SUPREME COURT OF Nova Scotia
Citation: United Brotherhood of Carpenters and Joiners of America v. International Association of Heat and Frost Insulators & Allied Workers, 2016 NSSC 213
Date: 20160812
Docket: Hfx. No. 447549
Registry: Halifax
Between:
United Brotherhood of Carpenters and Joiners of America
and
United Brotherhood of Carpenters and Joiners of America, Local 83
Applicants
and
International Association of Heat and Frost Insulators & Allied Workers
and
International Association of Heat and Frost Insulators & Allied workers, Local 116
and
Arctic Spray Foam Inc.
and
Canadian Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (Arbitrator, Bruce MacDonald)
Respondents
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Judge: |
The Honourable Justice Arthur W.D. Pickup |
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Heard: |
June 8, 2016 in Halifax, Nova Scotia |
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Final Written Submissions: |
April 2, 2016, Applicants’ brief , Carpenters April 29, 2016, Respondents’ brief, Insulators April 29, 2016, Respondent’s brief, Arctic Spray April 29, 2016, Respondent’s brief, Canadian Plan May 13, 2016, Applicants’ reply brief, Carpenters
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Counsel: |
Raymond A. Mitchell, for the Applicants, Carpenters Scott Sterns, for the Respondent, Insulators Alison Bird, for the Respondent, Arctic Spray Kyle MacIsaac, for the Respondent, Canadian Plan
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By the Court:
[1] This is an application for judicial review by the United Brotherhood of Carpenters and Joiners of America, Local 83, and the United Brotherhood of Carpenters and Joiners of America, (referred to collectively as “the Carpenters”) of a decision of December 16, 2015, of an arbitrator, Bruce MacDonald.
[2] Mr. MacDonald was appointed pursuant to the Canadian Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (“the Plan”), a private dispute resolution scheme available to resolve jurisdictional disputes among identified employers and trade unions in the construction industry.
[3] The Plan has no statutory or inherent authority. It is premised on the parties’ voluntary agreement to abide by its terms. This voluntary agreement is referred to as “stipulation”.
[4] A jurisdictional dispute arose between the applicant Carpenters and the respondents, the International Association of Heat and Frost Insulators & Allied Workers, Local 116 and the International Association of Heat and Frost Insulators & Allied Workers, (referred to collectively as “the Insulators”), regarding work performed by the Carpenters for Arctic Spray Foam Inc. (“Arctic”) at the Nova Scotia Community College in Dartmouth, Nova Scotia.
[5] By letter of December 4, 2015, the Insulators wrote Assunta Testa, the administrator of the Plan, and advised, among other things:
i. That the Carpenters members were applying polyurethane insulation spray foam on buildings in Dartmouth, Nova Scotia, and that there was a jurisdictional dispute as to who should be doing this work.
ii. That the contractor who assigned the work to the Carpenters was Arctic.
iii. That the matter be referred for arbitration.
[6] Ms. Testa advised on December 7, 2015, that the matter would proceed to arbitrator selection.
[7] By letter of December 8, 2015, the Carpenters advised Ms. Testa of its position that the issue did not fall within the jurisdiction of the Canadian Plan and provided several arguments to support their position.
[8] The arbitration proceeded on December 16, 2015, with neither the Carpenters nor Arctic attending.
[9] Arbitrator Bruce MacDonald determined the application in respect of the right to spray polyurethane insulation in favour of the Insulators, Local 116, Halifax.
[10] The Carpenters say the arbitrator appointed under the Plan did not have jurisdiction to decide the dispute because the Carpenters had not agreed to be bound by the Plan. Stated in the language of the Plan, the Carpenters were not “stipulated” to the Plan.
[11] Similarly, Arctic claims that there was no voluntary agreement on its part to abide by the Plan and agrees with the position of the Carpenters that the decision should be quashed for want of jurisdiction.
