Georgakakos v. International Brotherhood of Electrical Workers Local 625

Georgakakos v. International Brotherhood of Electrical Workers Local 625 Court Supreme Court Date 2021-04-14 Citation 2021 NSSC 128 Docket Hfx No. 499046 Judge/Registrar/Adjudicator Smith, Ann E. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Georgakakos v. International Brotherhood of Electrical Workers Local 625, 2021 NSSC 128 Date: 20211404 Docket: Hfx No. 499046 Registry: Halifax Between: Demo Georgakakos Applicant v. International Brotherhood of Electrical Workers Local 625, City Light Electric Ltd. and the Nova Scotia Labour Board Respondents Judge: The Honourable Justice Ann E. Smith Heard: November 4, 2020 in Halifax, Nova Scotia Post Hearing Submissions: Demo Georgakakos – November 13, 2020 City Light Electric Ltd. – November 18, 2020 International Brotherhood of Electrical Workers Local 625 – November 27, 2020 Demo Georgakakos – December 3, 2020 Counsel: Rick M. Dunlop and Richard M. Jordan, for the Applicant Gordon N. Forsyth, Q.C. and Jillian K. Houlihan, for International Brotherhood of Electrical Workers, Local 625 C. Alex Warshick, for City Light Electric Ltd. By the Court: Introduction [1] On January 10, 2020 the International Brotherhood of Electrical Workers, Local 625 (“IBEW” or “the Union”) made an application for certification (the “Application”) to the Nova Scotia Labour Board (the “Board”) as bargaining agent for a unit comprised of the apprentice and journeyperson electricians employed by the Respondent City Light Electric Ltd (“City Light” or the “Employer”) in mainland Nova Scotia. City Light is an electrical contractor. [2] On the date of the Application, the Applicant Demo Georgakakos was a permanent, full time apprentice electrician employed by City Light since April, 2016. However, he was absent from work on January 10, 2020 because he was on bereavement leave following the recent death of his father in Greece. Mr. Georgakakos had travelled to Greece to make arrangements following his father’s death and attend the burial ceremony in accordance with his Greek Orthodox faith. He was off work from December 30, 2019 until he returned to work on January 13, 2020. [3] After reviewing the Application, the Board determined the Union did not have adequate support for automatic certification in accordance with s. 95(3)(c) of the Trade Union Act, R.S.N.S., 1989 c. 475 (the “Trade Union Act” or the “Act”) and ordered a representation vote to be held to determine the wishes of City Light’s employees on the question of unionization. [4] When the Application was filed, it included a list of the employees in the proposed bargaining unit who were members of the Union and evidence of their membership as required by s. 9(2)(c) of the Trade Union Procedure Regulations. [5] The Board requested and received a list of City Light’s employees working as construction electricians or journeyperson electricians on-site on January 10, 2020. Because he was not working on-site as a journeyperson electrician on January 10, 2020, Mr. Georgakakos was not included in the count of employees to assess union support. [6] It is not disputed that in determining which employees comprise the voter’s list, i.e. the bargaining unit for the purpose of determining an application for certification, the Board employs a “date of application” or “snapshot rule” or practice. In this decision I will refer, at times to both the “snapshot rule” and the “date of application rule”. These terms mean the same for the purpose of this decision. The snapshot rule means that to be included on the voter’s list, amongst other requirements, an employee must be working on site on the day the Union, in its discretion, files an application for certification. [7] On the basis of the snapshot rule, the Board excluded Mr. Georgakakos from the voter’s list. [8] Mr. Georgakakos filed a Notice of Intervention, by way of Intervenor motion, to have his vote counted. [9] The Notice stated: As a current employee of City Lights Electrical Ltd., this application will directly impact my future. Grounds for Notice of Intervention. 1. I was absent from work during the filing of the application due to bereavement leave, I do not wish to be represented by this Union. [10] Mr. Georgakakos voted at the Board-ordered vote on February 10, 2020. The votes have not yet been counted, pending the outcome of the within motion. [11] On February 28, 2020, the Board held a Case Management Conference in which all parties participated. Mr. Georgakakos acted on his own behalf. The Board and the parties agreed that the issue raised by Mr. Georgakakos in his Notice of Intervention would be dealt with as a purely legal issue based upon the agreed fact that Mr. Georgakakos was absent on bereavement leave on the date of application. [12] The written submissions of the parties are in the Record before this Court. [13] Mr. Georgakakos argued that to exclude him from the voter’s list on application of the snapshot rule was “insensitive, inhumane and a violation of my rights.” Mr. Georgakakos did not argue that his Charter rights or human rights had been violated. [14] The Employer, however, argued that Mr. Georgakakos’ s.15 Charter rights had been violated. It did so in two paragraphs in its ten page submission to the Board. Most of the Employer’s submissions were focused on its proposal for an alternate to the date of application rule. The Employer argued that the date of application rule should be modified in a way that would allow Mr. Georgakakos to be able to have his vote counted. In that regard, the Employer argued that Mr. Georgakakos had a community of interest with members of the proposed bargaining unit, and would be represented by the Union if its certification application was successful. The Employer argued that based on three decisions of the Board in the past where it had excluded employees from a proposed bargaining unit of the basis of lack of community of interest, the Board should include Mr. Georgakakos on the basis that he had an undisputed community of interest with the members of the proposed unit. [15] The Union argued that the snapshot rule was a “bright line” assessment and part of the foundation of construction industry certification for decades. The Union relied upon the Nova Scotia Court of Appeal’s decision in Labourers International Union of North America, Local 615 v. CanMar Contracting Ltd., 2016 NSCA 40 [leave to appeal refused March 2, 2017 (S.C.C.A.)] (“CanMar”). The union said that Mr. Georgakakos had not been discriminated against, relying on the decision of the Nova Scotia Court of Appeal in Canadian Elevator Industry Welfare Trust Fund v. Skinner, 2018 NSCA 31 (N.S.C.A.) (“Skinner”). The issue in Skinner centered around a benefit plan which did not provide drug coverage for any drugs which did not have a “DIN” number. The Court of Appeal recognized that Mr. Skinner suffered from a disability. However, the Court of Appeal reasoned that no disabled persons received coverage for a drug which did not have a DIN number. [16] The Board issued its Decision on June 9, 2020 (the “Decision”) and determined that Mr. Georgakakos’ vote should not be counted. [17] Mr. Georgakakos (the “Applicant”) filed an application for judicial review of the Board’s Decision on July 10, 2020. Mr. Georgakakos was represented by legal counsel who filed briefs of law on his behalf and made oral submissions at the hearing of the judicial review. The Grounds of Review [18] The Applicant seeks review on the following grounds: 1. The Board’s failure to deviate from the snapshot rule in the case of the Applicant is unreasonable because: (a) the Snapshot Rule is inconsistent with the text and purpose of the Trade Union Act and contrary to principles of statutory interpretation; (b) the Snapshot Rule gives rise to adverse effect discrimination in the particular circumstances of the Applicant, contrary to the Human Rights Act; (c) the Snapshot Rule gives rise to an inability of the Applicant to fully exercise his right to bereavement leave provided for by Section 60A of the Labour Standards Code; (d) the Board failed to properly balance the relevant Charter protections to the Applicant against the Snapshot Rule, contrary to the Supreme Court of Canada’s decision in Doré v. Barreau du Quebec, 2012 SCC 12. [19] The relief the Applicant seeks is an order in the nature of certiorari, quashing the Decision. Issues [20] In my view, this judicial review raises the following issues: 1. What is the applicable standard of review? 2. Is the Board’s decision not to deviate from the Snapshot Rule in the case of Mr. Georgakakos unreasonable because: a. The Board did not balance Mr. Georgakakos’ Charter rights against the Snapshot Rule; b. The Board did not give effect to the Human Rights Act, including by conducting a prima facie discrimination analysis. 3. If this Court finds the Decision to be unreasonable, should it remit the Court’s decision to the Board for reconsideration, or, alternatively, should this Court quash the Board’s decision and remit the matter back to a differently constituted panel of the Board? Law and Analysis Issue 1: What is the applicable standard of review? [21] All parties agree that the standard of review to apply to Labour Board decisions, generally, is reasonableness. [22] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”), the Supreme Court of Canada held that the standard of review of administrative decisions is presumptively reasonableness. [23] The presumption of a reasonableness standard can be rebutted where one of three exceptions apply: (1) constitutional questions; (2) where the jurisdictional line between tribunals is at issue; and (3) general questions of law of central importance to the legal system as a whole. [24] The Supreme Court of Canada in Vavilov stated that it was important to draw a distinction between cases in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit rights under the Charter, as was the case in Doré v. Barreau du Québec, 2012 SCC 12 (SCC) (“Doré”), in which case the reasonableness standard applies, and those cases in which the issue on review is whether a provision in the decision maker’s enabling statute violates the Charter, in which case the correctness standard of review applies (para. 57). [25] In this case, the parties agree that the Doré reasonableness standard applies. The Sufficiency of Reasons and Reasonableness [26] The reasonableness review is both robust and responsive to context: Vavilov at para 67. The required reasonableness review must look with respectful attention at both the decision-maker’s reasoning process and the outcome: Vavilov at paras 83 and 84. [27] The reviewing court must put the reasons first: Vavilov at para 84. [28] The sufficiency of reasons must be assessed with regard to the three purposes that they serve: (a) to tell the parties why a decision was made; (b) to provide public accountability for that decision; and (c) to permit effective appellate review: Vavilov at paras 79 and 81. [29] The reasons of administrative decision makers play an important role in the “culture of justification” endorsed by the Supreme Court in Vavilov (paras 2 and 14). [30] When reasons for a decision “contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision”: Vavilov at para 96. [31] Demonstrating a transparent and intelligible path to the Board’s decision justifies the Board’s exercise of delegated public power and provides citizens with confidence that the decisions reached will be fair and rational. [32] Vavilov makes clear that the fact that when legislated authority is given to a decision maker, rather than to a court, this, from the outset, points to a deferential standard: [30] While specialized expertise and these other rationales may all be reasons for a legislature to delegate decision-making authority, a reviewing court need not evaluate which of these rationales apply in the case of a particular decision maker in order to determine the standard of review. Instead, in our view, it is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review. The Court has in fact recognized this basis for applying the reasonableness standard to administrative decisions in the past. In Khosa, for example, the majority understood Dunsmuir to stand for the proposition that “with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision had been allocated to an administrative decision-maker rather than to the courts”: para. 25. More recently, in Edmonton East, Karakatsanis J. explained that a presumption of reasonableness review “respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts”: para. 22. And in CHRC, Gascon J. explained that “the fact that the legislature has allocated authority to a decision maker other than the courts is itself an indication that the legislature intended deferential review”: para. 50. In other words, respect for this institutional design choice and the democratic principle, as well as the need for courts to avoid “undue interference” with the administrative decision maker’s discharge of its functions, is what justifies the presumptive application of the reasonableness standard: Dunsmuir, at para. 27. [33] In Vavilov, the Supreme Court pointed out that there may be less reason for a court to interfere where the legislature intended the decision maker “to fulfil its mandate and interpret the law as applicable to all issues that come before it.” (para. 24). A reviewing court must “respect the distinct rule of administrative decision makers”: Vavilov, at para. 75. [34] However, a reasonableness review is not a treasure hunt for error. At para. 94 the Court in Vavilov confirmed: The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. (emphasis added) [35] The Court in Vavilov also confirmed that shortcomings in a decision should not be set aside unless these shortcomings are “sufficiently serious”: [100] The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency… [36] The decision of an administrative decision maker does not have to fully deal with all of the issues raised by the parties. The majority in Vavilov confirmed that that is the case: [128] Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para. 25, or to “make an explicit finding on each constituent element, however, subordinate, leading to its final decision” (para. 