr. Sell, on behalf of Aluma, sent an e-mail to Mr. Rudder, seeking clarification about the applicability of a provision related to the overtime premium. Mr. Rudder immediately responded to provide the Union’s position on the requested clarification. The next day, Mr. Sell sent an e-mail to Mr.

Rudder, seeking further clarification about the overtime premium provision, and inquiring about whether the Union would be willing to make a further concession in relation to a term governing alcohol and drug testing. Mr. Rudder again responded with an e-mail setting out the Union’s position on those terms. [ 14 ] Aluma then submitted its bid for the Work. Prior to that being done, the proposed agreement was not signed.

There had also been no further discussion between Aluma and the Union regarding its terms, and no explicit communication relating to whether the proposed terms had been accepted following the aforementioned e-mail exchange. [ 15 ] Husky did not award the Work to Aluma for 2019. Its bid for the Work in 2020, however, was successful. On January 20, 2020, Mr. Nilson wrote to Mr. Rudder, attaching the proposed agreement that Mr. Rudder had sent back in September of 2018, and saying: Good morning Chuck: It looks like this agreement was never signed.

As AlumaSafway is getting ready to mobilize men to site, we should formalize it. Can you contact Rick M and we can get dual signatures and put this one to bed? Thanks….Neil [ 16 ] Mr. Rudder quickly responded, stating that, in the Union’s view, the sun had “long since set” on the proposed agreement in question, and that the previously existing ACA was the agreement of record for the 2020 shutdown Work. [ 17 ] Mr. Moran then got involved in the exchange to express his displeasure at what Aluma viewed as the Union reneging on their agreement.

He wrote the following e-mail: Hello Chuck So approx… 16 months ago this contract came out for bid from Husky. As you can plainly see below you gave us this particular contract to use in our bidding. We used this contract to bid this work. Your promise is clear. So I don’t understand how you could back out of this now when the bid has been awarded based on your promise. Just because time has elapsed since the bid was completed and awarded does not give you the right to change your mind and refer to Sunsets and draft agreements as your reasoning for this abrupt change.

You have been aware of this contract for a long time and you choose to let the clock tick down to zero and then try to force change after we are actually starting the contract this month and actually on site setting up. There is no option for us here. I don’t want lower or higher contract options. Just the ones promised to us at the time of bidding. [ 18 ] Mr. Rudder replied as follows: The Draft agreement, was just that a Draft of a potential agreement for Husky. Never signed by either party, so it remains a "DRAFT AGREEMENT".

If you recall, we enabled the 2017 – 2020 shutdown through the Allied Council, (see attached) therefore we will still honor those enabled terms through the Allied Council agreement. Your attempt at claiming that the Confidential unsigned Draft Agreement is somehow binding, is absolutely absurd, furthermore, for you to suggest that I somehow let this clock tic down, on a Draft Agreement that I forwarded off to Aluma, where it sat apparently until yesterday is even more absurd. I also cant fathom, how you claim there was some sort of promise made by the union, that we have now broken.

The Enabled terms we gave you through the Allied Council Agreement is the only commitment we ever made for this work, and we will continue to honor that commitment. B. The Board Decision [ 19 ] Aluma applied to the Board for an order under s. 6 - 104(2) of The Saskatchewan Employment Act , SS 2013, c. S-15.1 [ Act ] . It requested a determination that, by refusing to sign and honour the proposed agreement, the Union had failed to bargain in good faith and, as such, had committed an unfair labour practice or violated the provisions of the Act .

By way of remedy, Aluma sought an order requiring the Union to refrain from continuing the alleged unfair practice. In other words, Aluma wanted an order requiring the Union to execute the proposed agreement and to abide by its terms. [ 20 ] After a two-day hearing, in which both parties called viva voce evidence, the Board dismissed Aluma’s application.

In short, the Board concluded that the proposed agreement had never become legally enforceable and, as such, the Union was not bound to honour it. [ 21 ] In that regard, the Board observed that, although one possible reading of the e-mails that had been exchanged between the parties in September of 2018 was that the Union had made “an offer of terms Aluma was able to accept, and that the offer and acceptance would create a binding agreement” (at para 41), the e-mail exchange was not definitive. This was, as the Board pointed out, due to a number of factors that permitted a different conclusion, including: (

a) The face page of the proposed agreement said it would be “effective the date of signing”, and nothing was ever signed (at para 42); (

b) The attachment to the e-mail that contained the proposed agreement was labelled a “DRAFT” agreement (at para 43); (

c) The language used by both sides in the e-mail exchange was no more consistent with the conclusion that the draft agreement was meant to be the basis for an offer capable of acceptance than it was with a conclusion that it was merely sent for “discussion

purposes” to focus contract negotiations (at para 44). [ 22 ] The Board also noted that Mr. Rudder had testified that he had not intended to make an offer that Aluma could accept and, in order to find that the draft agreement was an offer capable of acceptance, the Board would “have to conclude that Mr. Rudder did not tell the truth under oath” (at para 47). The Board, however, stated that it was not prepared to draw such a conclusion, as it found Mr.

Rudder to be a “sincere, straightforward witness”, whose evidence was “internally consistent” and “not contradicted in any meaningful sense” by the testimony of other witness (at para 48). [ 23 ] In the end, the Board found that Aluma had failed to prove that the draft agreement was a binding agreement between the parties because (

i) it had not established that the Union had made an offer capable of being accepted, and (ii) even if such an offer had been made, Aluma had not done what was necessary to accept it. In that regard, the Board said: [49] The onus lies with the applicant, Aluma, to prove the facts necessary to establish the fundamentals of the agreement it argues existed here. We are not satisfied the evidence as a whole establishes that the union made an offer in September of 2018 that was capable of acceptance by Aluma. The discussions concerning the proposed agreement could have led to an agreement, but did not.

