Grandview Civil Contractorts Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 93

Grandview Civil Contractorts Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 93 Court Supreme Court Date 2016-05-03 Citation 2016 NSSC 117 Docket Hfx 445461 Judge/Registrar/Adjudicator Duncan, Patrick J. (Honourable Justice) (SC) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Grandview Contractors Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 83 2016 NSSC 117 Date: 2016-05-03 Docket: Hfx, No. 445461 Registry: Halifax Between: Grandview Civil Contractors Limited & Gulf Operators Ltd. Applicants v. United Brotherhood of Carpenters and Joiners of America, Local 83 Respondent and Nova Scotia Labour Board Participant Revised Decision: The text of the original decision has been corrected according to the attached erratum dated May 5, 2016. Judge: The Honourable Justice Patrick J. Duncan Heard: April 25, 2016, in Halifax, Nova Scotia Counsel: Rick M. Dunlop, for the Applicants Raymond Mitchell, for the Respondent Edward Gores Q.C., for the Participant By the Court: Background [1] On June 18, 2015, the United Brotherhood of Carpenters and Joiners of America, Local 83 (hereinafter referred to as “Carpenters Union”) submitted two applications for Certification pursuant to section 95(1) of the Trade Union Act R.S.N.S. 1989 c. 475, as amended, with the Labour Board of Nova Scotia. The applications individually sought certification of the Union as the bargaining agent for a certain group of employees thought to be employed by one of Gulf Operators Ltd. or Grandview Civil Contractors Limited. [2] The Labour Board recorded receipt of the two applications on the same date being June 23, 2015. [3] The Union’s position was and is that the two applications concerned only one group of workers, and that those workers appeared to be directed in their work by Gulf, but paid by Grandview. The Union viewed the certification process as necessary to determine which of the two companies the true employer of the workers was as at the date of the applications. [4] The two applications followed parallel paths to a point, but eventually diverged resulting in the current dispute as to the next steps to take in processing the Grandview application. The Gulf Application (LB-1008) [5] Gulf received notification of the application on July 3, 2015. On July 9, 2015, it filed a Statutory Declaration (Record at Tab 33) which listed in Schedule “A” all employees eligible for the proposed unit that were employed by Gulf and who were at work on June 18, 2015. It contained two (2) names. Schedule “B”, the list of all employees not at work on June 18, 2015, was also attached but no names were listed. Filing of this Statutory Declaration was in compliance with Regulations made pursuant to the Act. [6] By order No. 2015 NSLB 123 dated July 27, 2015 (Record at Tab 12) the Board dismissed the Union’s Gulf application pursuant to section 95(3)(a) of the Trade Union Act which reads: 95 (3) When, pursuant to an application for certification under this Part by a trade union or council of trade unions, the Board has determined the unit appropriate for collective bargaining and consistent with a geographic area established by the Board, (a) if the Board is satisfied that the applicant trade union or council of trade unions has as members in good standing less than thirty-five per cent of the employees in the appropriate unit the Panel shall dismiss the application; [7] On July 31, 2015, the Union submitted a Request for Hearing pursuant to section 96(1) of the Trades Union Act seeking a review of the Order to dismiss the certification application. It was received by the Board on August 6, 2015. (Record, Tab 23). That section states: 96 (1) Where the Board issues an order dismissing an application pursuant to clause (a) or (c) of subsection (3) of Section 95 and the applicant trade union or council of trade unions requests a hearing, the Board shall hold a hearing and may revoke the order. [8] The reasons offered by the Union in support of the application for review include an allegation that the employer provided incorrect information to the Board and which led to the dismissal of the certification application. Although not stated directly the inference is that the information supplied by the employer in its Statutory Declaration was inaccurate, having regard to the employees the union sought to represent. See, Application for Certification of Gulf Operations Ltd., at paragraph 6, found in Record at Tab 32 [9] The Hearing has not been scheduled for reasons that I will discuss. Grandview Application (LB 1009) [10] The application for Certification of the employees of Grandview (Record at Tab 1, para. 6) described the proposed bargaining unit as: All employees of Grandview Civil Contractors Limited engaged as Carpenters, and Carpenters Apprentices on Mainland, Nova Scotia, but excluding all other employees, Foreman other than Working Foreman, and those equivalent to the rank of Foreman and above, officer [sic] employees, and those excluded by clauses (i) and (ii) of paragraph (e) of Section 92 of the Trade Union