[12] The Insulators, for its part, says the arbitrator had jurisdiction to hear the complaint because the Plan states that only the moving party must be stipulated to the Plan in order to process jurisdictional disputes. In the alternative, it asserts that the arbitrator had jurisdiction because all parties are, in fact, stipulated to the Plan. It says the arbitrator’s decision was reasonable.
Standard of Review
[13] The first issue to be determined is the standard of review. On the question of the standard of review to be applied by this court in determining whether the arbitrator had jurisdiction to hear the complaint, all parties are in agreement that it is a correctness standard.
[14] Existing jurisprudence establishes the standard of review as correctness, for example, in Benson v. Labourer’s International Union of North America (1996), 142 Nfld. & P.E.I.R. 81, 1996 CanLII 10267 (P.E.I. S.C.A.D.), the court held that the correctness standard applied to an issue concerning the jurisdiction of an arbitrator to hear an application under a Plan similar to the one at issue here.
[15] If there is jurisdiction, the standard of review of the remainder of the arbitrator’s decision, according to the Carpenters and Arctic is correctness, while the Insulators say a standard of reasonableness should be applied. The Plan takes no position on the appropriate standard of review on the second issue.
[16] The thrust of the Carpenters’ argument for a correctness standard on the second issue is that the arbitrator was deciding a jurisdictional issue, that is, who had jurisdiction to do the spray work that was done by the Carpenters for Arctic.
[17] In Nor-Man Regional Health Authority v. Manitoba Association of Health Care Professionals, [2011] 3 S.C.R. 616, the court outlined circumstances where a tribunal’s decision may be reviewed for correctness.
[35] An administrative tribunal’s decision will be reviewable for correctness if it raises a constitutional issue, a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’”, or a “true question of jurisdiction or vires”. It will be reviewable for correctness as well if it involves the drawing of jurisdictional lines between two or more competing specialized tribunals…
[18] Is this a true question of jurisdiction or vires?
[19] With respect it is not. In Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190, 2008 SCC 9, at para. 59, Bastarache and LaBel JJ. said, for the majority:
59 Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. "Jurisdiction" is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.
[Emphasis added]
[20] While I agree the first question of jurisdiction attracts the correctness standard, the remainder of the arbitrator’s decision is reviewable on a reasonableness standard.
[21] The Carpenters have wrongly categorized the nature of the second issue as a true question of jurisdiction in an attempt to invoke the standard of correctness. If it is determined that the arbitrator had no jurisdiction to hear the matter then a review of his decision is unnecessary. If there is jurisdiction, the question then is whether the arbitrator’s conclusions are reasonable.
[22] Caselaw has held that a reasonableness standard of review is applicable to decisions of an arbitrator appointed under a consensual agreement. (See Transport and Allied Workers, International Brotherhood of Teamsters, Local 855 v. Labourers International Union, Local 1208, 2014 NLCA 45, leave to appeal refused, [2015] S.C.C.S. No. 28.)
[23] Mr. MacDonald was appointed under the Plan. The Plan is a consensual agreement between the respective unions. The reasonableness standard applies to the second issue, the arbitrator’s substantive decision.
Issues
[24] The remaining issues are, therefore, as follows:
i. Did the arbitrator have jurisdiction to hear the complaint?
ii. Was the arbitrator’s decision reasonable?
Issue 1 Did the arbitrator have jurisdiction to hear the complaint?
[25] This issue is reviewed on a correctness standard.
[26] The arbitrator was appointed pursuant to the Plan. At Tab 22 of Volume 1 of the Record for Judicial Review, the Plan documents are set out. All parties referred to these documents during the hearing.
