SUPREME COURT OF NOVA SCOTIA Citation: Lawton s Drug Stores Ltd. v. United Food and Commercial Workers Union Canada, Local 864, 2016 NSSC 166

Transcription

1 SUPREME COURT OF NOVA SCOTIA Citation: Lawton s Drug Stores Ltd. v. United Food and Commercial Workers Union Canada, Local 864, 2016 NSSC 166 Date: Docket: Hfx. Nos / Registry: Halifax Between: Lawton s Drug Stores Limited v. Applicant United Food and Commercial Workers Union Canada, Local 864 and Labour Board (Nova Scotia) Respondents Judge: Heard: Counsel: The Honourable Justice Joshua Arnold April 27, 2016, in Halifax, Nova Scotia Robert Grant, Q.C. and Rick Dunlop, for the Applicant David Wallbridge, for the Respondent, Union Edward Gores, Q.C., for the Respondent, Labour Board

2 Page 2 By the Court: Introduction [1] This application for judicial review is the latest in a string of attempts by Lawton s Drug Stores Limited to prevent the Nova Scotia Labour Board from issuing full reasons for a bottom-line decision in relation to a dispute between Lawton s and the United Food and Commercial Workers Union Canada, Local 864. [2] Lawton s position on this judicial review is not supported by the law or the facts and must fail. Overview [3] The majority of the astonishing history of the dispute between Lawton s and the Union was clearly detailed by Farrar J.A. in Lawton s Drug Stores v. United Food and Commercial Workers Union Canada, Local 864, 2016 NSCA 14: 1 To say that the procedural background is complicated with respect to this matter would be an understatement. 2 These proceedings started with the United Food and Commercial Workers Union Canada, Local 864 applying to the Labour Board for settlement of the provisions of a first collective agreement under s. 40A of the Trade Union Act, R.S.N.S. 1989, c The Labour Board held a hearing and received submissions from the parties on March 23 and 24, Because of the time limitations in the Act, on March 26, 2015, the Labour Board delivered what it called a "bottom line" decision and direction. 4 In summary, the March 26 decision of the Labour Board found that Lawton's adopted uncompromising positions with respect to the negotiation of wages, holidays and other leaves, without reasonable justification. It directed the parties to resume collective bargaining with the assistance of a conciliation officer for a period of 30 days. 5 In its decision, the Labour Board indicated it would provide "full reasons" at a later date. 6 On April 8, 2015, Lawton's filed a Notice for Judicial Review challenging the March 26 decision (the First Judicial Review). This was before the parties had resumed collective bargaining pursuant to the direction of the Labour Board. The parties resumed negotiations on April 11, 2015 and by April 22, 2015 they concluded the terms of a collective agreement.

3 7 The Motion for Directions for the First Judicial Review took place on April 22, At that motion, Lawton's requested an Interim Injunction restraining the Labour Board from issuing any further reasons pending the outcome of that judicial review. Justice Michael Wood granted the Interim Injunction. 8 On April 28, 2015, Lawton's filed a formal Motion for an Interlocutory Injunction to restrain the Labour Board from issuing any further reasons for its March 26 decision. The motion was scheduled to be heard on June 16, The motion was adjourned, by agreement, so that the parties could ask the Labour Board to decide whether it still intended to provide further written reasons for the March 26 decision. After submissions from the parties the Labour Board issued a decision on October 13, 2015, explaining why it should issue reasons for the March 26 decision. 9 On November 17, 2015, Lawton's filed a Notice for Judicial Review challenging the October 13, 2015 decision (the Second Judicial Review) arguing, for various reasons, that the Labour Board's decision was unreasonable. 10 On November 27, 2015, Lawton's filed another Notice of Motion that asked the Supreme Court of Nova Scotia to continue to restrain the Labour Board from issuing reasons for the March 26 decision. 11 The motion was argued before Wood, J. on January 7, In a decision released January 13, 2016 (reported 2016 NSSC 17), the motions judge denied the motion, primarily on the basis that Lawton's would not suffer irreparable harm if the Labour Board issued its reasons (para24). 12 By Notice of Appeal dated January 26, 2016, Lawton's sought leave to appeal and, if granted, would appeal the January 13, 2016 decision to this Court. 13 The Notice of Appeal alleges the motions judge erred by concluding that Lawton's had failed to establish that it would suffer irreparable harm if an interim injunction preventing the Labour Board from releasing its reasons for the March 26 decision was not issued. 14 Lawton's asks this Court to grant leave to appeal, allow the appeal, reverse the decision of the motions judge and grant its motion for an Interim Injunction. 15 The leave application and appeal are scheduled to be heard on Thursday, June 9, 2016 at 2:00 p.m. 16 Finally, by Notice of Motion filed February 4, 2016, Lawton's sought an order from this Court pursuant to Civil Procedure Rules and 90.41, enjoining the respondent Labour Board from issuing reasons for its March 26 decision until the appeal from Wood, J.'s January 7, 2016 decision has been determined. 17 The motion was heard on February 18, At that time I reserved decision. For the reasons that follow, I dismiss the motion with costs to the Union in the amount of $ inclusive of disbursements, in any event of the cause, payable forthwith. Page 3