Act. [11] This description is identical to that contained in the application for Certification of the employees of Gulf, changing only the name of the employer. (Record at Tab 32, para. 6) [12] The nature of the work performed by employees in the proposed bargaining units and the geographic locations in which the work was being performed is identical in the two applications. (See, paragraphs 4 and 5 of the respective Applications for Certification). [13] The only thing that might distinguish the two applications (other than the employer) are the names of the employees who are members in good standing of the union, listed in Exhibit C to the applications. Whether this is the case is known only to the Union and the Board, the latter of which reviews the names as part of the evidence it considers to make a determination under section 95(2) and (3) of the Act. The names in Exhibit C are treated as confidential and are not made known to the employer. [14] Grandview received notification of the application on July 18, 2015. [15] On July 21, 2015, the company filed a Statutory Declaration (Record at Tab 6) which listed in Schedule “A” all employees of Grandview identified as subject to the application and who were at work on June 18, 2015. It contained seven (7) names. Schedule “B”, the list of all employees not at work on June 18, 2015, was also attached but no names were listed. Filing of this Statutory Declaration was made in compliance with regulations made pursuant to the Act. [16] I observe that as of July 21, 2015, the Labour Board had in its possession both applications, which included the lists of union members and the employer’s statutory declarations as to which employees were working on June 18, 2015, and which of the two companies they were said to be working for. The Board had not issued orders in either application at that point in time. [17] The Notice of Judicial Review indicates that on July 23, 2015, the Board ordered that a representation vote be conducted pursuant to section 95(3)(c) of the Act. (Record at Tab 34). That section states: (3) When, pursuant to an application for certification under this Part by a trade union or council of trade unions, the Board has determined the unit appropriate for collective bargaining and consistent with a geographic area established by the Board, …(c) if the Board is satisfied that the applicant trade union or council of trade unions has as members in good standing not less than thirty-five per cent and not more than fifty per cent of the employees in the appropriate unit, the Panel shall forthwith order that a vote be conducted among the employees in the appropriate unit to determine whether the employees select the applicant trade union or council of trade unions to be bargaining agent in their behalf. [18] The vote was held on July 30, 2015. The following day the CEO of the Labour Board sent an email to the parties seeking their “views on the inclusions and exclusions from the bargaining unit”. [19] Grandview’s counsel, Mr. Dunlop, replied by letter dated August 14, indicating that the included employees are the seven persons named in Schedule A to its Statutory Declaration filed July 21st. In the same letter, Mr. Dunlop requested that the representation vote be counted immediately. [20] Counsel for the Union, Mr. Mitchell, disagreed and sought a case management conference for not only the Grandview matter but also the Gulf case, which by this time was pending a section 96 hearing. (The section 96 review case number is LB 1033). [21] After further correspondence from the Board, counsel for the two companies set out their positions in an August 27, 2015, letter to the CEO of the Labour Board. In short, their position was that the Board is under a legal obligation to count the Grandview vote and make a determination under section 95(3)(a) or (b) to dismiss or grant the application to certify. The companies did not agree to have LB 1009 (Grandview Certification Application) and LB 1033 (Gulf Review Hearing) heard together prior to a decision as to certification in the Grandview application. If following the rendering of that decision either party filed an application to review under section 96 then counsel allowed that the two section 96 reviews could “possibly be heard together”. The Decision under review [22] A Case Management Conference was held on October 5, 2015, with Vice-Chair Susan Ashley. The purpose was to determine the procedure that the Board would follow in resolving two issues in dispute: 1. Whether to hold a hearing to determine “inclusions and exclusions” from the bargaining unit in the Grandview application; and 2. To determine whether the Grandview inclusions and exclusions hearing could be heard together with the Union’s section 96 review hearing in the Gulf application. [23] Ms. Ashley’s decision is set out in a letter of October 19, 2015, from the CEO of the Board. (Record at Tab 21). [24] After reviewing the history of the dispute and the positions of the parties, Ms. Ashley ruled: Section 95 outlines the first stage of the process of defining the appropriate bargaining unit, on the basis