SUPREME COURT OF NOVA SCOTIA Citation: International Brotherhood of Electrical Workers, Local 625 v. Nova Scotia Apprenticeship Agency, 2016 NSSC PDF Free Download

SUPREME COURT OF NOVA SCOTIA Citation: International Brotherhood of Electrical Workers, Local 625 v. Nova Scotia Apprenticeship Agency, 2016 NSSC 242 Date: 20160915 Docket: HFX443975/446485 Registry: Halifax Between: International Brotherhood of Electrical Workers, Local 625 v. Applicant Nova Scotia Apprenticeship Agency and L.E. Cruickshanks Sheet Metal Limited Respondents LIBRARY HEADING Judge: The Honourable Justice Michael J. Wood Heard: March 23, 2016, in Halifax, Nova Scotia Written Decision: September 15, 2016 Subject: Summary: Issues: Judicial Review - Mootness Union applied for review of actions of Nova Scotia Apprenticeship Agency in response to its complaint that work was being done by improper trade. Work had been completed and contractor did not participate in proceeding in any meaningful way. Union disputed Agency interpretation of scope of construction electrician trade and wanted court assessment of that interpretation. Was the judicial review moot and, if so, should court exercise discretion to decide substantive issues?

Result: Since the work was complete and no relief sought other than declaration of reasonableness of interpretation the judicial review was moot. The live controversy involving this work had disappeared. Court not prepared to exercise discretion and decide issues in the absence of a dispute with affected parties involved. Agency did not have any rights which would be impacted by outcome. No evidence issue was of a recurring nature justifying expenditure of judicial resources. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

Page 2 By the Court: [1] L.E. Cruickshanks Sheet Metal Limited ( Cruickshanks ) was awarded a contract for the construction and installation of a paint booth at the Halifax Shipyard as part of the Halifax Shipyard Modernization Project. A portion of that work involved attachment of electrical light fixtures to the walls of the unit. This was done by sheet metal workers employed by Cruickshanks. [2] The International Brotherhood of Electrical Workers, Local 625 ( the Union ) was of the view that the installation of the light fixtures should be done by a construction electrician and complained to the Nova Scotia Apprenticeship Agency. They requested an order be issued under the Apprenticeship and Trades Qualifications Act, S.N.S. 2003, c.1 requiring Cruickshanks to stop using sheet metal workers for this work. [3] The Agency carried out an investigation, following which the Director of Programs and Operations decided that no order should issue. The Union was informed that the Agency did not believe the work needed to be carried out by construction electricians. [4] The Union was not satisfied with the response and provided further written submissions. They asked for reconsideration of the decision not to issue an order. The Agency responded that it did not believe there was any statutory jurisdiction to reconsider the matter. [5] The Union seeks judicial review of the decision that the work did not need to be done by construction electricians as well as the conclusion that the matter could not be reconsidered. The basis for the challenge is that the Agency s interpretation of the Act and Regulations was unreasonable. The Union asks that both decisions be quashed [6] By the time of the judicial review hearing Cruickshanks had completed the contract for construction and installation of the paint booth. The company did not participate in the judicial review beyond filing a letter disagreeing with the position of the Union.

Page 3 [7] In addition to the substantive merits of the judicial review, counsel for the Union and the Agency addressed the following preliminary issues: 1. Since the work in question was completed were the issues raised by the judicial review moot and, if so, should the court exercise its discretion and decide them anyway? 2. Was the Director s decision subject to judicial review at the request of the Union? Legislative Framework [8] The Act establishes a detailed regime concerning the qualification, training and certification for skilled trades in Nova Scotia. It includes a mechanism to designate compulsory certified trades and require that certain work only be carried out by persons holding the necessary qualifications. Sheet metal workers and construction electricians are two such trades. [9] The Agency is responsible for operating the training and certification system for trades including development of apprenticeship and trade qualification requirements. [10] The Director of Programs and Operations is appointed under the Act and their powers and duties include the following: Powers and duties of Director 8 The Director shall carry out the powers and duties assigned to the Director under this Act, the regulations and the operating charter, including (g) conducting investigations relating to compliance with this Act pursuant to a written complaint or report; [11] The Director s authority to issue a cease and desist order is found in section 16A(1) which reads: Order to cease activities or employment 16A (1) For the purpose of ensuring compliance with this Act, the regulations and the trade regulations, the Director, or any authorized person, may issue an order or directive requiring persons to cease engaging in the activities or employment of an apprentice or a journeyperson or holding themselves out as an apprentice or a journeyperson if the Director or authorized person has reasonable