The fact Aluma officials believed they had an offer they could accept does not alter that. [50] Even had there been an offer capable of being accepted, Aluma did not do what was necessary to accept it. While Aluma argues its actions in completing the bid based on the proposed agreement indicate its acceptance, that acceptance was never communicated to the union at that time and the union had no reason to take Aluma’s silence as acceptance. Mr. Rudder testified that he assumed the ACA would continue to apply once the discussions in September of 2018 went quiet.

Aluma could have avoided the consequences that precipitated the current application had it simply but explicitly communicated its intention to use the proposed agreement in its bid before submitting the bid. This, in turn, would have forced the union to clarify its position. [51] Finally, on this point, could it be said that an offer from the union based on the proposed agreement remained outstanding until January of 2020, when it was accepted by Aluma through the email from Mr. Nilson to Mr. Rudder asking that the agreement be signed?

This requires a conclusion that the offer remained outstanding, without acceptance by Aluma, from September of 2018 to January of 2020. [52] An offer to contract that does not contain an express deadline for acceptance will expire if not accepted within a reasonable time: see Canadian Encyclopedic Digest, Contracts II.2.(

c) para. 45. We find that, if there was an offer, January of 2020 was outside the reasonable time within which it could be accepted. Any such offer would have been in response to a request from Aluma for rates and an agreement needed “asap”. It strains credulity that Aluma would then wait roughly sixteen months to accept an offer. [ 24 ] Having made that finding, the Board determined that Aluma’s allegations that the Union was guilty of an unfair labour practice, either by having reneged on the agreement or by refusing to sign the agreement, could not be sustained.

It also found no basis to conclude that the Union had failed to bargain in good faith. [ 25 ] The Board went on to consider whether the representations made by the Union to Aluma during the negotiations in September of 2018 were of such a nature that the doctrine of estoppel would prevent the Union from being able to resile from the agreement. The Board determined that the elements of estoppel had not been established. In that regard, it wrote: [59] Aluma advanced the third assertion, which argues estoppel, in the alternative to the other two.

The Aluma written submissions characterize the test for estoppel as it applies in the instant circumstances as a three-part test: (

i) A representation was made by [the Union]; (ii) The representation was relied upon by Aluma; and (iii) The reliance was to Aluma’s detriment. [60] In order to find that estoppel applies, all three elements must be satisfied. [61] With respect to the first element, Aluma argues that Mr. Rudder represented to Aluma that the proposed agreement was to be applied to the 2019 to 2021 shutdown/turnaround work at the upgrader, and that this representation encompassed the further representations that the union and its workers would perform the work at the upgrader for those years under the terms presented in Mr.

Rudder’s emails to Aluma officials. [62] For reasons similar to those provided above with respect to our finding that the proposed agreement never became a legally binding collective agreement, we find that the union did not make the representations suggested by Aluma when Mr. Rudder provided the proposed agreement to Aluma in his September 19, 2018, email. We accept Mr. Rudder’s testimony that he did not provide the proposed agreement as an offer for Aluma to accept, but rather as a basis for discussion.

Having reached that conclusion, we must also conclude that the proposed agreement was not provided as a basis for the upcoming bid without an agreement being concluded between Aluma and the union. [63] As noted earlier, all three elements must be established to find the union is estopped from reneging on the proposed agreement. Since the first element has not been established, we find that the principle of estoppel does not apply in these circumstances. [ 26 ] With that, the Board dismissed Aluma’s application. C.

The Chambers Decision [ 27 ] Aluma then applied to the Court of Queen’s Bench for judicial review of the Board Decision . After reviewing the facts and orienting himself to the parties’ arguments, the Chambers judge turned his attention to the standard of review. He determined, as per Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ], that the reasonableness standard

of review applied to all aspects of the Board Decision , including its determination of the question of estoppel. Then, after citing a

summary of Vavilov set out in Saskatchewan Health Authority v Kenny , 2021 SKQB 203 at paras 7–10 , he summarized his understanding of the requirements of the reasonableness standard of review by saying “a court undertaking judicial review must consider the reasonableness of the reasons given and the analytical process, and the reasonableness of the outcome” (at para 23). [ 28 ] As for the reasonableness of the Board’s reasons and its analytical process, the Chambers judge found that the Board Decision was “clear, cogent and thorough”, that its reasoning was methodical, and that it had not failed to analyze any of the important issues before it (at para 25).

The Chambers judge observed that Aluma’s case before the Board was premised on the “central submission” that there was only one possible way of interpreting the September 2018 e-mail exchange between the Union and Aluma, i.e., that the Union had made an offer and Aluma had accepted it.

The Chambers judge found that the Board had “addressed every aspect of that central submission” in the Board Decision , and that it had articulated its reasons for having rejected it in a reasonable way (at para 30). [ 29 ] Regarding the reasonableness of outcome in the Board Decision , the Chambers judge began this portion of the analysis from the premise that, as per Vavilov , he was required to afford deference to the Board’s expertise in matters of labour relations. He went on to say: [35] … The Board’s institutional expertise in labour relations must be given appropriate respect and deference.