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision was actually alert and sensitive to the matter before. Issue 2: Is the Board’s Decision Reasonable? The Statutory Scheme [37] The Union’s application for certification was filed under s.95 in Part II of the Act. The construction industry is governed by Part II (sections 92 through 107). As Fichaud, J.A. said in Labourers International Union of North America, Local 615 v. Stavco Construction Limited, 2019 NSCA 53 (NSCA): Part II contemplates an expeditious certification, if possible, from paper evidence presented to the Labour Board. (para 2) [38] Section 92 provides definitions that are applicable to Part II. These include definitions of “appropriate unit”, “employee”, and “construction industry”: s.92 In this Part … “appropriate unit” means a unit determined by the Board to be appropriate for collective bargaining purposes; “construction industry” means the on-site constructing, erecting, altering, decorating, repairing or demolishing of buildings, structures, roads, sewers, water mains, pipe-lines, tunnels, shafts, bridges, wharfs, piers, canals or other works”;… … “employee” means a person employed in the construction industry but does not include A person who performs management functions or is employed in a confidential capacity in matters relating to labour relations … [39] Section 95 of the Act provides for mechanisms by which union support is gauged, and the requirements for certification under Part II. The Board may dismiss an application for certification where a paper review shows that a union has as members in good standing less than thirty-five percent of the employees in an appropriate bargaining unit. The Board may certify the union applicant if it is satisfied that the union has the support fifty percent of members in good standing in an appropriate unit. When the Board determines that union support is between thirty-five percent and fifty percent the Board then orders a vote to be conducted to determine the wishes of the employees. [40] Membership evidence is determined as of the date of application. Sections 25(7), and 95(4) of the Act, as well as s. 10 of the Regulations make this clear: s.25(7) When the Board has determined that a unit of employees is appropriate for collective bargaining, if the Board is satisfied that at the date of the filing of the application for certification the applicant trade union has as members in good standing (a) less than forty percent of the employees in the unit, the Board shall dismiss the application; or (b) forty percent or more of the employees in the unit, the Board shall, subject to subsection (11), take and count the vote. S.95(4) Subsections (3), (4), (5), (7) and (8) of Section 25 apply to an application by a trade union or council of trade unions for certification under this Section. Reg.10 As at the date of the filing of an Application for Certification by a trade union, for purposes of the Application for Certification, a person is deemed to be a member in good standing of the trade union if the person joined or signed an application for membership in the trade union. (a) Within the period from the first day of the third month preceding the calendar month in which the Application for Certification is made to the date of Application for Certification; or (b) Before the period set out in clause (a) and, for any portion of that period, has paid to the trade union an amount in respect of fees or dues of the trade union supported by a receipt or other evidence acceptable to the Board that the fees or dues have been paid. (emphasis added) [41] The date of application, then, is critical to the Board’s determination of which employees are counted to assess union support. An employee must be on site and performing work in the particular craft or trade. This is unlike the process under Part I of the Act, where an employee who is off work on maternity or sick leave, or for other reasons, may still have their wishes counted because of their status as an “employee”. The Court of Appeal Decision in CanMar [42] The decision of the Nova Scotia Court of Appeal in Labourers International Union of North America, Local 615 v. CanMar Contracting Ltd., 2016 NSCA 40, (“CanMar”) played an integral role in the Board’s reasoning process. [43] In CanMar the Court of Appeal held that the Board reasonably followed its established policy, the snapshot rule, in only considering the wishes of employees who had performed labourers’ work, on site, during the day the union applied for certification. This meant that the wishes of Messrs. Lopez and Panteleios, who were on leave that day, were not considered. The Court of Appeal’s decision confirmed that the Board’s date of application rule recognized that in the construction industry, the employee’s connection to a particular craft unit depends on his site work. The Court of Appeal found that the date of application rule injects certainty into the certification process, which it said was an objective in the enactment of Part II of the Act. The Court of Appeal found that the Board’s use of the date of application rule was reasonable. [44] In CanMar two employees argued that the Board’s failure to consider their wishes violated their Charter values and was not proportionate under the Doré principles. [45] A review of the reasons of the Court of Appeal in CanMar is instructive. [46] In CanMar, the employer submitted that the date of application rule offended the statutory directive that the bargaining unit comprise a “community of interest”. The Court of Appeal in CanMar disagreed: [27] The Employer argued that the date of application approach offends the community of interest requirement of s. 25(14) by treating employees at work on the date of application in a different way than their fellow employees not at work that day, even though while absent from work they did not lose their status as employees under the Act and they worked side-by-side with their fellow employees doing similar work on the day before the application and on the first working day after the application. The Employer argued the two employees concerned, Mr. Panteleios and Mr. Lopez, should not be treated differently from the other employees at work on March 14, 2014 given their community of interest with them. The two employees themselves expressed the same view. [28] The Board did not understand the Union to say that Mr. Panteleios and Mr. Lopez did not share a community of interest with the other bargaining unit employees by virtue of their work location, hours of work, working conditions and methods of remuneration. Nor did the Board understand the Union to say these two employees would not be part of the bargaining unit should the Union’s application for certification be granted. Rather, assuming the two employees have a community of interest with the other employees, had they been at work on March 14, 2014, they would have been recognized as part of the bargaining unit for the purposes of s. 95(3). Whether they met the community of interest threshold or not, they simply were not at work that day. [29] … The Board views the community of interest notion expressed in s. 25(14) as a factor relevant to determining the bargaining unit per se. Whether an employee is in the bargaining unit for determining certification is a different question. Under Part II, an employee may be in the bargaining unit but must be at work on the date of application in order to be considered for certification purposes. … [90] Rather, the Board held there was a further aspect to it – namely the connection between the employee and the “on-site” work that defines “construction industry”. The determination of the ratio of support under section 95(3) assumes an arithmetic certainty at a moment in time – i.e. a snapshot. Consequently, the Board, in a series of decisions spanning forty years, has developed a policy that achieves certainty. The “date of application rule” means that, on the day of the application for certification, the employee must be “on site”, as required by the Trade Union Act’s definition of “construction industry”, and most of his site work that day must be in the craft or trade of the proposed unit. [91] This Court has upheld the Board’s rule. [92] In International Union of Operating Engineers, Local 721 v. Granite Environmental Inc., Decision # 2287C of the Construction Industry Panel, March 18, 2003, both the Labourers International Union and International Union of Operating Engineers applied for certification of Granite Environmental Inc.’s employees who performed labourers’ and operating engineers’ work respectively. The Board dismissed the Labourers’ application but, after a vote, certified the Operating Engineers. Professor Darby as chair, para. 6 emphasized the words “on-site constructing” in s. 92(c)’s definition of “construction industry”, then continued: 6. … Thus, in our judgement (and this is part of the long-established policy of the Board and is also mandated by the provisions of Part II of the Act), the ONLY type of “employee” we can concern ourselves with is a person who works “on-site” performing the types of work described in Section 92(c). … 9. … Those two (2) cases did NOT involve – as ours does – employees who spent only part of their “working day” ON-SITE and part of it OFF-SITE. For our situation, the policy of the Panel goes back to the 1970s – as the chairperson in this and the BOEHNER CASE recalls – and is this: when an employee spends his full working day working on site, the issue is whether that employee performed work within the trade jurisdiction of the applicant trade union or AN applicant trade union (if more than one trade union applied for application [sic certification] on the same day and the employee performed work in both or each of several trades on that date), for more than fifty per centum (50%) of his working day. If, however, the employee spent part of his day ON-SITE and part of it OFF-SITE, (for example in our case working “at the pit” ie., the quarry), then, the issue is whether that employee performed work within the trade jurisdiction of the applicant trade union or an applicant trade union (if more than one trade union applied for certification on the same date and the employee performed work within the trade jurisdictions of both or each of several trades on that date), for more than 50% of that part of his working day that was spent performing work ON-SITE in the “construction industry”. [See section 92(c)]. To be specific: if an employee’s “working day” comprised a total of fourteen (14) hours of which five (5) were spent off-site and nine (9) hours on-site, then the relevant period is the nine (9) hours spent on-site. If the employee spent more than four and one-half (4.5) hours of these nine (9) hours performing work within the trade jurisdiction of, for example, the Labourers’ Local 1115 and less than four and one-half (4.5) hours doing work of Op. Eng., Local 721 and the applicant trade union is the Labourers' Local 1115, then Labourers' Local 1115 would be required to include in its bargaining unit this "5 hours employee". Conversely, if the applicant trade union had been the Op. Eng. Local 721, it would NOT be entitled to claim the “4 hours employee”. … [47] The Court of Appeal in CanMar noted that there were other ways in which the date of application rule could be drafted, as argued by the Employer in this case and the employer in CanMar. However, the Court of Appeal upheld the date of application rule as being reasonable: [97] I agree with CanMar that the Board reasonably could have crafted its date of application rule differently, for instance to include any employee who was on site sometime during a two day span from the Union’s application for certification. Then Messrs. Lopez and Panteleios would have counted. But then, some other incongruity would appear. An employee who was on leave for two days could say – “Why not a three day span?” A labourer whose project ended three days earlier, could say – “I’ll be back for the next job. So why not me?” A labourer who was first hired three days later could ask the same question. Someone who worked in another construction craft, or did maintenance work during the week of the certification application, but labourers’ work the next week, would want to be counted. As would a labourer who works on two projects for one employer, was at an off-unit site during the week of the union’s application, but back at the subject site the next week. Bright line tests have edges that chafe at the line. [98] The Legislature enacted Part II to inject certainty and efficiency into the previously chaotic labour relations of the construction industry. The Board has determined that an effective process under s. 95(3) requires a bright line test - an empirical standard, known in advance. The process cannot operate effectively if the rule that defines the constituency vacillates from case to case, and is only ascertained ad hoc after each litigated Board hearing. The Board’s formulation was chosen from among alternatives, each reasonable on its own. That choice involved “policy considerations that we presume the legislature desired the administrative decision maker - not the courts – to make”: McLean, para. 33. [99] The Trade Union Act is a roadmap for a tangled landscape. Board policies are needed to inform the broad statutory principles that govern labour relations. Rayner, Canadian Collective Bargaining Law, pp. 106-7 explains: Canadian labour relations statutes deal with all aspects of collective bargaining from union certification to enforcement of the collective agreement, from adjudication of alleged unfair labour practices to regulation of industrial action, from supervision of bargaining to enforcement of the union’s duty of fair representation. Because of their scope, labour statutes need to be skeletal in form. Otherwise, the parties would soon be ensnared in a morass of regulation. In addition, the philosophy behind the statutes is based on a free market concept. The legislation sets the rules, but the participants play the game with the government (in this context, the labour board) as referee. This philosophy dictates a statute that is skeletal and easily understood. However, a statute that is designed as a legislative framework within which the parties operate dictates that the statutory tribunal that is charged with its administration develop its own rules, policies and procedures. … [100] And so Nova Scotia’s Board has its date of application rule. I respectfully disagree with the judge that the Board’s use of the rule unreasonably offended the principle of “community of interest” in s. 25(14). (emphasis added) [48] The Court of Appeal in CanMar also considered the employer’s submission that the date of application rule violated the Charter values underlying s.2(d) of the Act. Justice Fichaud reviewed Justice Abella’s decision for the Court in Doré and her reasons (for four of seven justices) in Loyola High School v. Quebec (Attorney), [2015] 1 S.C.R. 613 (“Loyola”). [49] Justice Fichaud stated that the Charter values that underlie s.2(d) promote a robust and effective system of collective bargaining under the supervision of an independent labour board (para.132). [50] The Court of Appeal in CanMar concluded that under Doré/Loyola, the statutory objectives of the date of application rule were proportionately balanced with Charter values. [51] The Court of Appeal summarized its findings concerning the date of application rule as follows: [104] The date of application rule is a permissible policy or practice to effectuate the objectives of the Trade Union Act. It is consistent with the words, context and scheme of the statute, and the Legislature’s objectives with Part II. The policy decision to frame the rule as the Board has done, instead of a variant, either version being reasonable, is for the Board, not the court. [105] I would allow the appeal from the judge’s ruling that set aside the Board’s Final Decision. The Submissions to the Board The Submissions of Mr. Georgakakos [52] On March 4, 2020, Mr. Georgakakos made the following submissions to the Board with respect to why he wished to have his vote counted: I have been an employee with City Light since April 2016 and have not missed any time apart from this one occasion. To exclude me in a critical vote on a day I physically could not be at work was discriminating and extremely frustrating. I felt I had been targeted and that the Union organized the vote had intentionally occurred during my absence. I submitted a Notice of Intervention on my own behalf. As previously noted, I was away on bereavement leave during the vote. I freely spoke about my concerns and how I was excluded and would certainly contest it. Every employee was able to express their own will on the day the vote was conducted and since I was not, I proceeded with my filing for this reason. [53] In a subsequent submission to the Board dated March 12, 2020, Mr. Georgakakos added: This submission for the Board is to once again confirm that I wish to bring forward my argument to be included in the vote and for my vote to be counted, despite the fact that I was not working on January 10th 2020, the day the application was filed. As a full time, permanent employee of City Light since April 2016, I have not missed any time at work apart from this one occasion. To exclude me in a critical vote on a day I physically could not be at work is prejudicial for me as an employee of City Light. I submitted a Notice of Intervention on my own behalf. As previously noted, I was physically away on bereavement leave during the vote. While the Chair clarified for me that the Board’s usual procedure and the case law support the “snapshot rule”, that only employee’s [sic] working on the date of filing would have their membership information and votes counted, this is extremely prejudicial. While this may be a ruling to cover if someone is absent by choice, I can assure you I was not absent by choice. My father passed away suddenly and unexpectantly [sic], I had no choice but to be absent and deal with his burial. Despite not being at work on the day of application was filed I am asking that the Board deviate from the procedure and seriously consider what they are proposing. To exclude me and apply a “snapshot” rule is insensitive, inhuman and violates my rights”. The Submissions of the Employer [54] In its submissions dated March 27, 2020, the Employer’s position supported that of Mr. Georgakakos. It argued that an exception should be made to the date of application rule and that Mr. Georgakakos’ vote should be counted. [55] The Employer submitted, inter alia, as follows: 10. In sum, Mr. Georgakakos has argued that applying the Snapshot Rule for determining certification in this case, without modification, would result in discrimination against him. 11. City Light submits that the Board should consider whether applying the Snapshot Rule without modification is discriminatory to Mr. Georgakakos on the basis of protected characteristics, namely family status, religion, and ethnic origin, and thus would be contrary to the Nova Scotia Human Rights Act (the “NS HRA”) and s. 15 of the Charter of Rights and Freedoms. 12. City Light states that a minor and limited exception to the Snapshot Rule is warranted to avoid giving rise to adverse effect discrimination in the circumstances. It is not submitted that such a modification would apply to cases where employees are simply absent or on vacation on the date an application for certification is submitted; nor should it apply in cases where an employee has not actually returned to work and voted. Rather, an exception is merited where on the date of an application an employee was on a leave implicating protected characteristics and later returned to work in time to vote and would otherwise be disenfranchised by arbitrary application of the Snapshot Rule. This limited exception would apply only in cases implicating human rights concerns, where a vote has been ordered, and where the employee has returned in time to express his or her wishes by voting. 13. Practically, accommodating such an employee by using a different “snapshot day” (for this employee alone) to determine whether he performed work in the proposed bargaining unit’s jurisdiction – the last day working prior to taking leave, it is suggested – would not meaningfully reduce the efficiency or predictability of the snapshot approach in construction industry certifications. Indeed, a number of jurisdictions in Canada have adopted alternatives to the snapshot approach that maintain these goals. This proposed accommodation would result in a standard that maintains simplicity and efficiency, and is predicable to unions timing their applications, but which is more minimally impairing of rights under the Charter and NS HRA and thus has greater proportionality between the goals of the Board’s Snapshot Rule and the discrimination arising from its application. In short, it would create a more reasonable and defensible standard on review. [56] This Court’s general summary of the Employer’s arguments to the Board in support of its position that the date of application rule should be modified to accommodate Mr. Georgakakos’ position is as follows: 1. The rule is not mandated by the Trade Union Act, so it can be modified, and has been modified before, on the basis of a consideration of the “community of interest” criteria. 2. The date of application rule, although neutral on its face, has an adverse impact on Mr. Georgakakos and discriminates against him contrary to the Human Right Act. Mr. Georgakakos’ circumstances, which implicate grounds protected under the Human Rights Act, must be accommodated by modifying the date of application rule as proposed by the Employer. 