Sproule Lumber v. United Food and Commercial Workers Union Canada

Sproule Lumber v. United Food and Commercial Workers Union Canada Court Supreme Court Date 2023-01-13 Citation 2023 NSSC 12 Docket Hfx No. 510666 Judge/Registrar/Adjudicator Jamieson, Darlene (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Sproule Lumber v. United Food and Commercial Workers Union Canada, 2023 NSSC 12 Date: 20230113 Docket: Hfx No. 510666 Registry: Halifax Between: Sproule Lumber, a division of J.D. Irving, Limited Applicant v. United Food and Commercial Workers Union Canada, Local 864 and Augustus M. Richardson, K.C. Respondents Judge: The Honourable Justice Darlene Jamieson Heard: July 18, 2022, in Halifax, Nova Scotia Written Decision: January 13, 2023 Counsel: Christopher D. Pigott and James B. Green, for the Applicant David C. Wallbridge and Jason S. Edwards, for the Respondents By the Court: Introduction [1] This is an Application for Judicial Review filed by Sproule Lumber, a division of J.D. Irving Limited (“Sproule”, “the Company”, or “the Employer”). It seeks judicial review of a decision dated October 7, 2021 issued by Arbitrator, Augustus M. Richardson, K.C. (“the Arbitrator”). The Arbitrator concluded that Sproule had not breached a collective agreement obligation to meet with the United Food and Commercial Workers Union Canada, Local 864 ( “UFCW” or “the Union”). The Arbitrator went on to find that Sproule had interfered with the UFCW’s “representation rights” when it sent letters to the Union or Sproule employees dated October 30, November 3, November 17, and December 8, 2020. [2] Sproule operates a lumber and wood chip mill in Truro, Nova Scotia. It has three divisions: the sawmill, the planer mill, and the boiler plant. [3] The Respondent, UFCW, is a trade union under the Trade Union Act, R.S.N.S. 1989, c. 45 (the “Act”), and the bargaining agent for a unit of Sproule employees spread across the three divisions. Grounds for review [4] The Notice for Judicial Review, filed on November 16, 2021, lists the various grounds for review. In summary, they are as follows: The Arbitrator unreasonably concluded that Sproule Lumber interfered with the Union's representation rights when it sent letters to the Union or its employees dated October 30, November 3, November 17, and December 8, 2020, because: the Arbitrator expanded the scope of the grievance and the Arbitrator reached the conclusion that Sproule Lumber violated the Union's representation rights despite also finding that he did not need to consider the Act and could rely on the Collective Agreement alone. The Arbitrator's interpretation of articles 3.1, 4.1, and 4.2 of the Collective Agreement to find that they protect against any form of interference, including the Letters, is unreasonable because it expanded those provisions beyond their intended scope and ignored the content of the Letters, which expressly recognized the Union's status and representation rights as certified bargaining agent. The Arbitrator's finding that Sproule Lumber violated the Union's representation rights is entirely at odds with other central findings in the Decision, including that: (1) the dispute between the parties over Sproule Lumber's refusal to meet absent certain terms had not eroded the Union's representation rights; and (2) the Union was powerful enough that it was unaffected by the Letters. Further, there was no oral or documentary evidence before the Arbitrator to support a finding that the Letters interfered with the Union's representation rights. [5] The Arbitrator filed a Notice of Decision Making Authority concerning the Record on November 30, 2021. The UFCW filed a Notice of Participation on December 1, 2021. The Union says the court should not disturb the Arbitrator’s decision. [6] The Record was filed with the court on February 17, 2022. It sets out the background to the Arbitrator’s decision and consists of two volumes containing 71 tabs, representing both Sproule’s and the Union’s books of documents filed before the Arbitrator, as well as other relevant documents. Background [7] UFCW and Sproule are parties to a Collective Agreement dated July 26, 2016 to April 15, 2023. The Collective Agreement contains a recognition clause (the “Recognition Clause”), which reads as follows: Article 3 – RECOGNITION 3.1 The Employer recognizes the UFCW Canada, Local 864 as the sole collective bargaining agency for Employees as defined in Article 2, and agrees to meet with representatives from the UFCW Canada, Local 864 for the purposes of carrying out the terms of this Agreement. 3.2 No change, alterations, or revisions of any conditions or benefits of this Agreement may be made between the Company and individual employee. Anything related to the above must be negotiated between the Company and the Union. [8] By the fall of 2020, the relationship between UFCW and Sproule, and their respective agents, was acrimonious. The Sproule Letters [9] There are several letters that are important in the lead up to the arbitration and the decision under review. I will spend some time on the contents of this correspondence. [10] On October 30, 2020, Mr. Jerome Pelletier, VP Sawmills Division of J.D. Irving, Ltd., wrote a letter to UFCW National Representative Mr. Tim Hosford (the “October 30 Letter”). Clearly frustrated, he indicated that the Company had decided not to attend a scheduled mediation. He then stated in part: We are very frustrated by the manner in which you are conducting this labour relationship. We take pride in our relationship with our employees and, from our perspective, your conduct is impairing that relationship… Your failure to move the recently settled termination case to arbitration for more than a year, despite repeated demands from the Company, is an example of the lack of good faith being exhibited by UFCW. In light of that debacle, we were troubled by your response to the mills human resources representative on September 28, 2020, where she asked for a union response on availability within nine days in order to set up a grievance meeting. Instead of providing your availability, you simply noted that there are no timelines in the collective agreement and otherwise ignored her request. You are the representative of the bargaining agent freely chosen by our employees to represent their interests and we respect that. At the same time, we cannot continue to allow you and the UFCW to unnecessarily disrupt the labour relationship by refusing to conduct yourself in good faith. This is a continuation of the frustration the mill expressed to you in November 2019 when it first filed a grievance against your behaviour. At the time, the mill declined to move it forward in the hopes the UFCW would adopt a more professional approach to labour relations. To be clear, we have run out of patience with you refusing to move matters forward to arbitration in a timely matter [sic], refusing to particularize grievances so that they can be understood and potentially resolved, failing to meet the Union’s obligations under the agreement to provide sufficient steward representation, and refusing to engage in meaningful dialogue that is inherent in any productive relationship. [11] Mr. Pelletier then said the Company was providing the Union with notice of the following changes to labour relations, effective immediately: We expect you to provide the names of the additional two representatives from the sawmill and planer mill within five (5) business days of today, failing which we will file a grievance against the union and seek an arbitral order compelling the union to do so. Until such time as you have appointed the additional stewards, the mill will not engage in any further dialogue with UFCW and no labour relations meetings will be scheduled. Under article 7.2 (c), UFCW is obligated to inform the mill in writing of complaints alleging breaches of the collective agreement that it intends to move forward on behalf of employees. Going forward, we expect you will provide sufficient information and support of your complaint(s). At a minimum, this should include the names of employees impacted, if any, dates of the alleged breaches, and a general statement about the nature of the breach that allows us to consider the complaint in a meaningful way. In the event you fail to do so, the mill will not engage in discussion of the complaint with you; you should assume that we will not settle the matter and you should advance it to arbitration accordingly. To be clear, grievance meetings are not required under article 7.2 and we will not hold them with you any longer if the original grievance lacks the necessary particulars identified here.… Finally, you should treat this letter as a grievance against you and your union’s breach of your respective duties of good faith in administering your responsibilities under the collective agreement. As remedies, we intend to request that an arbitrator make a declaration recognizing these breaches and impose conditions they deem appropriate on you and the UFCW in administering your respective responsibilities going forward. In the interests of transparency, we intend to provide a copy of this letter to the employees on Tuesday, November 3 so that they understand our position on the current labour relationship and the current state of the grievance process. [12] As stated in the above letter, Sproule’s Mill Manager, Mr. Scott Barrow, then sent a letter to the employees, attaching a copy of the October 30 Letter (the “November 3 Letter”). The November 3 Letter indicated that the Company wanted to provide an explanation of what was written and why they felt it necessary to do so. The letter stated in part: As a starting point, we want to confirm our respect for UFCW as your bargaining agent and representative. … We have become frustrated over the last year-in particular-with the manner in which grievances are being managed by the union. In fairness to the union, the grievance and arbitration language of the collective agreement is not highly detailed. It lacks specifics on important parts of the grievance process. However, we believe that it is important for the Company, the union and the employees to resolve grievances quickly, if they can be, and or to refer them to arbitration to be resolved through that process in a timely fashion. This is true even if the collective agreement language does not contain those specifics. … We’ve also filed a grievance against the union which we will request that an arbitrator since the parties and setting reasonable expectations for how grievances should be processed and referred to arbitration if necessary. While the current situation is not what we would like it to be, we are hopeful that our actions as a Company will result in meaningful dialogue with the union about a process that ensures grievances are addressed in a productive manner going forward. [13] On November 12, 2020, Mr. Hosford sent a letter to all UFCW Canada members employed at Sproule. The letter stated, in part: The letter from the company that was provided to you earlier this week includes incorrect information including: One of the two grievances mentioned in the letter was scheduled to go to mediation with the Nova Scotia Department of Labor on Friday, October 30. Mediation would have been an opportunity to discuss the details of the issues and hopefully, find a resolve. Unfortunately, the Company unilaterally cancelled, reneging on their signed agreement. The letter from the Company raises concerns about the processing of grievances. On September 24, 2020 the Union agreed to meet with company officials to discuss improving labour relations. The Union, as recently as last Friday, has followed up regarding the scheduling of that meeting but the Company does not seem interested in following through on their commitment to meet. … The Union remains open and willing to review and discuss any and all outstanding issues, concerns and grievances with the Company. I refer to Article 1 of the Collective Agreement that states its purpose is, in part, to promote and maintain harmonious relations between employees and the Company. The Union remains committed to the subjective. Let me be clear, the Union will do what is necessary to enforce the Collective Bargaining Agreement. It is not our job to make the Company happy. While our preference is to work collaboratively, we will fight on your behalf. [14] On November 17, 2020, Mr. Barrow sent another letter to the Sproule employees/UFCW membership (the “November 17 Letter”). This letter stated: We believe it is important that you hear our side of these issues as well and have the benefit of all of the available information as you assess Mr. Hosford’s comments. Mr. Hosford is correct. The Mill did agree to attend mediation regarding two grievances. However, the mediation process is voluntary. Once we discussed our decision to attend the mediation internally, we came to the conclusion that we should withdraw our agreement due to serious concerns about the broader labour relationship. While Mr. Hosford asserts that the Union is willing to