The Board will have seen other instances of site or project-specific negotiations where umbrella agreements exist, or similar situations, and will have the expertise to discern where an agreement has been made, or not made. Considerations (of which the Court may not be aware) may apply to collective bargaining that would not exist in other commercial contexts. This Court should not lightly toss aside the experience and expertise that an expert tribunal brings to its analysis. [ 30 ] The Chambers judge then referred to the

definitions of “collective agreement” and “collective bargaining” in s. 6 - 1(1) of the Act , and, after doing so, observed: [38] Thus, leaving settlement of disputes aside, the Act provides that collective bargaining consists of three steps: negotiation, putting terms in writing, and execution. A collective agreement is a written agreement. Negotiation occurred, but no agreement was executed. The Act does not contemplate oral or implied agreements. [39] There is a further requirement at s. 6 -44 of the Act that each party to a collective agreement shall file a copy of it with the Minister.

Failure to file a collective agreement after execution in an attempt to avoid being bound by it would be an unfair labour practice.

Failing to execute after a clear agreement was reached would also be an unfair labour practice. [ 31 ] The Chambers judge reviewed the crucial findings made by the Board, and observed that the Board’s determination that the e- mail exchange was not definitive as to whether a binding agreement had been reached was the “fulcrum on which the [ Board Decision ] balances”, because the live question before the Board was not whether there was an ambiguity in the collective agreement, but “whether an agreement was made at all or whether Mr. Rudder made representations that would support the estoppel claim” (at para 42).

He then stated his understanding of how the governing standard of review was to be applied to that finding: [43] On the standard of review, I am permitted to disturb the Board’s finding that the Email Exchange was not definitive only if it was capable of being interpreted only in the manner argued for by Aluma, i.e., that there was no material ambiguity as to whether there was offer and acceptance, or that a representation intended to be relied upon was clearly made by the Union. (emphasis in original) [ 32 ] The Chambers judge then noted that the Board had found the e-mail exchange could reasonably be interpreted as supporting not only the conclusion for which Aluma advocated – i.e. that a binding agreement had been reached – but also the contrary conclusion.

He reviewed the factual findings that had led the Board to its determination, and said: [50] In another context, and absent a requirement of deference to the Board, I might find that an agreement had been made, though the failure by Aluma to “put a bow on it” would remain troubling. [51] But this is not “another context”. The context here is a Board decision, underpinned by the Board’s institutional expertise.

Not only must I give general deference (the reasonableness standard), but I also must consider that the Board’s institutional expertise might lead it to evaluate a factual matrix falling within its expertise differently than I might, lacking that same expertise. [52] Therefore, paying appropriate deference to the Board and its expertise, I find that it was reasonable for the Board to conclude that the Email Exchange was not “definitive”, such that it was capable of being interpreted as (

a) the Union not having made an offer capable of acceptance or a representation that could be relied on; and (

b) Aluma not having done what was necessary to accept any such offer if made. [53] The testimony heard by the Board was primarily subjective rather than objective, as witnesses for Aluma and the Union testified as to their expectations arising from the Email Exchange. Having held that the Email Exchange was capable of more than one

interpretation, it was reasonable for the Board to accept the testimony of Mr. Rudder as credible. [54] The Board did not misuse Mr. Rudder’s testimony, i.e., by relying on it (as subjective evidence of one party’s intent) to overcome a contrary unequivocal

interpretation of the Email Exchange. Rather, having determined that the Email Exchange was equivocal, the Board turned to Mr. Rudder’s testimony to aid in determining whether Aluma’s claims of an unfair labour practice had been made out. [55] As it was reasonable for the Board to hold that the Email Exchange was capable of more than one

interpretation, and to hold that the testimony heard by it was insufficient to satisfy the onus borne by Aluma, from there it flows that the Union committed no unfair labour practice. There was no agreement that it failed to execute. There were no representations that Aluma could rely upon. The Union reneged on nothing.

III. STANDARD OF REVIEW [ 33 ] In an appeal from a judicial review decision, this Court’s role is to determine whether the Chambers judge selected the appropriate standard of review, and correctly applied it.

This means “once the appellate court has identified the correct standard of review, it ‘steps into the shoes’ of the lower court, and reviews the decision of the administrative tribunal in accordance with that standard” ( Teamsters Canada Rail Conference v Canadian National Railway Company , 2021 SKCA 62 at para 41 , 327 LAC (4th) 322; see also Amalgamated Transit Union, Local 615 v Saskatoon (City) , 2021 SKCA 93 at paras 94-95 ). [ 34 ] The parties agree that the Chambers judge correctly identified the standard of review applicable in this case as one of reasonableness.

They differ on whether he correctly applied that standard. [ 35 ] In Service Employees International Union – West v Saskatchewan Health Authority , 2020 SKCA 113 , Barrington-Foote J.A., dissenting but not on this point, summarized the principles from Vavilov that establish the framework for a reasonableness review: [102] … In … [ 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. … [ 36 ] As set out in Barrington-Foote J.A.’s

summary, a review for reasonableness is concerned with three main aspects of an administrative tribunal’s decision: justification, transparency, and intelligibility. These are, to use the terminology of Vavilov , the “hallmarks” of reasonableness. Before an administrative tribunal’s decision can be set aside as unreasonable, “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency” ( Vavilov at para 100 ).

This means that any identified flaws in the administrative tribunal’s decision must be more than trifling or superficial. Before interfering with an administrative tribunal’s decision, a reviewing “court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable” ( Vavilov at para 100 ; see also Saskatchewan Polytechnic Faculty Association v Saskatchewan Polytechnic , 2022 SKCA 30 at paras 23–24 ). IV.