3. A limited modification would ensure “proportionality” and would not result in inefficiency. The proposed modified rule would “result in a more reasonable rule, as understood through the lens of the Supreme Court’s decision regarding reasonableness of administrative decision in Doré v. Quebec, 2012 SCC 12”. [57] The Employer asserted that the Board had modified the date of application rule to exclude employees in three previous decisions, on the basis of a lack of community of interest, and it should modify the rule to include Mr. Georgakakos’ circumstances. Those decisions were D. B. MacEachern’s Electrical Co., (Re) (2006), CIP – 3039. (“D.B. MacEachern”), United Brotherhood of Carpenters and Joiners of America, Local 1588 v. Pearo Brothers Woodworking Limited, 2005 CanLii 92982 (“Pearo Brothers”) and United Brotherhood of Carpenters and Joiners of America, Local 83 v. M & Buddy Company Limited, 2005 CanLii 92975 (“M & Buddy Company”). [58] The Employer submitted that a consideration of community of interest should “trump” a strict interpretation of the date of application rule “where community of interest is established and there is a pressing reasons to do so”. [59] In submitting the date of application rule resulted in adverse effect discrimination in Mr. Georgakakos’ circumstances (on the grounds of family status, religion and ethnic origin), the Employer referred to the decision of the Supreme Court of Canada in Central Alberta Dairy Pool (Human Rights Commissions), [1990] 2 S.C.R. 489. In that case, the Court found that a neutral policy of the employer that all employees had to work on Mondays, discriminated against an employee who could not work on Mondays because of his religious beliefs. The employer had a duty to accommodate that employer. [60] The Employer submitted to the Board that Mr. Georgakakos’ circumstances were similar to the employee in Central Alberta Dairy Pool because the date of application rule “imposes on [Mr. Georgakakos] an obligation and corresponding penalty to attend work on a particular day”, or be “penalized through disenfranchisement”. [61] The Employer also submitted that the 2011 decision of the former Construction Panel of the Board in Ainsworth Inc. and UA, Local 56 (Re) (2011, CIP – 3194) (“Ainsworth”) was distinguishable and its result no longer good law on the basis of Doré. [62] At issue in Ainsworth was the requirement that an employee be performing work in the construction industry on the date of application. The employee in question, Mr. Creighton, was performing modified duties on the date of the application because of an injury. He was also not working in the trade applying for certification. [63] The employer in Ainsworth argued that excluding Mr. Creighton from voting was discriminatory on the basis of disability. The employer argued that Mr. Creighton should be accommodated to allow his vote to be counted even though he fell outside the date of application rule. This argument was couched in terms of adverse effect discrimination which was said to require accommodation. [64] The Construction Panel rejected these arguments, finding that the employee had not been discriminated against and no accommodation was needed. In its decision, the Panel thoroughly addressed the application of, and the need for the date of application rule: 50. The long-established practice of the Panel is to consider only for the purposes of determining membership in the bargaining unit alleged by the Union to be “appropriate for collective bargaining”, the status of employees who are shown to have been actually working in a construction capacity for the majority of the date in question, namely the date of application. The result is a snapshot of that day’s activity, determined by a combination of deliberate timing and sheer coincidence. 51. Within that framework, there are many reasons why a particular employee of an Employer might not have his or her union membership considered in a Section 95 application. For example, he or she might be on vacation, observing a religious holiday, not regularly scheduled to work that day, sick, injured, taking advantage of some other type of leave such as bereavement or medical, or working but performing something other than construction work in the trade that is applying for certification. The scheme, for better or worse, defines a bargaining unit and determines who fits within that unit on the day in question. The result of such a determination may be skewed or even arbitrary, in a sense, but has the virtues of simplicity and certainty. 52. A different system might ask what employees have worked, or might have worked, in the applicable unit within a larger, defined period of time. Such an inquiry might need to look at employees who were disabled, or otherwise occupied, in the applicable time frame. It would almost certainly complicate the process, virtually guaranteeing that every application for certification under Part II would end up in a hearing requiring the Panel to determine who is, and is not, within the bargaining unit. As noted, we have adopted the snapshot approach in the interests of simplicity and certainty. 53. While considering some form of accommodation to address a human rights concern would probably not open any floodgate, it is also the case that if the argument of the Employer were accepted here, it would elevate the status of Mr. Creighton [the disputed employee] over any and all other employees who are not, strictly speaking, engaged in construction work, including employees who are engaged in maintenance or doing other things on August 24, 2010. In fact, the evidence is quite inconclusive as to what Mr. Creighton might have been doing on the day in question, but for his injury. It is sheer speculation to suggest that he would have been one of those actively in construction work, particularly in light of all the “maintenance” work being done by Ainsworth at that time. 54. In our view, it is not discriminatory to exclude Mr. Creighton within the very specialized framework of the Section 95 application. 55. Moreover, the fact that Mr. Creighton’s union membership status does not get considered in this instance does not mean that he would not enjoy full membership in the bargaining unit, should the Union become certified and should he engage in work that is covered by the applicable collective agreement. 56. In the result, the bargaining unit as claimed does not include Mr. Creighton as he was not engaged in construction work on August 24, 2010. (emphasis added) [65] The Employer, in addition to submitting to the Board that Ainsworth was wrongly decided, also argued that Ainsworth was distinguishable: 41. In any event, the facts in the case at hand are distinguishable from Ainsworth in a number of meaningful ways. First, a hearing is almost assuredly already required (and has already been scheduled) due to challenges to the voters list. Second, a vote has already been ordered and Mr. Georgakakos returned to work prior to the vote and did in fact vote. His ballot is in the box, so to speak. Third, Mr. Georkakakos was not working on the Application Date doing work outside of the craft unit jurisdiction. 42. In short, the solutions considered in Ainsworth miss the elegant exception readily apparent in Mr. Georgakakos’s circumstances: simply use another date, in effect his own “snapshot day”, to determine whether his vote should be counted. A logical choice would be the date prior to his commencing leave, being out of the control of the employer and not harming the “deliberate timing” of the snapshot day of the Union (Ainsworth, supra, para. 50). [66] The Employer referred to other Canadian jurisdictions which have adopted a different approach to the date of application rule, including Saskatchewan, whose labour relations board employs a “date of application window” approach. [67] The Employer’s submissions referred to the decision of the Supreme Court of Canada in Doré. That case dealt with the role of “Charter values” in administrative decisions. [68] The Employer’s submissions on Doré and Charter values in the context of its suggestion that the Board should modify the snapshot rule included the following: 49. City Light submits that such an exception to the Snapshot Rule would result in a Rule that has greater proportionality between its goal of speed and certainty and its potential result of adverse effect discrimination. The exception would alter the Rule such that it more minimally impairs Charter rights and human rights. In sum, it would result in a more reasonable rule, as understood through the lens of the Supreme Court’s decision regarding reasonableness of administrative decisions in Doré c. Quebec, 2012 SCC 12. 50. The standard in Doré has replaced the s. 1 Charter or “Oakes test” analysis with regard to decisions of administrative bodies, such as this Board. A decision to apply a particular rule that results in adverse effect discrimination will therefore be subject to a reasonableness analysis. This analysis will ask whether the rule, policy, or practice “interferes with the relevant Charter guarantee no more than is necessary given the statutory objectives”. If the decision is disproportionately impairing of the guarantee, it is unreasonable”. 51. While the Panel in Ainsworth failed to consider tangible accommodation, exceptions, or modifications to the Snapshot Rule such that adverse effect discrimination might be limited, City Light submits that it has presented at least two reasonable approaches which are more minimally impairing of Charter rights and human rights than the current approach. The first approach, which City Lights submits is the most appropriate as it is the least onerous and maintains predictability, would be a simple accommodation to use an alternative “snapshot day” for an employee absent from work on the day of an application as a result of a protected characteristic. The second approach is suggested by the methodology used in Saskatchewan. Either approach maintains the simplicity and efficiency sought by the Snapshot Rules but do so in ways that create lesser interference with human rights and Charter guarantees. As such the Board must consider these alternatives in arriving at a reasonable decision. The Union’s Submissions [69] The Union submitted to the Board that it should follow the snapshot rule in this case, a rule which it said was longstanding and which had been affirmed by the Court of Appeal in CanMar. [70] The Union reviewed the elements of the snapshot rule which it noted had three distinct components, i.e., that on the date of application for certification an employee must be: (1) at work, (2) on site performing work in the construction industry, and (3) performing work in the relevant trade for the majority of the day. The Union argued that if an employee cannot meet one of these elements, he or she is not included for the purpose of determining union support. [71] The Union’s submissions included responses to the Employer’s “community of interest” argument and the arguments with respect to alleged infringement of Charter values and human rights. [72] The Union submitted that the Court of Appeal in CanMar had addressed and rejected the very argument that the Employer was making in this case with respect to the Board’s alleged modification of the date of application rule based on “community of interest” in D.B. MacEachern. The Union argued: [20] The Court of Appeal rejected each of these arguments in CanMar. The lower court in the CanMar judicial review had accepted these arguments, but the Court of Appeal overturned that ruling and found that “the judge’s analysis erred” on these issues. The Court of Appeal found that the Board had not modified the date of application rule in the past and that the lower court had misconstrued the relevance of community of interest to the date of application rule and misinterpreted the D.B. MacEachern case. [21] The Employer’s submission effectively ignores the decision of the Court of Appeal in CanMar, a binding decision of this province’s appellate court. The Employer’s submissions on this issue have already been decided and its arguments should therefore be dismissed. [73] In its submissions, the Union also challenged the Employer’s standing to raise the discrimination arguments (Human Rights Act and s. 15 of the Charter). It referred to the Labour Board’s decision in Gil-Son Construction Limited v. International Brotherhood of Electrical Workers, Local 625, 2009 NSLRB (“Gil-Son”). In Gil-Son the employer sought to assert the Charter right of its employees to freedom of association. The Board determined that the employer lacked standing to argue that issue. [74] On the merits of the discrimination allegation, the Union argued that the Act did not apply to the Board’s exercise of discretion under the Trade Union Act, since the matter did not fall within s.5(1), which prohibits discrimination in respect of enumerated activities such as employment, provision of services, and membership in an employee association. The Union argued that even if the Human Rights Act applied, the date of application rule was not discriminatory. [75] The Union relied on the Court of Appeal’s decision in Canadian Elevator Industry Welfare Trust Fund v. Skinner, 2018 NSCA 31 (N.S.C.A.) which set out the requirements necessary to establish adverse effect discrimination under the Human Rights Act. The Union submitted: 43. The Human Rights Act defines discrimination as a distinction “based on” a protected characteristic – in this case religion, ethnic origin and family status. To find prima facie discrimination, Mr. Georgakakos’ religion, ethnic origin or family status would have to be one of the reasons for the adverse treatment. Not all distinctions are legally discriminating. 