Andritz Hydro Canada Ltd. Appellant (Applicant) v. The United Association of, 2023 SKCA 69

Court of Appeal for Saskatchewan Docket: CACV4074 Citation: Andritz Hydro Canada Ltd. v The United Association ofJourneymen and Apprentices of the Plumbing and Pipefitting Industry ofthe United States and Canada, Local 179, 2023 SKCA 69Date: 2023-06-07Between:Andritz Hydro Canada Ltd.Appellant (Applicant)AndThe United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 179Respondent(Respondent)AndSaskatchewan Labour Relations BoardNon-party(Respondent)Before: Caldwell, Barrington-Foote and Kalmakoff JJ.A.

Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice KalmakoffIn concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Barrington-FooteOn appeal from: QBG-SA-00719-2021, (KB), SaskatoonAppeal heard: April 21, 2023Counsel: Steve Seiferling for the Appellant Ronni Nordal, K.C. for the Respondent Kalmakoff J.A. I. Introduction [1] Andritz Hydro Canada Ltd. [Andritz] is a contractor in the business of supplying electromechanical equipment and servicesfor hydroelectric power plants.

The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of theUnited States and Canada, Local 179 [UA Local 179] is a union that represents plumbers, pipefitters, steamfitters, welders, gasfitters,refrigeration mechanics, instrumentation mechanics and sprinkler fitters employed in the construction industry in Saskatchewan. [2] Andritz appeals against a decision (Andritz Hydro Canada Ltd. v The United Association of Journeyman and Apprentices ofthe Plumbing and Pipefitting Industry of the United States and Canada, Local 179 (1 September 2022) Saskatoon QBG-SA-00719-2021(Sask QB) [Chambers Decision]) in which a judge of what was formerly the Court of Queen’s Bench [Chambers judge] dismissed itsapplication for judicial review of two decisions of the Saskatchewan Labour Relations Board [Board]: United Association of Journeymanand Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 179 v Andritz Hydro Canada Inc., [Certification Decision]; and Andritz Hydro Canada Inc. v United Association of Journeyman and Apprentices of thePlumbing and Pipefitting Industry of the United States and Canada, Local 179, [Reconsideration Decision]). [3] Together, the Certification Decision and the Reconsideration Decision had granted UA Local 179’s application to be certified,under Division 13 [Construction Industry Division] of

Part VI of The Saskatchewan Employment Act, SS 2013, c S-15.1 [SEA], as thebargaining agent for the pipe trade workers Andritz required for a project in which it was engaged. [4] Andritz contends that, in dismissing its application for judicial review, the Chambers judge erred by upholding the Board’sconclusions that the certification application was properly brought under s. 6-9 of the SEA and that the work to which the certificationapplication pertained was construction work as opposed to maintenance work.

Andritz asks this Court to overturn the Chambers Decision,and to substitute our own decision reaching conclusions opposite to those reached by the Board. [5] For the reasons that follow, I would allow the appeal, but only to the extent of remitting the matter to the Board to reconsiderthe question of whether the relevant work was construction work or maintenance work, within the meaning of s. 6-65 of the SEA. II. Background A. The Project [6] Andritz obtained a contract from SaskPower to perform work on the E.B. Campbell Hydroelectric Station near Tobin Lake,Saskatchewan [Project].

The Project was substantial in nature. Over the course of six years, it required that Andritz take apart six of thepower station’s eight turbines (one each year), clean, refurbish or replace their parts, and then put the turbines back together. The aim ofthe Project was to extend the life of the plant by 50 years and to increase the power generating capacity of the turbines. Work on theProject began in October of 2019.

B. Andritz’s relationship with various trade unions [ 7 ] Andritz had entered into collective agreements with various trade unions to supply workers for different aspects of the Project. Those unions included the International Brotherhood of Electrical Workers, Local 529 [IBEW], the Ironworkers Local 771, the Operating Engineers, and the Labourers Local 180. [ 8 ] Relevant to this appeal, by way of a certification order made by the Board in 2004, IBEW was the certified bargaining agent for all electrical workers employed by Andritz.

The certification order covered all “journeyman electricians, electrician apprentices, electrical workers and electrician foremen employed by [Andritz]… north of the 51st parallel”. [ 9 ] IBEW does not generally represent pipe trade workers. However, the collective agreement that had been negotiated between Andritz and IBEW allowed IBEW to dispatch workers from other trades if Andritz required them to perform certain work. In this case, part of the work on the Project called for old copper pipe to be replaced with new stainless-steel pipe.

Andritz determined that a pipefitter and pipefitter-welder would be required for this aspect of the Project. Accordingly, in November of 2019, IBEW’s business manager, Garnet Greer, contacted Bill Peters, the business manager for UA Local 179, and asked if they would be prepared to supply these workers. UA Local 179 declined to do so. IBEW then posted an ad calling for a pipefitter and pipefitter-welder. Two members of UA Local 179 responded. They were signed up as members of IBEW for the purpose of the Project and dispatched on that basis. C.