work to improve labour relations at the Mill, we considered whether his actions supported his statements in making our decision to withdraw from mediation. They did not, and they continue not to. While he says he wants better labour relations, we believe he has not taken any steps to actually deliver on that statement. For example, he has not arranged, on behalf of the Union, to appoint the additional shop stewards that are required under the collective agreement as far as we are aware. We made that request of him in a letter dated October 30, 2020, which we shared with you on November 5 [sic], 2020. Rather than comply with the collective agreement requirements, Mr. Hosford retained legal counsel and has failed to respond to our request. As a result, we were forced to file a grievance against the Union and will seek to have an arbitrator order the Union to comply. Similarly, Mr. Hosford, through legal counsel, has refused to name union nominees to several grievances proceeding to arbitration even though the collective agreement specifically provides for each party having nominees to assist in the arbitration process. Further, and again through legal counsel, Mr. Hosford is opposing all of the Company’s attempts to refer grievances to arbitration so that they can be heard and resolved. In the interests of transparency, we would encourage you to request copies of those letters from Mr. Hosford so you can determine for yourself if his actions support what he is saying about wanting an improved labour relationship. Once Mr. Hosford has addressed the outstanding collective agreement obligations we have raised with him and has allowed grievances that will not settle to proceed to arbitration for resolution, we can then consider whether there is an opportunity to improve the labour relationship so that mediation becomes an option in certain circumstances. [15] On November 18, 2020, Mr. Hosford sent a letter to Mr. Ryan Cameron, a J.D. Irving regional manager. This letter was copied to all Sproule employees/UFCW membership. Mr. Hosford indicated that he was writing to “formally request a meeting to discuss improving labour relations.” He then set out a number of topics for discussion. He went on to state “…these matters may escalate further and become a matter before the labour board. My strong preference would be to work out our differences together…” [16] On November 19, 2020, Mr. Jason Green, J.D. Irving Director, Industrial Relations, sent a letter to Mr. Hosford. This letter was not copied to Sproule employees. Mr. Green stated his view that it would be beneficial to provide Mr. Hosford with the Company’s perspective on the current state of labour relations between the UFCW and Sproule. Mr. Green pointed out the various concerns with Mr. Hosford and the UFCW’s conduct and indicated that the Company expected the Union to provide the names of three shop stewards before it would consider meeting. He further requested that the Union provide a written summary of how the processing of grievances should be improved, including some reasonable timelines for moving matters forward. He said that “without some framework for discussion in advance, meeting to discuss this in detail would be wasted time.” [17] Mr. Hosford responded the next day, indicating that the Union was in the process of appointing shop stewards. He also set out some ideas regarding processing grievances, and suggested that the current outstanding grievances be temporarily paused so the parties could try to have some discussions regarding the above suggestions. He concluded by stating that “the strong preference of the Union is to solve our labour relations problems and move forward cooperatively and harmonious.” [18] On the same date, being November 20, 2020, Mr. Hosford filed two policy grievances. In policy grievance 18678, the Union alleged that the employer was knowingly and willingly violating the agreed to terms and conditions outlined in the Collective Agreement, which included creating a hostile workplace for all bargaining unit members. In policy grievance 18679, the Union alleged that the employer was “intentionally and willingly violating the spirit and adhered to terms outlined in the Collective Agreement up to and including the applicable statues [sic] outlined in the OHSA and Human rights act, etc.” [19] By letter of November 23, 2020, Mr. Green responded to Mr. Hosford’s correspondence, indicating that while he thought Mr. Hosford’s proposal was positive, it was “somewhat ironic that you filed two policy grievances alleging bad faith against the Company at approximately the same time you delivered your letter to me.” Mr. Green further said that Sproule intended to continue with the arbitration process to resolve the matters fully and finally, and asked Mr. Hosford to ensure that the Union’s nominees to the arbitration boards were appointed in a timely fashion. He also thanked Mr. Hosford for his grievance process proposal and closed the letter by stating, “When we do have an opportunity to meet after some of these outstanding matters have been resolved, we can discuss it as one of the topics to be addressed.” Mr. Green’s letter was not copied to Sproule employees. [20] On November 27, 2020, Mr. Hosford wrote to Mr. Barrow, copying Sproule employees. He indicated that it was a response to Mr. Barrow’s letter of November 17, 2020. Mr. Hosford stated, in part: … In particular, I have asked to meet and discuss health and safety matters related to the current COVID - 19 pandemic. In light of the “second wave” of COVID now active in our province, it is astonishing that the Company will not meet with the representatives of the employees to discuss employee well-being. I repeat my request to meet with the company. Unfortunately, the Company has decided damage [sic] our relationship. Letters such as the one you sent on November 17, include numerous inaccuracies. In my opinion, this is not a good way to resolve our differences. The employees deserve honesty, transparency, and harmonious workplace. The Company only seems to want to attack the Union and its representatives. This must stop. Please be advised that the Union will be filing an unfair labour practice complaint with the Nova Scotia Labour Board. [21] Mr. Green responded to this letter on the same day. He did not provide a copy of his letter to Sproule employees. Mr. Green stated: I have been provided a copy of your letter to Scott Barrow of November 27, 2020. In case I was not clear in my last letter to you of November 23, 2020, we have decided for the time being that we would adopt your approach to labour relations as highlighted, in part, in your email to Tisha McNish, the Mill HR representative, dismissing her request to consider grievance meeting times on the basis there were no timelines in the agreement. On a similar basis then, we are not denying you a meeting regarding labour relations. We are simply noting that there are no specified timelines for such a meeting set out in the collective agreement. Your statement in your letter to Mr. Barrow misrepresents the realities of your request for information related to Covid. To be clear, you wrote to Mr. Cameron on November 18, 2020 regarding improvements to the labour relationship generally and you listed thirteen potential topics for discussion. One of those related to health and safety with a generic reference to Covid 19. You have at no time raised a specific concern in relation to the pandemic since that letter, and you are well familiar with the extensive efforts the mill has undertaken to protect its employees in that regard since the original outbreak in March 2020. If you do have specific concerns regarding the Company’s response to Covid-19 in light of the recent increase in cases, you can direct those inquiries to my attention and I will ensure you get a response in writing addressing those concerns. Although I would acknowledge that the labour relationship is currently at a low point, the health and safety of our employees and your members is of paramount importance to us and we will assist you with the information you require in that regard. [22] There was no response from Mr. Hosford to this correspondence. [23] On December 8, 2020, Mr. Green sent a further letter to Mr. Hosford (the “December 8 Letter”). Mr. Green stated: As you recall, you wrote to Mr. Barrow on November 27, 2020 and raised concerns about the mill’s failure to meet with you to address the Covid-19 protocols. You copied your members on that letter. I wrote you back on the same day and, while we denied you a meeting on the issue, we recognized your concerns about the health and safety of our employees and your members. We invited you to make a request in writing for any information you required. To date, we have not heard from you in that regard. However, you did send a further letter to Mr. Barrow on December 3, 2020 with an incoherent inquiry about holiday pay. Given the current labour relations environment, we feel it is important to highlight your failure to follow through on your claimed concern for safety by requesting further information. This failure is indicative of the approach you have taken to managing the labour relationship with the Company and it confirms, together with your letter of December 3, 2020, that you continue to needlessly waste the Company’s resources for no good purpose. If we were suspicious by nature, we might think your letter of November 27, 2020 was intended solely to try and assist your unfair labour practice complaint rather than to achieve any positive outcomes with the Company. We have also not heard from you regarding the union steward appointments that you are obligated to fill under the collective agreement. It is now more than five weeks since we formally requested that you fill these positions and your failure to do so is unacceptable. At this time, we are considering ending our collective agreement obligation to deduct and remit membership dues to UFCW until the union begins to comply with its own collective agreement obligations and act in a good faith manner. As a courtesy, we wanted to give you an opportunity to advise us whether you prefer that we continue to deduct the dues and hold them in trust until we resume repayment or whether we should cease deducting them from the employees and permit you to collect them directly. While your stated preference will not be determinative, we will consider it. We look forward to your response by the end of business on December 11, 2020. [24] There was no response to this correspondence. [25] Legal counsel for both Sproule and the UFCW became involved in or around December 2020. The parties reached a resolution on a number of issues and entered into a settlement agreement which attached a Memorandum of Agreement dated January 27, 2021 (the “MOA”). In the MOA, the parties agreed to terms to supplement the grievance procedure outlined in the Collective Agreement. The MOA included terms dealing with appointment of shop stewards, grievance meetings, particulars for grievances, time limits for referral of the grievance etc. [26] On February 12, 2021, Mr. Hosford sent an email to Sproule Human Resources Manager, Ms. Leanne Carson, asking to schedule a meeting. Ms. Carson and Mr. Hosford exchanged several correspondences about the meeting agenda. Despite referencing the MOA, the parties could not agree on what information the Union was required to provide prior to a meeting. [27] On February 17, 2021, Mr. Green and Mr. Hosford exchanged email correspondence. Mr. Green stated in the initial February 17 email: I have been provided copies of your exchanges with Ms. Carson in which she sought clarification from you on the purposes for tomorrow’s meeting. As I am sure you appreciate, the original agenda you provided and then refused to clarify was devoid of any meaningful information upon which the Company could properly prepared to have a productive meeting with you. … On that basis then, tomorrow’s meeting with you is cancelled indefinitely. It will be rescheduled for a mutually convenient time as soon as you choose to provide an agenda that provides the company with a reasonable amount of information so that it can prepare for the meeting. [28] Mr. Hosford replied shortly after receipt of Mr. Green’s email. He stated, in part: …Thanks for the email and I have the following [sic] the agreed upon terms outlined in the January 16, 2016 LOU. In addition to that I provided a list of agenda items to be discussed at the Lab/Mgt meeting. … Please let me know if you plan on meeting tomorrow 18th at 4 PM or provide me with additional dates & times to review. [29] Mr. Green responded that “there will be no meeting tomorrow. Please provide a coherent and meaningful agenda and we will provide you with meeting times thereafter.” [30] On February 21, 2021, UFCW filed a policy grievance. The alleged Collective Agreement breach is stated to be as follows: Applicant Statement: The Employer is not following the agreed terms & conditions outlined in the CBA & applicable Statues [sic]. Furthermore, the Employer is