[27] The issue is whether the Plan documents confer jurisdiction on the arbitrator. Arctic and the Carpenters say all parties must be stipulated to the Plan in order to confer jurisdiction, and since they are not stipulated to the Plan, the arbitrator has no jurisdiction. The Insulators says the arbitrator had jurisdiction because the Plan clearly states that only the moving party must be stipulated to the Plan to process jurisdictional disputes. In the alternative, the Insulators says the arbitrator has jurisdiction because all parties are in fact stipulated to the Plan, and that the Carpenters are stipulated by virtue of Article 25 of the Collective Bargaining Agreement with the Nova Scotia Construction Labour Relations Association (NSCLRA). The Insulators say Arctic is stipulated to the Plan by virtue of being a sub-contractor of J.W. Lindsay Enterprises Limited, which is a signatory to the above agreement.
[28] The Carpenters and Arctic say Article 25.01 of the Carpenters’ Collective Agreement is not applicable because certain preconditions were not met.
[29] The arbitrator rendered his decision on December 16, 2015. It is not a lengthy decision. What he said on jurisdiction is as following:
In attendance for the Insulators were International Vice President Fred Clare and Business Manager of Local 116, Matthew Benson.
Unfortunately the Carpenters did not attend to defend their side of the Jurisdictional dispute. According to the Plan for Settlement of Jurisdictional Dispute in the Construction Industry Procedural Rules and Regulations Art. VIII – Resolution by Arbitration Paragraph (3) – last sentence I quote: “Failure to attend by a party shall not delay a hearing, the taking of evidence or the issuance of a decision.” Also the collective agreement between the Carpenters Local 83 and the Nova Scotia Construction Labour Relations Association Ltd. outlines Article 25 entitled Jurisdiction Disputes which clearly points out how to resolve a dispute. Article 25:01 last paragraph states “Jurisdictional disputes arising following markup meeting will be made in accordance with the Procedures, Rules and Regulations of the National Joint Board of National Building Trades Dept. AFL/CIO or its successor”.
Article 25:02 second sentence “In the event the dispute is not settled by the International Unions involved, it shall then be submitted to the Joint Board for resolution”. After reviewing that documentation I feel that the Carpenters are bound by this arbitration.
[30] The Carpenters and Arctic provide four arguments as to why the arbitrator did not have jurisdiction:
i. The requirement to provide a statement regarding stipulation.
ii. The requirement of stipulation.
iii. Effect of the Carpenter’s Collective Agreement.
iv. Failure to consider the preliminary jurisdictional issues.
i. The requirement to provide a statement regarding stipulation.
[31] The Carpenters point out in its letter of December 8, 2015, that the Insulators was required by Article III, Sec. 2(f) of the Procedural Rules and Regulations to the Canadian Plan to provide “a statement detailing how the responsible contractor and the involved unions are stipulated to be bound to the Plan and these procedures”. Article III, Sec. 2(f) is found at Tab 22 of Volume 1 of the Record and states:
ARTICLE III
STRIKES AND IMPEDIMENTS TO JOB PROGRESS
1. When it is alleged, in a written notice, by a stipulated employer directly affected by the dispute, the signatory Employer Association representing such employer or a stipulated National or International Union, that a work stoppage, slowdown, or other impediment to job progress is taking place, the Administrator shall proceed as set forth in Article VI of the Plan.
2. Notice to the Administrator shall include:
…
f. A statement detailing how the responsible contractor and involved Unions are stipulated to be bound to the Plan and these procedures.
[32] This article, in my opinion, does not apply as it refers to “strikes and impediments to job progress”, not to a jurisdictional dispute which is the situation before me.
[33] The correct provision is found in Article IV, Sec. 1 of the Procedural Rules and Regulations, which reads:
ARTICLE IV
FILING A COMPLAINT
1. When a dispute over an assignment of work arises, the National or International Union challenging the assignment, or the employer directly affected by the jurisdictional dispute, or the signatory Employer Association representing such employer, shall notify the Administrator in writing. Such notice shall include the following information:
a. Unions involved.
b. A full and complete description of the work in dispute.
c. Name and location of project.
d. Contractors involved and their mailing address, telephone number and facsimile number.
e. The assignment of work and the contractor who made the assignment.
f. A statement indicating whether the responsible contractor and the involved Unions are stipulated to the Plan and these procedures.
g. A statement whether the representatives of the National and International Unions have met or attempted to meet at the local level in an effort to resolve the matter.
h. A statement whether the National and International Unions involved in the dispute have voluntarily agreed to mediation.