of geographic area, Union membership information, and the Form 17 schedules provided by the Employer. On this preliminary basis, the Board decides to grant or dismiss the application, based essentially on the information submitted, or order a vote. If there is no agreement on inclusions and exclusions, it holds a hearing to determine those questions. The Court of Appeal in C.R. Coatings accepts this ‘paper process’ as the first stage of inquiry, as is [sic] provides “a document based process to receive, review and determine the application for certification.” After having heard the argument of both parties I conclude that the two matters should be heard together as they essentially involve the same work and likely the same group of employees, as well as the same issues. This approach is consistent with the legislation and the Board’s longstanding practice. Holding two separate hearings could lead to anomalous results, and overall will provide a less efficient approach to handling these applications. It follows from this conclusion that the Grandview vote will not yet be counted. [25] The applicant companies seek an order in the nature of Certiorari, quashing this decision, and any other relief or remedy that this Court considers just in the circumstances. Issues 1. Was the decision of the Labour Board to not count the representation vote in the Grandview application and to proceed with a hearing to determine inclusions and exclusions from the bargaining unit in that application reasonable? 2. Was the decision of the Labour Board to hear the Union’s section 96(1) Trades Union Act application to review the dismissal of the Gulf Certification application together with the Board initiated hearing to determine inclusions and exclusions in the Grandview Certification application reasonable? Standard of Review [26] The parties agree that the standard of review is one of “reasonableness”. [27] It is useful to review some of the guidance offered by appellate courts in assessing reasonableness in the context of a specialized administrative tribunal. [28] The Nova Scotia Court of Appeal in Casino Nova Scotia/Casino Nouvelle Ecosse v. Nova Scotia (Labour Relations Board), 2009 NSCA 4 conducted an analysis of a Labour Board decision where the employer appealed the certification of a certain bargaining unit. Fichaud J.A. wrote: [29] In applying reasonableness, the court examines the tribunal's decision, first for process to identify a justifiable, intelligible and transparent reasoning path to the tribunal's conclusion, then second and substantively to determine whether the tribunal's conclusion lies within the range of acceptable outcomes. [30] … “Intelligibility” and “justification” are not correctness stowaways crouching in the reasonableness standard. Justification, transparency and intelligibility relate to process (Dunsmuir, 47). They mean that the reviewing court can understand why the tribunal made its decision, and that the tribunal’s reasons afford the raw material for the reviewing court to perform its second function of assessing whether or not the Board's conclusion inhabits the range of acceptable outcomes. Nova Scotia (Director of Assessment) v. Wolfson, 2008 NSCA 120, 36. [31] Under the second step, the court assesses the outcome’s acceptability, in respect of the facts and law, through the lens of deference to the tribunal’s “expertise or field sensitivity to the imperatives or nuances of the legislative regime.” This respects the legislators’ decision to leave certain choices within the tribunal’s ambit, constrained by the boundary of reasonableness. Dunsmuir, 47- 49; Lake, 41; PANS Pension Plan, ¶ 63; Nova Scotia v. Wolfson, 34. [29] In Egg Films Inc. v. Nova Scotia (Labour Board) 2014 NSCA 33, Fichaud J.A. again writing the decision of the court states: 26 Reasonableness is neither the mechanical acclamation of the tribunal's conclusion nor a euphemism for the reviewing court to impose its own view. The court respects the Legislature's choice of the decision maker by analysing that tribunal's reasons to determine whether the result, factually and legally, occupies the range of reasonable outcomes. The question for the court isn't -- What does the judge think is correct or preferable? The question is -- Was the tribunal's conclusion reasonable? If there are several reasonably permissible outcomes the tribunal, not the court, chooses among them. If there is only one and the tribunal's conclusion isn't it, the decision is set aside. The use of reasonableness, instead of correctness, generally has bite when the governing statute is ambiguous, authorizes the tribunal to exercise discretion, or invites the tribunal to weigh policy. Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, paras 50-51. Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, paras 11-17. McLean v. British Columbia (Securities Commission), 2013 SCC 67, paras 20, 31-41. Coates v. Nova Scotia (Labour Board), 2013 NSCA 52, para 46. (Emphasis added) Analysis Gulf’s position [30] Gulf’s position at law is clear. The application to certify the Union as the bargaining agent for the proposed unit has been dismissed by Order No. 2015 NSLB 123. That is a final determination unless and until the Labour Board, following a hearing conducted pursuant to section 96(1) of the Act decides to revoke the Order. See C.R. Coatings & Painting Inc. v. International Union of Painters and Allied Trades, Local 1439, 2014 NSCA 40 at paras. 