The certification application [ 10 ] A short time later, in December of 2019, UA Local 179 applied under s. 6 - 9 of the SEA for an order certifying it as the bargaining agent for any pipe trade workers working on the Project. [ 11 ] Applications for certification fall under

Part VI of the SEA , which sets out the general statutory framework that governs labour relations in Saskatchewan.

Section 6 -1(1), which lies in

Part VI, provides

definitions for various terms. Those that are relevant to this appeal include the following: 6-1

(1) In this Part: (a) “bargaining unit” means: (

i) a unit that is determined by the board as a unit appropriate for collective bargaining; or (ii) if authorized pursuant to this Part, a unit comprised of employees of two or more employers that is determined by the board as a unit appropriate for collective bargaining; (b) “certification order” means a board order issued pursuant to

section 6-13 or clause 6-18(4)(

e) that certifies a union as the bargaining agent for a bargaining unit; … (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 a collective 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 represented by a union; … (p) “union” means a labour organization or association of employees that: (

i) has as one of its purposes collective bargaining; and (ii) is not dominated by an employer; (q) “unit” means any group of employees of an employer or, if authorized pursuant to this Part, of two or more employers. [ 12 ] Sections 6-9 and 6-10 appear in Division 3 of

Part VI, which is titled “Acquisition and Termination of Bargaining Rights”.

Section 6-9 permits a union to apply to the Board for an order certifying it as the bargaining agent for a unit of employees.

Section 6 -10 deals with situations in which a union seeks to replace another union as the bargaining agent for some or all of the employees of a bargaining unit, where there is already a certification order in place. Those provisions read, in relevant part, as follows:

6-9

(1) A union may, at any time, apply to the board to be certified as bargaining agent for a unit of employees appropriate for collective bargaining if a certification order has not been issued for all or a portion of that unit. … 6-10

(1) If a union has been certified as the bargaining agent for a bargaining unit, another union may apply to the board to be certified as bargaining agent: (

a) for the bargaining unit; or (

b) for a portion of the bargaining unit: (

i) if the applicant union establishes to the satisfaction of the board that the portion of the bargaining unit that is the subject of the application should be separately certified as a unit appropriate for collective bargaining; or (ii) if the applicant union is certified as the bargaining agent in another bargaining unit with the same employer or, in circumstances addressed in Division 14, with two or more health sector employers as defined in

section 6-82 and the applicant union establishes to the satisfaction of the board that the portion of the bargaining unit that is the subject of the application should be moved into the other bargaining unit. …

(3) Subject to subsection (4), an application pursuant to subsection (1) must be made not less than 60 days and not more than 120 days before: (

a) the anniversary date of the effective date of the collective agreement; or (

b) if a collective agreement has not been concluded, the anniversary date of the certification order.

(4) With respect to an application made pursuant to subclause (1)(b)(ii), the application must be made not less than 60 days and not more than 120 days before: (

a) the anniversary date of the effective date of any of the collective agreements with an employer mentioned in that subclause; or (

b) the anniversary date of the effective date of any of the certification orders governing an employer mentioned in that subclause. [ 13 ] Notably, in this case, UA Local 179 sought certification under the provisions of the Construction Industry Division of the SEA . This is significant because of the unique nature of labour relations in the construction industry in Saskatchewan. In most collective bargaining situations, the terms that govern the relationship between the employer and workers are contained in collective agreements negotiated specifically between those individual parties.

However, under the provisions of the Construction Industry Division, where a union is certified as the bargaining agent for workers on a project that involves “construction industry” work, as defined in s. 6-65(a), individually negotiated collective agreements do not apply. Instead, the relationship between the employer and the workers is automatically governed by the provisions of a single, provincially negotiated collective agreement.

Section 6 - 65 (

a) reads as follows: 6-65 In this Division: (a) “construction industry”: (

i) means the industry in which the activities of constructing, erecting, reconstructing, altering, remodelling, repairing, revamping, renovating, decorating or demolishing of any building, structure, road, sewer, water main, pipeline, tunnel, shaft, bridge, wharf, pier, canal, dam or any other work or any part of a work are undertaken; and (ii) includes all activities undertaken with respect to all machinery, plant, fixtures, facilities, equipment, systems and processes contained in or used in connection with a work mentioned in subclause (i), but does not include maintenance work. [ 14 ] As can be seen, s. 6 - 65 (a)(ii) provides for one exception to the application of the provincial collective agreement to labour relations in the construction industry.

It explicitly carves “maintenance work” out of the “construction industry” provision. The term “maintenance work” is not defined anywhere in the SEA . [ 15 ] When UA Local 179’s application came before the Board, Andritz opposed certification on two bases. First, it took the position that the pipe trade workers for whom UA Local 179 sought certification were already represented by a certified bargaining agent, namely IBEW. Andritz asserted that what UA Local 179 was really seeking was a change in those workers’ certification under the “raid” provisions of s. 6 -10.