[Emphasis added]
[34] In accordance with Article IV, notification was provided by the Insulators by letter to the Plan on December 4, 2015 (Volume 1, Record, Tab 1).
[35] It is noteworthy that Article IV, subpara. (f) requires a statement that “the involved unions are stipulated to the Plan and these procedures”. The implication, in my view is that all involved unions must be stipulated to the Plan. In any event, no statement was contained in the December 4, 2015 letter to indicate that the Carpenters were stipulated to the Plan.
[36] Moreover, there was no statement that the involved unions had voluntarily agreed to mediation. Again, the implication is that the parties must be stipulated to the Plan or must have voluntarily agreed to proceeding under the Plan.
[37] There has been no voluntary agreement by the Carpenters to be bound by the arbitration under the Plan. In fact, in a letter to the administrator of the Plan dated December 8, 2015, the Carpenters set out its objections and stated:
The position of the Carpenter’s Union is that the Plan does not have jurisdiction to entertain the complaint put forward by the Heat and Frost Insulators…
[38] I am satisfied that the Insulators did not provide a complete statement regarding stipulation pursuant to Article III, Sec. 2(f).
ii. The requirement of stipulation
[39] Stipulation to the Plan in simple terms means a party has agreed to participate in the Plan.
[40] Article II, Sec. 1(a) of the Plan states how a union may be stipulated to the Plan.
(a) A Union may become stipulated to the Plan by virtue of its affiliation with the Department or its National or International Union’s affiliation with the Department, a signed a [sic] stipulation form setting forth that it is willing to be bound by the terms of the Plan or a provision in collective bargaining agreement.
[Emphasis added]
[41] Article II, Sec. 1(b) of the Plan states how an employer, such as Arctic, may be stipulated to the Plan.
(b) An Employer may become stipulated to the Plan by virtue of its membership in a stipulated association of employers with authority to bind its members, a signed stipulation form setting forth that it is willing to be bound by the terms of the Plan or a provision in a collective bargaining agreement.
[42] The Insulators say the arbitrator had jurisdiction to hear the complaint because the Plan clearly states that only the moving party must be stipulated to the Plan in order to process jurisdictional disputes.
[43] Article II, Sec. 2 states:
Article II
Stipulation Requirements
Sec. 2. Stipulation shall not be required in order to process jurisdictional disputes pursuant to Article V,… except that the moving party must be stipulated to the Plan.
[44] The Insulators assert that since there is no dispute that it is stipulated to the Plan, it follows that the arbitrator had jurisdiction.
[45] Both the Carpenters and Arctic assert that unless they were stipulated to the Plan they cannot be bound by the decision. They say the Plan is a voluntary dispute resolution mechanism entered into by certain parties and an arbitrator appointed under its terms takes jurisdiction from the consent of the parties.
[46] To support their position, the Carpenters and Arctic rely on a number of cases, namely: Benson v. Labourers’ International Union of North America, supra; International Association of Bridge, Structural and Ornamental Iron Workers, Local 721 v. Ryco Alberici and International Union of Operating Engineers, Local 793, 1997 CanLII 15523 (Ont. L.R.B.); L.I.U.N.A. v. I.A.B.S.O.I., (1999), 220 N.B.R. (2d) 313, 1999 CarswellNB 354 (N.B.Q.B.), Appeal dismissed for mootness, 2001 NBCA 64, and Canadian Plan for the Settlement of Jurisdictional Disputes in the Construction Industry (Administrator) v. Laborers’ Jurisdictional. International Union of North America, Local 1208, (1997), 151 Nfld. & P.E.I.R. 247, 1997 CanLII 16076 (Nfld. S.C.T.D.).