knowingly and intentionally delaying and interfering with the Union’s legal right to inquire and represent the members’ legal rights which also includes refusing to meet with the legal bargaining agent. The Employer has breached its agreement with the Union to resume regular meetings with the Union. The Union has attempted to arrange for a meeting with the Employer and the Employer either refuses to meet or repeatedly changes the terms for such meetings, all contrary to the Collective Agreement, settlement agreements, and harmonious labour relations. Adjustment: the Union is requesting that the Employer follow and agreed to terms & conditions outlined in the Collective Bargaining Agreement & Statues [sic]. The Union also requests that the Employer complies with all terms of settlement and agreement. Furthermore, the Union is requesting that all employees & the Union be made whole for any and all losses as outlined. The Employer shall post a notice for all employees advising that meetings with the Union and Employer have returned to normal and are proceeding following the past practice and the terms of the agreement. The Union is also requesting that the Employer provide dates & times to the Union to meet as per the agreed upon terms outlined in the Memorandum of Understanding. [31] On February 23, 2021, Ms. Carson responded to the grievance in an email to Mr. Hosford stating: As per Section 27 of the MOA, you have not particularized this grievance in accordance with the terms of the MOA. We require that you do so. [32] On February 24, 2021, Mr. Hosford sent a reply indicating that he was following the same outline in section 26 of the signed MOA, and stated as follows: … b. The date(s) of the alleged violation, and if asserted to be a continuous breach, over what time period; This is a continuous grievance that began in late October 2020 and continues until today. The most recent occurrence relates to an email from Jason Green on February 17, 2021. c. A general description of the facts giving rise to the grievance and the nature of the alleged breach of the Collective Agreement or any relevant legislation; See page 2 of the grievance. In terms of the provisions of the Collective Agreement the Employer has breached 1.1, 3.1, 4.1, 11, and other relevant and associated articles and letters. The Employer has breached the Trade Union Act, including but not limited to Section 53. The Employer is also in violation of the MOA and settlement agreement signed January 27, 2021 and the agreement between counsel dated December 10, 2020 where it was agreed: “ The normalization of labour-management communications and meetings, including with Mr. Hosford, will resume with the finalization of an MOA.” [Emphasis added] [33] On February 24, 2021, Ms. Carson sent an email to Mr. Hosford indicating that Sproule was exercising its right not to meet to discuss the grievance, in accordance with the terms of the MOA. [34] The parties appointed Arbitrator Richardson to hear and determine the grievance. The grievance was heard over two days in July 2021. In addition to filing books of documents, each party also called viva voce evidence. The witness for UFCW was Mr. Hosford. Witnesses for Sproule were Mr. Les Flett, Operations Manager with J.D. Irving and a former Sproule mill manager, and Mr. Mike Garrett, also a former Sproule mill manager. The Decision [35] The decision is dated October 7, 2021. Arbitrator Richardson described the central issue in the policy grievance before him as follows: [2] The central issue in the policy grievance before me is whether the Employer is obligated to meet with the Union to discuss labour relation matters; and, if so, when and under what circumstances, and, in particular, whether any such obligation is triggered only if the Union provides particularized meeting agendas beforehand. The Employer says that there is no such obligation or, if there is, that it is only triggered when the Union first submits a particularized agenda as to what is to be discussed. The Union for its part says that there is such an obligation; that the Employer’s obligation to meet does not depend on first receiving a detailed agendas; and that in any event the Employer’s past practice has been to meet without requiring much in the way of particulars from the Union beforehand. [36] The Arbitrator pointed out that prior to 2020, there were issues between the parties concerning the timing of and provision of particulars for Union / Company meetings, there being only 1 of 3 shop stewards in place, etc. The Arbitrator noted that the October 30 Letter “formed the seed” of the Union's eventual grievance before him. [37] At the hearing, the Arbitrator ruled that he would not hear nor consider evidence of events after February 24, 2021. He explained that he made the ruling because the grievance, while said to be a continuing one, nevertheless related to an issue – whether the Employer was obligated to meet with the Union – that had arisen in October 2020. He found that only evidence relating to the events prior to the filing of the grievance was relevant to its resolution. [38] The Arbitrator began his decision by noting the policy grievance before him “was not particularly clear” (para. 128). Given the history of the relations between the parties he had already outlined, however, he read it as complaining that: a. the Employer's refusal to meet with the Union unless certain terms were met was a breach of various terms in the Collective Agreement, and b. that refusal undermines the Union's Collective Agreement and statutory right to represent its members in the bargaining unit. (para. 128) [39] With respect to whether the Employer’s refusal to meet with the Union unless certain terms were met was a breach of the Collective Agreement, the Arbitrator held that it was not. He said the obligation to meet was not triggered in the absence of particulars from the Union: [150] .… I was not persuaded by the Union (and the onus was on it) that there was a continuing breach by the Employer of its Art. 3.1 obligation to meet with the Union. The obligation is "for the purpose of carrying out the terms of this Agreement." Where the term to be carried out was a grievance under Art. 7 (Grievance Procedure) the Employer was entitled by Arts. 7(2)(c) and 7(3), and by the general purposes and duties laid down in Art. 1.1, to particulars of the grievance to be discussed at any such meeting. The Union's failure to provide such particulars meant that the terms of the Agreement could not be carried out and hence the obligation to meet was not triggered. Once those particulars were provided then the Employer could not refuse to meet without breaching its obligations under Art. 3.1. [151] I emphasize that had the only reason for the refusal been the Union's failure to appoint shop stewards the Employer would have been in breach. But it was not the Employer's only condition. Moreover, that breach was cured by the Union in December 2020 with the appointment of additional shop stewards and hence ceased to be a ground for its continued refusal. The lack of particulars remained, and as long as it continued the Employer's obligation to meet remained dormant. [40] The Arbitrator then moved on to address what he termed as “Interference With The Union's Representation Rights.” Below is the entirety of the Arbitrator’s reasons on this issue: [152] I should say first that I did not consider it necessary to consider whether an arbitrator has the jurisdiction to deal with beaches [sic] by an employer of its obligations under the Trade Union Act. It was sufficient in my mind that the Employer had agreed pursuant to Art. 3.1 to recognize the Union "as the sole collective bargaining agency for Employees," and that, pursuant to Art. 4.1, its "rights as set out in this agreement must be exercised ... in accordance to the collective agreement." Any attempt by the Employer--intentional or not--that interfered with the Union's right to represent its members would constitute a breach of the former's obligations under the agreement. [153] It is unfortunate that the relations between the Union and the Employer had become so heated after October 2020. The friction caused by the dispute over whether particulars were required was certainly contrary to the promotion and maintenance of harmonious relations between them. But given my interpretation of Art. 7 it cannot be said that that dispute eroded the Union's representation rights. A disagreement over how an agreement is to be interpreted does not in itself constitute an attack on a party's status. [154] The situation is different when it comes to a. Mr Pelletier's letter of October 30, 2020 which was forwarded to employees on November 3; b. Mr Barrow's letter of November 3rd to the employees, to which Mr Pelletier's letter of October 30th was attached; c. Mr Barrow's letter of November 17, 2020 to the employees; and d. Mr Jason Green's December 8, 2020 threat to breach the Employer's obligation pursuant to Art. 5.1 to deduct and remit union dues. [155] The first three letters--all sent to members of the bargaining unit--alleged that the breakdown in relations--and in particular the handling of grievances--was a direct result of the bad faith and failure of Mr Hosford and the Union to meet the latter's obligations under the Collective Agreement. Mr Barrow's letter of November 17th was particularly harsh, focussing directly on what were alleged to be Mr Hosford's personal failures as a Union representative. It escalated its attack by urging the members to themselves investigate Mr Hosford's conduct. The Employer's comments were not simply an explanation of a difference of opinion over an offer during collective bargaining, or of the Employer's position on a particular topic. Those types of comments to a union's members may escape censure: see, for e.g., IUOE, Local 721B v National Gypsum (Canada) Limited 2018 NSLB 50 at paras.99-109. Here, and by way of contrast, the Employer's comments in the three letters in November 2020 represented a direct attack on the competence--personal and organizational--of the bargaining agent and in particular of Mr Hosford--and an invitation to investigate Mr Hosford's conduct. The message to the members of the bargaining unit was clear--your bargaining agent (and in particular Mr Hosford) was disrupting "the labour relationship by refusing to conduct yourself in good faith." That in turn amounted to an allegation that the employees would be better off with someone else to represent them--a type of allegation similar to the one found to be an interference with a union's representation rights in the National Gypsum case at paras. 113-21. [156] There was no evidence that Mr Green's letter of December 8, 2020 was sent to the membership. But it was just as serious an interference with the Union's representational rights. The letter was not just an expression of a difference of opinion over how Art. 3.1 should be interpreted or applied. It was rather notice that the Employer intended to knowingly breach its obligation under the Collective Agreement to remit union dues to the Union. It was a threat to ignore the grievance process laid down in Art. 7. It represented an assault both on the utility of the agreement itself (because the Employer was going to ignore it in favour of self-help), and on the Union's ability to represent its members. The two options Mr Green proposed--to deduct dues but hold them in trust until the Union complied, or leave it to the Union to collect them directly--represented direct attacks on the Union's ability to represent its members. The first would undercut the Union's finances and hence its ability to represent its members. The second would be so administratively difficult as to amount to the same result--and would as well create tensions and confusion between the Union and its members over why the change had taken place. [157] The threat to act unilaterally in direct violation of the Collective Agreement represented a form of self-help that collective agreements are intended to prevent. The fact that the threat was not realised--no doubt because of the MOA that was reached shortly thereafter--does not diminish its seriousness. Parties to a collective agreement should not be encouraged in a belief that they can get what they want by acting outside the grievance process (to which they agreed), or by threatening to act in violation of their clear obligations. The Union here was obviously powerful enough to have been able to call the Employer's bluff (if bluff it was) if it had come to that. But smaller and weaker unions might not be in the same position--which is why threats like the one made by Mr Green was such a serious assault on the representational rights of the Union, and why it has to be treated as such. [158] I appreciate that Mr Green may have been frustrated by what he saw as defects in Mr Hosford's handling of the grievance process. As discussed above, some of that frustration had good cause. But it is also the case that to some extent the problems Mr Green complained of were of the Employer's