4 Page 4 [Emphasis added] [4] On May 30, 2016, a Notice of Discontinuance was filed with the Nova Scotia Court of Appeal confirming that Lawton s is no longer pursuing the appeal of Wood J. s decision of January 13, 2016, in which their motion for an interim injunction was dismissed. [5] The First Judicial Review has been adjourned without day until the Second Judicial Review has been determined. Lawton s says it will not proceed with the First Judicial Review if this court rules in their favour on the Second Judicial Review. The Second Judicial Review [6] This decision deals with the Second Judicial Review. [7] As a result of the strict timelines imposed by s. 40A of the Trade Union Act, on March 26, 2015, the Board issued a bottom-line decision with reasons to follow, directing the parties to resume collective bargaining. [8] On October 8, 2015, following argument by the parties and over the objections of Lawton s, the Board issued an interim ruling stating that it would issue reasons for its bottom-line decision (United Food and Commercial Workers Union Canada, Local 864 v. Lawton s Drug Store Limited #144, 2015 NSLB 182). [9] This Second Judicial Review is brought by Lawton s in relation to the Board s Interim Ruling of October 8, Lawton s does not want the Board s reasons for its March 26, 2015 decision to be issued. Standard of Review [10] The standard of review of reasonableness applies to the Board s decision to issue reasons for its decision (Dunsmuir v. New Brunswick, [2008] 1 SCR 190, 2008 SCC 9; Egg Films Inc. v. Nova Scotia (Labour Board), [2014] N.S.J. No. 150, 2014 NSCA 33; leave to appeal refused, [2014] S.C.C.A. No. 242; C.R. Coatings and Painting Inc., v. International Union of Painters and Allied Trades, Local 1439, 2014 NSCA 40; Coates v. Nova Scotia (Labour Board), 2013 NSCA 52; Casino Nova Scotia/Casino Nouvelle Ecosse v. Nova Scotia (Labour Relations Board), 2009 NSCA 4). Justice Joel Fichaud, for the majority, described the reasonableness standard in Egg Films (some citations omitted):

5 [23] The parties agree that the standard is reasonableness. [24] The Court first determines whether the jurisprudence has established a standard: Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190, para 62. This Court has said that reasonableness governs judicial review of the Labour Board s exercise of its core functions under the Trade Union Act, such as determining who is an employee for a certification application and whether a unit is appropriate for collective bargaining:... That conclusion derives from an analysis of all Dunsmuir s factors, not the least of which is the strong privative intent expressed in s. 19(1) of the Trade Union Act: 19(1) If in any proceeding before the Board a question arises under this Act as to whether (a) a person is an employer or employee; (g) a group of employees is a unit appropriate for collective bargaining; (h) an employee belongs to a craft or group exercising technical skills; the Board shall decide the question and the decision or order of the Board is final and conclusive and not open to question, or review, but the Board may, if it considers it advisable to do so, reconsider any decision or order made by it under this Act, and may vary or revoke any decision or order made by it under this Act. [25] I will apply reasonableness to the issues in this appeal. [26] Reasonableness is neither the mechanical acclamation of the tribunal s conclusion nor a euphemism for the reviewing court to impose its own view. The court respects the Legislature s choice of the decision maker by analysing that tribunal s reasons to determine whether the result, factually and legally, occupies the range of reasonable outcomes. The question for the court isn t What does the judge think is correct or preferable? The question is Was the tribunal s conclusion reasonable? If there are several reasonably permissible outcomes the tribunal, not the court, chooses among them. If there is only one and the tribunal s conclusion isn t it, the decision is set aside. The use of reasonableness, instead of correctness, generally has bite when the governing statute is ambiguous, authorizes the tribunal to exercise discretion, or invites the tribunal to weigh policy... Page 5 [11] Justice Fichaud went on to expand on how the reasonableness standard is applied: (a) No Spectrum of Standards [29] As to degrees of deference - since Dunsmuir there is only one deferential standard. In Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12