Andritz argued that the Board had no authority to grant a change in certification under s. 6 -10 because UA Local 179 had not brought its application within the 60-day window permitted by s. 6 -10(4). [ 16 ] The second basis upon which Andritz opposed certification was its assertion that the Project, particularly the portion of it being carried out by the pipe trade workers, was maintenance work and not construction work.

Andritz asserted that, despite the scale of the Project, nothing new was being constructed; the work it was performing on the turbines involved refurbishment using existing parts, re- machined parts, and some replacement parts. Andritz also pointed to the fact that the Project Agreement described the work as maintenance and that all of the unions with whom it had negotiated collective agreements, and who were signatories to the Project Agreement, had agreed that such was the nature of the work. D.

The Certification Decision [ 17 ] In the Certification Decision , the Board dealt first with the question of whether UA Local 179’s application was properly a

fresh certification application under s. 6 - 9 , or an application to change representation under s. 6 -10 and, if it was the latter, whether UA Local 179 was out of time.

In that respect, it noted that, given the plain language of ss. 6 - 9 and 6 -10, the determination turned on whether a certification order had already been issued for “the bargaining unit or a portion of the bargaining unit” that includes workers in the pipe trades (at para 71). [ 18 ] The Board observed that, for the purposes of the application, the certification order that covered IBEW applied to all “ journeyman electricians, electrician apprentices, electrical workers and electrician foremen employed by [Andritz] … north of the 51st parallel ” (at para 72) and that it did “not cover employees working in the pipe trades ” (at para 73). [ 19 ] The Board rejected Andritz’s argument that Andritz and IBEW could expand the bargaining unit in this way by agreement, stating as follows: [74] The language of

section 6-10 is plain. Further, the parties cannot by agreement certify a bargaining unit. The Project Agreement does not constitute certification; nor does it substitute for certification in the manner suggested by Andritz. It is an agreement between the parties, not an order of this Board. [75] Furthermore, the terms of the Project Agreement do not support Andritz’s argument.

Section 4.1.2 recognizes IBEW Local 529 as the sole collective bargaining agent for “all General Foremen, Foremen, Journeymen Electricians, Apprentices and Electrical workers” employed by Andritz on the Project. The pipe trades are mentioned only by implication at

section 5 through reference to “additional trades, in addition to those for which they are the exclusive bargaining agent”. … [77] Even if it could be said that IBEW Local 529 was voluntarily recognized as the bargaining agent for employees of the pipe trades, this does not constitute certification nor can it be used as a shield to block an application for certification.

The Board made this clear in Canadian Union of Public Employees, Local 1486 v The Students' Union of the University of Regina Student Inc. , 2017 CarswellSask 280 (SK LRB) : … [78] Voluntary recognition does not prohibit another union from applying for a certification application or obtaining a certification order. [79] UA Local 179 has properly made its Application pursuant to

section 6-9 of the Act.

Section 6-10 is not the appropriate route to potential certification.

Given this, Andritz’s timeliness argument must fail. [ 20 ] Having made that determination, the Board then considered whether the work performed by the pipefitters and welders fell under the definition of construction industry work in s. 6-65(a), or whether it was maintenance work. [ 21 ] In that respect, the Board noted that UA Local 179, as applicant, bore the onus of establishing on a balance of probabilities that it is the appropriate unit, and that the Board “has discretion to determine an appropriate description for that bargaining unit” (at para 80). [ 22 ] The Board observed that the central issue was whether the work performed by the pipe trades fell under the definition of construction industry .

It noted that neither “maintenance” nor “maintenance work” were defined in

Part VI of the SEA . The Board then went on to say: [83] UA Local 179 suggests that “maintenance” does not mean the activities included in the definition of the construction industry, being, “constructing, erecting, reconstructing, altering, remodeling, repairing, revamping, renovating, decorating or demolishing”. [84] The Board would state this differently.

Construction industry “includes all activities undertaken with respect to all machinery, plant, fixtures, facilities, equipment, systems and processes contained in or used in connection with a work mentioned in subclause (i), but does not include maintenance work ” [emphasis added].

The legislature has acknowledged the potential for overlap between the activities of the construction industry and maintenance work, and has provided the Board with the discretion to determine whether the work in question is maintenance and therefore excluded from the construction industry definition. [ 23 ] The Board also noted that decisions from labour relations boards in Alberta, Nova Scotia and Ontario were helpful in addressing the distinction. It cited and reviewed several cases decided by those boards that had considered the difference between maintenance and construction.

It then said: [102] First, the Board has the discretion, and the responsibility, to determine whether the work falls under the definition of construction industry. The Project Agreement between Andritz and the other unions does not bring this inquiry to an end. UA Local 179 is not a party to that Agreement. Peters made his position abundantly clear. Granted, the employees have signed the Membership Application, but IBEW Local 529 does not have jurisdiction over the work of the pipe trades. Besides, it was no secret that the employees would be provided Organizing Clearances.