44. The date of application rule is not discriminatory because the distinction it makes is not based on any enumerated ground. It is a distinction based on whether someone is at work or not. Excluding Mr. Georgokakos’ ballot from the vote does not differentiate him from others or different (or no) religions, ethnic backgrounds, or parent-child relationships. No person absent on bereavement leave or for any other reasons would be counted. The Board’s date of application rule is therefore not discriminatory. 45. The Employer alleges that the date of application rule results in adverse effect discrimination. The Court of Appeal recently reviewed the test for adverse effect discrimination in [Skinner]. The Court reviewed the test from Bombardier and British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (Meiorin), as follows: In Meiorin, an apparently neutral aerobic standard was applied to all those wanting to become forest fighters. Ms. Meiorin proved that most women could not meet this standard, therefore, she established discrimination on a prohibited ground – sex – so that the aerobic standard was prima facie discriminatory (Meiorin, para. 69). 46. The Court of Appeal found that the benefit plan in Skinner did not discriminate by excluding coverage for medical cannabis. Although Mr. Skinner as an individual required the drug for a disability, the distinction as to what was or was not covered was not based on disability. The distinction was based on which drugs were approved by Health Canada. The Court held that to find adverse effect discrimination, there must be a distinction applicable to persons in the enumerated group generally: Mr. Skinner and the Board do not here focus on non-consideration or under-consideration of the Trustees’ policy on disability persons or person suffering from chronic pain, but on him. The equivalent Meiorin comparison would be a failure by Ms. Meiorin to meet an aerobic standard that most women would meet. In other words, the standard would not take into account her “particular needs”. But that is not the test. Ms. Meiorin needed to establish that most women could not meet the aerobic standards. Had she not done so, not discrimination would have been made out because her failure to meet the standard would have been personal to her and not linked to her membership in an enumerated group. So here, there adverse effect on Mr. Skinner of non-coverage of medical marijuana is not a result of his membership in a protected class of disabled persons suffering chronic pain. The disadvantage arises because the drugs available to the Plan beneficiaries with his condition are not effective for him personally. 47. Applying the reasoning in Skinner to this case, the Employer would have to show non-consideration or under-consideration of the date of application rule on persons of the Greek Orthodox religion, persons of Greek ancestry or persons in a parent-child relationship. The Employer would have to show that Mr. Georgakakos was disadvantaged by the date of application rule in a way that employees of other religions, ethnic backgrounds or family status are not. The Employer has not shown this. The claim of adverse effect discrimination has not been made out. [76] In its submissions to the Board, the Union cited and reviewed the decision of the Ontario Labour Board in Megatech Electrical Ltd., [1999] OLRB Rep 257 (Ont. L.R.B.) (“Megatech”). In Megatech, the employer argued that the date of application rule discrimination against an employee who was not at work on the day of application because he was off work disabled. The Employer in the within case submitted to the Board that the employer in Megatech relied on a “but for” test for discrimination, i.e., that “but for” the employee’s disability, he would have been off work on the date of application and entitled to vote. The Board in Megatech rejected that test and argument. In its submissions to the Board in the within case, the Union quoted the following passage from Megatech: 78. On an application for certification the Board does not speculate about who “might have been” “in/doing the work of” the bargaining unit, “but for” a myriad of eventualities: illness, weather traffic, vacation, a doctor’s or dentist’s appointment, work flow problems, shifting work assignments, a shortage of materials, failure by another trade to complete the necessary preparations, malfunctioning equipment, an unexpected strike or picketing affecting that site, etc. Nor, for able-bodies employees, does the Board infer their presence in the bargaining unit from the fact of employment on some date or dates, or from the fact that they were qualified journeymen in the target trade, or from the fact that there was work to be done that day. The Board simply asks whether, as a fact, a particular worker was present on the construction site doing bargaining unit work. The Board looks at who was actually working and what they were doing – just as an employer does when calculating an employee’s wages for hours worked on a particular day. [77] The Union also noted in its submissions that the Court of Appeal’s decision in CanMar had been followed by the Ontario Labour Relations Board in Labourers’ International Union of North America, Ontario Provincial District Council v. Govan Brown & Associates Limited Responding Party v. Paul Power, 2018 CanLII 27199 (ON LRB) (“Govan Brown”). The Union submitted that the Ontario Board in Govan Brown upheld the date of application rule and noted that the approach was tailored to meet the particular needs of the construction industry and had been used in Ontario “for more than half a century”. [78] The Union argued that the date of application rule did not discriminate under the Human Rights Act and there was no discrimination under s. 15 of the Charter. Therefore, it said, since the balancing required under Doré/Loyola only comes into play if there is a Charter violation, there was no need for the Board to conduct any balancing exercise. The Union further argued that even if the Doré/Loyola balancing test was applied, the result would be the same as in CanMar, i.e., that the date of application rule’s bright line test, without exceptions, struck an appropriate balance given the rule’s purpose in promoting freedom of association rights through collective bargaining. The Union submitted as follows: 61. The Court [in CanMar] concluded that the date of application rule struck a proportionate balance in light of the purpose of the Act, and that it “conforms to the wording, context and scheme of the Trade Union Act, and the objective of the Legislature.” The Court held that [at para. 136]: A known empirical standard to measure union support is a component of the robust and effective system of collective bargaining in the construction industry that is contemplated by both the Charter’s values under 2(d), and the Legislature’s objective with Part II. The Board’s date of application rule proportionately balances those values under Doré and Loyola. The Employer’s Reply Submissions [79] The Employer argued that the Court of Appeal in CanMar had found that the date of application rule was reasonable, not correct, and this meant that it was not the only permissible policy or practice. The Employer submitted, “The Snapshot Rule might have been ‘permissible policy or practice’ in CanMar, on a deferential standard, in the context of two employees scheduled for days off on the date of application. However, this does not make the Rule an inherently and universally reasonable practice in itself”. [80] In reply to the Union’s argument that the Human Rights Act does not apply to the Board’s exercise of its discretion under the Trade Union Act, the Employer asserted that s. 5(1)(g) of the Human Rights Act prohibited discrimination in respect of (g) “membership in a professional association, business or trade association, employer’s association or employee’s organization”. The Employer submitted that an “employees’ organization” includes a trade union so that the Act prohibited the Labour Board from discriminating against Mr. Georgakakos in relation to membership in the Union. [81] The Employer also submitted that “the Board cannot interpret the Trade Union Act in a way that contravenes the Charter and Human Rights Act”. [82] The Employer argued that Ainsworth and Megatech suffered from “frailty” because “they failed to consider whether a more minimally impairing rule” was available, such as the ones being proposed by the Employer. [83] Finally, the Employer argued that the Doré/Loyola analysis conducted by Justice Fichaud in CanMar was not applicable to this case, since it raised a s. 2(d) Charter issue rather than a s. 15 Charter issue. The Employer argued as follows: 36. In fact, the Union’s submissions have not considered whether the Board must adopt a more minimally impairing standard as under a proportionality analysis. While in CanMar the Court found the Snapshot Rule to be in balance with the Section 2(b) [sic] Charter rights of employees, it was not called upon to undertake such an analysis with regard to Section 15 rights. A rule or policy may be in balance with one Charter right while being disproportionate with another. In this motion, City Light has identified a more proportionate standard – a modified Snapshot Rule – which is less impairing on Section 15 Charter rights. The Board should undertake a proportionality analysis to determine if an exception to the Rule is now required. The Intervenor’s Reply Submissions [84] Mr. Georgakakos’ reply submissions adopted the Employer’s argument that his rights under the Charter and the Human Rights Act had been violated. He also provided detail about his bereavement leave as follows: My father lived alone in Gytheio, Laconia Greece. Upon being notified of his sudden and unexpected passing at the age of 59, my brother and I had to travel to our father’s ancestral country immediately and make the necessary arrangement for his funeral according to our Greek Orthodox religion and ethnic beliefs. There is a very defined process we must follow in our faith when a loved one passes away. The immediate family must plan for a wake the night before the funeral, the funeral service, the burial and the funeral luncheon, also known as the mercy meal. In this case as we had travelled, we had to remain in Greece to be present for the nine-day burial ceremony after our father’s death. Upon completing our religious responsibilities, we immediately returned to Canada. Once again, I must stress that I was not absent from work on the date of application by choice. I had no option but to be absent as per my traditions of the Greek Orthodox faith. So therefore in conclusion, I believe that I have discriminated against and my rights violated under the Canadian Charter of Rights and Freedoms and the Nova Scotia Human Rights Act on the grounds of religion, ethnicity and family status (parent-child relationship) and subsequently, but vote in this matter should be included as a dedicated and ongoing employee fo City Light Electric Ltd. The Decision [85] The decision of the Board consists of twelve and a half pages. It is organized under the following headings: (a) Background (paras. 1 - 3) (b) Submissions (paras. 4 - 22) (i) The Intervenor (para. 4) (ii) The Employer (paras. 5 - 9) (iii) The Union (paras. 10 – 17) (iv) Intervenor’s Reply (para. 18) (v) Employer’s Reply (paras. 19-22) (c) Analysis and Conclusion (paras. 