6 (CanLII), [2009] 1 S.C.R. 339, para 59, Justice Binnie for the majority said [r]easonableness is a single standard that takes its colour from the context. Colour from the context in my view means that, when statutory authority is in issue, the application of this single standard involves analysis of each statute s unique text, context, scheme and objectives that may widen or narrow the range of reasonable outcomes. (b) Attention to Board s Reasons [30] Next, the judge s treasure hunting, zooming in, or tracking of the Board s reasons. Reasonableness isn t the judge s quest for truth with a margin of tolerable error around the judge s ideal outcome. Instead, the judge follows the tribunal s analytical path and decides whether the tribunal s outcome is reasonable.... That itinerary requires a respectful attention to the tribunal s reasons, as Justice Abella explained in the well-known passages from Newfoundland and Labrador Nurses Union, paras [31] In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (CanLII), Justice Abella for the majority reiterated: [54] The board s decision should be approached as an organic whole, without a line-by-line treasure hunt for error (Newfoundland Nurses, at para. 14). In the absence of finding that the decision, based on the record, is outside the range of reasonable outcomes, the decision should not be disturbed. (c) Statutory Interpretation [32] Last is what Egg Films factum terms the tautological vacuum of introspective review. Nobody suggests that the reviewing judge should just ponder the internal circuitry of the tribunal s reasons, and disregard the statutory environment. To determine whether the tribunal unreasonably exercised its statutory authority, the reviewing judge tests the connection between the tribunal s conclusion and the statute s plain wording or ordinary meaning, context or scheme, and objectives, channelled under the accepted principles of legislative interpretation. While doing this, however, the judge doesn t drift into correctness review i.e. the judge remains attentive to the range of reasonable interpretations, instead of focussing on the judge s preference among them. Page 6 [12] In IMP Group International Inc. v. Nova Scotia (Attorney General), 2014 NSSC 191, Murphy J. determined an appeal by IMP from a Ministerial Order. Justice Murphy held that the standard of review was reasonableness and discussed the content of the analysis: STANDARD OF REVIEW

7 [19] The parties agree, and so do I, that the test to be applied on this appeal is whether the Minister acted reasonably in issuing the Order. That standard of review applies to both issues; that is, to the terms of the Order and to the naming of parties. I am going to make some general comments on the standard, not detailed because the principle is not disputed, and then I will weigh each issue in the context of that standard. [20] Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), 2008 S.C.C. 9 ( Dunsmuir ) significantly updated the law on judicial review and held that a minister s decision must fall within a range of possible acceptable outcomes which are defensible in respect of the facts and the law. The parties agree that the onus is on IMP as the appellant to establish that the Order was outside the scope of the Minister s reasonable options. It is also acknowledged by the parties and not in dispute that a statutory appeal of a discretionary Ministerial decision is a form of judicial review which attracts the reasonableness standard; that was noted in Dunsmuir, and also in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (CanLII), [2009] 1 S.C.R. 339 ( Khosa ). [21] In Attorney General of Canada v. Abraham, 2012 FCA 266 (CanLII), 2012 F.C.J. No [FCA] the Federal Court of Appeal ruled that decision makers have a margin of appreciation within the range set by Dunsmuir. The breadth and the range of the reasonableness of an order is affected by the context: the more factual or policy oriented the matter is, the broader the range; the greater the legal content in a discretionary matter, the narrower the range. Those range spectra are all in the context of deference under Dunsmuir. [22] In Almon Equipment Ltd. v. Canada (Attorney General), 2010 F.C.J. No. 948 [FCA] the Court held that to act reasonably a tribunal must make its decision in accordance with the prescribed statutory procedures or recipe. The elements of the recipe must be meaningful and completely considered. The law in Nova Scotia is that the Minister must take relevant considerations into account and not act on irrelevant ones (Pinsonnault-Flinn v. Nova Scotia (Minister of Environment and Labour) 2004 N.S.J. No.613 [NSSC], Margaree Environmental Assn. v. Nova Scotia (Minister of Environment) 2012 N.S.J. No. 430 [NSSC]). [23] Proper application of the reasonableness standard was outlined as follows in Khosa, supra, at para.59: Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, at para.47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome. Page 7

8 [24] I agree with the Attorney General that exercise of Ministerial discretion under the EA involves questions of fact and policy and the legislation contemplates substantial Ministerial discretion. The Minister s decision invites review with considerable deference, as the range of outcomes for his decision making process leans more toward the broader end of the spectrum. [25] The ultimate question for the Court is not whether the Court agrees with the Minister s decision to issue the Order; it is whether the Minister s Order falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law. In any such case, the Court may doubt the correctness of an administrative decision, but nevertheless uphold its reasonableness. Page 8 [13] In Almon Equipment Ltd. v. Canada (Attorney General), 2010 FCA 193, Stratas J.A. also discussed the reasonableness standard and stated that the court can interfere only if the Tribunal s decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and the law. (para. 33) [14] The Board s determination to issue reasons for its decision in this case was discretionary. I must consider whether the Board s decision was reasonable. Issues [15] Lawton s application for judicial review asserts that the Board s decision to issue reasons for its March 26 bottom-line decision is unreasonable because: 1. The issue was moot and reasons were not required; 2. There was no valid labour relations purpose requiring a decision to be rendered. Lawton s has now conceded this second issue; and 3. Issuing reasons would harm the relationship between the Union and Lawton s.