By permitting IBEW Local 529 to supply the additional trades under the Project Agreement, over Peters’ objections to the characterization of the work contained in that Agreement, Andritz took the risk that it could be bound by the provincial construction agreement. … [104] Next, the factual context is key to determining the nature of the work. The work in question is the work performed by the pipe trades in the context of the project undertaken at the E.B. Campbell power station. The work did not involve the creation of a new or expanded plant.

The primary purpose of the project was to extend the life of the unit to ensure that it would last for another 50 plus years – to preserve the functioning of the system. A secondary purpose of the project, according to Andritz, was to take advantage of existing technology to increase the production capacity of the unit. …

[108] In general, whereas the replacement of a system is construction industry work, the replacement of a component is maintenance work. Despite Moose’s “under the hood” observations of other units, the Board cannot conclude that the pipes were re-routed. Moreover, the cooling design did not change. However, there was an extensive material replacement. Most if not all of the piping was replaced.

This raises the question: if most of the piping “components” were replaced does that mean that the entire “system” was rebuilt? [109] To determine whether the work falls under the construction industry definition the case law routinely considers the entire context: this includes not only the work in question, but also the overall purpose of the work and the scope of the overall project. The Board agrees with this approach. It is practical. It promotes consistency and predictable results.

On this basis, the Board will proceed to consider the overall project. [110] Although nothing was added to the unit, the scope of the overall project involved an extensive replacement of existing parts, including the piping and coolers, the entire distributor, and the outer stater frame. A new runner was manufactured, installed and commissioned, albeit with the same diameter. The runner is the heart of the turbine unit.

Other parts were refurbished” and re-installed, including the turbine shaft. [111] Within this context, the pipe trades’ extensive work on the unit, including the replacement of the pipes, the piping systems, and the coolers, viewed in its totality was the reconstruction of the entire system or structure. [112] Furthermore, as a result of the upgrades performed on the overall project, there was an increase in generation capacity of two megawatts per unit (35 to 37).

The Alberta, Ontario, and Nova Scotia Boards repeatedly and consistently find that work resulting in an increase in production capacity, or work the purpose of which is to increase production capacity, falls under the construction or construction industry

definitions. The parties produced no case law to suggest that the consequence of an increase in production capacity depends on the extent of that increase. [113] The case law treats this finding as decisive. It is similar in effect to a finding that the work resulted in an addition to or an expansion to a facility; it stands in contrast to a finding that the work resulted in an increase in efficiency that did not result in an increase in production.

The former necessarily leads to a conclusion that the work is construction; the latter does not. [114] This principle is not binding upon this Board, but it is persuasive, arising repeatedly and consistently in three jurisdictions with well- developed case law in this area. It is a rational, if not perfect, dividing line that provides a measure of predictability in the industry. The Board is persuaded to follow and apply this principle. [115] In conclusion, the Board must consider not only the work in question, but the overall purpose of the work and the scope of the overall project.

The work of the pipe trades is a part of a larger whole. Construction work involves the addition to an existing facility, or is undertaken for the purpose of or results in an increase of the design or production capacity of an existing facility. The pipe trades’ work on the unit, including the replacement of the pipes, the piping systems, and the coolers, viewed in its totality was the reconstruction of the entire system or structure. Although the replacement of the pipes did not result in an increase in output, the overall project resulted in an increase in generation capacity.

The work of the pipe trades falls into the definition of construction industry pursuant to

section 6-65 of the Act. E. The Reconsideration Decision [ 24 ] Six months after the Certification Decision was issued, Andritz applied to the Board, pursuant to s. 6 - 115(3) of the SEA for a reconsideration of that decision. Among other things, Andritz argued that the Certification Decision should be reconsidered because (

i) the Board’s determination that any work leading to an increase in production capacity would be seen as construction work and not maintenance work could have unintended and far-reaching consequences for Andritz and other employers; (ii) the Board had wrongly interpreted a point of law or policy by reading the word “replacement” into the definition of “construction” work, and by ignoring the definition of “maintenance” that had been agreed to by the signatories to the Project Agreement; (iii) the Certification Decision was tainted by a breach of natural justice, as several of the potentially affected unions had not been notified of the application and thus had not had the opportunity to make submissions; and (iv) the Certification Decision was precedential and amounted to a significant policy adjudication which the Board may wish to refine, expand upon or change. [ 25 ] The Board rejected each of these arguments. [ 26 ] With respect to Andritz’s contention regarding the creation of unanticipated or unintended effects, the Board said Andritz’s view that any increase in production capacity would take work out of the maintenance category was a misreading of the Certification Decision .

In that regard, the Board stated that it had “explicitly distinguished between an increase in production or generation capacity, on the one hand, and an increase in efficiency that does not result in a production increase, on the other hand” ( Reconsideration Decision at para 23 ). The Board also rejected Andritz’s contention that the Certification Decision had created uncertainty for the signatory unions who had agreed that they were performing maintenance work.

