Supreme Court

Judge:

The Honourable Justice Michael J. Wood

Heard:

September 26, 2016, in Halifax, Nova Scotia

Written Decision:

January 4, 2017

Subject:

Judicial Review – Standard of Review and Statutory Interpretation

Labour – Construction Industry – Union Certification and Voluntary Recognition

Summary:

Labour Board granted employee’s application to revoke union certification for crane operators employed by EllisDon. Initially EllisDon became unionized by voluntary recognition agreement in 1990 which covered all operating engineers in their employ.

In 2009 union and employers’ association began negotiating separate collective agreements for crane operators and earth movers. The applicant Beswick was employed as a crane operator at time of his application.

Labour Board concluded the decertification should be limited to crane operators and not include earth movers because of separate collective agreements. EllisDon asked for reconsideration and Board refused.

Issues:

(1)        What is the content of the reasonableness standard of review where issue primarily one of statutory interpretation?

(2)        In this case were the Board’s decisions reasonable?

Result:

When the reasonableness standard is applied to review of a decision involving statutory interpretation court must consider language and context of legislation. If there is only one reasonable interpretation possible and tribunal does not adopt it the decision is unreasonable.

In this case the focus was s. 98(6) of the Trade Union Act. EllisDon argued collective agreements could not redefine scope of 1990 bargaining unit because of this section which forms part of the “Steen” amendments. EllisDon argued that the only unit in existence was the one found in 1990 VRA and decertification should cover all employees including earth movers.

Board concluded that employer’s bargaining rights passed to association upon voluntary recognition in 1990 and this included ability to amend unit. Collective agreements included recognition article and were in substance voluntary recognition agreements which could redefine unit. This meant decertification should be limited to crane operators.

Court considered the Act as well as the context, including history of Steen amendments, in deciding that decision to revoke certification for crane operators was reasonable. This is what Beswick had applied for.

Court also noted potential ambiguity in Board order which referred to partial decertification of unit in 1990 VRA. Court said it should consider decision as a whole and not engage in line-by-line search for error. Concluded that language used in Board’s order did not make otherwise reasonable decision unreasonable.

Judicial review dismissed.