ISSUES [ 37 ] Aluma’s claim that the Union was guilty of an unfair labour practice was, and continues to be, anchored in its view that the Union reneged on, or refused to complete the execution of, a binding agreement that had been reached between the parties. As for the Board Decision that dismissed Aluma’s claim, Aluma contends the decision was flawed in three ways, and that the Chambers judge erred by upholding it. [ 38 ] First, Aluma says the Board was unreasonable to have concluded that the Union had not made a contractual offer in September of 2018 that was capable of being accepted.

In particular, says Aluma, the Board was unreasonable to have relied on the evidence of Mr.

Rudder’s subjective intent in reaching this conclusion. [ 39 ] Second, Aluma argues that the Board was unreasonable to have found that it had not accepted the Union’s offer. [ 40 ] Third, Aluma asserts that, even if the Board’s conclusions with respect to whether there was a contract were not unreasonable, the Board was unreasonable in failing to find that the Union’s representations in the negotiation process gave rise to estoppel. [ 41 ] Aluma’s first two arguments are related, in that they focus on the question of whether a contract had been formed between the parties, by virtue of the communications exchanged in September of 2018 and the events that followed.

Its third argument asks whether, if

a contract had not been formed, the equitable doctrine of estoppel should apply to hold the Union to its representations. Accordingly, Iwould frame the issues as follows: (

a) Was the Board’s decision that Aluma had not established the formation of a binding agreement between the partiesunreasonable? (

b) Was the Board unreasonable in failing to find that representations made by the Union in September of 2018 gave rise to anestoppel? V. ANALYSIS A.

Was the Board’s decision that Aluma had not established the formation of abinding agreement between the parties unreasonable? [42] Aluma attacks two aspects of the Board’s determination that it had not established that the parties had reached a bindingagreement based on the terms of the September 2018 discussions. [43] First, Aluma says the Board’s finding that the Union had not made an offer capable of acceptance when it sent the proposedagreement to Aluma in September of 2018 is improper because it is grounded in the Board’s acceptance of Mr.

Rudder’s evidence abouthis subjective intent and, thus, premised on a misapplication of the law of contract. [44] The second aspect of the Board Decision with which Aluma takes issue is its conclusion that Aluma had not accepted theUnion’s offer. Aluma asserts that, in this regard, the Board failed to consider evidence that demonstrated it had accepted the Union’s offerthrough performance of the contract. [45] Aluma submits that these errors mean the Board Decision was unreasonable because it is: (

i) not justified in the factual andlegal context in which it was made; and (ii) not intelligible because there is a fatal flaw in its overarching logic. [46] As I will explain, I would reject these arguments. In my view, the Board’s bottom-line conclusion that no binding agreementhad been reached on the basis of the September 2018 communications was reasonable, and the Chambers judge was correct not tointerfere with it. [47] A reasonableness review under Vavilov calls for an examination of whether the decision fits within the boundaries created bythe relevant law and facts.

A case such as this requires attention to both the common law and the governing statutory framework, alongwith an understanding of the labour relations context. [48] Under the common law, a contract is formed where one party makes an offer, the other party accepts it, both parties intend tocreate a legal relationship, and consideration is exchanged (see, generally: Scotsburn Co-op. Services v W.T. Goodwin Ltd., (SCC), [1985] 1 SCR 54 at 63).

Where there is a dispute about whether a contract was actually formed, an objective analysis is calledfor, meaning a court should determine whether a reasonable person in the position of the first party would consider the second party’sconduct to have constituted an offer, and whether a reasonable person in the position of the second party would consider the first party’sconduct to have constituted an acceptance (Owners, Strata Plan LMS 3905 v Crystal Square Parking Corp., 2020 SCC 29 at para 33, 450DLR (4th) 105; Saint John Tug Boat Co. v Irving Refining Ltd., (SCC), [1964] SCR 614 at 621–622 [Saint John TugBoat]). [49] Put another way, a determination of whether a legally binding agreement has been formed turns on whether the parties haveindicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract.The question is not what the parties subjectively had in mind, but whether their conduct was such that a reasonable person would concludethat they intended to be bound to certain terms (Ethiopian Orthodox Tewahedo Church of Canada St.

Mary Cathedral v Aga, 2021 SCC22 at paras 36–37, 459 DLR (4th) 425 [Aga]). [50] An offer, in the contractual sense, is a “communication by the offeror to the offeree indicating a willingness to enter into anagreement with the offeree on certain terms” (John D. McCamus, The Law of Contracts, 3d ed (Toronto: Irwin Law, 2020) at 34[McCamus]). Not all communications between two parties involved in a transaction are appropriately characterized as offers. Determiningwhether something is an offer requires attention to the existing context.

The central question is whether there was an intention to create abinding legal relationship on certain specified terms, or merely an intention to start a discussion. In that respect, a distinction must bedrawn between preliminary negotiations, or mere invitations to treat, and actual offers. It has been held, for example, that a mereexpression of a willingness to contract on certain terms, or the creation of a draft agreement for discussion purposes, does not constitute anoffer (see: Khoury Motors Ltd. v HEPCOE Credit Centre Ltd., (Ont SC).

As McCamus notes, “[t]he criticaldistinction between an invitation to treat and an actual offer is drawn on the basis that an offer communicates a willingness to be bound bythe next communication of the offeree” (at 34). [51] The test for determining whether a party intended to communicate an offer for acceptance is objective in nature.

In that respect,the “question to ask is whether the offeree reasonably understood the communications, by words or conduct, of the offeror to constitute anoffer. … The fact that the offeror may not have subjectively intended to enter an agreement is irrelevant” (McCamus at 32). [52] The second component of a binding agreement is acceptance. Acceptance connotes a final and unequivocal expression of assentto the terms of an offer.