23 - 38) [86] Prior decisions of the Board, as well as the decision of the Court of Appeal in CanMar constitute integral parts of the decision. The Employer’s Community of Interest Argument [87] The Board considered the Employer’s community of interest argument. [88] At para. 23, the Board refers to the Employer’s argument that the “community of interest” factor in s. 25(14) of the Act “trumps” the snapshot rule. As is evident from this Court’s review of the Employer’s submissions to the Board, it argued that in other decisions, i.e. Pearo Brothers, M & Buddy Company and D.B. MacEachern the Board had excluded individual employees based on community of interest, despite performing work in the trade on the date of application. The Employer argued before the Board that where the snapshot rule has been modified or an exception has been created to exclude employees on the basis of lack of community of interest, it is open to the Board to modify the rule or create an exception to accommodate an employee where community of interest is established and there is a pressing reason to do so. [89] The Board in its decision noted at para. 24 that that same argument was made to, and rejected by, the Court of Appeal in CanMar: [24] . . . In overturning the judicial review decision, the Court analyzed the background to the different framework for certification in the construction industry dating back to the 1970s and prior: [83] Under Part II, the Board’s appraisal of “community of interest” is more attenuated than for a unit under Part I. The reason is that construction bargaining units are organized by craft over a geographic area, instead of Part I’s shop-centric units that list job descriptions. Under Part I, those job descriptions are analyzed for s. 25(14)’s community of interest factors. Under Part II, generally the craft embodies the community of interest. Electricians are in a craft unit represented by the International Brotherhood of Electrical Workers, carpenters by the International Brotherhood of Carpenters and Joiners, and so on. In CanMar’s case, the labourers are in a craft unit represented by the Labourers International Union of North America. As Justice Cromwell said in Construction and Allied Union, Local 154, quoting the Panel, the fourteen craft units, represented by their craft unions “occupy the field” under Part II. [84] Consequently under Part II, usually the issue isn’t the definition of “community of interest” per se. Rather it is whether the employee works in the craft of the proposed unit. Crafts may overlap, or a work assignment may straddle the boundary sufficiently to generate debate. The employee’s work may change as the project’s schedule progresses, or as the he moves from one project to another. One day an employee may work in one craft unit, and the next in another Part II unit. Or his assignment may turn to work that is not “construction”, and would default either to a Part I unit or to unrepresented status. He may work construction at another job site for his employer outside the geographical unit of his certified craft. All this while he remains employed. Or he may be laid off after his project, to be rehired for the next one sometime later. . . . [86] Simply put, an employee’s place in a particular construction unit, day to day, isn’t foreordained in the abstract merely by s. 25(14)’s “community of interest” criteria. It also depends on his site work each day. Section 92(c) of the Trade Union Act reflects this feature by defining “construction industry” as “on-site constructing, …”. [87] This brings us to the Board’s assessment of representation. Section 95(3)(b) says the Board “may” certify. The statutory discretion enables the Board to apply a practice that reasonably emanates from the words, context, scheme and objectives of Part II. [88] Under s. 95(3), the Board determines the union’s percentage of support within the appropriate unit. Whether an employee is in the labourers’ unit of the “construction industry”, turns on whether he performs “on-site” labourers work, as directed by s. 92(c). Hence the Board’s insistence that there be evidence of on site labourers’ work by employees whose wishes are to be counted on an application for a labourers’ craft unit. [89] The judge was of the view that the Board substituted the date of application rule for “community of interest”. With respect, this misinterprets the Board’s reasons. The Board (para. 28) acknowledged that, for any labourers’ work, Messrs. Lopez and Panteleios had community of interest with the other labourers. Nobody questioned that, for their future site work as labourers, Messrs. Lopez and Panteleios would be in the labourers unit for collective bargaining. The Board did not, as the judge said (para. 49), “avoid” community of interest. [90] Rather, the Board held there was a further aspect to it – namely the connection between the employee and the “on-site” work that defines “construction industry”. The determination of the ratio of support under section 95(3) assumes an arithmetic certainty at a moment in time – i.e. a snapshot. Consequently, the Board, in a series of decisions spanning forty years, has developed a policy that achieves certainty. The “date of application rule” means that, on the day of the application for certification, the employee must be “on site”, as required by the Trade Union Act’s definition of “construction industry”, and most of his site work that day must be in the craft or trade of the proposed unit. [90] The Board also noted (para. 25), that the Court of Appeal in CanMar stated that it had previously upheld the date of application rule in Granite Environmental Inc. v. Nova Scotia (Labour Relations Board), 2005 NSCA 141 (N.S.C.A.) (“Granite Environmental”) and in Egg Films v. Nova Scotia (Labour Board), 2014 NSCA 33 (N.S.C.A.) (“Egg Films”), each on judicial review. [91] The Board then referred (para. 26) to the fact that the Court of Appeal in CanMar had made the following comments on the “community of interest” argument: [98] The Legislature enacted Part II to inject certainty and efficiency into the previously chaotic labour relations of the construction industry. The Board has determined that an effective process under s. 95(3) requires a bright line test – an empirical standard, known in advance. The process cannot operate effectively if the rule that defines the constituency vacillates from case to case, and is only ascertained ad hoc after each litigated Board hearing. The Board’s formulation was chosen from among alternatives, each reasonable on its own. That choice involved “policy considerations that we presume the legislature desired the administrative decision maker - not the courts – to make”: McLean, para. 33. [99] The Trade Union Act is a roadmap for a tangled landscape. Board policies are needed to inform the broad statutory principles that govern labour relations. Rayner, Canadian Collective Bargaining Law, pp. 106-7 explains: Canadian labour relations statutes deal with all aspects of collective bargaining from union certification to enforcement of the collective agreement, from adjudication of alleged unfair labour practices to regulation of industrial action, from supervision of bargaining to enforcement of the union’s duty of fair representation. Because of their scope, labour statutes need to be skeletal in form. Otherwise, the parties would soon be ensnared in a morass of regulation. In addition, the philosophy behind the statutes is based on a free market concept. The legislation sets the rules, but the participants play the game with the government (in this context, the labour board) as referee. This philosophy dictates a statute that is skeletal and easily understood. However, a statute that is designed as a legislative framework within which the parties operate dictates that the statutory tribunal that is charged with its administration develop its own rules, policies and procedures. … [100] And so Nova Scotia’s Board has its date of application rule. I respectfully disagree with the judge that the Board’s use of the rule unreasonably offended the principle of “community of interest” in s. 25(14). [92] The Board noted that the Court of Appeal in CanMar specifically distinguished the Board’s decision in D.B. MacEachern in that the work term student was on site on the date of application, but did not share community of interests with members of the union. The date of application rule was not in issue. [93] The Board stated at para. 28 of the Decision that no one disputed that Mr. Georgakakos has a community of interest with the proposed bargaining unit. “However, he was not at work on the date of the application, and the case law supports the conclusion that his vote should not be counted …” (para. 28). The Board rejected the Employer’s argument that the community of interest factor “trumps” the Snapshot Rule. The Charter Values Argument [94] As noted previously, in its submissions to the Board the Employer argued that Ainsworth was wrongly decided and was bad law. [95] The Board referred to the then Construction Panel’s decision in Ainsworth at paragraph 36. It referred to paragraph 52 of Ainsworth, stating that both the Board and the Court of Appeal in CanMar had quoted this passage with approval. [96] The Court of Appeal in CanMar did refer to the Ainsworth decision (para. 106), but did so in relation to the effective date of certification following a s.96 hearing, not in relation to the Panel’s finding that the application of the date of application rule to Mr. Creighton’s circumstance was not discriminatory. [97] The Board then considered the snapshot rule in light of Charter values and Doré. In doing so, it returned to the Court of Appeal’s decision in CanMar: [30] The Court in CanMar considered the “snapshot rule” in light of the applicability of the Doré principles and Charter values, and the proportionality argument: [122] Justice Abella’s decision for the Court in Doré and her reasons (for four of seven justices) in Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII), [2015] 1 S.C.R. 613, synthesized the proportionality test from R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103 with the reasonableness standard of review from Dunsmuir v. New Brunswick, 2008 SCC 9 (CanLII), [2008] 1 S.C.R. 190. Generally, if the exercise of an administrative discretion further to a statute – i.e. a decision that would attract reasonableness under Dunsmuir – engages the Charter’s protections, then the court determines whether the decision-maker has proportionately balanced the Charter values with the statutory objectives. If the balance is proportionate, the decision is upheld as reasonable. If not, the decision is unreasonable. [123] Justice Abella’s reasons in Loyola summarize the test: [4] Under Doré, where a discretionary administrative decision engages the protections enumerated in the Charter – both the Charter’s guarantees and the foundational values they reflect – the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that she or he is obliged to pursue. [124] In Bonitto v. Halifax Regional School Board, 2015 NSCA 80, paras. 38-50, 63-89, leave to appeal refused February 18, 2016 (S.C.C.), this Court applied Doré and Loyola to a discretionary administrative decision that engaged freedom of religion. [125] First, under Doré/Loyola, are the Charter values. What are the current bearings of labour relations under s. 2(d) of the Charter? Over the past two decades, the trajectory has veered toward the sustenance of collective bargaining. [98] The Board noted the Court of Appeal’s conclusion in CanMar that: … the Charter values that underlie s. 2(d) promote a robust and effective system of collective bargaining under the supervision of an independent labour relations board. (para. 132) [99] The Board noted that the Court of Appeal in CanMar then referred to the statutory objectives of the Act, and the proportionality between the Charter values and statutory objectives. The Board cited the Court’s conclusion: …This [date of application] rule defines the appropriate unit for the purposes of measuring union support. As I have explained, that rule conforms to the wording, context and scheme of the Trade Union Act, and the objective of the Legislature. A known empirical standard to measure union support is a component of the robust and effective system of collective bargaining in the construction industry that is contemplated by both the Charter’s values under s. 2(d), and the Legislature’s objective with Part II. The Board’s date of application rule proportionately balances those values and objectives under Doré and Loyola. (para. 136) [100] The Board noted that this analysis was accepted by the Ontario Labour Board in LIUNA, Ontario Provincial District Council v. Govan Brown & Associates Ltd., and Paul Power, 2018 CarswellOnt 5177 (“Govan Brown”). [101] The Board did not quote from the decision in Govan Brown, but as noted previously, it was argued by the Union in its submissions and a copy of the decision was included with the Union’s Book of Authorities. [102] In Govan Brown, Board Chair Fishbein provided a lengthy and instructive analysis of the date of application rule, including its history and purpose. [103] The Union in Govan Brown filed an application for certification on a Sunday, which happened to fall on Father’s Day when there were only two employees performing bargaining unit work as labourers. The Construction Board allowed the application for certification. [104] Among the objections to the certification raised by Govan Brown and certain objecting employees was that the application of the date of application rule violated Charter principles. [105] Chair Fishbein rejected this argument, stating: 46. Notwithstanding the Board jurisprudence, Govan Brown and the objecting employees say, use of the date of