own making. After all, the Employer knowingly agreed to a grievance process that contained no time limits to refer a grievance to arbitration. That must of [sic] have been unusual even in 2016 when the agreement was executed. Collective agreements almost invariably have time limits that ensure grievances are moved along to either settlement or arbitration. (The fact that the MOA provided for such time limits underlines the point.) The reason for that is obvious--grievances delayed are grievances frustrated. The Employer is sophisticated in labour relations. By the Employer's own admission it had scores of unionized workplaces. It must have known that to agree to a grievance procedure like the one enshrined in Art. 7(2)(c) and (d) would be to invite the kinds of problems that surfaced in 2020. If it did not, it can hardly complain when those problems emerged. [159] Be that as it may, I am satisfied for the above reasons that the Employer's three letters of [sic] to the membership in November 2020, and Mr Green's letter of December 8th, did represent a serious breach of the Union's representational rights under the Collective Agreement. The former represented a direct attack on the competence of the members' union representative (Mr Hosford) and an invitation to investigate his conduct. The latter represented an attempt to bend the Union to the Employer's will by threatening to knowingly breach a provision important to the Union's operations. Both represented breaches of the Employer's obligations pursuant to Art. 3.1, 4.1 and 4.2. The question then becomes remedy. [160] Counsel for the Union pointed to the awards in Toronto School Board, supra and the OPSEU, supra, where damages of $9,000.00 and $20,000.00 respectively were awarded to a union for breaches of its representational rights. I have reviewed those awards. In the former the breach (use of volunteer labour) had resulted in an unquantifiable loss of income of members of the bargaining unit, as well as dues to the union that would have otherwise been earned. None of that applies here. In the latter award, the employer invited union members to a union/employer meeting; suspended the union president without just cause; and interfered with the union's message board. Again, none of that applies here. On the other hand, Mr Green's threat was more serious than the conduct discussed in PSAC v. Canada Post Corp 1985 CarswellNat 789 (Brault), where the employer's actions in barring union representation of employees during interviews resulted only in a declaration: and see John Howard Society, supra and National Steel Car, supra to similar effect. [161] Having considered the matter I have decided that the appropriate remedy here should include both a declaration that the Employer breached the Union's representational rights in the Collective Agreement, and an award of damages. To emphasize the important role collective agreements play in the maintenance of labour relations peace, and the seriousness of the Employer's breach of its agreement to recognize and respect the Union's role in maintaining that peace, I think it appropriate to award damages in the amount of $5,000.00 to the Union. [Emphasis added] [41] The Arbitrator went on to summarize his conclusions as follows: Conclusion and Award [162] Based on the facts and reasons set out above, I a. declare that the Union’s breach of its obligation pursuant to Art. 7(2) and (3) to provide particulars of proposed meetings relieved the Employer of any obligation to meet with it pursuant to Art. 3.1, and accordingly dismiss that part of Grievance 10772, but b. declare that the Employer breached Arts. 3.1, 4.1 and 4.2 of the Collective Agreement by interfering with the Union’s representational rights when it sent the letters that it did in November and December 2020, and order the Employer to pay to the Union $5,000.00 damages for that breach. [Emphasis added] The Statutory Scheme and Collective Agreement [42] In this judicial review, the relevant legislation is the Trade Union Act. Section 53(1) of the Act is the governing statutory authority prohibiting employer interference with a union or with a union’s representation rights: 53 (1) No employer and no person acting on behalf of an employer shall (a) participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union; or (b) contribute financial or other support to a trade union. [43] As noted above, the Union and the Employer are parties to a Collective Agreement with effective dates of July 26, 2016 to April 15, 2023. The relevant sections of the Collective Agreement between the parties are as follows. [44] Article I (Purpose) of the Collective Agreement provides: 1.1 The purpose of this agreement is to promote and maintain harmonious relations between the Employer and the Employees, to define more clearly wages and conditions of employment which shall exist between the Employer and the Employees, to provide an amicable method of settling grievances which may from time to time arise, to promote the mutual interest of the Employer and the Employee, and provide for the carrying on of the Employer's business under methods which will further to the fullest possible extent, both the safety and welfare of the Employees and the efficiency and economy of the Employer's operations and its service to its customers. It is recognized by this Agreement to be the duty of both parties to cooperate fully, both collectively and individually, for the attainment of the foregoing purposes. [45] Article 3 (Recognition) states: 3.1 The Employer recognizes the UFCW Canada, Local 864 as the sole collective bargaining agency for Employees as defined in Article 2, and agrees to meet with representatives from the UFCW Canada, Local 864 for the purpose of carrying out the terms of this Agreement. 3.2 No change, alterations, or revision of any conditions or benefits of this Agreement may be made between the Company and individual employee. Anything related to the above must be negotiated between the Company and the Union. [46] Article 4 (Management) states: 4.1 The management of the Employer's business and the employment, direction and supervision of the Employees including transfers, promotion, layoffs and discharge for just cause, is vested in the Employer and management. The Employer agrees that this authority will not be used to differentiate between Employees who are members of the Union and Employees who are not members of the Union. Management rights as set out in this agreement must be exercised so as not to discriminate in violation of the Human Rights legislation of Nova Scotia and in accordance to the collective agreement. 4.2 Cases of disagreement will be dealt with in accordance with the grievance procedure outlined in Article 7. [47] Article 5 (Check-off) states: 5.1 The Employer agrees upon receipt of an authorization signed by an Employee to deduct dues and assessments to the amount so authorized by the Employee from the wages of the Employee on a weekly basis and to transmit the amount so deducted to the Secretary-Treasurer of the Union before the 15th of each month following the month in which the foregoing deductions are made along with a statement containing the complete address of such Employee, his social insurance number, his date of employment, his date of termination (where applicable) and the total of the dues so far deducted from his pay for the current calendar year. [48] Article 7 (Grievance Procedure) sets out the procedure for the handling of "complaints and grievances": 7.1 The Union will appoint, and the Employer will recognize three Shop Stewards as the representatives of all regular employees of the Employer on complaints and grievances. There will be one Shop Steward appointed from each of the Sawmill, Planer Mill and the Boiler Plant. 7.2 The alleged complaints and grievances shall be dealt with in the following manner: (a) The aggrieved Employee or Employees with or without a Shop Steward shall first discuss the complaint with the Supervisor or his representatives within three working days. (b) If the alleged complaint is not settled within twenty­four hours, the complainant or complainants may then refer the grievance in writing to the Shop Stewards, who will then take it up with the Supervisor or his representative, concurrently sending a copy to the Union's office. (c) If the alleged complaint is not settled within the ensuring four days, a representative of UFCW Canada, Local 864 may take up the alleged complaints with management after filing written notice of its intentions to do so, and endeavour to reach a settlement. (d) If a settlement is not reached in step (c) above, the matter may be referred to a single arbitrator on agreement of the parties, failing which the matter shall be referred to an Arbitration Board of three members, one appointed by the Employer and one by the Union and a third mutually agreed upon by the other two. Should the two appointed members fail to agree upon a third member, he shall be appointed by the Chairman of the Nova Scotia Labour Relations board but shall not be a Civil Servant. A decision of the majority of the Arbitration Board shall be accepted as the decision of the Board. (e) A decision reached in any of the steps described in this Section 2 shall be final and binding upon both parties. (f) Subject to mutual agreement, the parties may request the assistance of a Mediation Officer appointed by the Nova Scotia Department of Labour and Advanced Education to resolve a grievance dispute. 7.3 If the Union or Employer alleges a breach or violation of this Agreement, the respect or respects in which it is alleged that the Agreement has been broken or violated shall be indicated promptly to the Employer or the Union. [49] Attached to the Collective Agreement is a four-page Letter of Understanding dated January 2016. It contains the following regarding a Labour Management Committee: For the term of the current collective agreement, the parties agree to implement a Labour Management Relations Committee on the following terms: The Company and the Union agree to form a Labour Management Relations Committee ["LMRC"] consisting of two (2) representatives of management and two (2) representatives of the bargaining unit, all of who shall be employees of the Company. The committee will meet quarterly and minutes will be kept and posted for employees to read. The objective of this committee will be to provide information and improve or maintain harmonious relations between the Company, the Union and the employees and to discuss matters of mutual interest, excluding formal grievances or specific matters relating to the interpretation or administration of the collective agreement. Positions of the Parties Sproule’s Position [50] Sproule says the grievance was strictly limited to the question of whether the Company’s refusal to meet with the UFCW was unlawful. It says the grievance does not include an additional allegation that the Sproule letters or conduct violated UFCW’s representation rights. It says Arbitrator Richardson exceeded his authority by expanding the scope of the arbitration to consider, and decide, whether the Sproule letters interfered with the Union’s representation rights. It says this renders the decision unreasonable. [51] Sproule says regardless of the above, Arbitrator Richardson’s analysis and conclusion that the Sproule letters interfered with the UFCW’s representation rights are directly at odds with the established approach under the relevant statutory provisions and leading cases in this area. It refers to s. 53(1) (a) of the Trade Union Act and decisions of the Nova Scotia Labour Board, including National Gypsum (Canada) Limited, 2018 NSLB 50. It further says the Arbitrator never provided a compelling explanation or justification for ignoring the Act and applicable case law. It says the Arbitrator concluded that the Sproule letters were improper in the absence of any evidence of actual interference with the Union, despite the fact that the case law requires such evidence to find a violation of representation rights. Sproule says not only did the Arbitrator not consider whether there was actual interference, to the contrary, the Arbitrator found (1) the dispute between the parties over Sproule’s refusal to meet had not eroded the UFCW’s representation rights; and (2) the UFCW was “powerful enough” that it was not negatively affected by the Sproule letters. [52] Sproule further says Arbitrator Richardson’s interpretation of the Collective Agreement to find that it prohibited any form of interference, including the Sproule letters, expanded the Collective Agreement provisions at issue well beyond their wording and the scope of analogous statutory provisions. It says the Arbitrator’s reasons concerning the interpretation of the Collective Agreement were extremely brief and focused on the wording of articles 3.1 and 4.1, which do not impose broad restrictions on Sproule’s conduct in respect of UFCW or employees. [53] Sproule submits that the Arbitrator’s decision is not internally coherent or rational, and is not justified