Richard Thibodeau, (the “Complainant”) and International Union of Operating Engineers, Local No. 115, (the “Union”) and Columbia Bitulithic Ltd., (the “Employer”)
Thibodeau and IUOE, Local 115
Brent Mullin Chair, Ken Saunders V-Chair, Bruce R. Wilkins V-Chair
Judgment: June 4, 2013
Counsel: Ib S. Petersen, for Complainant
Decision of the Board:
1 The Complainant applies under Section 141 of the Labour Relations Code (the “Code”) for leave and reconsideration of BCLRB No. B93/2013 [2013 CarswellBC 1462 (B.C. L.R.B.)] (the “Original Decision”). The Original Decision dismissed the Complainant’s application under Section 12 of the Code both on the merits and on the basis of timeliness.
2 In the leave and reconsideration application, the Complainant submits that:
- the decision that Thibodeau’s complaint was not timely is inconsistent with the principles expressed or implied in the Code; and
- that the original panel acted contrary to fundamental principle[s] of natural justice when it failed to refer to, consider and evaluate the evidence before it, including failing to resolve conflict in the evidence on material points.
3 An application under Section 141 must meet the Board’s established test before leave for reconsideration will be granted. An applicant must establish a good, arguable case of sufficient merit that it may succeed on one of the established grounds for reconsideration: Brinco Coal Mining Corp. v. U.S.W.A., Local 1037, BCLRB No. B74/93 (Leave for Reconsideration of BCLRB No. B6/93 [1993 CarswellBC 3085 (B.C. L.R.B.)]), (1993), 20 C.L.R.B.R. (2d) 44 (B.C. L.R.B.).
4 We will deal first with the second basis upon which the Complainant seeks leave and reconsideration of the Original Decision. In it, the Complainant challenges the Original Decision in respect to a number of points or issues which he submits were not dealt with in the Original Decision, thus denying the Complainant a fair hearing. Those points or issues include allegations that:
- the Union did not obtain a copy of the Employer’s file regarding the Complainant and improperly relied on the Employer’s second-hand information in respect to the allegations against the Complainant;
- the Union did not provide to the Complainant documents in respect to whether the Complainant was working at the Mitchell Island plant, with the Complainant thus being unable to dispute the employment records in respect to the question of the bona fides of his layoff;
- the original panel accepting and focussing on what was common in the industry and ignoring evidence of the specific circumstances in respect to the Complainant’s case;
- the Original Decision ignored and was in error in finding there was a decline in the Employer’s workforce, which was contrary to the facts in the documents in the case;
- the Original Decision failed to address the “serious [mis]apprehension of basic principles on the part of the Union” in respect to the Union representative’s use of the phrase “reasonable doubt” at one point; and
- the Original Decision did not address the Complainant’s allegations of harassment by the plant foreman when the evidence “showed that the recommendation to layoff Thibodeau was made by the foreman”, which the Union did not investigate or consider.
5 At the outset of this portion of the leave and reconsideration application, the Complainant references the Board’s approach to the review of a panel’s findings of fact in Robinson Little & Co. v. R.C.I.U., Local 1518, BCLRB No. 32/75,  2 Canadian L.R.B.R. 81 (B.C. L.R.B.) and Roberts Roofing & Sheet Metal Ltd. v. S.M.W.I.A., Local 280 [(August 9, 1994), Doc. B313/94 (B.C. L.R.B.)], BCLRB No. B313/94 (Leave for Reconsideration of BCLRB No. B369/93 [(November 10, 1993), Doc. B369/93 (B.C. L.R.B.)]) (”Roberts Roofing”). The Complainant notes that as a part of this approach, the Board confirmed that it “must not and will not shy away from the fundamental requirement of natural justice in its proceedings”: Roberts Roofing, p. 8. In the submissions which follow, the Complainant does not challenge the findings of fact in the Original Decision, but rather, as noted, alleges that certain matters were not addressed in the Original Decision and thus the Complainant was denied a fair hearing.