24-25. [31] Based upon the reasons set out by the Union in the application to review, the key issue in that hearing will undoubtedly be a determination as to who is included or excluded from the unit sought to be certified. This is not an unheard of dispute. See, for example, Labour Board Decision #: 2410C dated February 25, 2005, a section 96(1) application brought by the United Brotherhood of Carpenters and Joiners of America, Local 83 seeking to revoke the dismissal of its certification application of the employees of M & Buddy Company Limited. In that case, the Board carried out a detailed examination of who was to be included or excluded in the appropriate unit for certification. [32] The burden of persuasion in the hearing falls on the Union in the Gulf matter. The employer does not have a burden to meet at the section 96(1) hearing. Grandview’s position [33] The Labour Board finds its authority in the Trade Union Act. The provisions of Part II of that Act captioned “CONSTRUCTION INDUSTRY LABOUR RELATIONS” sets out the procedure for certification. It is, as can be seen in the Gulf application, a relatively straightforward process. [34] First, the trade union applies for certification under section 95(1). The criteria to make the application requires the union to claim to have as members in good standing not less than thirty-five per cent of the employees of an employer in the construction industry in a unit appropriate for collective bargaining. [35] Next, Section 95(2) directs that the Board, upon receipt of the application: (a) shall determine the unit of employees that is appropriate for collective bargaining by reference to a geographic area; (b) may designate the whole or any part of the Province as a geographic area and may limit the unit to a designated geographic area; and (c) may, before certification, if it deems it appropriate to do so, include additional employees in or exclude employees from the unit. (Emphasis added) [36] Section 95(3) provides three options to the Labour Board: 1. To dismiss the application pursuant to s. 95(3)(a); 2. To grant the application pursuant to s. 95(3)(b); or 3. To order a vote to be taken pursuant to s. 95(3)(c). [37] Before it can do any of these things however, the Board is required to “… have determined the unit appropriate for collective bargaining and consistent with a geographic area established by the Board”. See, Opening sentence of section 95(3). [38] Section 92(b) of the Act defines the "appropriate unit" as “a unit determined by the Board to be appropriate for collective bargaining purposes”. [39] In other words, the Board must determine what an “appropriate unit” is and once it has done so only then it may consider a disposition under section 95(3). The “appropriate unit” is not the same as the employees who belong to the unit. [40] Once the “appropriate unit” has been determined, then the Board turns its attention to the dispositions in section 95(3). Each of the three possible dispositions in 95(3) have their own preconditions that must be satisfied before the Board can make an Order under that section. [41] Where, as here, the Board ordered a vote under section 95(3)(c) it had to be: …satisfied that the applicant trade union or council of trade unions has as members in good standing not less than thirty-five per cent and not more than fifty per cent of the employees in the appropriate unit. [42] To be clear, the statute requires that the appropriate unit be determined. Then the membership in Exhibit C to the application is compared with the information in the employers’ Statutory Declaration. If the comparison shows the 35% to 50% threshold requirement has been satisfied then the vote is ordered. [43] In fact the Board is subject to a mandatory requirement that it “…shall forwith order that a vote be conducted among the employees in the appropriate unit to determine whether the employees select the applicant trade union or council of trade unions to be the bargaining agent in their behalf.” [44] In this case the Board issued an Order under section 95(3) and a vote was held. The Board now refuses to count the vote on the basis that there is a dispute over whether the vote included or excluded appropriate employees. [45] Grandview argues that the Board’s discretion to make inclusions or exclusions under section 95(2)(c) is lost once it makes an order under section 95(3)(c) to conduct a representational vote. It reasons that once the order to take a vote is made the issue of which member is in or out of the unit for the purposes of section 95 has been determined. Any disputes with the inclusions or exclusions are then resolved in a section 96 review initiated by the party who is aggrieved by the decision of the Board made following a count of the representational