in relation to the facts and the law. It requests an Order quashing Arbitrator Richardson’s declaration that the Sproule letters violated the UFCW’s representation rights and the award of damages against Sproule. UFCW’s Position [54] UFCW says the Arbitrator found that the Employer’s conduct in refusing to meet with the Union amounted to a violation of Article 3.1 of the Collective Agreement, which recognizes UFCW as the sole and exclusive bargaining agent for employees. It says the Arbitrator’s reasons are more than adequate. It says the reasons show an internally coherent and rational chain of analysis, that there is no fundamental gap that makes it impossible to understand the decision, and the decision contains no fatal flaw, circular reasoning, fallacy, absurd premise, or other deficiency that would render it unreasonable. The Union says the decision meets the standard of justification, transparency, and intelligibility required of the decision-making process. [55] UFCW says the Arbitrator did not expand the scope of the grievance. UFCW says it is abundantly clear from the record and the Arbitrator’s reasons that the Company was aware that the representation issue raised by UFCW related to Sproule’s letters to UFCW and the UFCW membership. The Union says the grievance language is broad, capturing any conduct that might constitute “interfering with the Union’s legal right to inquire and represent the members’ legal rights which also includes refusing to meet with the legal bargaining agent.” It says letters to the Union membership or threats to the Union fall within the ambit of this language. Moreover, the alleged violation “also includes” refusing to meet with the Union. It says this language suggests that the refusal to meet is only one aspect of the broader alleged breach of the Collective Agreement. The Union says this was made abundantly clear when it provided Sproule with particulars of the grievance and specifically mentioned one of the letters in issue: This is a continuous grievance that began in late October 2020 and continues until today. The most recent occurrence relates to an email from Jason Green on February 17, 2021. [56] UFCW says the grievance, and Mr. Hosford’s subsequent email, clearly contemplate Sproule’s conduct related to the Union’s role as exclusive representative, but not limited to the refusal to meet per se. It says the letters in issue were all before the Arbitrator, including the October 30 Letter and December 8 Letter, which were included in the Sproule books. The Union further says Sproule introduced representation rights caselaw at the hearing, so it clearly was aware this issue was being raised before the Arbitrator. It submits the refusal to meet per se was never the sole and exclusive breach of the Collective Agreement alleged by UFCW. [57] The Union further submits that Sproule’s position on the scope of the grievance is a new argument on judicial review which could have been raised before the Arbitrator and, therefore, is not the proper subject of a judicial review. It says no objection was raised in the hearing that the Recognition Clause issue was not before the Arbitrator. [58] UFCW submits that the Arbitrator’s interpretation of the Collective Agreement and the application of the Trade Union Act to the dispute was entirely reasonable. The Arbitrator considered principles from unfair labour practice authorities to inform his analysis of a breach of the Union’s representation rights under the Recognition Clause. It says a finding of actual interference is not required to ground a breach of representation rights. An employer’s statutory guarantee of free expression to employees does not render union representation rights nugatory. [59] The Union says Sproule’s arguments do not support its assertion that the Arbitrator’s decision is unintelligible or otherwise lacks a rational chain of reasoning. Instead, UFCW says, Sproule’s submissions reveal that its true complaint is with how the Arbitrator weighed the evidence and interpreted the Collective Agreement in light of the Act. UFCW says Sproule is re-arguing the merits of its case before the court, which is outside the scope of the judicial review process. It submits that, except in exceptional circumstances, reviewing courts do not reweigh or reassess the evidence to conduct their own analysis. [60] The Union says the Arbitrator did not rely on section 53(1)(a) of the Act to find Sproule breached the Recognition Clause. While the Arbitrator reviewed the case law to inform his analysis of the alleged breach of UFCW’s representation rights in the Recognition Clause, he referred to a case and its findings of a breach of section 53(3)(e) of the Trade Union Act. The Union says that in support of his finding that Sproule violated UFCW’s representation rights, the Arbitrator referred to the section of National Gypsum that dealt with section 53(3)(e), a breach of which only requires an employer to “seek” to exert influence, not to effect actual interference. [61] The Union further says the distinction between ss. 53(1)(a) and 53(3)(e) is academic because the Arbitrator did not make a finding of a breach of the Act; he found a breach of the Collective Agreement Recognition Clause. He simply referred to National Gypsum to inform his understanding of when a union’s representation rights might be violated by employer conduct. UFCW says it is entirely reasonable to refer to Labour Board unfair labour practice case law to inform an understanding of union representation rights that are grounded in a Recognition Clause. [62] In relation to Sproule’s argument regarding the Arbitrator’s interpretation of the Recognition Clause, the Union says this is not a proper ground for judicial review as Sproule is seeking to re-argue the case that was before the Arbitrator. Regardless, the Union says the Arbitrator’s decision was reasonable. UFCW says the Arbitrator’s interpretation of Article 3.1 is reasonable and consistent with established principles of labour arbitration and relevant authorities. Adherence to the principle that the Union is the sole and exclusive bargaining agent for employees in the bargaining unit is of central importance in the collective bargaining regime under the Collective Agreement. The Arbitrator’s finding that the letters to the UFCW membership and other correspondence violated Article 3.1 is clear and intelligible. [63] In relation to Sproule’s argument that the Arbitrator’s factual findings were inconsistent with his finding of a breach of the Collective Agreement, the Union says this is not a proper ground for judicial review, as Sproule is again seeking to re-argue the case that was before the Arbitrator. Regardless, UFCW says the Arbitrator’s factual findings support his legal conclusions and the decision is reasonable. It says the Arbitrator reviewed the offending correspondence, and the context in which they were sent, and found those letters constituted violations of the Collective Agreement Recognition Clause. [64] UFCW says “[T]hat dispute” referenced in paragraph 153 of the decision is referring to “the dispute over whether particulars were required”. Paragraph 154 distinguishes the offending letters from the disagreement about particulars. The Arbitrator then goes on to explain how the letters were inconsistent with UFCW’s Collective Agreement representation rights. It says Sproule’s argument on this point selectively omits the decision beyond paragraph 153. Considered as a whole, the Arbitrator’s findings of fact are consistent with the finding of a breach of the Collective Agreement. It says Sproule’s argument under this ground conflates a contractual breach with the resultant damage, and evidence of damage is not necessary to make out a violation of a collective agreement. Analysis Standard of Review [65] The parties agree that the standard of review is reasonableness. [66] The Supreme Court of Canada in 2019 set out a revised framework for judicial review of administrative decisions in the companion decisions of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and Bell Canada v. Canada (Attorney General), 2019 SCC 66. The court said in Vavilov that the revised standard of review analysis begins with a presumption that reasonableness is the applicable standard of review in all cases. There are limited exceptions to this presumption, but none apply to this judicial review. The standard of review to be applied in assessing Arbitrator Richardson’s decision is reasonableness. [67] In Vavilov, the court said that reasonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state powers are subject to the rule of law. The majority further said that the focus is on the decision actually made (para. 83). The court said: 83…Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. …Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable. [68] In short, the Vavilov decision indicates that reasonableness review is robust; that the court must always start with the tribunal’s reasons, as the reasons are the primary means of demonstrating reasonableness; that the burden is on the applicant; that the review involves a contextual analysis; that it is a respectful analysis, as judges should be attentive to the application by decision-makers of specialized knowledge; and that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. See also Carroll v. Canada (Minister of Justice), 2021 NSCA 71. [69] In determining whether a decision is reasonable, the court in Vavilov identified two distinctive characteristics of a reasonable decision. Firstly, a reasonable decision is based on internally coherent reasoning. Second, the decision should be justifiable with regard to the legal and factual constraints that bear upon the decision. The court said: [101] What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. There is however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. [102] To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error” … [70] The two types of fundamental flaws are an absence of rational and logical reasoning, and failure to justify in view of the factual and legal constraints. The court, however, noted that these flaws are simply a convenient way to discuss the types of issues that may show a decision to be unreasonable -- that is, where there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. [71] In considering whether a decision is in some respect untenable, the court said: [106] It is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case. However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached. [Emphasis added] [72] The burden is on the party challenging the decision to show that it is unreasonable (Vavilov, para. 100). That burden rests with Sproule. [73] The Manitoba Court of Appeal in Manitoba Government and General Employees' Union v. The Minister of Finance for the Government of Manitoba, The Honourable Scott Fielding, 2021 MBCA 36, set out a concise summary of the two fundamental flaws identified in Vavilov. It stated: [37] With respect to the first characteristic, the reasons should contain a line of analysis that could reasonably lead the decisionmaker from the evidence to its decision with no fatal flaw in logic. The Supreme Court explained (at para 96): ... Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines [Delta Air Lines Inc v Lukács, 2018 SCC 2], at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion. This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. To the extent that cases such as Newfoundland Nurses [Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62] and Alberta Teachers [Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61] have been taken as suggesting otherwise, such a view is mistaken. [38] The majority also clarified that "the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise" (at para 104). Ultimately, the decision-maker's reasoning must "[add] up" (ibid, ). Conclusory or summary statements are generally insufficient. … [42] With respect to the second characteristic, the decision should be justifiable in light of the legal and factual constraints that bear upon the decision. It is important to recognise that the context in which the decision is rendered constrains the decisionmaker. The Supreme Court of Canada provides a non-comprehensive list of some of the legal and factual elements that are generally relevant in determining reasonableness, each of which will vary in significance depending on the context. Thus, where applicable, the decision should: • respect the governing statutory scheme (see Vavilov at paras 108-10); • accord with other relevant statutes and common law principles, or explain why they are not applicable (see paras 111-13); • be consistent with the modern approach to statutory interpretation — although the decision-maker's particular insight into a statutory scheme may be relevant (see paras 115-24); • reflect the evidentiary record and general factual matrix (see paras 125-26); • meaningfully account for the key issues or central arguments raised (see paras 127-28); • justify any departure from past practices or decisions (see paras 129-32); and • reflect the impact of the decision (see paras 133-35). [74] The Manitoba Court of Appeal went on to conclude, after examination of a number of post Vavilov decisions: [59] Taken together, these cases confirm the basic principles which arose from Vavilov, namely: (a) it is not enough that the outcome is justifiable, it must also be justified; (b) the reviewing court must not decide the issue or create a range of reasonable outcomes, but rather should focus on the reasonableness of the decision made and the reasons given; (c) the reviewing court should not buttress a deficiently justified decision with its own justifications; (d) decisions relating to statutory interpretation must accord with the text, context and purpose of the provision and statutory scheme, and other statutory or common law; and (e) decisions must reflect the evidentiary record and account for the key issues or central arguments raised by the parties. Analysis - Was the Arbitrator's Decision Unreasonable? The argument that the Arbitrator unreasonably expanded the scope of the grievance - the ‘no jurisdiction’ argument [75] Sproule submits that Arbitrator Richardson acted outside his authority by expanding “the scope of the arbitration to consider, and decide, whether the Sproule Letters interfered with the Union’s representation rights.” [76] I start with the well-established proposition in labour arbitration cases that grievances are to be afforded a broad and liberal interpretation. Grievances are written by non-lawyers, with the goal of supporting an expeditious, accessible, and not overly-technical process for dispute resolution (Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 8 O.R. (2d) 103 (Ont. CA)). [77] First of all, I note that the various letters in issue were all in evidence before the Arbitrator. The Union included the October 30 Letter, the November 3 Letter, the November 17 Letter, and the December 8 Letter in its documents. Sproule included the October 30 Letter and the December 8 Letter in its documents before the Arbitrator. [78] The February 21, 2021 grievance specifically includes reference to the employer intentionally interfering with the unions legal right to represent its members. The wording, in part, is as follows: The Employer is not following the agreed terms & conditions outlined in the CBA & applicable statues [sic]. Furthermore, the Employer is knowingly and intentionally delaying and interfering with the Union’s legal right to inquire and represent the members legal rights which also includes refusing to meet with the legal bargaining agent.… [79] Sproule refers to the Arbitrator’s reference at paragraph 128 of the decision to the policy grievance not being particularly clear, and says the words used by the Arbitrator to frame the issue in the grievance strictly limited it to the dispute over Sproule’s refusal to meet. In this paragraph, the Arbitrator refers to dealing with two complaints, the second of which the Arbitrator describes as “that refusal undermines the Union’s Collective Agreement and statutory right to represent its members in the bargaining unit.” While the use of the words “that refusal” appear to reference Sproule’s refusal to meet, the decision as a whole makes it clear that interference with representational rights was argued before the Arbitrator. I cannot see how these words assist Sproule’s argument of no jurisdiction, given the content of the grievance and the Arbitrator’s decision indicating that unfair labour practice was argued before him. [80] Within the Arbitrator’s decision, he summarizes the Union’s arguments. Arbitrator Richardson wrote: [114] Turning to the Employer's complaint in the fall of 2020 that the Union had not appointed the additional shop stewards required pursuant to Art. 7.1, counsel submitted that the Employer was free to grieve that -- but any such grievance did not relieve the Employer of its obligation to meet. He also pointed to the Employer's threat in December 2020 to stop remitting membership dues to the Union. This was a threat to breach a clear obligation under the Collective Agreement. It was also an unfair labour practice, inasmuch as it represented a direct attack on the Union's role as the bargaining agent for members of the bargaining unit. It was a transparent and carefully calculated attempt to pick a fight with the Union. It was not simply an exasperated outburst. … [117] Counsel turned to s.43B(2)(a) of the Trade Union Act which provide that an arbitrator may "treat as part of the collective agreement the provisions of any statute of the Province governing relations between the parties to the collective agreement." This in his submission opened to door to a consideration of that Act's unfair labour practice provisions. Counsel submitted that the Employer's conduct--in refusing to meet, in threatening to breach its obligations under the Collective Agreement, in its attacks on Mr Hosford--represented an attempt to under [sic] the Union and its ability to represent its members in the bargaining unit. … [119] Counsel concluded by submitting that the Employer's wilful and knowing breaches of the Collective Agreement, together with its attempts to undermine the Union's role as bargaining agent, warranted an award of damages. [Emphasis added] [81] In my view, based on the above paragraphs, it was clear to everyone involved that the issue of whether the Sproule letters constituted an unfair labour practice under the Trade Union Act was before the Arbitrator. The fact that the Arbitrator ruled on it should not have come as any great surprise to Sproule. [82] In addition, as the Union points out, Sproule introduced representation rights caselaw at the hearing, so it clearly was aware this issue was being raised before the Arbitrator. One such case is the decision in P.S.A.C. v. Canada Post Corporation, 1985 CarswellNat 789 (CLRB), which is referenced at paragraph 160 of the Arbitrator’s decision. P.S.A.C. is a decision of the Canada Labour Relations Board dealing with allegations of unfair labour practices. [83] I would add that s. 53, the unfair labour practice provision of the Trade Union Act, was specifically cited by Mr. Hosford in his response of February 24, 2021, to the Employer’s demand for particulars of the grievance. [84] Finally, it is noteworthy that in the Arbitrator’s interim decision of June 7, 2021, dealing with the Union’s request for disclosure of documents, he summarized the Union’s submissions and stated: [19] Counsel submitted that the documents sought were crucial to Union’s position that the Employers actions constituted an intentional interference with the Union’s right to represent its members. The documents sought could shed light on the motives underlying that intent, and such motives could be relevant to the Unions claim for damages. [85] I am of the view that the Arbitrator’s conclusion that the issue of whether the Sproule letters interfered with the Union’s representation rights was within the scope of the grievance was reasonable, based on the materials and submissions before him. Was the Arbitrators decision that Sproule interfered with the Union’s representation rights when it sent letters to the Union or its employees unreasonable? The Recognition Clause of the Collective Agreement [86] Under the heading “Interference With The Union’s Representation Rights”, Arbitrator Richardson began his analysis as follows: [152] I should say first that I did not consider it necessary to consider whether an arbitrator has the jurisdiction to deal with beaches [sic] by an employer of its obligations under the Trade Union Act. It was sufficient in my mind that the Employer had agreed pursuant to Art. 3.1 to recognize the Union "as the sole collective bargaining agency for Employees," and that, pursuant to Art. 4.1, its "rights as set out in this agreement must be exercised ... in accordance to the collective agreement." Any attempt by the Employer--intentional or not--that interfered with the Union's right to represent its members would constitute a breach of the former's obligations under the agreement. [Emphasis added] [87] As I read this paragraph, Arbitrator Richardson concluded that it was unnecessary for him to consider whether he (as an arbitrator) had jurisdiction to decide whether Sproule had breached s. 53 of the Trade Union Act, because he had jurisdiction to deal with alleged employer interference with the Union’s representation rights in any event, under the Recognition Clause. While I believe an arbitrator does have jurisdiction to consider breaches of the Trade Union Act[1], for the reasons set out below, I see no issue with Arbitrator Richardson’s conclusion that he had jurisdiction to consider whether the Sproule letters interfered with the Union’s representation rights pursuant to the Recognition Clause. [88] Recognition clauses are discussed in Donald J.M. Brown Q.C., David M. Beatty & Adam J. Beatty, Canadian Labour Arbitration, 5th ed., (Toronto: Thomson Reuters Canada Limited, Looseleaf, updated to 2022) at §9:2: Primary among the guarantees a union negotiates for itself is the union recognition clause. This provision, which invariably is found at the beginning of a collective agreement, recognizes the union as the exclusive bargaining agent for the employees it covers. It is so central to the system of collective bargaining developed in Canada that it is required as a mandatory provision of each collective agreement under labour relations laws. … [Emphasis added] [89] Direct employer communication with employees may constitute a breach of a recognition clause. I refer to the reasoning in United Nurses of Alberta, Local 1 v. Calgary Health Region, [2007] A.G.A.A. No. 31 (Lucas), an Alberta arbitration decision. In deciding that the employer had not breached the recognition clause, the arbitrator applied the standard set out in Telus Communications Inc. v. T.W.U. (2004) Board File No. 24160-C, which dealt with an unfair labour practice complaint filed by the union alleging the employer interfered with its representation of employees contrary to s. 94(1)(a) of the Canada Labour Code. The arbitrator stated: 39 Article 3.01 of the collective agreement is intended to ensure that the Union is recognized as the exclusive agent for those employees of the Employer engaged in direct nursing care or nursing instruction in the negotiation of collective agreements and as agent for them with respect to differences arising between them and the Employer relating to the terms of a collective agreement. There was no dispute between the parties as to the meaning of this provision. 40 What was in dispute was whether the Employer breached this provision when it authorized PHAA to send the August 2003 letter to its employees. Again, there was no disagreement between the parties over what was contained in the PHAA letter or that it had been sent to the Employer's employees. However, the Union alleged the letter was erroneous and, in particular, contained the three errors identified by its witness. 41 The Union also argues that as the parties were at the time in question still engaged in collective bargaining, the effect of Article 3.01 was to prevent the Employer from commenting directly to the employees upon matters that were the subject of their bargaining… 42 Against this backdrop, PHAA issued its letter. When an employer expresses its views to employees about issues relating to collective bargaining matters, at a time when the parties are still engaged in collective bargaining, it must be circumspect and cautious so as to avoid any impermissible conduct. In this regard, we accept the standard for employer communications during collective bargaining enunciated by the Canada Industrial Relations Board in the TELUS Communications decision, and which was urged upon us by both parties, as follows: *the communications should be factual, that is, inform employees of a particular position or stance of the employer; *the communications should be balanced rather than an editorial comment about the union's position; *the communication should not suggest that the union adopt a more malleable position at the bargaining table; and *there must not be any overt or obvious elements within the communication designed to circumvent the collective bargaining process with the recognized bargaining agent. 43 In judging the PHAA letter against this standard we are not convinced the letter has deviated from what is permissible. The letter purports to be PHAA's interpretation of what the mediator said, and we have no way of judging if their interpretation is correct or not as the mediator's recommendations were not in evidence before us. Most of the contents of this letter were apparently of no particular concern to UNA or the Union and the only portions to which they took exception were the three specific errors identified by the Union's witness. But while we can appreciate the Union being concerned over the three maters [sic] in question, given the interpretation previously placed upon these matters by UNA in its written communications, nevertheless the comments made by PHAA appear to us to be nothing more than its interpretation of the recommendations made by the mediator. 