[47] The Insulators and the Plan say that the above cases were all decided prior to the addition of Article II, Sec. 2 , and are, therefore, of no guidance or value. I agree, as the amendments to the Plan adding this Article were in 2008, subsequent to these decisions being rendered.
[48] Despite the clear wording of Article II, Sec. 2, both the Carpenters and Arctic refer to Article IV, Sec. 6, which they argue confirms that all parties must be stipulated to the Canadian Plan in order for an arbitrator to have the authority to decide a jurisdictional dispute. Article IV, Sec. 6, provides:
Sec. 6. If any party is not stipulated to the Plan, any of the National or International Unions involved in a dispute may file a statement with the Plan Administrator indicating that, if all parties have been stipulated to the Plan, the Union would have filed a jurisdictional dispute pursuant to Article V of the Plan. The notice shall include the unions involved, a description of the work in dispute, the name and location of the project, the name of the responsible contractor, the assignment that was made by the contractor and which of the Article V, Section 8, criteria the Union contends supports its claim to the work. The Plan Administrator shall compile a list of such statements and distribute it to the parties to the Plan monthly.
[49] The Carpenters and Arctic submit that if an aggrieved party could file a complaint in the absence of stipulation by all parties Article IV, Sec. 6 would have no meaning. As a result, they say, the stipulation of all parties must be a pre-condition to an arbitrator’s jurisdiction to decide disputes under Article V. I agree.
[50] Obviously, there are internal inconsistencies in the Plan document. The submission by the Plan was of little help in resolving these inconsistencies. In particular the Plan did not provide an explanation for the inconsistency between Article II, Sec. 2 and Article IV, Sec. 6.
[51] The Insulators submit that Article II, Sec. 2, is nothing more than a mechanism to obtain a declaratory statement of jurisdiction. If that is the case, why not proceed under Article IV, Sec. 6, which specifically provides that if all parties are not stipulated to the Plan then a party could assert its jurisdiction by filing “a statement with the Plan Administrator indicating that, if the parties had been stipulated to the Plan, the union would have filed a jurisdictional dispute pursuant to Article V of the Plan”?
[52] This provision appears to deal with the factual situation before me, that is, a situation where not all parties are stipulated to the Plan. The Insulators could file a statement under this provision.
[53] Article IV, Sec. 6, is consistent with Article III, Sec. 2(f). Article IV, Sec. 6 is clear in its implication that all parties must be stipulated to the Plan, as is the implication in Article III, Sec. 2(f). It makes logical sense that in order to be bound by a decision of an arbitrator under the Plan, a union or employer must have voluntarily agreed to be so bound as set out in Article II, Sec. 1(a) and (b).
[54] Despite the provision in Article II, Sec. 2, I am satisfied that stipulation by all parties must be a pre-condition to an arbitrator’s jurisdiction to decide matters such as the complaint in this matter under Article V.
[55] In the alternative, the Insulators argue that the Carpenters are stipulated by virtue of affiliation as an international union. The Carpenters are an affiliate of Canada’s building trades unions which “is the official Canadian Office of the Building and Construction Trade Department, AFL - CIO”.
[56] I am satisfied there is no evidence in the Record that establishes that the Carpenters’ Union is affiliated with the AFL – CIO and consequently stipulated to the Plan. In fact, by letter to the administrator of the Plan of December 11, 2015, the Carpenters stated that it is not stipulated to the Plan, nor was Arctic or the general contractor J.W. Lindsay Enterprises Limited.
iii. Effect of the Carpenter’s Collective Agreement
[57] The Carpenters and Arctic assert that the only way they can be stipulated to the Plan is by operation of Article 25 of the Collective Agreement of the Carpenters Local 83, which is found at Volume 1, Tab 10 of the Record.
[58] Article 11, Sec. 1(a) sets out how a union may become stipulated to the Plan. In particular, a union can become stipulated to the Plan by a provision in a Collective Agreement.