vote. [46] Counsel for Grandview agrees that the Board can conduct a section 95(2) hearing to determine inclusions and exclusions at any time up to the decision to order a vote, but argues that once the Board orders the vote it is deemed to have decided who is in or out of the unit. Any review of that determination made after the vote is ordered is in effect, a reconsideration of the Board’s own determination of who is in or out. [47] As can be seen, section 95(2)(c) provides a discretion to the Board to make inclusions or exclusions of employees in the unit. On the face of it the only limitation is that the Board must do so before the certification takes place. Reasonableness of the Vice Chair’s decisions [48] The decision sets out a number of reasons as to why the matters should be heard together. Having resolved that they would be heard together the Vice Chair determined that “It follows from this conclusion that the Grandview vote will not yet be counted.” No further analysis was made on this second question. This was the Vice Chair’s path of reasoning: 1. … the two matters should be heard together as they essentially involve the same work; 2. and likely the same group of employees; 3. as well as the same issues. 4. This approach is consistent with the legislation; 5. and the Board’s longstanding practice. 6. Holding two separate hearings could lead to anomalous results; 7. and overall will provide a less efficient approach to handling these applications. 8. It follows from this conclusion that the Grandview vote will not yet be counted. [49] With respect, these reasons seems incomplete, and the decisions made out of what might have been the logical order of deciding the outstanding questions before the Vice Chair. On the face of it, it would seem to have made more sense to decide the nature of the respective hearings first and then decide whether a joint hearing was appropriate. [50] If the vote is counted immediately, as Grandview insists be done, then the result leads to a determination under section 95(3)(a) or (b) to dismiss or grant the application for certification. That result is final in which case there is only the Gulf section 96(1) application to hear. Alternatively, the aggrieved party in Grandview can seek a review hearing under section 96 and the Board must decide if it is appropriate to conduct the two hearings under section 96 together. [51] If Grandview is correct – that the Board is required to count the vote - then the appropriateness of the joint hearing is assessed through the lens of two final certification results. The question of whether the Board has the jurisdiction to inquire into inclusions and exclusions once a vote is ordered never arises. I note, parenthetically, that had the Board conducted the inclusions/exclusions hearing before ordering a vote, which Grandview agrees it could have done, then the interplay between section 95(2) and 95(3)(c) does not arise. [52] In taking the path that it did the Board has triggered the preliminary issue of whether it had the option to conduct an inclusions/exclusions hearing once the vote was ordered. It is that issue which Grandview says that I must decide first. [53] Does the Vice Chair’s decision to refuse to count the vote explain why she reached that decision? i.e., does it show a “justifiable, intelligible and transparent reasoning path to the tribunal's conclusion?” [54] As outlined above the path of reasoning was to treat this question as a natural consequence of the decision to conduct a joint hearing. That does not answer the question posed by the applicants. The lack of adequate reasons does not, however, resolve the question in this case. [55] The applicants argue that the decision of the Court of Appeal in CR Coatings stands for the proposition that an order under section 95(3)(c) to take a representational vote is final and leaves the Board functus officio, that is, the Board does not have the right to reconsider the question of inclusions or exclusions. [56] I disagree with this interpretation of CR Coatings. In that case the issue was the relationship between decisions made under subsections 95(3)(a) or (b) and the nature of a hearing under section 96. Section 95(3)(c) was not before the court for interpretation. [57] There is a fundamental difference in section 95(3)(c) from the preceding subsections. Whereas (a) and (b) result in final determinations made on the basis of the documentary evidence, subsection (c) introduces an intermediate step (the representational vote) before the decision to dismiss or grant can be made. As such, it is not a determination of the application for certification that is made solely on the basis of the documentary evidence. [58] There is much to be said for the logic offered by Grandview in other respects. The Board’s decision to reopen the question of the membership inclusions/exclusions after the representational vote is taken, and before rendering a decision on certification is made, in effect, results in the Board reconsidering its own decision as to the inclusions/exclusions. That decision, however perfunctory it might have been, was