9 Page 9 Issue 1: The issue was moot and reasons were not required [16] Lawton s argues that the Board did not properly consider the decision of Borowski v. Canada (AG), [1989] 1 SCR 342, where Sopinka J. stated for the unanimous court at p. 353: Mootness The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter. The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. The cases do not always make it clear whether the term "moot" applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear. In the interest of clarity, I consider that a case is moot if it fails to meet the "live controversy" test. A court may nonetheless elect to address a moot issue if the circumstances warrant. [17] Justice Sopinka went on to discuss the courts discretion to render a decision if a case fails to meet the live controversy test, at pp : The first rationale for the policy and practice referred to above is that a court's competence to resolve legal disputes is rooted in the adversary system. The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. For example, although the litigant bringing the proceeding may no longer have a direct interest in the outcome, there may be collateral consequences of the outcome that will provide the necessary adversarial

10 context. This was one of the factors which played a role in the exercise of this Court's discretion in Vic Restaurant Inc. v. City of Montreal, supra. The restaurant, for which a renewal of permits to sell liquor and operate a restaurant was sought, had been sold and therefore no mandamus for a licence could be given. Nevertheless, there were prosecutions outstanding against the appellant for violation of the municipal by-law which was the subject of the legal challenge. Determination of the validity of this by-law was a collateral consequence which provided the appellant with a necessary interest which otherwise would have been lacking. Page 10 [18] The second rationale on which the mootness doctrine is based, concern for judicial economy, was described by Sopinka J. at pp : The second broad rationale on which the mootness doctrine is based is the concern for judicial economy. It is an unfortunate reality that there is a need to ration scarce judicial resources among competing claimants. The fact that in this Court the number of live controversies in respect of which leave is granted is a small percentage of those that are refused is sufficient to highlight this observation. The concern for judicial economy as a factor in the decision not to hear moot cases will be answered if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it. The concern for conserving judicial resources is partially answered in cases that have become moot if the court's decision will have some practical effect on the rights of the parties notwithstanding that it will not have the effect of determining the controversy which gave rise to the action. Similarly an expenditure of judicial resources is considered warranted in cases which although moot are of a recurring nature but brief duration. In order to ensure that an important question which might independently evade review be heard by the court, the mootness doctrine is not applied strictly. This was the situation in International Brotherhood of Electrical Workers, Local Union 2085 v. Winnipeg Builders' Exchange, supra. The issue was the validity of an interlocutory injunction prohibiting certain strike action. By the time the case reached this Court the strike had been settled. This is the usual result of the operation of a temporary injunction in labour cases. If the point was ever to be tested, it almost had to be in a case that was moot. Accordingly, this Court exercised its discretion to hear the case. The mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved. There also exists a rather ill-defined basis for justifying the deployment of judicial resources in cases which raise an issue of public importance of which a resolution

11 is in the public interest. The economics of judicial involvement are weighed against the social cost of continued uncertainty in the law. Page 11 [19] The third underlying rationale for the mootness doctrine, the need for the court to demonstrate a measure of awareness of its proper lawmaking function, was described by Sopinka J. at pp : The third underlying rationale of the mootness doctrine is the need for the Court to demonstrate a measure of awareness of its proper law-making function. The Court must be sensitive to its role as the adjudicative branch in our political framework. Pronouncing judgments in the absence of a dispute affecting the rights of the parties may be viewed as intruding into the role of the legislative branch. This need to maintain some flexibility in this regard has been more clearly identified in the United States where mootness is one aspect of a larger concept of justiciability. In my opinion, it is also one of the three basic purposes of the mootness doctrine in Canada and a most important factor in this case. I generally agree with the following statement in P. Macklem and E. Gertner: "Re Skapinker and Mootness Doctrine" (1984), 6 Sup. Ct. L. Rev. 369, at p. 373: The latter function of the mootness doctrine -- political flexibility -- can be understood as the added degree of flexibility, in an allegedly moot dispute, in the law-making function of the Court. The mootness doctrine permits the Court not to hear a case on the ground that there no longer exists a dispute between the parties, notwithstanding the fact that it is of the opinion that it is a matter of public importance. Though related to the factor of judicial economy, insofar as it implies a determination of whether deciding the case will lead to unnecessary precedent, political flexibility enables the Court to be sensitive to its role within the Canadian constitutional framework, and at the same time reflects the degree to which the Court can control the development of the law. [20] Justice Sopinka went on to say, at p. 363: I prefer, however, not to use the term "political flexibility" in order to avoid confusion with the political questions doctrine. In considering the exercise of its discretion to hear a moot case, the Court should be sensitive to the extent that it may be departing from its traditional role. In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa.