In that regard, the Board observed that the certification application focused on, and in fact dealt only with, the work being performed by the pipe trades. At paragraph 29 of the Reconsideration Decision, it said this: “The Board found that the work of the pipe trades fell within the definition of construction industry. It did not declare the entire project to be construction”. [ 27 ] As for Andritz’s contention that the Board had wrongly interpreted a point of law or policy, the Board found that it had not improperly read the word “replacement” into the text of s. 6 65(a)(i).

The Board observed that s. 6 -65(a)(ii) explicitly refers to “all activities undertaken” during construction work which, in the case of what the pipe trades did, included replacement of certain things and, because of that, it held that the “premise of [Andritz’s] argument is incorrect and the argument offers no basis to reconsider the decision” (at para 50). [ 28 ] The Board also rejected Andritz’s assertion that there had been a breach of natural justice.

In that regard, it noted that the Certification Decision and the resulting order were binding on only Andritz and UA Local 179, and did not extend to other parties, including those who were signatories to the Project Agreement.

[ 29 ] Finally, with respect to Andritz’s submission that the Certification Decision was precedential in nature and may be one that the Board wished to refine, expand upon or change, the Board said: [61] However, a finding that a decision is or may be precedential does not necessarily mean that it should be reconsidered. The Employer has provided no persuasive reason for the Board to undertake any further refinement of the decision. The Board did not foreclose a finding that work, which may involve an increase in efficiency, be excluded from the construction industry regime.

Moreover, the Board’s conclusion rested on both its finding that there was an increase in generation capacity and its finding that the system or structure was being reconstructed. The Board’s consideration of the overall context was supported by extensive case law and by factors such as practicality, consistency, and predictability. [62] Nor does the existence of the construction industry bargaining regime provide any compelling reason to undertake a further refinement of decision. The regime, including the role of the representative employers’ organization, is well-established.

The consequences of a certification application under Division 13 are clear. In filing the application, the Union put the Employer on notice that it wished to be bound by the provincial agreement. [63] As revealed by the decision, much of the evidence and argument focused on which of the two agreements should govern the parties’ relationship. The Board found that through its actions the Employer had taken on the risk of being bound by the provincial agreement.

As explained at paragraph 102, “[b]y permitting IBEW Local 529 to supply the additional trades under the Project Agreement, over Peters’ objections to the characterization of the work contained in that Agreement, Andritz took the risk that it could be bound by the provincial construction agreement.” Not only is the application of the provincial agreement a predictable result of a construction industry certification order, the Board made its decision on the basis of the facts specific to the application, which included the Employer’s agreement with IBEW. F.

The Chambers Decision [ 30 ] Andritz then filed an originating application in the Court of Queen’s Bench, seeking judicial review of the Certification Decision and the Reconsideration Decision . [ 31 ] The Chambers judge determined that Andritz’s application raised four questions. The first concerned the appropriate standard of review.

In that respect, after citing and summarizing the principles laid out in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ], the Chambers judge rejected Andritz’s argument that the questions concerning whether the certification application was appropriately brought under s. 6-9 or s. 6-10, and whether the work that the pipe trades performed on the Project was construction or maintenance work were questions of law of fundamental importance to the legal system as a whole such that they should attract a correctness standard of review.

In that respect, the Chambers judge concluded that the mere fact these were issues of significant importance to Andritz and other contractors did not elevate the questions to that status and, accordingly, the reasonableness standard of review applied. [ 32 ] The second issue considered by the Chambers judge was whether the Board’s conclusion that it had jurisdiction to hear and determine UA Local 179’s certification application amounted to an unreasonable

interpretation of ss. 6 - 9 and 6 - 10 of the SEA . In that regard, he noted that the Board determined there was no existing certification order for a bargaining unit that included workers in the pipe trades, which placed the application properly within the scope of s. 6 - 9 . He found that conclusion to be reasonable because the Board “thoroughly and methodically set out its path of reasoning. It is not difficult to follow that path. It is transparent. It is intelligible. The reasoning is justified. There is a clear nexus linking the evidence, the path of reasoning and the conclusion” (at para 32).

The Chambers judge also observed that the reasonableness of the Board’s conclusion on this point was buttressed by the fact that the Project Agreement did not amount to a certification order and “does not have legal effect under s. 6 - 10 , no matter how much Andritz wishes it so” (at para 33). [ 33 ] The Chambers judge resolved the third question, namely, whether the Board was reasonable in determining that the work performed by the pipe trades was construction as opposed to maintenance work, in UA Local 179’s favour as well.

In that respect, he observed that the Legislature had chosen not to define the term “maintenance” in s. 6 -65(a), but instead had “left it to the [Board] to determine whether work was construction or maintenance in any given situation”, and that such a determination would inevitably be factually dependant (at para 48). He went on to say: [49] In its decision the [Board] reviewed jurisprudence from Saskatchewan and elsewhere at paras. 87 to 100 of the [ Certification Decision ]. This review was a comprehensive consideration - including a compare and contrast analysis - of the existing authorities.