6 In reviewing the Original Decision, we find it to be carefully considered and well reasoned. On its face, in respect to the merits of the Complainant’s Section 12 application, it is both consistent with the Board’s approach to Section 12 of the Code and persuasive. It is also of considerable length and detail, consisting of 103 paragraphs over 22 single spaced pages. That length and detail appears to be responsive to the 10 days of hearing noted on the title page of the decision.
7 In these circumstances, we do not find that the alleged deficiencies in the Original Decision giving rise to the Complainant’s natural justice arguments provide a good basis for leave and reconsideration of the Original Decision under Section 141 of the Code. Whether or not the type of points argued may, in the court context, provide a basis of appeal to be considered by an appellate court of a trial court judgment, they do not constitute a proper basis upon which to seek leave and reconsideration of the Original Decision under the Code. In that regard, we rely upon decisions of the Supreme Court of Canada regarding administrative tribunals and the requirement of reasons, and in particular the requirement of reasons in the administrative context of labour relations and labour boards: Construction Labour Relations Assn. (Alberta) v. Driver Iron Inc., 2012 SCC 65 (S.C.C.) (”.Driver Iron Inc.”), appeal from a judgment of the Alberta Court of Appeal (Hunt, Berger and Costigan JJ.A.), 2011 ABCA 55, 502 A.R. 229, 517 W.A.C. 229, 21 Admin. L.R. (5th) 1, 191 C.L.R.B.R. (2d) 1,  Alta. L.R.B.R. 183, 2012 C.L.L.C. 220-011,  A.J. No. 155, 2011 CarswellAlta 165 (Alta. C.A.) setting aside a decision of Gill J., 2009 ABQB 604, 491 A.R. 14, 1 Admin. L.R. (5th) 305, 174 C.L.R.B.R. (2d) 1,  Alta. L.R.B.R. 349,  A.J. No. 1182, 2009 CarswellAlta 1687 (Alta. Q.B.), dismissing an application for judicial review from a decision of the Alberta Labour Relations Board, (2009), 164 C.L.R.B.R. (2d) 213,  Alta. L.R.B.R. 26,  A.L.R.B.D. No. 3, 2009 CarswellAlta 46 (Alta. L.R.B.); N.L.N.U. v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62,  3 S.C.R. 708 (S.C.C.) (”Newfoundland and Labrador Nurses’ Union”).
8 The core and gist of these decisions is captured in the following, brief explanation by the Court in Driver Iron Inc.:
The Board did not have to explicitly address all possible shades of meaning of these provisions. This Court has strongly emphasized that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,  3 S.C.R. 708). (para. 3)
As cited in this passage, the foundation of the approach is in the Court’s decision in N.L.N.U.. The approach and analysis in that decision was summarized and applied in the Board’s reconsideration decision in Insurance Corp. of British Columbia and COPE, Local 378, Re , BCLRB No. 213/2012 (Leave for Reconsideration of BCLRB Letter Decision dated August 10, 2012), (2012), 218 C.L.R.B.R. (2d) 78 (B.C. L.R.B.) (”ICBC”), at paras. 18-31. For convenience, we reproduce that summary here:
18 In the second basis upon which it seeks leave and reconsideration, the Union says that the Original Decision breached natural justice by not providing reasons as to why the exceptions to the Repap Carnaby policy do not apply.
19 In the course of its submissions on this point, the Union refers to Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62,  3 S.C.R. 708 (”Newfoundland and Labrador Nurses’ Union”). That decision is in fact very important regarding the proper approach to the review of the adequacy of reasons in the administrative law context of labour relations.
20 The decision commences by relying upon “[t]he transformative decision of this Court in Dunsmuir v. New Brunswick, 2008 SCC 9,  1 S.C.R. 190 “ (”Dunsmuir”) (para. 1). Dunsmuir “explains that the purpose of reasons, when they are required, is to demonstrate ‘justification, transparency and intelligibility’ (para. 47)”, ibid. Dunsmuir also requires that the reasons support an outcome which is within a range of reasonable outcomes in the circumstances of the case (para. 14).
21 Newfoundland and Labrador Nurses’ Union goes on to explain that the analysis is to be conducted with the reasons being “read as a whole and in context” (para. 9) and with an understanding that specialized decision-makers such as an arbitration panel “routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist” (para. 13). In taking that approach, the Court places its decision within the deferential approach to review of such decisions in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp.,  2 S.C.R. 227 (ibid).