44 We do not view Article 3.01 as obliging the Employer to refrain from all communications with its employees about matters relating to collective bargaining. What the Employer is obliged to do, in such communications, is to adhere to the standard for employer communications that is enunciated above. As mentioned, in our view the PHAA letter does comply with that standard. In our opinion, that letter cannot be interpreted as a failure by the Employer to recognize the Union as the exclusive bargaining agent for its employees as alleged in the Union's grievance. (Emphasis added) [90] Accordingly, decisions made by labour boards under unfair labour practice provisions are relevant in an arbitrator’s assessment of whether direct employer communications with employees have contravened the recognition clause contained in a collective agreement. [91] The relationship between recognition clauses and the unfair labour practice provisions was examined in Ontario Gaming GTA Limited Partnership v. Unifor (Voluntary Buy-Outs Grievance), [2018] O.L.A.A. No. 176 (Herlich). In that decision, the union urged the arbitrator to consider labour board decisions in determining whether the employer had breached the recognition clause of the collective agreement. The arbitrator noted: 27 In respect of this trio of cases, the union acknowledged they are decisions of Labour Boards rather than the result of arbitrations under a collective agreement. It urged me all the same to give weight and consideration to these decisions as they engage principles, concerns and rights sought to be protected in the instant grievance. Similarly, neither should the geographic provenance of these decisions cause any concern. Alberta, Canada and Ontario all provide similar statutory protections regarding the exclusive bargaining agency and attendant rights conferred on trade unions. … 28 Despite its reliance on these unfair labour practice cases, the union was clear that it was not seeking any declaration or finding before me of a breach of the Act as such. Rather, it urged me to consider these decisions in the context of the overlapping protections offered by the Act and the recognition provision of the collective agreement. In that regard, it relied on the arbitration decision in WHL Management Ltd. and UFCW, Local 175 (Liang), [2011] O.L.A.A. No. 105 (Cummings). [Emphasis added] [92] The arbitrator said the following about recognition clauses: 59 Notwithstanding the change in the identity of the employer as set out in the agreed facts, the parties were agreed that the (current) employer is bound by the terms of the collective agreement. And, effectively for the purposes of this case, the recognition clause can be read far more simply as: "The Employer recognizes the Union as the sole and exclusive bargaining agent of all employees in the bargaining unit". 60 One should begin, in this case, with a recognition of the unique nature of the recognition clause. This is not merely an article in the collective agreement there simply because the parties agreed to its inclusion. It is legislatively mandated. Section 45(1) of the Act provides: Every collective agreement shall be deemed to provide that the trade union that is a party thereto is recognized as the exclusive bargaining agent of the employees in the bargaining unit defined therein. 61 There are only two other provisions which, regardless of the collective bargaining parties' positions, are deemed or required by the Act to be included in any collective agreement: a prohibition on strikes and lockouts during the operation of a collective agreement (section 46) and a provision to insure that unresolved disputes under the collective agreement can be referred to arbitration (section 48(1)). It should not be surprising that this trio of legislative provisions has endured. It forms the bedrock of the social contract underlying collective bargaining: unions secure exclusive bargaining rights and negotiate collective agreements following which the parties enjoy economic peace during the operation of the agreement, disputes being resolved by grievance arbitration rather than by strike or lockout. 62 This, however, is not the only way in which a collective agreement recognition clause can be distinguished from most other collective agreement provisions. The union's collective agreement recognition rights are confirmed and augmented through further statutory protection under sections 70 and 73 of the Act. I have already set these provisions out in full earlier in this award. Just as I have provided a simplified version of the collective agreement recognition clause, it appears to me that for our current purposes the statutory provisions can be read in a modified fashion as follows: No employer shall participate in or interfere with the administration of a trade union or the representation of employees by a trade union. (section 70) No employer shall bargain with [anyone but the certified bargaining agent] on behalf of employees in the bargaining unit or any one of them.] (section 73(1)) 63 The employer reminded us that the instant case is not an unfair labour practice complaint (that is the matter the parties agreed to adjourn pending the outcome of these proceedings). Indeed, the union acknowledged that it was not seeking any declaration of a violation of the Act or any typical OLRB remedial responses. It asserted, nonetheless, that I ought to consider the statutory provisions in the context of my determination. And the employer did not dispute that (given the provisions of section 48(12)(j) of the Act) I am empowered to interpret and apply the provisions of the Act (including, of course, sections 70 and 73). 64 While there is not a complete identity as between the recognition clause of the collective agreement and sections 70 and 73 of the Act, there is, at a minimum, significant overlap in the rights protected by both the statute and the recognition provision of the agreement. They both safeguard and protect the exclusivity of the trade union to represent and act as bargaining agent for all employees in a bargaining unit for which it has acquired bargaining rights. The overlapping purpose and objective of the statutory provisions and the collective agreement recognition clause make the decisions of labour relations boards interpreting their statutory provisions of more than passing interest. [Emphasis added] [93] In successfully arguing that the unfair labour practice statutory provisions and the recognition clause offer overlapping protections, the union in Ontario Gaming GTA Limited Partnership relied on WHL Management Ltd. v. UFCW, Local 175 (Liang), [2011] O.L.A.A. No. 22 (Cummings). In WHL Management Ltd., the employee and union grieved that the employee had been harassed, intimidated, and verbally abused by his supervisor. The union was seeking a declaration that the employer had violated the collective agreement. The employer objected that the core of the complaint was an alleged breach of the unfair labour practice provisions of the Labour Relations Act, 1995, not the collective agreement, and that the arbitrator therefore had no jurisdiction to hear it. The union argued that the collective agreement should be interpreted subject to relevant employment legislation, including the Labour Relations Act, 1995. It relied on the decision of the Supreme Court of Canada in Parry Sound (District) Social Services Administration Board v. OPSEU, Local 324 [2003] 2 S.C.R. 157. The court in Parry Sound held that a “…grievance arbitrator has the power and responsibility to enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement” (para. 1). The arbitrator concluded as follows: 17 As counsel for the employer argued, decision makers in the post-Weber world must determine the essential character of the dispute. That is to be a factual determination, not a legal one. I find that the essential character of the dispute is whether the employer, through its supervisor, has acted with the intent and or effect of undermining the union and its steward, and/or sought to discourage the employees from exercising their collective agreement rights to file grievances. That sort of dispute can be heard by a labour arbitrator because it engages provisions of collective agreements such as the proper exercise of management rights; the right to file grievances and the right of union stewards to prepare and file grievances during working hours. 18 Of course, the Labour Board can also hear such disputes, and regularly hears them under its unfair labour practice provisions. But I disagree with the assertion of the employer that the Board has exclusive jurisdiction to hear such matters. As the Board noted in the often cited Valdi Inc., [1980] OLRB Rep. Aug 1254, the Board is regularly called on to decide whether to hear a matter as an unfair labour practice complaint, or to defer the matter to labour arbitration. If the Board had exclusive jurisdiction, the question of deferral would never arise. The Board regularly weighs what choice is best and the various factors it considers are set out in Valdi, which also dealt with an allegation that the employer was interfering in the union's representation of its members and undermining its stewards. At paragraph 8, the Board wrote: The complaint centers on the grievor's union activity and a dismissal but these allegations will not usually, in themselves, be sufficient justification for Board intervention into a collective bargaining relationship or, at least, these matters will not usually constitute a prima facie case for labour board intervention. Most collective agreements provide for the appointment of union stewards and also provide for their activity within the context of the collective agreement. Disputes over the extent and exercise of these contractual rights are not unusual and will not normally rise to the level of a policy concern transcending the particular collective bargaining relationship. 19 The Board decided not to defer to arbitration because it was concerned about the access of the terminated probationary employee to arbitration. That issue does not arise in this case. But the Board's decision in Valdi Inc. demonstrates that the Board and arbitrators have concurrent jurisdiction to deal with complaints about employer conduct that allegedly interferes with the union's ability to represent members and file grievances on their behalf and as the Board said in that decision, most of those cases will be heard by labour arbitrators. 20 I disagree with the employer's assertion that sections 114 and 116 of the Labour Relations Act, 1995 grant the Board exclusive jurisdiction to decide the matters contained in it. As set out above, the Board regularly defers matters to arbitration that could be heard as unfair labour practice complaints. I am mindful that the union is not asking me to make a declaration that the employer has violated the Labour Relations Act, 1995 nor to make remedial orders of the sort the Board would make. The union is asking me to refer to the Act's protections of union activity to aid in assessing the employer's exercise of its management rights and asking me to make remedial orders that an arbitrator can make. I do not understand the union to be asking me to exercise the powers of the Labour Board. 21 It is also interesting to note that while there is lots of case law concerning the Labour Board's discretion to defer to arbitration, there are few, if any cases like this one; an employer asserting that the union cannot litigate their matter at arbitration but must take it to the Labour Board. I think that the lack of cases can be explained. Many employers would prefer not to encourage a complaint at the Board, where the employer would bear the burden of proof to establish that it had not committed an unfair labour practice. In any event, it should only be in the most unusual of cases that an arbitrator would disturb the union's preferred choice to bring its concerns to an arbitrator, rather than the Labour Board. 22 As an alternative argument, the employer argued that if the matter was to proceed to arbitration, the union could not rely on the provisions of the Labour Relations Act, 1995 in support of its argument that the employer has improperly exercised its management rights. As I read Parry Sound (District) Social Services Administration Board (above) arbitrators are required to consider the application of employment-related statutes. I see no basis to exclude the Labour Relations Act, 1995, the very statute that gives me the jurisdiction and powers to convene and hold this arbitration. To the extent that this view contradicts the analysis in Kenora Forest Products, I respectfully disagree with that decision. I believe that the Supreme Court of Canada has spoken clearly. In considering the terms of a collective agreement, it is necessary to consider employment related statutory provisions. In considering the exercise of management rights, I must look at whether those rights are curtailed by a statutory prohibition, even if there is no express prohibition in the collective agreement. At paragraphs 28 and 29, the Court wrote: 28. As a practical matter, this means that the substantive rights and obligations of employment-related statutes are implicit in each collective agreement over which an arbitrator has jurisdiction. A collective agreement might extend to an employer a broad right to manage the enterprise as it sees fit, but this right is circumscribed by the employee's statutory rights. The absence of an express provision that prohibits the violation of a particular statutory right is insufficient to conclude that a violation of that right does not constitute a violation of the collective agreement. Rather, human rights and other employment-related statutes establish a floor beneath which an employer and union cannot contract. 