I cannot say this was unreasonable. Indeed, once more the [Board] thoroughly and methodically set out its path of reasoning. That path is transparent. It is intelligible. The reasoning is justified. There is a clear nexus linking the evidence, the legal authorities, the path of reasoning and the conclusion. [ 34 ] Finally, the Chambers judge also rejected Andritz’s argument regarding a denial of natural justice in the proceedings before the Board. In that respect, he observed that UA Local 179 had in fact given notice to IBEW.

Then, citing Construction Workers Union, CLAC Local 151 v Saskatchewan Labour Relations Board , 2020 SKQB 137 , 55 CLRBR (3d) 1, he stated “only those parties with a direct interest in the matter” are entitled to receive notice (at para 58). He held that Andritz had not demonstrated that the other entities it alleged had been denied procedural fairness had a direct interest in the outcome of these proceedings and, as such those entities were not entitled to notice in the proceedings before the Board. III.

Analysis [ 35 ] In an appeal from a judicial review decision, this Court’s role is to determine whether the Chambers judge: (

i) selected the appropriate standard of review, and (ii) correctly applied it. How this plays out, in practical terms, is that once an appellate court has identified the proper 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 (see: Teamsters Canada Rail Conference v Canadian National Railway Company , 2021 SKCA 62 at para

41, 327 LAC (4th) 322; Amalgamated Transit Union Local 615 v Saskatoon (City), 2021 SKCA 93 at paras 94–45, 86 CLRBR (3d) 1;AlumaSafway Inc. v The International Association of Heat & Frost Insulators and Asbestos Workers, Local 119, 2022 SKCA 99 at para33 [AlumaSafway]; Saskatchewan Polytechnic Faculty Association v Saskatchewan Polytechnic, 2022 SKCA 30 at para 21; and Liao vSaskatchewan (Economy), 2022 SKCA 137 at para 13, 6 Admin LR (7th) 163). [36] In this case, Andritz advances three grounds of appeal. [37] First, it argues that the Chambers judge selected the wrong standard of review.

Andritz asserts that the question of whether UALocal 179’s application for certification was properly brought under s. 6-10 rather than s. 6-9, and the question of whether the work thepipe trades performed on the Project was construction or maintenance should have been reviewed for correctness, not reasonableness. [38] Second, Andritz contends that, regardless of what standard of review applies, the Chambers judge erred by upholding theBoard’s conclusion that the certification application was properly brought under s. 6-9. [39] Third, Andritz submits, again regardless of whether the applicable standard of review is correctness or reasonableness, that theChambers judge erred by upholding the Board’s conclusion that the work performed by the pipe trades was construction work and notmaintenance work. [40] I turn now to consider these arguments.

A. Did the Chambers judge select the correct standard of review? [41] In Vavilov, the Supreme Court established reasonableness as the presumptive standard of review to be applied when a court iscalled upon to review the decision of an administrative tribunal. However, there are exceptions to that presumption. As Rowe J. said inSociety of Composers, Authors and Music Publishers of Canada v.

Entertainment Software Association, 2022 SCC 30 [Society ofComposers] at para 26, “Vavilov recognized five categories for correctness review: legislated standards of review, statutory appealmechanisms, constitutional questions, general questions of law of central importance to the legal system as a whole, and questions relatedto the jurisdictional boundaries between two or more administrative bodies (paras. 17 and 69)”.

Writing for the majority in Society ofComposers, Rowe J. also determined that there is a sixth category where correctness review applies, namely where “courts andadministrative bodies have concurrent first instance jurisdiction over a legal issue in a statute” (at para 28). He explained the rationalebehind this sixth category as follows: [31] When the legislature enacts a statute that gives concurrent first instance jurisdiction to courts and administrative bodies, thelegislature expressly involves the courts.

Like legislated standards of review and statutory appeal mechanisms, concurrent first instancejurisdiction signals a legislative intent for judicial involvement. By conferring such jurisdiction, it should be inferred that the legislaturewanted to subject those decisions to appellate standards of review. [42] In this case, Andritz contends that the questions it raised before the Chambers judge and on this appeal are general questions oflaw that are of central importance to the legal system as a whole.

It says the question of whether an agreement between an employer and acertified union to voluntarily expand a bargaining unit can be overridden by a competing certification application, and the proper meaningof the terms “construction industry” and “maintenance work” under the SEA have broad implications for the administration of justicegenerally and have not previously been considered by this Court. As such, it argues, respect for the rule of law requires that a correctnessstandard apply. [43] I am not persuaded by Andritz’s arguments.

In Vavilov, the Supreme Court described the general questions of law that attractreview on a correctness standard on the basis that they are of central importance to the legal system as a whole as being those that “are of‘fundamental importance and broad applicability’, with significant legal consequences for the justice system as a whole or for otherinstitutions of government”, or those that have implications beyond the decision at hand and, thus, require “‘uniform and consistentanswers’” (at para 59, quoting Toronto (City) v C.U.P.E., Local 79, 2003 SCC 63 at para 70, [2003] 3 SCR 77, and Dunsmuir v NewBrunswick, 2008 SCC 9 at para 60, [2008] 1 SCR 190, respectively).