grounds to believe that the person is not an apprentice or a journeyperson or is not in compliance with the terms and conditions respecting apprentices or journeypersons under the Act, regulations or trade regulations. Positions of the Parties on the Preliminary Questions The Union Page 4 [12] Since the work has been finished the Union is not seeking any remedy beyond a declaration that the Director s interpretation of the Act and Regulations was unreasonable. If the completed work renders the judicial review moot the Union says the court should exercise its discretion and assess the reasonableness of the Director s decision. [13] The Union says the court should decide the substantive issues for several reasons. First, the Agency and the Union are in an adversarial position and the outcome will have practical consequences because it will affect the availability of work for Union members in the future. Secondly, there will be recurring disputes of brief duration and the Union will be unable to get to a judicial review hearing before the work is completed. Finally, the Union argues that it is in the public interest for the court to resolve the interpretation question in the context of this judicial review. [14] The Union says that section 8(g) of the Act creates a statutory duty on the part of the Director to conduct an investigation once a complaint is received. The decision of the Director not to issue a cease and desist order following the investigation affects the legal rights or interests of the Union and its members because it has the effect of permitting work to be done by employees of Cruickshanks who were not construction electricians. This entitles the Union to challenge the reasonableness of the Director s decision. The Agency [15] Since the work has been completed the Agency says the judicial review is moot. The court should not exercise its discretion because there is no longer any live dispute between the parties. Each investigation and whether to issue an order will be determined based upon the factual circumstances found by the investigation. An answer to the issues raised in this matter will not be of assistance in future disputes arising in different factual contexts. [16] The Agency argues that the Union did not present evidence to support their assertion that there will be recurring disputes which raise the same issues. As a result,

Page 5 there is no public interest in devoting judicial resources to a review of a non-binding and highly contextual decision whether to issue an order under section 16A. [17] The Agency agrees that section 8(g) of the Act requires the Director to undertake an investigation if a written complaint is received and that is what happened in this case. At the conclusion of the investigation the Director has a discretion whether to issue a cease and desist order under section 16A, based upon the factual circumstances of each case. There is no statutory obligation on the Director to issue an order or take any other specific action. [18] The decision of the Director to refrain from issuing an order is not a decision within the meaning of Civil Procedure Rule 7 and subject to review by the court. In addition, complainants are not entitled to challenge the outcome of investigations except, possibly, on the issue of procedural fairness. Even if the Union is entitled to seek judicial review of the Director s decision this does not allow them to challenge the reasonableness of it but only whether they were accorded procedural fairness. The Union does not suggest that the investigation was procedurally deficient or unfair in this case. Law and Analysis Mootness [19] The leading case on mootness is the Supreme Court of Canada decision in Borowski v. Canada (Attorney General) [1989] 1 S.C.R. 342. The general principles are described by the court as follows: 15 The doctrine of mootness is an aspect of 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 [20] The Union argues that there is a live adversarial dispute between it and the Agency on the issue of the reasonable interpretation of the Act and Regulations. The