[59] The relevant provision is Article 25.01 in the Collective Agreement between the Carpenter’s Local 83 and the Nova Scotia Construction Labour Relations Association Limited (“NSCLRA”):
25.01 A jurisdictional markup meeting will be held when requested in writing at any time on a project basis by either the Union or the contractor. The contractor shall be required to provide a full and detailed description of the scope of work at such mark-up meeting. In the event any such work assignments are disputed, at such mark-up meetings, the Union shall be permitted ten (10) days in which to present documented argument and evidence as to its claim to the disputed work jurisdiction prior to any final assignments being made by the contractor.
Jurisdictional disputes arising following the mark-up meeting will be made in accordance with the Procedures, Rules and Regulations of the National Joint Board Building Trades Department, AFL/CIO or its successor.
[Emphasis added]
[60] Arctic acknowledges that if Article 25.01 applies, (that is, if the pre-conditions are met) it would be bound through the Nova Scotia Construction Labour Relations Association Limited.
[61] The Insulators submit that the Carpenters have stipulated to the Plan “because they accede to the jurisdiction of the Plan by the wording of the Clause”. The Insulators focuses on the last paragraph of Article 25.01 as being determinative that the Carpenters is stipulated to the Plan.
[62] However, both Arctic and the Carpenters say the pre-conditions in Article 25.01 must be met in order to be stipulated to the Plan.
[63] Specifically, the Carpenters say the arbitrator wrongly concluded that “the Carpenters are bound to this arbitration” because he failed to consider:
i. whether a jurisdictional markup meeting was held;
ii. whether at any markup meeting the contractor provided a full and detailed description of the scope of work;
iii. whether there was a dispute between the unions at the markup meeting; or
iv. whether the unions were provided the required ten days in which to present documented argument and evidence supporting their claim to the disputed work jurisdiction prior to any final assignments being made by the contractor.
[64] The Carpenters and Arctic say that a markup meeting is premised on the employer having a collective bargaining relationship with more than one union. I agree that if the arbitrator had done a proper analysis of Article 25 he would have concluded that the Insulators Local 116 had no collective bargaining relationship with Arctic and, as a result, no markup meeting was held. I am satisfied that in order for the Canadian Plan to apply, the employer must have a collective bargaining relationship with both of the unions involved; there must have been a markup meeting; and the employer must have assigned the scope of work in question to one or more unions. As a result, the complaint was lacking these preconditions for applicability of the Plan under Article 25.01.
[65] A review of Article 25.01, as well as the Articles under the Plan discussed previously, convinces me that all parties must be stipulated by the Plan.
[66] It is a logical conclusion from Article 25.01 that a markup meeting would only take place if both the Carpenters and the Insulators had bargaining rights. On the facts before me, only the Carpenters have bargaining rights.
[67] I agree with counsel for the Carpenters that the conditions set out in Article 25.01 have to exist in order to have access to the Plan.
[68] Turning to Arbitrator MacDonald’s decision, it is apparent he assumed that the Plan document applies, but he provided no basis for this belief.
[69] The arbitrator refers to Article 25.01, but makes no reference to the preconditions set out therein and explain how they do not apply.
[70] Whether or not the adjudicator had jurisdiction to hear the matter is reviewed on a standard of correctness.
[71] I have found that in order to be stipulated to the Plan all parties must be stipulated in one of the ways set out in Article II, Sec. 1(a) or (b). I am satisfied that they are not.
[72] Arbitrator MacDonald was clearly incorrect in assuming jurisdiction despite the objection from the Carpenters.
[73] Having decided the arbitrator had no jurisdiction to hear the complaint, it is not necessary to review the remainder of the arbitrator’s decision to determine whether it was reasonable.
[74] The decision of Arbitrator MacDonald is quashed for lack of jurisdiction.
[75] Costs are awarded to the Carpenters in the amount of $1000.00 and to Arctic in the amount of $1000.00, both payable forthwith.
Pickup, J.