This has been described as a “very narrow exception” (Shoan vCanada (Attorney General), 2020 FCA 174 at para 9, leave to appeal to SCC refused, (SCC)), and legal questions donot rise to this standard simply because their answers may affect certain parties, or even a certain industry in a profound way.

The Courtmade this point in Vavilov by saying: [61] We would stress that the mere fact that a dispute is “of wider public concern” is not sufficient for a question to fall into this category— nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue: see, e.g., Communications,Energy and Paperworkers Union of Canada, Local 30 v.

Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, atpara. 66; [McLean v British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 SCR 895], at para. 28; Barreau du Québec v.Quebec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488, at para. 18. The case law reveals many examples of questions this Courthas concluded are not general questions of law of central importance to the legal system as a whole.

These include whether a certaintribunal can grant a particular type of compensation (Mowat, at para. 25); when estoppel may be applied as an arbitral remedy (Nor-ManRegional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 37-38); the

interpretation of a statutory provision prescribing timelines for an investigation [Alberta Teachers’ Association, 2011 SCC 61,[2011] 3 SCR 654] , at para. 32); the scope of a management rights clause in a collective agreement (Irving Pulp & Paper, at paras. 7, 15-16 and 66, per Rothstein and Moldaver JJ., dissenting but not on this point); whether a limitation period had been triggered under securitieslegislation (McLean, at paras. 28-31); whether a party to a confidential contract could bring a complaint under a particular regulatoryregime [Canadian National Railway Co. v Canada (Attorney General), 2014 SCC 40, [2014] 2 SCR 135], at para. 60); and the scope of anexception allowing non-advocates to represent a minister in certain proceedings (Barreau du Québec, at paras. 17-18).

As these commentsand examples indicate, this does not mean that simply because expertise no longer plays a role in the selection of the standard of review,questions of central importance are now transformed into a broad catch-all category for correctness review. [62] In short, general questions of law of central importance to the legal system as a whole require a single determinate answer. In casesinvolving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows.

(Underline emphasis added, italic emphasis in original) [ 44 ] The legal questions raised by UA Local 179’s certification application, and those put before the Chambers judge and this Court by Andritz, are not general questions of law of central importance to the legal system as a whole.

While they undoubtedly involve matters that are of concern to certain employers and labour unions and to entities connected with certain industries, they relate to the construction labour relations regime in Saskatchewan and are of little consequence outside that sphere (see: Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd ., 2013 SCC 34 at para 66 [2013] 2 SCR 458; and McLean v British Columbia (Securities Commission ), 2013 SCC 67 at para 28 , [2013] 3 SCR 895).

They do not have significant legal consequences for the justice system as a whole or for other institutions of government. For these reasons, there is no need for uniform and consistent answers ( Vavilov at para 59 ). [ 45 ] In the result, I conclude that the Chambers judge made no error in determining that the presumption of reasonableness as the applicable standard of review had not been rebutted. This ground of appeal must be rejected. B.

Was the Board’s conclusion that the certification application was properly brought under s. 6-9 unreasonable? [ 46 ] In Service Employees International Union – West v Saskatchewan Health Authority , 2020 SKCA 113 , 454 DLR (4th) 363, 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 Paper Corp. v North Cowichan (District) , 2012 SCC 2 , [20120 1 SCR 5] 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 0 at para 28 , [2008] 1 SCR 190).

However, reasonableness review must also be robust. … See also: Amalgamated Transit Union, Local 615 v Saskatoon (City) , 2021 SKCA 93 at para 93 , 86 CLRBR (3d) 1; and AlumaSafway at para 35 . [ 47 ] In my respectful view, the Board’s decision on the question of whether UA Local 179’s certification application was properly brought under s. 6 - 9 of the SEA , as opposed to s. 6 - 10 , bears the hallmarks of reasonableness described in Vavilov .

To start, the Board’s reasoning in that respect is clearly transparent and intelligible; it gave reasons for its conclusion that are thorough, cogent, well-articulated, and readily understandable. In those reasons, the Board made the findings of fact that were necessary given the context and explained how it applied the law to those factual findings in a way that clearly demonstrates why it arrived at the result it did. [ 48 ] Moreover, the Board’s reasoning on this point is rational and there are no fatal flaws in its overarching logic.

The basis for the Board’s conclusion is clear: it found that the existing certification order did not include pipe trade workers, and that an agreement between Andritz and IBEW to draw pipe trade workers into the previously certified electrical worker bargaining unit did not constitute a certification of the pipe trade workers or displace the effect of the existing certification order. [ 49 ] Furthermore, in my view, the Board’s decisions are justified in relation to the constellation of relevant law and facts that was before it.