In order to be valid and binding, acceptance must be clear, unambiguous, and absolute (Ziola v Petrie, 2021SKCA 97 at para 45; citing Harvey v Perry, (SCC), [1953] 1 SCR 233 at 237). [53] The common law does not always require that acceptance be in express written terms. Acceptance may be found in thelanguage or conduct of the offeree, if that language or conduct is sufficiently clear, unambiguous and absolute to objectively demonstrate

an intention to create binding legal relations (see: Aga at paras 46-48). In that respect, conduct which, in the eyes of a reasonable observer,is unequivocally tied to the performance of a contract on the terms proposed by the offeror, may be treated as acceptance (see, forexample: Saint John Tug Boat at paras 17-18). [54] Acceptance also has a temporal component at common law. In the absence of an express time limit for the acceptance, anunrevoked offer must be accepted within a reasonable time in order to create a binding contract (see, generally: Barrick v Clark, (SCC), [1951] SCR 177 at 189).

What amounts to a reasonable period of time may depend on a number of factors, includingthe type of transaction in issue, the nature and history of the relationship between the parties, the business or industry in which they areinvolved, and their conduct during the course of the negotiations. [55] In Saskatchewan, the statutory framework that governs collective bargaining relationships between employers and unions addsanother layer to the analysis of whether a binding contractual agreement has been formed.

Part VI of the Act covers Labour Relations. Thesections of

Part VI that have relevance to the circumstances of this case read as follows: 6-1(1) In this Part: … (d) “collective agreement” means a written agreement between an employer and a union that: (

i) sets out the terms and conditions of employment; or (ii) contains provisions respecting rates of pay, hours of work or other working conditions of employees; (e) “collective bargaining” means: (

i) negotiating in good faith with a view to the conclusion of a collective agreement or its renewal or revision; (ii) putting the terms of an agreement in writing if those terms were arrived at in negotiations or are required to be inserted into acollective agreement by this Part; (iii) executing a collective agreement by or on behalf of the parties; and (iv) negotiating from time to time the settlement of disputes and grievances of employees covered by a collective agreement or representedby a union; … 6-41(1) A collective agreement is binding on: (

a) a union that: (

i) has entered into it; or (ii) becomes subject to it in accordance with this Part; (

b) every employee of an employer mentioned in clause (

c) who is included in or affected by it; and (

c) an employer who has entered into it.

(2) A person bound by a collective agreement, whether entered into before or after the coming into force of this Part, must, in accordancewith the provisions of the collective agreement: (

a) do everything the person is required to do; and (

b) refrain from doing anything the person is required to refrain from doing.

(3) A failure to meet a requirement of subsection (2) is a contravention of this Part.

(4) If an agreement is reached as the result of collective bargaining, both parties shall execute it.

(5) Nothing in this

section requires or authorizes a person to do anything that conflicts with a requirement of this Part.

(6) If there is any conflict between a provision of a collective agreement and a requirement of this Part, the requirement of this Partprevails. … 6-44(1) Each of the parties to a collective agreement or any document altering, modifying or amending a collective agreement shall fileone copy of the collective agreement or document with the minister.

(2) The copy mentioned in subsection (1) must be filed promptly after execution of the collective agreement or document.

(3) The minister shall cause every copy filed pursuant to subsection (1) to be made available for inspection by any person. [56] Looking at the Board Decision through the lens of the foregoing legal framework and the factual matrix that was before the

Board, I am not persuaded that its conclusion was unreasonable. An important plank in Aluma’s argument on this point is that the Boardimproperly relied on the evidence of Mr. Rudder’s subjective intention in determining whether the Union had made an offer capable ofacceptance. I agree that, if the Board had based its determination on Mr. Rudder’s subjective intention, that would have been amisapplication of the law, and may have provided a basis to find that its bottom-line conclusion was unreasonable. [57] But, as I read the Board Decision, that is not what occurred.

From the reasons as a whole, it is apparent that the Board based itsconclusion regarding whether the Union had made an offer capable of being accepted on an objective reading of the e-mail exchangebetween Mr. Rudder and Aluma’s representatives. In that respect, the Board carefully scrutinized the e-mail exchange and found that theinterpretation advanced by Aluma – i.e. the Union had made a contractual offer – was not the only reasonable way to interpret theexchange.

The Board observed that the language that had been used was also reasonably capable of being seen as simply an invitation totreat or a draft that was provided for discussion purposes. Importantly, in reaching that conclusion, the Board noted the fact that thedocument Mr.

Rudder had submitted was clearly labelled as a “draft agreement” and that, in circumstances such as these, it would not beunusual for one party to provide a draft of that sort to focus the discussions and invite further negotiation and clarification of terms. [58] In the end, the Board properly recognized that Aluma bore the onus of proving “the facts necessary to establish thefundamentals of the agreement” (Board Decision at para 49) and that, viewed objectively, it had failed to do so. While the Boardmentioned the evidence of Mr.

Rudder’s subjective intention in its reasons, I do not read that part of its reasoning to suggest that it reliedon Mr. Rudder’s subjective intentions to determine whether the Union had made an offer. I read the reference to Mr. Rudder’s subjectiveunderstanding as simply an affirmation of what one of the possible reasonable

interpretations of the e-mail exchange would be. [59] Moreover, even if the Board had made an analytical error of that nature in considering whether the Union had made an offercapable of acceptance, that error would not, in my view, affect the reasonableness of its bottom-line conclusion that no binding agreementhad been reached. This is so for several reasons. [60] As set out above, a binding contractual agreement requires an offer by one party and acceptance of that offer by the other, in afashion that is clear and unequivocal, and unambiguous as to the terms being accepted.