necessarily made when reviewing the documentary evidence filed under section 95(1) and when deciding to order a representational vote. Any subsequent concerns over the assessment of the inclusions/exclusions leading to the determination of the 35/50 threshold are capable of being resolved in a section 96 hearing, without the Board carrying out such a reconsideration. This is a reconsideration that the legislation does not, in my view, speak to. [59] However, there is a statutory ambiguity that, in my view, creates two options for the Board, whether or not a representational vote has been ordered. The Grandview certification application has not been decided. It could be if the Board would count the vote but it has exercised a discretion not to do so, deciding that the issue of inclusions and exclusions is an important determination that must be made, presumably to ensure the validity of the vote taken. [60] While clearly any issue of inclusions/exclusions can be resolved, as Grandview argues, in a section 96 review, the Board sees value in deciding it before making a finding as to certification. Section 95(2)(c) confirms the Board’s discretion to conduct such an inquiry before certification. A plain reading of the section does not exclude it as an option because of a vote ordered, or taken (but not counted) pursuant to section 95(3)(c). [61] The Trade Union Act therefore presents two reasonable choices to the Board in determining the procedure under its enabling statute. The first is to conclude, as appears to have occurred here, that there is a continuing discretion to conduct an inclusions/exclusions hearing at any time the Board, in the exercise of its discretion, sees fit, up to the point it makes an order for certification or dismissal of the application to certify. The alternate choice is the one argued by Grandview. [62] The consequence of there being two reasonable choices available to the Board is addressed by Justice Fichaud in Egg Films and bears repeating at this stage of the analysis: 26 The question for the court isn't -- What does the judge think is correct or preferable? The question is -- Was the tribunal's conclusion reasonable? If there are several reasonably permissible outcomes the tribunal, not the court, chooses among them. If there is only one and the tribunal's conclusion isn't it, the decision is set aside. The use of reasonableness, instead of correctness, generally has bite when the governing statute is ambiguous, authorizes the tribunal to exercise discretion, or invites the tribunal to weigh policy. (Emphasis added) [63] Notwithstanding the absence of clear reasons for opting to conduct the inclusions/exclusions hearing over the objections of Grandview this statutory ambiguity leaves the Board with two sustainable options. The decision to conduct the section 95(2) inquiry prior to counting the vote is one option open to the panel. I am unable to say that that choice was unreasonable. As a result the decision to conduct the 95(2)(c) hearing prior to counting the vote will stand. The motion seeking an order to the Board to count the representational vote is dismissed. [64] The next question is whether the decision to conduct a joint hearing is reasonable. [65] The authority of the Board to combine matters for a single hearing is founded in the enabling statute and the Rules published by the Labour Board. [66] Section 11(3) of the Labour Board Act S.N.S. 2010, c. 37 states: (3) The Board shall determine its own procedure, but shall, unless contrary authority appears in this Act or in another Act of the Legislature, in every case give an opportunity to all interested parties to present evidence and make representation. [67] Section 12 enables the Board to “make rules governing its practice and procedure in relation to matters coming before it” and the authority to make necessary regulations. [68] The Labour Board has published the Labour Board (Nova Scotia) Rules of Procedure which provides a broad authority to “do whatever is necessary and permitted by law to effectively determine the matter before it”. See, Rule 1.03 [69] Rule 17 states: 17.01 Combining Proceedings Where, in the opinion of the Board, two or more matters would be better heard together, either due to expediency, to conserve resources, or because of an overlapping issue raised by the separate matters, these hearings may be combined or heard together, or heard one after the other by the same panel. 17.02 Objection to Combining Proceedings or Hearing Cases Together If a party objects to combining proceedings they may make submissions on this to the Board. The Board will consider matters of disclosure, timeliness, expediency, or any other concerns raised by the party. 17.03 Mutual Objection to Combining Proceedings Where all parties object, the Board will consider the actual benefits of combining the proceedings in light of the wishes of the parties. 