In that regard, previous decisions of the Board have held that voluntary recognition cannot defeat the ability of another union to seek, and obtain, a certification Order (see, for example: Canadian Union of Public Employees, Local 1486 v The Students’ Union of the University of Regina Student Inc. , 2017 CarswellSask 280 at para 32 (Sask LRB) . In short, the Board followed its own jurisprudence respecting the very question this issue raised and, in so doing, rejected Andritz’s argument that the

interpretation of s. 6-10 should be guided by reference to arbitration principles. By taking that approach, the Board situated the issues within the appropriate legal context and, from there, it interpreted the statutory provisions in a manner that fits with that context and that the plain statutory language supports.

[50] Pulling all of that together, I agree with the Chambers judge’s conclusion that this aspect of the Board’s decision wasreasonable. This ground of Andritz’s appeal cannot succeed. C. Was the Board’s conclusion that the Project work performed by the pipetrades was construction, and not maintenance, unreasonable? [51] I reach a different result, however, with respect to the Board’s conclusion regarding the nature of the work that the pipe tradeemployees performed on the Project.

With great respect, I find that the Board’s determination on that point suffers from a failure ofrationality internal to the reasoning process. [52] In particular, in the Certification Decision, the Board identified that, as provided in the governing jurisprudence, the question ofwhether work is construction or maintenance under s. 6-65(

a) always requires consideration of the entire context, which “includes notonly the work in question, but also the overall purpose of the work and the scope of the overall project” (at para 109).

Notwithstandingthat expression of the need for a contextual analysis, the Board determined, only a few paragraphs later, that if any increase in productioncapacity whatsoever resulted from the work being performed, then that fact alone meant the work was construction and not maintenance.A conclusion that one factor, standing alone, can be determinative of such a question is rationally inconsistent with a framework in whichthe determination requires consideration of the entire context of factors.

In other words, the decision is unreasonable because the Boardfailed to apply the analytical model it had explicitly identified was required. [53] In the result, that aspect of Board’s decisions must be quashed. D. Remedy [54] Having reached the foregoing conclusion, it is necessary to consider what remedy should result.

Andritz invites this Court tomake its own determination about whether the work being performed by the pipe trade workers was construction or maintenance. [55] In my respectful view, simply substituting our own view of the appropriate answer to the question before the Board would beinconsistent with the role of an appellate court conducting a review for reasonableness.

Ordinarily, where a court grants judicial reviewand quashes a decision made by an administrative tribunal, the appropriate remedy is to remit the matter to the decision-maker forreconsideration applying the proper principles in light of the court’s decision (Canadian Broadcasting Corporation v Ferrier, 2019 ONCA1025 at para 77, 441 DLR (4th) 632, citing Oakwood Development Ltd. v St. François Xavier, (SCC), [1985] 2 SCR 164at 176).

The exceptions to this are where remitting the matter to the administrative decision-maker would be pointless because, given whatthe Court has decided, there is only one possible outcome, or where the administrative tribunal is no longer fit to act because of areasonable apprehension of bias, or where the administrative decision-maker’s jurisdiction has no foundation in law once an illegality hasbeen corrected (Giguère c Chambre des notaires du Québec, 2004 SCC 1 at para 66, [2004]1 SCR 3.

See also: Retail, WholesaleDepartment Store Union v Yorkton Cooperative Association, 2017 SKCA 107 at para 48; and P&H Milling Group a Division of Parrish& Heimbecker, Limited Saskatoon v United Food and Commercial Workers Local 1400, 2023 SKCA 14 at para 33, 478 DLR (4th) 604). [56] I am unable to conclude that the circumstances here fit into any of these exceptions.

There is no question of jurisdiction to beaddressed and, while Andritz has suggested that it is concerned about the matter being remitted to the same panel of the Board given thatthe panel had already expressed its views on the issue in this case, it does not allege bias on the part of the Board in general or on the partof the panel in particular. [57] Moreover, answering the question of whether the Project work performed by the pipe trades is construction or maintenancerequires that the Board interpret the relevant provisions of the SEA to decide where the line is drawn between “maintenance” and“construction” and apply the legal test it adopts to the facts.

These findings of law, fact and mixed fact and law are, within the limits ofreasonableness, for the Board to make. These tasks have not yet been completed as a result of the Board’s error. [58] Accordingly, in my view, the appropriate remedy is to remit the matter to the Board for reconsideration, applying the properprinciples in light of this Court’s decision. IV. Conclusion [59] For the foregoing reasons, I would allow the appeal, and quash the Board’s decisions as they pertain to the determination ofwhether the Project work performed by the pipe trades was construction or maintenance.

I would remit that question to the Board forreconsideration in light of this Court’s decision. Whether the matter is heard by a new panel or the same panel that heard it in first instancewill be for the Board to determine. [60] Andritz is entitled to the costs of this appeal and of the application heard in the Court of Queen’s Bench, in the usual way. “Kalmakoff J.A.” Kalmakoff J.A.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.