In this case, the Board concluded that, even if theUnion had made an offer in September of 2018, Aluma had not accepted it prior to requesting the Union’s representative’s signatures inJanuary of 2020 and, in the circumstances, any offer that might have been made could not reasonably be seen as still being open foracceptance, given the amount of time that had passed. I see nothing unreasonable in that conclusion. [61] The proposed agreement contained explicit language, on its face, that it would become effective upon signing.

The clear andundisputed evidence before the Board was that the proposed agreement had never been signed, and nor had Aluma communicated itsacceptance of the terms set out in the proposed agreement in any other way prior to January of 2020. In fact, Aluma had not evenconfirmed with the Union, prior to that time, that it had bid on the Work.

Nor was there any evidence that the parties had otherwisecomplied with provisions of the Act that govern the formalities of collective agreements. [62] Aluma contends that the Board’s conclusion that it had not done what was necessary to accept the Union’s “offer” is premisedon a misunderstanding of the law. It says the Board failed to recognize that the contract between Aluma and the Union was a unilateralcontract that Aluma accepted by performing the act that it was required to do to complete the contract, namely bidding on the Work. [63] I reject this argument.

A unilateral contract involves a promise by one party in exchange for the performance or forbearance ofan act by the other. While it is correct to say that, as a mater of general principle, in a unilateral contract, the performance or forbearance ofthe act in question, without more, constitutes the offeree’s acceptance of the contract, that is not what occurred here. The purportedagreement between the parties was not a unilateral contract.

The difference between unilateral and bilateral contracts, and what constitutesacceptance under each, was explained by the Supreme Court of Canada in Sail Labrador Ltd. v Challenge One (The), (SCC), [1999] 1 SCR 265: [33] A bilateral contract is a contract in which both parties undertake obligations through an exchange of promises. Acceptance of abilateral contract, as a general rule, occurs when the offeree communicates its counter-promise to the offeror. In contrast, a unilateralcontract is one in which a party makes a promise in return for the performance or forbearance of

an act. There is no counter-promise toperform this act or forbearance. In this way, a unilateral contract is a contract in which only one party undertakes a promise. This promisetakes the form of an offer which can only be accepted by performance of the required act or forbearance. Such performance provides theother party’s consideration, allowing it to enforce the original promise (Treitel, at pp. 35-36; Waddams, at p. 111; United Dominions Trust(Commercial), Ltd. v.

Eagle Aircraft Services, Ltd., [1968] 1 All E.R. 104 (C.A.)). [64] McCamus describes the difference between unilateral and bilateral contracts in this way, at 33–34: … A bilateral contract is an agreement constituted by an exchange of promises. A simple illustration of a bilateral contract would be acontract for the purchase and sale of goods under which the seller promises to deliver the described goods on a stipulated date and thepurchaser promises to pay the agreed price for the goods at that time.

Such an agreement would typically be formed by the utterance of anoffer to sell by the seller or to buy by the buyer followed by the other party’s communication of an acceptance of that offer. A unilateralcontract, on the other hand, is constituted by a promise given in exchange for

an act. A unilateral contract is typically formed by thecommunication of an offer that indicates that the offeror is prepared to be bound by certain promises if the offeree performs a stipulatedact. In such a case, performance of the stipulated act will constitute acceptance of the offer. An offer in the form, “I will pay you fivehundred dollars if you climb to the top of a flagpole,” is an offer of an agreement pursuant to which the offeror will be bound to pay acertain amount of money only if the offeree performs a particular act.

A more realistic illustration is the offer of a reward for a provisionof information concerning the commission of a particular crime, a promise to pay money in return for the act of providing the informationin question. … [65] In my view, the proposed agreement between Aluma and the Union was not one capable of giving rise to a unilateral contract.Accepting Aluma’s position would amount to finding that the only act it was agreeing to perform under the contract was to bid on theWork. That was clearly not the nature of the proposed agreement.

The proposed agreement involved an exchange of promises – the Unionagreeing to provide workers skilled in a certain trade and agreeing that those workers would be subject to certain conditions ofemployment, and Aluma undertaking to not only bid on the work, but also to employ members of the Union to carry out the Work, subject

to the agreed-upon conditions of employment. If it was a contract, it was clearly a bilateral contract. Accordingly, the Board’s decision toapproach the question of acceptance in the manner that it did reveals no misapplication of the law. [66] Accordingly, Aluma’s argument that the Board was unreasonable to find that it had not established the formation of a bindingagreement between the parties must fail. B. Was the Board unreasonable in failing to find that representations made bythe Union in September of 2018 communications gave rise to an estoppel? [67] I turn now to the question of estoppel.

Aluma contends the Board’s conclusion that the representations made by the Union didnot give rise to an estoppel is unreasonable. Aluma says the Board Decision in this respect cannot be justified because it is the product ofseveral legal errors, including (

i) improperly relying on evidence of Mr.

Rudder’s subjective intent with respect to the nature of theUnion’s representations; (ii) conflating principles of contractual law with the principles of equity; and (iii) otherwise misapplying theprinciples of equity. [68] I am not persuaded by Aluma’s arguments on this issue either. [69] As a starting point in this portion of the analysis, it is worth noting that, even though the doctrine of estoppel is equitable innature, the Board was entitled to consider and apply it (see: Nor-Man Regional Health Authority Inc. v Manitoba Association of HealthCare Professionals, 2011 SCC 59, [2011] 3 SCR 616 [Nor-Man]). [70] Nor-Man also stands for the proposition that administrative tribunals like the Board are well-equipped, by virtue of theirexpertise, “to adapt the legal and equitable doctrines they find relevant within the constrained sphere” of their mandate and, as such, areowed a healthy measure of deference when parties seek judicial review of their efforts to apply estoppel in the labour relations context (atpara 45).