22 Upon that basis, Madam Justice Abella explains the approach to be taken:
Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §§12:5330 and 12:5510. It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47).
In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.
Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn.,  1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
23 In explaining this approach, the Court accepts the following submission made to it:
When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum – the result is to be looked at in the context of the evidence, the parties’ submissions and the process. Reasons do not have to be perfect. They do not have to be comprehensive. [para. 44] (para. 18)
24 The Court then went on to address the “no reasons” argument. In doing so, it in effect debunked the overreading of Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817 on the question of the adequacy of reasons in an administrative context.
25 In terms of the arbitration award before it, the Court explained:
The arbitrator in this case was called upon to engage in a simple interpretive exercise: Were casual employees entitled, under the collective agreement, to accumulate time towards vacation entitlements? This is classic fare for labour arbitrators. They are not writing for the courts, they are writing for the parties who have to live together for the duration of the agreement. Though not always easily realizable, the goal is to be as expeditious as possible. (para. 23)
26 Going on to further explain the nature of labour relations in the following paragraphs, the Court concluded “this process would be paralyzed if arbitrators were expected to respond to every argument or line of possible analysis” (para. 25).
27 Taking this approach which the Court had so clearly set forth in its decision, the Court could and did briefly conclude, “[i]n this case, the reasons showed that the arbitrator was alive to the question at issue and came to a result well within the range of reasonable outcomes” (para. 26).
28 Thus, the adequacy of reasons is to be addressed in an organic manner in which the issue is “whether the decision is reasonable in light of the outcome and the reasons” (para. 15). The test is “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (para. 16). If so, “the Dunsmuir criteria are met” (ibid.).
29 Further, in “reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference” (para. 18). The reasons are to be reviewed contextually and they “do not have to be perfect…[or] comprehensive” (ibid.). It is not necessary for the decision “to respond to every argument or line of possible analysis” (para. 25).
30 Similarly approaching the Original Decision within the context in which it was written, we find it clearly explains the Repap Carnaby approach it is taking. It sets out the key passage for its purposes from Repap Carnaby, notes that the exceptions do not apply, and then further notes that the reasons have been rendered “briefly so that the parties may proceed as expeditiously as possible to arbitration”. We find all of that is consistent with the nature of labour relations explained in Newfoundland and Labrador Nurses’ Union, the Code, and fairness. There was no error in that context in not responding “to every argument or line of possible analysis” (Newfoundland and Labrador Nurses’ Union, para. 25) and that included not needing to respond to each and every one of the potential exceptions to the Repap Carnaby policy.
31 As a result, this basis upon which leave and reconsideration is sought is dismissed.
While the N.L.N.U. decision dealt with a review of the adequacy of reasons in the labour relations context of an arbitration award, in Driver Iron Inc. the Court went on to apply that same approach to the decision of a labour relations board.
9 Returning to the present matter, we find the points raised by the Complainant in respect to the natural justice argument clearly fall within the ambit of the approach in the above decisions. The reasons which were provided in the Original Decision show that the original panel “was alive to the question at issue and came to a result well within the range of reasonable outcomes” and “allow the reviewing court [or body, in this case a reconsideration panel of the Board] to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes”: N.L.N.U., paras. 16 and 26; cited in Insurance Corp. of British Columbia, paras. 22, 27, and 28, in para. 8 above. Within this approach, “It is not necessary for the decision ‘to respond to every argument or line of possible analysis’”: N.L.N.U., para. 25; cited in Insurance Corp. of British Columbia, para. 29, in para. 8 above. Clearly, all of that applies to the fair hearing and natural justice arguments the Complainant has made in this case. As a result, the application for leave and reconsideration on this basis must be dismissed.
10 In light of that determination, we need not deal with the leave and reconsideration application’s challenge to the timeliness determination in the Original Decision as the Complainant’s Section 12 application is dismissed in any event.
11 In conclusion, the Complainant’s application for leave and reconsideration is dismissed.
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