12 Page 12 The difference between a decision and reasons for a decision [21] Lawton s suggestion that the Board, which has special knowledge in the field of labour relations, cannot issue reasons for a very brief bottom-line decision made in accordance with very compressed time lines, is unsupportable. [22] When the Board issued its bottom-line decision on March 26, 2015, there was a live issue for it to decide in relation to the application of s. 40A of the Trade Union Act. The Board now merely wants to provide reasons explaining its decision. The mootness doctrine does not apply to this situation. This is not a case where arguments were made by the litigants, the decision-making body reserved its decision and the matter then resolved in the interim, thereby eradicating the live issue. The decision of the Board resolved the s. 40A controversy. Its reasons merely explain why the Board made its ruling. [23] Lawton s points out the term decision was given a broad definition in Fermini v. McGuire, [1984] N.S.J. No. 32, CarswellNS 64 (S.C.A.D.), wherein MacDonald J.A. stated: 11 Generally speaking the "decision" of a Court or Judge means the judicial opinion, oral or written, pronounced or delivered, upon which the "judgment or order" is founded and the "judgment or order" is the embodiment in legal procedure of the result of such decision: see Fawkes v. Swazie (1899), 31 O.R. 256 (C.A.). 12 In this jurisdiction the judgment appealed from is defined in R (f) to mean " the judgment, decision, verdict, order, finding, direction, determination or award of the court appealed from". 13 The decision and the order for judgment are, of course, intricately involved one with the other - yet they are separate and distinct and the practice of this Court has been, at least since the enactment of R. 62 in 1975, to treat the actual date of the order as the starting date in calculating the time in which to commence an appeal. If no order has been taken out the time starts to run from the date of the decision. See R which provides for different periods of time in which to commence appeals from different tribunals which time is calculated "... from the date of the order for judgment appealed from or, if no order has been made from the date of the decision". [24] I do not take the words of MacDonald J.A. in Fermini to mean that once an order is made the issue is moot and reasons for an order should not or cannot be provided. The Court of Appeal in Fermini was not dealing with a bottom-line decision with reasons to follow. Instead, the Court of Appeal was interpreting time limits for filing an appeal under the old Civil Procedure Rules.

13 Page 13 [25] In my opinion, in the instant case Lawton s wrongly conflates the Board s decision with the Board issuing reasons for its decision. There is nothing about Fermini that would impact on the ability of a board, tribunal or court to issue reasons subsequent to the making of a decision. Statutorily empowered decision makers of all levels, including boards, tribunals and courts, follow this procedure regularly, especially in situations where there are tight timelines. This proposition was outlined in Tingley v. Wellington Insurance, 2010 NSCA 86, where Fichaud J.A. stated: 17 The appellants' premise is that, once the six months under s. 34(d) [of the Judicature Act] expired, Justice MacAdam was functus and lost jurisdiction to give reasons. This position is wrong in law. Justice MacAdam issued a judgment on October 4, 2010, within the six months prescribed by s. 34(d). His reasons were delayed. Section 34(d) deals with the timing of a judgment, meaning the order. Section 34(d) does not prescribe a date for reasons. There is nothing legally objectionable in a judgment with "reasons to follow": R. v. Assoun, 2006 NSCA 47, para , adopting the rulings in R. v. Quinn (2004), 372 A.R. 223 (A.Q.B.), para. 10 and Crocker v. Sipus (1992), 95 D.L.R. (4th) 360 (O.C.A.), pp Judgments with reasons to follow are not uncommon in courts of all levels. Even for a judgment, the passage of s. 34(d)'s six months before judgment neither deprives the judge of jurisdiction nor renders the judge functus. Rather, the remedy is mandamus to produce the delayed judgment, not an order for a new trial: Langille v. Midway Motors Ltd, 2002 NSCA 39, para. 7-8; Toronto Dominion Bank v. Lienaux, 2005 NSCA 97, para. 9-10; Luke v. Luke, 2009 NSCA 57, para. 14. [Emphasis added] The issues are still live [26] On March 26, 2015, the Board released its Decision and Direction issued in connection with this matter pursuant to s. 40A of the Trade Union Act. The Decision included the Board s bottom-line reasons: IV Decision [13] Section 40A (5) of the Act states:

14 Where (a) an application is made by an employer or bargaining agent under subsection (1); (b) the parties do not agree to proceed by arbitration under subsection (2); and (c) regardless of whether Section 35 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of (i) the refusal of the employer to recognize the bargaining authority of the bargaining unit; (ii) the uncompromising nature of any bargaining position adopted by the other party without reasonable justification; (iii) the failure of the other party to make reasonable or expeditious efforts to conclude a collective agreement, or (iv) any other reason the Board considers relevant, the Board, within thirty days of receiving the application, shall either (d) direct the settlement of the provisions of a first collective agreement by arbitration; or (e) direct that the parties resume their efforts to conclude a first collective agreement, with the assistance of a conciliation officer, for a period of thirty days. [14] The Respondent submits, and the Board agrees, that the analysis to be carried out by the Board with respect to section 40A(5) is reflected in three questions: 1. Has the process of collective bargaining been successful? 2. If the answer is yes to question 1, has the employer engaged in conduct within any of the four subsections (a) to (d)? 3. If the answer is yes to question 2, is there a causal connection between the employer s conduct and the failure of the collective bargaining process? [15] Having considered the evidence of the parties, the written submissions and oral arguments the Board finds that the process of collective bargaining with respect to wages and holidays and leaves has been unsuccessful. [16] With respect to wages the Board is satisfied that the position of the employer, which remained unchanged from the outset of bargaining up to and including conciliation, was an uncompromising bargaining position for which the Respondent failed to provide the Board with reasonable justification. The Board Page 14