This measure of deference is framed by the reasonableness standard (Viterra Inc. v Grain Services Union (ILWU-Canada), 2013SKCA 93 at paras 43-44, 423 Sask R 97 [Viterra]). [71] Aluma argued before the Board, as it did before the Chambers judge and before this Court, that the doctrine of estoppel shouldapply to support its claim of an unfair labour practice, because its bid for the Work was the product of detrimental reliance onrepresentations made by the Union during the communications that took place between the parties in September of 2018. [72] Before the Board, Aluma’s position was grounded in estoppel in pais, or estoppel by representation.

On appeal to this Court,however, Aluma asserts that the applicable doctrine is that of promissory estoppel. In my view Aluma’s latter position—promissoryestoppel—provides the correct lens through which to conduct the analysis. Moreover, as I will explain, the result in this case would be thesame regardless of how the estoppel argument is framed. [73] In Viterra, Richards C.J.S. summarized the “basic features” of the doctrine of promissory estoppel by saying that “the doctrineengages when there is both (

a) a representation intended to affect legal rights and be acted upon, and (

b) reliance on that representation”(at para 41). Chief Justice Richards drew those principles from the Supreme Court of Canada’s decision in Maracle v Travellers IndemnityCo. of Canada, (SCC), [1991] 2 SCR 50 at 57 [Maracle].

The principles expressed in Maracle were also cited andendorsed in Trial Lawyers Association of British Columbia v Royal & Sun Alliance Insurance Company of Canada, 2021 SCC 47 [TrialLawyers], where Moldaver and Brown JJ., writing for the majority, said: [15] Promissory estoppel is an equitable defence whose elements were stated by Sopinka J. for this Court in Maracle, at p. 57: The principles of promissory estoppel are well settled.

The party relying on the doctrine must establish that the other party has, by wordsor conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on.

Furthermore, the[promisee] must establish that, in reliance on the [promise], he acted on it or in some way changed his position. [Emphasis added.] The equitable defence therefore requires that (1) the parties be in a legal relationship at the time of the promise or assurance; (2) thepromise or assurance be intended to affect that relationship and to be acted on; and (3) the other party in fact relied on the promise orassurance.

It is, as we will explain, implicit that such reliance be to the promisee’s detriment. [16] Promissory estoppel seeks to protect against the “inequity of allowing the other party to resile from his statement where it has beenrelied upon to the detriment of the person to whom it was directed” (Fort Frances v.

Boise Cascade Canada Ltd., (SCC),[1983] 1 S.C.R. 171, at p. 202). … … [21] To ground promissory estoppel, the requirement stated in Maracle that a promise or assurance must be intended to affect theparties’ legal relationship signifies that the promisor must know of the facts that are said to give rise to that legal relationship, and of thealteration thereto … We acknowledge that the jurisprudence from this Court speaks of intention, not knowledge (Maracle, atpp. 57-59; John Burrows Ltd. v. Subsurface Surveys Ltd., (SCC), [1968] S.C.R. 607, at p. 615).

But the significanceof intention depends entirely on what the promisor knows.

A promisor … cannot intend to alter a relationship by promising to refrain fromacting on information that it does not have. … (emphasis in original) [74] In order to bring the doctrine of estoppel into play, the promise or representation that is intended to affect the legal relationshipmust also be “clear” or “unequivocal” or “precise and unambiguous” (Sales Promotion Services Inc. v Ultramar Canada Inc., (ON CA), 2 BLR (3d) 243 (Ont CA) at para 5). [75] In Trial Lawyers, the Court observed that there is considerable similarity between the doctrines of promissory estoppel andestoppel by representation.

In Bruce MacDougall, Estoppel, 2d ed (Toronto: LexisNexis, 2019) [MacDougall], the author also commented

on the similarity of, and overlap between, these two categories of estoppel (at 178-181): Estoppel by representation is a doctrine whereby the maker of a false statement can be nonetheless held by the recipient to that statementas being true if the recipient has relied on it to his or her detriment. […] There is no single formulation of estoppel by representation but the three basic elements necessary to create an estoppel are clear.

Theremust be: (1) a statement of fact – the “representation” made by the “representor” […] […] Martland J. for the Supreme Court of Canada in Canadian Superior Oil Ltd. v Paddon-Hughes Development Co., (SCC),[1970] SCJ No 48, [1970] SCR 932 (SCC) set out similar criteria in a little more detail, and he appeared to treat these as criteria forpromissory estoppel as well as estoppel by representation. He said: The essential factors giving rise to an estoppel are I think: 1.

A representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom therepresentation is made. 2.

An act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made.[…] (emphasis added) [76] Although there are general similarities between these two categories of estoppel, the circumstances in which they are meant toapply differ. Promissory estoppel applies when the statement at issue is a statement of intention.

Estoppel by representation is the doctrinethat applies when the statement is one of fact, or mixed fact and law (Halpape v Bank of Montreal, 2017 SKQB 23 at para 22; Halsbury’sLaws of Canada (online), Estoppel, “Estoppel by Representation” (IV(1)(4)( at HES-96 “Basic Definition” (2020 Reissue); MacDougallat 40). In this case, the representations at issue were not statements of fact, they were statements of intention, in that they were allegedpromises by the Union to enter into an agreement and be bound by certain terms.