17.04 Severable Issues Combined To ensure clear and comprehensive decision - making, certain severable aspects of multiple hearings may be combined into a single hearing. Submissions on the viability of this or any other concerns may be made by parties as in Rule 17.02. [70] The reasons given in the decision to hold a joint hearing speak to the considerations listed in Rule 17.01: expediency, conservation of resources, or overlapping issues. It would have been helpful for the decision to explain which sections of what legislation were relied upon to conclude that the decision to hold a joint hearing was “consistent with the legislation”. The “longstanding practice” is not delineated. Is it a long standing practice to combine hearings that are at two different procedural stages, such as this case is? It is not clear as to how anomalous results could occur on the facts of this matter. Similarly, any delay that is triggered by waiting to schedule the Gulf section 96 review hearing would provide more than adequate time to count the Grandview vote, make a determination and then join the matters in any subsequent section 96 hearing. (an outcome that the employers concede as viable). [71] The Board has a broad discretion. It is in charge of its own procedure. It is not required to outline in detail all of the information it considers in reaching a decision to combine the hearings. When the decision concludes that this is a “long standing” practice, deference is owed. In the absence of evidence which shows this is not correct it should be accepted as accurate. [72] I accept that the decision to hold a combined hearing is a reasonable outcome, but I do so with some reservation. [73] The Board has not yet determined the procedure to follow in the combined hearing. If the effect of the hearing results in prejudice to any party, then that party will no doubt consider its options in seeking a review of the decision and the process used to reach that decision. A possible example exists in this case. There is a potential prejudice to Gulf which, at this point, carries no burden of proof in the section 96 hearing. If the effect of the joint hearing is to shift this burden to Gulf then there may be reason for that company to complain. It is obviously premature to assess the ultimate appropriateness of the joint hearing when decisions are yet to be made by the Board as to the procedure to be followed. Conclusion [74] Section 95(2)(c) of the Trade Union Act provides a reasonable statutory basis upon which the Labour Board could conclude that it has a right to conduct an inquiry into whether it should “include additional employees in or exclude employees from the unit,” notwithstanding that a vote has been taken (though not counted) pursuant to section 95(3)(c) of the Act. The decision of the Board to make such inquiry is reasonable. The motion to require the Board to count the vote and make a determination on the certification application is dismissed. [75] The legislation and Labour Board Rules of Procedure provide a broad discretion to hold combined hearings. The reasoning of the Board for concluding that is appropriate to do so, in these cases, supports the reasonableness of this decision. Concerns over potential prejudice to the parties that arise from the fact that the applications are at different procedural stages are yet to be addressed by the Board. The procedure adopted in the conduct of the hearing should account for those potentially different legal positions of the employers. [76] If the parties are unable to agree on costs they can contact my office to make suitable arrangements to deal with the issue of written or oral submissions. I direct counsel for the respondent Union to draft the order. Duncan J. SUPREME COURT OF Nova Scotia Citation: Grandview Contractors Limited v. United Brotherhood of Carpenters and Joiners of America, Local 83, 2016 NSSC 117 Date: 2016-05-03 Docket: Hfx, No. 445461 Registry: Halifax Between: Grandview Civil Contractors Limited & Gulf Operators Ltd. Applicants v. United Brotherhood of Carpenters and Joiners of America, Local 83 Respondent and Nova Scotia Labour Board Participant Judge: The Honourable Justice Patrick J. Duncan Heard: April 25, 2016, in Halifax, Nova Scotia Erratum Date: May 5, 2016 Counsel: Rick M. Dunlop, for the Applicants Raymond Mitchell, for the Respondent Edward Gores Q.C., for the Participant Erratum: [1] Para. 46 now states in the 3rd line “but once argues that the Board”: [46] …but once argues that the Board orders the vote it is deemed to have decided who is in or out of the unit. It will be replaced with “but argues that once the Board”: [46] …but argues that once the Board orders the vote it is deemed to have decided who is in or out of the unit. [2] Para. 63 now says in the 4th line “taking”: [63] …The decision to conduct the section 95(2) inquiry prior to taking the vote is one option open to the panel. It will be replaced as follows with the word “counting”: [63] …The decision to conduct the section 95(2) inquiry prior to counting the vote is one option open to the panel. [3] Para. 70 in the first line has the word “speaks”: [70] The reasons given in the decision to hold a joint hearing speaks… It will be replaced with the word “speak” as follows: [70] The reasons given in the decision to hold a joint hearing speak… Duncan, J.