Page 6 problem with this position is the lack of competing interests. The essence of litigious dispute is two parties who have a stake in the outcome. Unlike Cruikshanks, the Agency has no rights which will be impacted by the outcome of the judicial review. They are the decision maker and not an affected party. [21] Once the work was done the live controversy as to whether it was within the construction electrician trade disappeared. There is no purpose in quashing the Director s decision and sending the matter back for reconsideration. The judicial review is moot for this reason. [22] As stated in Borowski, even though a matter may be moot the court has a discretion to hear and decide the issue in appropriate situations. This case was recently applied by the Nova Scotia Court of Appeal in Springhill Institution v. Richards 2015 NSCA 40 where the court summarized the approach as follows: 53 Justice Sopinka, writing for the Court in Borowski, stressed that certain established principles guide how a court should exercise its discretion. These include whether: there is still an adversarial context; resolution will have some practical consequences on the rights of the parties; the cases that spark the controversy are of a recurring, but brief duration; it is in the public interest to expend judicial resources to mitigate the social cost of continued uncertainty in the law; adjudicating may be viewed as intruding into the role of the legislative branch (pp. 358-362). [23] In this case the Director received the Union s complaint and undertook an investigation which included attendance at the worksite to observe the specific activities involved. The decision whether to issue a cease and desist order depended, in part, on the Director s assessment of the nature of the work. I have no information as to whether the factors which lead to the Director s conclusion will arise in other projects or how frequently. There is nothing in the record before me to indicate that similar concerns have arisen in the past or are likely to in the future. [24] A new complaint by the Union may involve different circumstances, contractors and trades claiming jurisdiction. Whether the interpretation issue will be similar is not known. [25] It is important not to overlook the role of Cruickshanks in this case. They and their employees would have been subject to any cease and desist order. Since the work is complete they have no interest in expending resources to continue this litigation. There is no current adversarial dispute between the Union and Cruickshanks. The court should be reluctant to decide an issue without the benefit

Page 7 of any substantive input from the contractor when the purpose of the ruling is to create a precedent for other projects involving potentially different parties. [26] In support of its request that the court exercise its discretion the Union says disputes such as this will arise quickly and the work completed before any judicial review could take place. In other words, such disputes are of a recurring but brief duration. In Borowski the court discussed when such circumstances might justify dealing with an otherwise moot issue at paragraph 36: 36. 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 I.B.E.W., Loc. 2085 v. Winnipeg Bldrs. 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. To the same effect are Syndicat des Employés du Transport de Montréal v. A.G. Que., [1970] S.C.R. 713 [Que.], and W.W.M.L. v. C.J.A., [1973] S.C.R. 756, [1973] 5 W.W.R.409, 35 D.L.R. (3d) 714 [B.C.]. 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. [27] I am not satisfied that this case falls within these parameters. The only factual circumstances before me relate to the work of Cruickshanks on the paint booth at Halifax Shipyard. It is not known whether similar issues will arise in the future. In addition, I can envision large commercial or residential projects which span several months and where a judicial review could be heard before the project is completed. This is particularly so with an early motion for directions where the Union could request an expedited hearing or an injunction pending the outcome of the review. [28] This case is not one of a recurring nature where the dispute will always disappear before court review could occur. There is no justification for expenditure of judicial resources to decide whether the interpretation of the scope of the construction electrician trade was reasonable.

Page 8 [29] I have concluded that I should not exercise my discretion and decide the substantive judicial review issues raised by the Union in light of the mootness of this matter. Availability of Judicial Review [30] In light of my decision that the matter is moot I will not deal with the arguments about the ability of the Union to seek judicial review of the Director s decision. Conclusion and Disposition [31] I am prepared to dispose of both judicial review proceedings on the basis they are moot. I am not prepared to exercise my discretion and assess the substance of the Union s disagreement with the Agency s interpretation of the Act and Regulations. If it arises again the issue can be dealt with at that time, with full participation of all affected parties. [32] Both judicial review proceedings are dismissed. In the event the parties wish to make submissions on costs they may do so in writing within 30 days. Wood, J.