15 further finds that the Respondent s bargaining position contributed directly to the failure of the collective bargaining process. [17] As for holidays and leaves the Board is satisfied that the position of the employer that holidays and leaves not be listed in the collective agreement was an uncompromising bargaining position for which the Respondent failed to provide the Board with reasonable justification. The Board further finds that the Respondent s bargaining position contributed directly to the failure of the collective bargaining process. [27] The Direction of the Board stated: The Applicant alleged in its Application that the process of collective bargaining in which the parties engaged to settle the terms of a first collective agreement had been unsuccessful. The Applicant further alleged that the collective bargaining process had been unsuccessful because the Respondent had failed to make reasonable or expeditious efforts to conclude a collective agreement; and adopted uncompromising positions with respect to the negotiation of wages, holidays and other leaves, scheduling by seniority, the probationary periods for newly hired employees, and a health and welfare plan, without reasonable justification. For reasons to be provided at a later date, consistent with s. 40A(5)(c)(iii), the Labour Board is satisfied that the process of collective bargaining between the parties appears to have been unsuccessful because the Respondent adopted uncompromising positions with respect to the negotiation of wages, and holidays and other leaves, without reasonable justification. Therefore, pursuant to s. 40A(5)(e), the Labour Board directs the parties to resume collective bargaining with the assistance of a conciliation officer for a period of thirty days ending on Monday, April 27, The Labour Board further directs the parties to notify the Board not later than Tuesday, April 28, 2015 as to the results of the collective bargaining. Page 15 [28] Lawton s did not object to the process of having the Board issue a bottom-line decision with reasons to follow at the time the decision was made. Considering the strict time lines imposed by s. 40A of the Trade Union Act, the Board s process in this regard made perfect sense. However, on April 8, 2015, prior to the parties having resumed collective bargaining in accordance with the Board s directions, Lawton s filed a notice for the First Judicial Review, which was amended on April 28, 2015, with the following grounds for review: 1. The Board violated the principles of natural justice and rules of procedural fairness by refusing to consider certain evidence; 2. The Board inconsistently allowed or disallowed evidence, to the detriment of Lawtons ability to prove its factual allegations and the enhancement of the Union s

16 ability to prove its factual allegations, breaching natural justice and resulting in prejudice to Lawtons, and, as the evidentiary rulings deprived Lawtons of the opportunity to present its case, raising a reasonable apprehension of bias on the part of the Board in its disposition of the application; 3. The Board committed a reviewable error by failing to render a decision on factual issues that were contentious at the Hearing, contrary to the underlying intent and objective of the TUA; 4. The Board generally misapprehended its statutory task under the newly amended s. 40A of the TUA; 5. The Board committed reviewable error by failing to consider the importance of free collective bargaining in its decisions which it is required to do under the TUA; 6. The Board violated the principles of natural justice and rules of procedural fairness by issuing the Decision with reasons that are deficient in that they do not set forth the Board s application of the relevant law; 7. In determining that Lawtons bargaining position was uncompromising and without reasonable justification, the Board erred by failing to take into account the entire interaction between the parties, the general landscape of labour relations, and the specific labour relationship between the parties; 8. The Decision is unreasonable as it does not contain reasons; in particular, a Bottom Line is not reasons; 9. Any supplemental reasons issued by the Board after the filing of this Notice of Judicial Review should be ignored by this Honourable Court because such reasons should have been issued at the time that the Decision was issued, and will be outside the thirty-day period specified under s. 40A(5) of the TUA and, in the alternative, any such reasons will be the product of result-based, after the fact reasoning; 10. Under reservation of its rights including those in issue in this proceeding, Lawtons agreed to resume conciliated bargaining with the Union on April 11, 2015 and the parties were able to reach a voluntary agreement on the provisions of the first collective agreement. The agreement was subject to ratification by the Union membership which occurred on April 19, The agreement has been executed by the parties and filed with the Board; 11. Lawtons remains aggrieved by the Direction and Decision and the conduct of the hearing before the Board. The issuance of further reasons is unnecessary; they formed no part of the negotiation of the first collective agreement and will adversely affect labour relations between the parties; 12. On April 20, 2015, Lawtons advised the Board that it opposed the issuance of further reasons. On April 22, 2015 the Union advised the Board that it wished the Board to issue its further reasons. On April 22, 2015 the Board through its counsel advised Lawtons that it intended to issue further reasons; Page 16