application test has all changed under, and must yield to, the Charter and the recent evolution of Charter law by the Supreme Court of Canada and in particular with respect to freedom of association culminating in Saskatchewan Federation of Labour, 2015 SCC 4 (CanLII), [2015] 1 SCR 245. They submit that the date of application test has not undergone any rigorous (or “proper”, to use their words) Charter scrutiny since these developments – a scrutiny they say it cannot withstand. Leaving aside whether that statement is technically accurate or not (see, for example, Looby, supra, or CanMar Contracting Ltd., 2016 NSCA 40, discussed later), Govan Brown and the objecting employees were given full and ample opportunity to make all of their submissions. [106] Board Chair Fishbein also considered the argument of the employer and the objecting employees that another, more flexible test, than the date of application rule, which they claimed violated Charter protected rights should be employed: [141] …a more expansive undefined test, neither clear nor universal, but to be ascertained or developed in the particular circumstances of each particular construction certification case, can only inevitably exacerbate the already not insignificant problems the Board encounters in achieving its statutory objective of expeditious resolution. [142] Moreover, Govan Brown and the objecting employees do not really deny that any other test the Board adopts will necessarily be more complicated or more difficult to discern or apply, but say that the date of application test cannot survive because it violates the freedom of expression and freedom of association of employees not at work on the date of application. But any exercise in line drawing (determining who counts in determining the numerator and denominator in order to ascertain the majority status of the union and its entitlement to certification) will inevitably exclude those outside the line, however drawn. [143] … by definition, some employees must be excluded or not counted or considered in any test, particularly in the construction industry… [147] …How can any test used by the Board not inevitably fall into some of these problems, or put another way, not involve the same Charter issues Govan Brown and the objecting employees seek to invoke here? [150] In the end, even assuming some infringement of Charter protected rights (and I have previously concluded there is none), having engaged in the balancing required of me by Doré and Loyola for all of the reasons I have reviewed above, I still find the date of application test in the construction industry to be appropriate. Having balanced the statutory objectives of the Act against the infringement of Charter protections alleged by Govan Brown and the objecting employees, I find that there is no system that the Board could devise or attempt, where it still could not be argued, on the same basis as Govan Brown and the objecting employees here assert, that these Charter values are infringed to some extent. In my view, for all the reasons expressed in the Board cases referred to earlier (see Smith Construction, supra, at para. 12), that is outweighed by the statutory objectives here for a neutral, clear, readily comprehended, consistently applied and therefore more expeditious resolution of certification applications – which itself is now a Charter value i.e. “access to a process of meaningful collective bargaining”. As noted in Smiths Construction (supra, at para. 17), although not perfect, it is, in my view, better than the alternatives. (emphasis added) [107] The Board addressed the Employer’s argument that the CanMar proportionality analysis was with respect to section 2(d) of the Charter, not s. 15 and therefore was not applicable. The Board reasoned as follows: [33] It is true that the analysis in CanMar is based on the protections in Section 2(d) of the Charter, and not the equality provisions. However, the Court’s analysis accepts the appropriate balancing principles which underlie the Trade Union Act, and inform its policies and decisions. At paragraph 133, the Court set out the statutory objectives underlying the date of application rule, in the context of Charter values: 1. The Board’s decision not to consider the views of Messrs. Lopez and Panteleios applied a Board rule that only workers who, on the date of application, were performing unit work on site should be counted. The date of application rule was long-established in Board jurisprudence and well-known in the industry. 2. The rule’s reliance on “site” work emanates explicitly from the Trade Union Act’s definition of “construction industry”. That definition is the heart of Part II – Construction Industry Labour Relations, and is the premise for the Board’s date of application rule. 3. The reference to “site” work has a purpose. Construction, with its craft system and project work over geographic units, involves more variable job functions than does a permanent job description in an employer-centric shop unit under Part I. The criterion of “site work” connects the construction worker to a particular unit. 4. The fractionalization that derives from craft-based units means the construction industry, if unregulated, would be prone to disruptive jurisdictional disputes. The concern is not theoretical. Before the enactment of Part II, that fractionalization caused industrial havoc in this Province. The Legislature responded by enacting Part II with the object of promoting certainty and efficiency in the resolution of differences, including certification disputes, with the constructions industry. 5. The Board’s date of application rule promotes certainty to encourage an efficient decision on certification. The Board’s use of such rules has been approved by this Court, and is consistent with labour board practice elsewhere. [108] The Board noted that that was the context in which the Court of Appeal in CanMar concluded that the date of application rule did not offend Charter principles. It cited from para. 136 of CanMar where Justice Fichaud stated: A known empirical standard to measure union support is a component of the robust and effective system of collective bargaining in the construction industry that is contemplated by both the Charter’s values under 2(d), and the Legislature’s objective with Part II. The Board’s date of application rule proportionately balances those values under Doré and Loyola. [109] The Board concluded on the Charter values argument as follows: The Nova Scotia Court of Appeal has strongly endorsed the premise that the “snapshot rule” proportionately balances the values under section 2 of the Charter and the Doré principles. The Board does not accept that this analysis in CanMar is not applicable because we are dealing here with equality provisions. The “snapshot rule”, by taking a bright line approach, has long been accepted for appropriate reasons, because of the nature to the construction industry, and the goals and objectives of the statutory scheme. It excludes all workers who are not on site on the date of application, doing the work of the trade for the majority of the day, regardless of the reason. The Board is satisfied that the balance it has made in applying the snapshot rule in this way is appropriate and proportional. The Discrimination Argument [110] The Board first referred to, and then quoted from the decision of the Construction panel in Ainsworth. It stated: [36] The Board dealt with a discrimination argument in relation to an employee who was not at work on the date of application because of a workplace injury, in Ainsworth. The Vice-Chair reviewed the statute and the rationale for the date of application rule. He recognized that there could be various reasons why an employee could not be at work on the day the application was filed, including “vacation, observing a religious holiday, not regularly schedule to work that day, sick, injured, taking advantage of some other type of leave such as bereavement or medical”. He concluded that to include an employee who was not at work on the date of application, because of disability or because of some other protected ground would unduly complicate the process: 52. A different system might ask what employees have worked, or might have worked, in the applicable unit within a larger, defined period of time. Such an inquiry might need to look at employees who were disabled, or otherwise occupied, in the applicable time frame. It would almost certainly complicate the process, virtually guaranteeing that every application for certification under Part II would end up in a hearing requiring the Panel to determine who is, and is not, within the bargaining unit. As noted, we have adopted the snapshot approach in the interests of simplicity and certainty. [111] The Board stated that para. 52 of Ainsworth had been quoted with approval by both the Board and the Court of Appeal in CanMar. In fact, the Court of Appeal did set out para. 52 in its decision, but it was in the context of reviewing the submissions of the union. [112] The Board went on to note that a similar approach had been followed by the Ontario Labour Board in Megatech. [113] The Board quoted extensively from Megatech as follows: 37. ... A similar approach was taken by the Ontario Board in Megatech Electrical Ltd. (supra). In that case, the Board held that to include an employee absent due to a disability (and by extension, absent because of a protected characteristic) would be to do something for that employee that the Board does not do for any other employee: 77. In construction industry certification applications, there is no assumption that because someone is able-bodied and willing to work for a particular employer, s/he will be at work for the employer on any particular day, or will be doing any particular work assignment. Indeed, in the construction industry, the Board makes no assumptions about such “connection” or work assignment at all. Nor does the Board concern itself with “why” a particular worker – even a so-called “steady Eddy”, who works quite regularly – might not have been at work on the application date. And the fact that someone is an “employee” on a particular date, or that there was work available, does not, by itself, mean that a particular individual is “in the bargaining unit” or “counts” for the process of certification. 78. On an application for certification, the Board does not speculate about who “might have been” “in/doing the work of” the bargaining unit, “but for a myriad of eventualities: illness, weather, traffic, vacation, a doctor’s or dentist’s appointment, work flow problems, shifting work assignments, a shortage of materials, failure by another trade to complete necessary preparations, malfunctioning equipment, an unexpected strike or picketing affecting that site, etc. Nor, for able-bodied employees, does the Board infer their presence in the bargaining unit from the fact of employment on some date or dates, or from the fact that they were qualified journeymen in the target trade, or from the fact that there was work to be done that day. The Board simply asks whether, as a fact, a particular worker was present on the construction site doing bargaining unit work. The Board looks at who was actually working and what they were doing – just as an employer does when calculating an employee’s wages for hours worked on a particular day. [114] The Board concluded: The Intervenor was not prevented from attending his father’s funeral and suffered no adverse consequences from his absence from work. The fact that his absence may have been based on certain protected criteria does not outweigh the theoretical and historical necessity for the bright line approach that was strongly endorsed in CanMar. To rule otherwise would have significant labour relations implications, changing the rule not only in this situation, but in others where an employee was absent due to other protected grounds, such as disability, and would derogate from the certainty and efficiency of the Part II certification provisions, which have been in place for many years. For these reasons, the Intervenor’s motion is denied. (emphasis added) Analysis – Was the Board’s Decision Unreasonable? [115] Following that review of the statutory regime, the submissions of the parties, the Court of Appeal’s decision in CanMar, and the within Board’s decision, I return to the question of whether the Board’s decision not to deviate from the snapshot rule in the case of Mr. Georgakakos was unreasonable. The Charter Values