Thus, the applicable category of estoppel is promissoryestoppel. [77] The point to be drawn from the foregoing discussion is that, in order to give rise to the operation of the doctrine of estoppel, arepresentation (or conduct or promise) must have the following characteristics, regardless of whether it is framed as promissory estoppelor estoppel by representation: (

a) It must be intended to induce a course of conduct on the part of the person to whom it is made; (

b) It must be intended to affect the legal relationship between the representor and the representee; (

c) It must be clear, unequivocal, precise and unambiguous; and (

d) It must be made in the context of an existing legal relationship between the parties. [78] Another important, and sometimes overlooked, component of the doctrine of estoppel is that it is to be used as a shield, and nota sword.

Denning L.J. discussed this point in Combe v Combe, [1951] 2 KB 215 (CA) and, as noted by McCamus at 308–309, it iscommonly accepted that Denning L.J.’s approach in this regard is correct approach: […] promissory estoppel could not found a cause of action to enforce the promise itself. […] The role of promissory estoppel doctrine wasrestricted to preventing parties from insisting upon their strict legal rights in situations where it would be unjust to allow actions to enforcethem.

As has often been said since, Denning LJ clearly conceded in Combe that the doctrine of promissory estoppel can be used only as ashield and not as a sword. [79] This means promissory estoppel generally operates as a defence. It cannot be used, on its own, to found a cause of action (see,for example: Canadian Superior Oil v Hambly, (SCC), [1970] SCR 932 at 937; and Cowper-Smith v Morgan, 2017 SCC61 at para 17, [2017] 2 SCR 754; MacDougall at 39–40 and 519).

The same principle applies, in my view, in the labour relations context.While promissory estoppel may provide a party with a defence to an allegation of an unfair labour practice, it cannot, on its own, form thebasis of a claim of an unfair labour practice.

As MacDougall notes at 421–422, citing Eastern Bakeries Ltd. v Bakery, Confectionery andTobacco International Union, Local 446, 2001 NSSC 181, at para 41, 200 NSR (2d) 51: …[T]he law of promissory estoppel does not stand at the entry to the arbitrator’s boardroom in the manner of laws concerning theformation of contracts or duration of rights under extinguished contracts. In the general law of contract, promissory estoppel is profane andis commonplace with laws such as the principles for

interpretation or for implication of terms, by which the daily commerce understandsand administers its agreements. Although promissory estoppel does not seek to give effect to a term, although it does the opposite, it has todo with the just administration of contracts, not their existence. Promissory estoppel goes to the administration of contracts. (emphasis added) [80] As I read this passage, it is another way of stating that promissory estoppel can only be used as a shield, and not a sword.

Itfollows from this principle that promissory estoppel’s place in the contractual world is limited to the administration of contracts and nottheir formation. Attempting to enforce promises to create new contracts would be an improper use of the doctrine of estoppel and wouldconflate equitable principles with the bedrock principles of contract law. It is even more important to keep these principles in their properlanes in a labour law context given the formalism that the Act prescribes in connection with collective bargaining agreements (see

paragraph 55 above). [ 81 ] Examining the Board Decision with the foregoing principles in mind, I can see no basis to conclude that the decision on the estoppel point was unreasonable. Although the Board’s reasons in that respect were brief, its self-instruction on the law was appropriate and the findings that drove its conclusion are clear and well-explained. In other words, the hallmarks of transparency and intelligibility are present. [ 82 ] As for the justifiability of the decision, I am not persuaded that the Board misapprehended or misapplied the law in its treatment of the estoppel argument.

The Board found that, whatever the nature of the “representation” made by Mr. Rudder on behalf of the Union during the communications exchanged in September of 2018 had been, it was not one that, from an objective standpoint, was intended to affect the legal relationship between the parties. While this is consistent with the finding the Board made in addressing the “offer and acceptance” issue, it was not, in my view, a case of the Board making an “ ipso facto” conclusion based on the former finding.

The Board instructed itself on the applicable principles of the doctrine of estoppel and examined the evidence before it in light of those principles. Having done so, it concluded, based on the evidence, that it was not satisfied the first element of estoppel – a representation intended to affect the parties’ legal relationship – had been established. Given that, it was unnecessary for the Board to go on to consider whether Aluma had relied on the representation to its detriment.

This conclusion was one that was open to the Board, based on the evidence, and fits comfortably within the constraints of the applicable law. [ 83 ] Moreover, it is important to remember that the Aluma’s argument on the estoppel point was premised on its assertion that the Union should be bound to the representations it made in the course of negotiating what would have amounted to a new agreement between the parties.

In this respect, Aluma was not attempting to use the doctrine of estoppel to prevent the alteration of an existing contract but, rather, attempting to use promissory estoppel to create a new legal relationship between them. Put another way, by asserting that the Union had committed an unfair labour practice on the basis that it did, Aluma was seeking to use estoppel as a sword, rather than a shield. [ 84 ] Bearing all of the foregoing in mind, the Board’s decision to reject Aluma’s submission based on estoppel reflects a proper application of the law, meaning it also bears the hallmark of justification.

This branch of Aluma’s argument must also fail. VI. CONCLUSION [ 85 ] For the foregoing reasons, in my view, the Board Decision was reasonable, and the Chambers judge was correct to dismiss Aluma’s application for judicial review. Accordingly, I would dismiss the appeal. The Union is entitled to the costs of the appeal, calculated in the usual way. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Tholl J.A.” Tholl J.A.