17 13. On April 22, 2015, this Honourable Court issued an Order restraining the Board from issuing full reasons for the Decision pending further Order of the Court; and 14. Any other grounds that Lawtons raises as a result of its review of the Record. [Emphasis added] Page 17 [29] Lawton s initially complained that the Board s decision without reasons was deficient. Ironically, Lawton s now argues that it does not want the Board to release any reasons for its bottom-line decision. [30] At the January 7, 2016, hearing before Wood J. on the motion for an interim injunction, the parties agreed that the First Judicial Review would not be scheduled until the Second Judicial Review was complete. Lawton s says it will abandon the First Judicial Review if this court finds in their favour on the Second Judicial Review. [31] This court works on the basis of what is, not what may be. The First Judicial Review is still live. How can Lawton s claim the original matter the Board had to decide is now moot considering the issues raised by Lawton s on the First Judicial Review? Consideration of Borowski [32] Lawton s also complains that the Board did not properly consider Borowski. In its interim ruling of October 8, 2015, the Board considered the issue of mootness in detail and specifically referred to Borowski at paragraphs 13, 22, 26, 56, 57, 60, 61, and 63. Relying on Borowski, the Board made a reasoned and logical decision on the issue of mootness: [57] In the opinion of the Board, the situation before us has certain key aspects which distinguish it factually from the sequence of events present in Borowski and, for that matter, from the other cases cited by the Employer in support of its position that the Board should not issue further reasons as the matter is moot. One principle difference, as highlighted by counsel for the Union, is that the cases relied upon by the Employer required the decision maker to determine whether it would hear a case at its outset (as was the situation in Borowski), or continue to hear a case where no decision had yet been made. In the case at hand, and as noted in the Background Section to this decision, the Board had heard the matter, rendered its decision and was preparing to issue reasons with respect to its decision. In the cases cited by counsel for the Employer, other than for Ontario Hydro, the issues in dispute, for the most part, had not made their way before the Court or Tribunal before the matter had been resolved.

18 [58] The present matter, in many respects, stands as a contradistinction to the jurisprudence relied upon by the Employer. The parties had been provided with an outline of the procedure the Board intended to follow, documents and authorities had been filed, a case management conference had been held, the hearing was conducted and concluded with final argument, and a bottom line decision was rendered with the stated intention of providing full reasons. The situation presently under review, while distinct from the case law put forth by the Employer, is more closely aligned to the case that came before Arbitrator Moore in Greater Vancouver (Regional District) v. G.V.R.D.U., (2006) 155 L.A.C. (4 th ) 353 where the union s request that the decision not be issued on the basis, in part, that the issue was moot was rejected. The arbitrator stated: In reaching these conclusions we reject the submissions with respect to mootness and functus officio. With respect to the former we agree with Arbitrator Hall that mootness relates to the status of the dispute at the time the decision is made and not to the point of the publication of reasons. (Emphasis added) [59] It is not disputed that the issue was not moot when this application was filed (as was the case in Spectrum), neither was it moot at the time of the two days of hearing (which notably went late into the night), nor during the panel s deliberations, nor when the bottom line decision was rendered. This was not a situation in which the doctrine of mootness was raised while the decision was pending (as was the case in Ontario Hydro). It must be asked, therefore, why should the issue be deemed to be moot at the point of the publication of reasons? Does the doctrine of mootness apply to a situation where compliance takes place after a decision is released? [60] The Board is not persuaded that the Supreme Court s reasoning in Borowski was intended to apply to such a situation. To accept the Employer s position would result in a lowering of the threshold of the mootness doctrine to such a degree as to enable a party, whenever it was so inclined, to invoke the doctrine based upon subsequent compliance to a Board or Court decision, and thereby potentially deprive the Court or administrative body of its authority to proceed with issuing reasons. To apply Borowski to the present matter would mean that the general policy or practice of the doctrine of mootness would apply to the issuance of reasons for a decision that has already been made and which, when made, was not moot. [61] As noted in Borowski, the Court established a two-step process. Even though a matter may be moot, a court or administrative body could exercise its discretionary authority and proceed to hear the matter. The Board feels that this aspect of the process may be best addressed under the next Section concerning whether there exists a labour relations purpose for issuing reasons. Page 18 [33] The Board considered and rejected Lawton s position that because the first collective agreement was concluded by the parties in between the time of the

19 Page 19 decision and the issuing of reasons the matter was moot and reasons should not be issued. [34] The Board reasonably determined that the matter was not moot, however, it also found that even if the matter was moot, according to Borowski, it nonetheless had the discretion to render a decision. This result was one reasonable outcome available to the Board. [35] Lawton s arguments regarding the issue of mootness fail for three reasons: 1) when the Board issued its bottom-line decision it was determining a live issue and, therefore, deciding to later issue reasons explaining its decision was a completely proper exercise of the Board s discretion; 2) with the First Judicial Review still outstanding, the issues are still live; and 3) the Board properly considered Borowski and followed the principles outlined therein when rendering its March 26, 2015 decision. Issue 2: There was no valid labour relations purpose requiring a decision to be rendered. [36] Lawton s has now conceded this second issue. Issue 3: Issuing reasons would harm the relationship between the Union and Lawton s. [37] Lawton s argument before the Board on the issue of harm to labour relations between the parties merely revolved around their claim that: a) the issue was moot; and b) that there was no labour relations purpose for issuing reasons. Lawton s now concedes that there was a labour relations purpose for issuing reasons. [38] Lawton s also now complains that the Board did not outline a reasoning path dismissing Lawton s arguments in the form of a three-part test of which Lawton s says all three parts must be satisfied. While Lawton s provides no authority that would require the Board to satisfy all three parts of their proposed test, even if the Board was required to satisfy all three parts of Lawton s proposed test, I am of the opinion that all aspects of Lawton s proposed test were actually satisfied by the Board s decision. [39] The Board explained that the application was unique in that it was one of the few instances when a respondent has contested compliance with s. 40A(5) of the Trade Union Act:

20 [68] This application is unique in that it is one of the few instances when a respondent has contested compliance with the threshold criteria in Subsection 40A(5). Most of the respondents to previous Section 40A applications have either voluntarily entered into the process, chosen to return to negotiations with the assistance of a conciliator, or, by default, opted for the Board to impose the terms of a first collective agreement. In this situation, the parties provided extensive evidence of pre-application collective bargaining, and Lawtons strenuously argued that its bargaining positions had neither been unreasonable, nor unjustified. [69] The Board acknowledges Lawtons misgivings about additional reasons. However, the Board cannot ignore the critical role Subsection 40A(5) plays within the first collective agreement settlement process; and by extension, labour relations in general. Admission to the Section 40A process inevitably leads to a first collective agreement. Entrance to that process is governed by each party s conduct during bargaining for a first collective agreement. The Legislature has made the Board the arbiter of the parties bargaining conduct. It is only proper that the Board give parties guidance on how it will judge first collective agreement bargaining conduct, so that they can approach their negotiations appropriately. [70] The Board is not convinced that there is no labour relations purpose in issuing this decision; particularly at this stage in the proceedings. Page 20 [40] Having not found the matter to be moot and determining that there was a valid labour relations purpose for issuing reasons, the Board went on to consider and reject Lawton s argument that issuing reasons would harm labour relations between the parties: [71] Lawtons assertion that issuing further reasons would be harmful to the state of labour relations between the parties is premised upon its arguments that the issue before the Board is moot and there is no labour relations purpose for issuing reasons. The Board has not accepted either of these arguments and finds no support for the Employer s contention that further reasons would be harmful to the state of labour relations. [72] The Board s authority and expertise in the area of labour relations must be exercised in accordance with the objectives of the Trade Union Act. The Act s objectives, as taken from the preamble, may be summarized as: - the development and maintenance of labour legislation and policy designed for the promotion of common well-being through the encouragement of free collective bargaining; - the constructive settlement of disputes; - the recognition and support of freedom of association and free collective bargaining as the bases of effective labour relations for the determination of good working conditions and sound labour-

21 management relations in the public and private sectors of Nova Scotia; - support to labour and management in their co-operative efforts to develop good relations and constructive collective bargaining practices; - the development of good labour relations in the best interests of Nova Scotia. [73] The objectives, as summarized above, relate directly to a tripartite relationship consisting of the relationship amongst the employer, the employees, and the trade union (the workplace parties). It is the individual and collective bargaining relationships that are the primary focus of the Act and the Board is ever mindful of the effect its decisions have upon those relationships and labour relations in the province. It is not the objective of the Board to sow disharmony or issue decisions or provide reasons which are invidious in nature and thereby weaken the working relationship. [74] A defining feature of reasons is an explanation of a decision. It follows, therefore, that reasons must do more than simply list evidence and state the decision reached. Effective reasons must enable the parties to determine the logic or intellectual process by which the evidence was relied upon to reach the decision. When the Board is able to provide reasons that clarify or explain its decisions, such is a benefit to the immediate parties and the community as a whole. Parties should not be put in the position of having to resort to conjecture or speculation when seeking the rationale for a Board decision. The absence of reasons, may leave a void of uncertainty resulting in confusion and a lack of awareness which, in turn, may contribute to a deterioration in the state of labour relations between the parties. [75] Additionally, serving as a judicial backdrop to the Board s rationale for issuing reasons is the requirement to do so as definitively enunciated by the Nova Scotia Court of Appeal in Future Inns Canada Inc. v. Nova Scotia (Labour Relations Board), [1997] N.S.J. No. 103, (C.A.), at paragraph 52: I am satisfied that courts can and should require written reasons from a Tribunal wherever there are substantial issues to be resolved. How can the court determine the existence of a rational basis for the decision of the Tribunal if it does not know how the Tribunal arrived at the result? If the determination of the reasonableness of a tribunal's decision can only be made by considering "the reasoning underlying it" and these reasons are not obvious from a review of the issues and the record, written reasons are necessary. Failure of a tribunal to do so in such cases makes its decision a patently unreasonable decision which will be set aside. The disappointed litigant and the reviewing court must know the process followed by a Tribunal in order to see, in the case of the litigant, if a review should be sought, and in the case of the court whether interference with the decision is warranted. Page 21