Argument [116] It is to be noted that in its submissions to the Board, the Intervenor made no arguments on Charter values. The Employer referenced Doré in two paragraphs in its submissions. The Intervenor submitted a fulsome Doré analysis to this Court, one not before the Board. [117] In any event, this Court finds that the Board did address the Charter values argument. It referred extensively to the Court of Appeal’s decision in CanMar and Justice Fichaud’s Doré/Loyola analysis. The Board found that the bright line test, for the reasons stated in CanMar, was an appropriate balance against Charter rights. [118] The Employer argued before this Court that the Board did not conduct a first-step Doré analysis, i.e. that it did not consider Mr. Georgakakos’ individual circumstances. This argument is without merit. The Board did consider Mr. Georgakakos’ individual circumstances. The Board clearly understood that Mr. Georgakakos was off work on the date of application because he was attending his father’s funeral in Greece. The Board was aware that the Employer raised the protected grounds of religion, family and ethnic background, as well as s. 15 of the Charter. [119] A major focus of the Intervenor’s argument before this Court was that the Board unreasonably failed to balance Mr. Georgakakos’ Charter rights (s.15) against the date of application rule, contrary to the requirements of the Doré/Loyola analysis and that the Board’s decision is unreasonable because it failed to give effect to the Human Rights Act or conduct a prima facie discrimination analysis. [120] The argument advanced by the Employer, that CanMar only dealt with s.2(d) Charter rights and not s.15 rights, and accordingly that the Board did not balance Mr. Georgakakos’ Charter rights requires a careful look at Justice Fichaud’s reasoning in CanMar. [121] It is to be recalled that the Ainsworth decision was argued before the motions judge in CanMar. The Labour Board below also referred to it. The Court of Appeal in CanMar should be taken to have been well aware of the decision in Ainsworth. Indeed the motions judge in CanMar quoted from paras. 50-52 of that decision. [122] Yet, the Court of Appeal, as stated by the Board in this case, “strongly endorsed” the date of application rule as a bright line test. Although s.15 Charter rights were not before it, the Court of Appeal could have said, but did not, that its decision should only be read as ruling on the date of application rule in relation to alleged breaches of s.2(d). It did not do so. The Court of Appeal did not qualify its endorsement of the snapshot rule in any way by saying something like, “further to other cases involving other Charter rights this bright line test proportionately balances s.2(d) rights”, or words to that effect. [123] The Court of Appeal did not carve out any exceptions at all to its endorsement of the snapshot rule. [124] The Court of Appeal could have said, as argued before this Court, that Ainsworth was bad law. It did not. [125] I conclude that it was reasonable for the Board to rely upon Ainsworth. [126] Further, it is noted that Justice Fichaud stated that the values of human dignity, equality and liberty, were incorporated into s.2(d), and were all balanced with the snapshot rule. This Court finds that the Board conducted any necessary robust Doré/Loyola analysis by relying upon the analysis in CanMar. [127] In my view, it was therefore reasonable for the Board to say that it did not accept that the CanMar Doré/Loyola analysis of Justice Fichaud, was not applicable because it was dealing with the equality provision of the Charter. The Community of Interest Argument [128] The Board received extensive submissions from the Employer as to why a different method, other than the date of application rule, would better balance the objectives of the Act with Charter values and the Human Rights Act. [129] It was reasonable for the Board to note that the same argument advocating for a modification of the date of application rule, had been specifically rejected by the Court of Appeal in CanMar. Justice Fichaud stated in CanMar: 98…The process cannot operate effectively if the rule that defines the constituency vacillates from case to case, and is only ascertained ad hoc after each litigated Board hearing. The Board’s formulation was chosen from among alternatives, each reasonable on its own. That choice involved “policy considerations that we presume the legislature desired the administrative decision maker - not the courts – to make”: McLean, para. 33. (McLean v. British Columbia (Securities Commission), [2013], 3 S.C.R. 895 (S.C.C.) (emphasis added) [130] The argument that the Board had “modified” the date of application rule in D.B. MacEachern must be taken in context. In D.B. MacEachern, at issue was the circumstances of a work-term student who had been working as a “pre-apprentice electrician” on the employer’s construction site on the date of application. The Board determined that the student, while an “employee” for purposes of Part II of the Act, did not share a community of interest with the other members of the proposed bargaining unit. [131] Two of the three Labour Board decisions referred to the Board and to this Court, Pearo Brothers and M & Buddy Company, dealt with an employee family member of the employer who was found not to share a community of interest with members of the proposed bargaining unit. It was in that context that they were excluded. [132] These two cases (Pearo Brothers and M & Buddy Company) are an obvious rarity in the jurisprudence of the Board spanning a forty-year history of applying the date of application rule. It was reasonable for the Board to not rely on these decisions as precedents supporting a modification of the rule to accommodate employees absent on the date of application, even those with good reasons for being absent, such as Mr. Georgakakos. The Adverse Effect Discrimination Argument [133] The Board relied upon Ainsworth and Megatech in dismissing the discrimination allegation against the date of application rule. [134] The Board had before it the Union’s submissions which argued that Mr. Georgakakos had not been discriminated against because the date a union chooses to file an application for certification is happenstance in the sense that the application can be filed on any day of the week. For example, if the Union only filed applications on a Monday, this potentially could disproportionately affect employees who have a religious day of observance on Mondays. [135] There was no evidence before the Board that individuals of the Greek Orthodox faith were disproportionately affected by the date of application rule. [136] The Board did not articulate its acceptance of this kind of analysis or conduct a formal prima facie discrimination analysis. However, reading its reasons as a whole, it is clear that the Board found that Mr. Georgakakos had not been discriminated against by the application of the date of application rule. It referred to Ainsworth, Govan Brown and Megatech, each of which decisions contained a fulsome analysis of the intersection of protected rights and a date of application rule. Each decision rejected arguments that a date of application rule violated protected rights or Charter values. A Return to Vavilov [137] Vavilov says that the focus of a reasonableness review must be on the decision made, including both its reasoning process and outcome. [138] The Board carefully reviewed the submissions of the parties. Its decision reflects that it was alive to the arguments advanced by all parties. [139] The Board concluded that the date of application was properly balanced against Charter values and was not discriminatory. It rejected the premise that a different method of assessing union support would more properly balance Charter values and human rights. [140] This Court finds that the Board’s decision has a rational chain of analysis and is justified in relation to the factual and legal constraints. [141] I reject the Intervenor’s argument that the Board did not answer the question of why Mr. Georgakakos’ rights (s.15 Charter values) and human rights were the same as the s.2(d) rights at play in CanMar. The final paragraph of the Board’s decision answers this question. The Board, referring to Mr. Georgakakos’ absence from work to attend his father’s funeral, referred to the fact that his absence “may have been based on certain protected criteria” and went on to say that that “does not outweigh the theoretical and historical necessity for the bright line approach that was strongly endorsed in CanMar.” [142] The Board continued by stating that “to rule otherwise would change the rule not only in this situation, but in others where an employee was absent due to other protected grounds, such as disability, and would derogate from the certainty and efficiency of the Part II certification provisions, which have been in place for many years.” The Board here is clearly adopting Justice Fichaud’s statements in CanMar that the legislative process for certification under the Act could not operate effectively if the rule that defines constituency vacillates from case to case, and is only ascertained ad hoc after each litigated Board hearing. The Board forecast that altering the rule in Mr. Georgakakos’ circumstances would mean that the ad hoc hearing that was required in his case would be repeated for an employee who relied on a different protected ground, such as disability. The essence of a bright line test is that it permits no exceptions for any reason. The Board reasonably so concluded. [143] The Board’s decision was grounded in the provisions of the Act and its own jurisprudence, as well as that of Nova Scotia Courts, including the Court of Appeal in CanMar, Egg Films and Granite Environmental and decisions from the Ontario Labour Relations Board (Govan Brown and Megatech). [144] The Board was given a clear mandate by the legislature to fulfill its role to interpret the applicable law to the issues before it. [145] All of the circumstances in this case, point to the need for this Court to pay respectful, deferential attention to the Board’s decision. [146] This Court must consider the Board’s reasons in light of the history and context of the proceedings before it. If there is any shortcoming in the Board’s reasoning, this is not, I find, a failure of justification, intelligibility or transparency. [147] This Court finds that there are no shortcomings in the Board’s decision that are sufficiently serious to justify this Court setting aside a decision, which is clearly within the legislated authority of the Board, in its expertise, to make. [148] This Court finds that the Board’s decision was reasonable. None of the grounds of judicial review are made out, and the application for judicial review is dismissed. Issue 3: If the Decision is unreasonable, should it be remitted back to the Board? [149] In light of this Court’s decision that the Board’s decision was reasonable, it is unnecessary for the Court to determine whether, had the Court found the decision to be unreasonable, the matter should be remitted back to the Board for reconsideration in light of the Court’s decision, or, alternatively, the decision set aside and remitted to a different panel of the Board. [150] The Union supports the first approach, and the Intervenor and Employer, the latter. [151] It is to be remembered that the Decision was an interlocutory ruling. In my view, it would make no sense in terms of efficiency to have a different panel deal with this matter. No issues of credibility arose before the Board. The Board showed no bias or indication that it had closed its mind to the issues raised by the Intervenor and the Employer. It simply did not accept their arguments. [152] Accordingly, I would have remitted the matter back to the same Board for reconsideration in light of the Court’s decision, had I found the decision to be unreasonable. Conclusions [153] The Board’s decision not to deviate from the snapshot rule was reasonable for the reasons stated above. [154] The Board appropriately balanced Mr. Georgakakos’ Charter rights against the snapshot rule. [155] The Board found that Mr. Georgakakos had not been discriminated against by application of the snapshot rule. [156] The Union is entitled to its costs against each of the Intervenor and Employer. If the parties’ cannot agree on costs, the Court will receive the parties’ written submissions or costs within twenty (20) calendar days of this decision. Smith, J.