29. As a result, the substantive rights and obligations of the parties to a collective agreement cannot be determined solely by reference to the mutual intentions of the contracting parties as expressed in that agreement. Under McLeod, [McLeod v. Egan [1975] 1 S.C.R. 517] there are certain terms and conditions that are implicit in the agreement, irrespective of the mutual intentions of the contracting parties. More specifically, a collective agreement cannot be used to reserve the right of an employer to manage operations and direct the work force otherwise than in accordance with its employees' statutory rights, either expressly or by failing to stipulate constraints on what some arbitrators regard as management's inherent right to manage the enterprise as it sees fit. The statutory rights of employees constitute a bundle of rights to which the parties can add but from which they cannot derogate. 23 I find that the union's proposal that I consider the provisions of the Labour Relations Act, 1995 when looking at how the employer exercised its management rights in the fact scenario before me, is precisely what the Supreme Court has directed that I do. [Emphasis added] [94] These authorities establish that recognition clauses and unfair labour practice provisions safeguard and protect the exclusivity of a trade union to represent and act as bargaining agent for all employees in a bargaining unit. Employer interference with the union’s exclusive representation of employees through direct communications with employees can constitute a breach of both the recognition clause in the collective agreement and the unfair labour practice provisions. An arbitrator has the jurisdiction to consider the complaint in either case. Where the complaint is framed as a breach of the recognition clause, labour board decisions considering s. 53 will be relevant to the arbitrator’s analysis. It would be nonsensical to find otherwise, as this would mean that an arbitrator could apply entirely different factors, depending on whether the grievance was considered under s. 53 of the Trade Union Act or under the recognition clause. Interference with the Union’s Representation Rights under the Recognition Clause [95] Arbitrator Richardson, in addressing the Sproule letters, referenced the Nova Scotia Labour Board decision in International Union of Operating Engineers, Local 721B v. National Gypsum (Canada) Limited, 2018 NSLB 50. The Arbitrator stated: [155] The first three letters--all sent to members of the bargaining unit--alleged that the breakdown in relations--and in particular the handling of grievances--was a direct result of the bad faith and failure of Mr. Hosford and the Union to meet the latter's obligations under the Collective Agreement. Mr Barrow's letter of November 17th was particularly harsh, focussing directly on what were alleged to be Mr Hosford's personal failures as a Union representative. It escalated its attack by urging the members to themselves investigate Mr Hosford's conduct. The Employer's comments were not simply an explanation of a difference of opinion over an offer during collective bargaining, or of the Employer's position on a particular topic. Those types of comments to a union's members may escape censure: see, for e.g., IUOE, Local 721B v National Gypsum (Canada) Limited 2018 NSLB 50 at paras. 99-109. … [Emphasis added] [96] It is apparent from this paragraph that Arbitrator Richardson recognized the relevance of the Nova Scotia Labour Board decision in National Gypsum to his determination of whether the employer communications interfered with the Union’s representation rights under the recognition clause. He cited paragraphs 99-109 of National Gypsum, where the Labour Board reviewed the law with respect to s. 53(1)(a). The Board made clear that in cases involving employer messages to employees, and other conduct that is not inherently destructive, a breach of s. 53(1)(a) will not be found without proof from the union of actual interference. The Labour Board wrote: [99] Section 53 (1) (a) of the Act provides, “No employer and no person acting on behalf of an employer shall participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union.” This section protects the freedom of association enshrined in the Act and a union’s exclusive role as bargaining agent. The burden to prove interference is on the Union. [100] With respect to context, a Union’s vulnerability is a relevant consideration when assessing whether there has been interference with respect to the administration of a trade union or the representation of employees by a trade union. As noted in Air Canada, [2001] CIRB no. 131 (supra), If the union is in a vulnerable position with respect to its ability to represent its members, or with respect to its members’ faith in that ability, the Board ought to consider the impact of the communication in light of this vulnerability. It is not surprising, therefore, that labour boards in Canada have consistently held that communications issued in a long-standing unionized workplace should not be subject to the same scrutiny as those issued during an organization campaign; a union in the latter position is far more likely to be vulnerable to attack. However, in considering the length of the bargaining relationship, the fundamental principle of the bargaining agent’s relative vulnerability should not be ignored. [101] While not of the same degree as during an organization drive, a union may be vulnerable leading up to and during an “open period” period. This video was shown and discussed in the workplace in the months leading up to the open period. We are also satisfied by the evidence that there is a larger cohort of newer employees in this workplace who have much less history with the Union and that this increased its vulnerability. Therefore, notwithstanding there is a long-standing bargaining relationship, there were factors present which made the Union vulnerable during the period in question. [102] Ultimately, however, the Union could not point to any actual evidence of interference with the Union and this is why it has not succeeded with respect to its Complaint vis a vis section 53 (1) (a). We viewed evidence of actual interference as a necessary requirement in the circumstances of this case. [103] The parties strongly disagreed whether this was the proper approach for us to take and thus we have taken some care to set out our reasoning on this issue. The Union argued the message from John Corsi during the mandatory employee meeting and certain other comments made by the employer were inherently destructive of the Union and thus there was a section 53 (1) violation. National Gypsum argued that proof of actual interference was required in this case. Both parties referred to Michelin and Zinck’s Bus as supportive of their positions. [104] In Zinck’s Bus, the Board explained and expanded upon the approach taken in Michelin to this very question. In that case, the Board held that in some instances such as the closure of a plant; contracting out of bargaining unit work; discipline or discharge of an employee in certain instances; non-solicitation rules; captive audience meetings; and employer "messages” it was appropriate and necessary for a union to adduce proof of actual interference before the Board would sanction an employer. [105] As noted, we believe this is the correct approach. Former Chair Darby opined that we can legitimately insist on proof of actual "interference" without harm to the Union’s or employee’s interests under the Act because these types of comments and conduct (which include captive audience meetings and employer messages) are not inherently destructive. The Board noted in Zinck’s Bus: This conduct is not inherently destructive in our view because, ex facie, an employer does have a right to discipline or discharge employees or to express its views in full compliance with Section 58(1). If it terminates an employee for no reason or for a specious one (when the reality is that the employer wants to get rid of a union "key" person and/or to send the "chilling message"), this conduct will either deter organizational efforts or, as with the Miss A hypothetical, fail to succeed. If it deters, then the Union ought to be able to adduce evidence establishing this even if the evidence consists of a sudden lack of success in gaining memberships after the discharge by contrast with its success before the discharge, or of the dramatic loss of support reflected in votes for the union (in which case the Board can certify the Union despite the vote loss pursuant to Section 25(9) of the Act). [106] We agree with former Chair Darby that it would not be appropriate to punish an employer under this section for an anti-union motive in cases of employer messages including those delivered in “captive audience meetings” unless there was evidence of an actual negative effect. As he noted in Zinck’s Bus, there are other remedies provided under the Act for employer comments which exceed the scope and protection of section 58. We believe this is the correct approach even where, as we explain later, we find there was a clear anti-union animus to John Corsi’s comments. [107] As former Chair Darby explained: …a finding of "interference" by the Board and the consequent imposition of remedial action is really a response to the employer's motive, ie., its seeking to interfere rather than to its "interference". Since the Legislature has addressed the issue of when the "seeking" to achieve a prohibited result is an employer unfair labour practice [in Section 53(3)(e)], we do not regard it as legitimate to add to the list of prohibited conduct under Section 53(1)(a), a "seeking to interfere with the representation of employees", etc. Similarly, (by way of further illustration of this category of conduct), in light of Section 2(b) of the Charter and Section 56(2) [sic] of the Act, an employer has a right to express its views. We ought not to erase the latter in favour of employee/union freedom of association. The Charter does not accord a higher status to it than to expression - and neither should we. This is particularly true where adequate protection is accorded to employee/union rights by Section 58(2). [108] In contrast, the Board recognized that some conduct - such as the interrogation of employees about their membership in a union; employing professional strikebreakers (as distinguished from genuine replacement workers); and employer infiltration of union meetings - is inherently destructive of a union. The Board in Zinck’s Bus commented, and we agree, that this type of conduct “can have no legitimate or significant employer or entrepreneurial business justification and simply cannot, as a matter of Board policy, be permitted.” The approach of the Board is these situations is to find "interference" within the meaning of Section 53(1)(a) even if there is no evidence that any employee or the Union was actually "interfered with.” [109] Returning then to the matter before us, there was no evidence that any employees found the employee meetings where the video was shown in August to be intimidating, threatening, or coercive nor any evidence that any employee changed their attitudes or views toward the Union. We acknowledge that these were mandatory meetings (all employees who were not on approved leave had to attend), but note these were regular meetings. While some Union members were offended and/or disagreed with Mr. Corsi’s comments, this is not evidence of actual interference. Similarly, there was absolutely no evidence that anyone actually felt intimidated, threatened, coerced or influenced negatively toward the Union during any of the discussions involved in the other allegations. [110] As we have found no evidence of any actual interference within the meaning of section 53 (1) (a)with respect to any of the allegations which, in our view, is necessary for a finding of a breach of this section. Therefore, the Board finds that there has been no interference within the meaning of section 53 (1) (a). [Emphasis added] [97] The Nova Scotia Labour Board has confirmed the approach in National Gypsum in a number of subsequent decisions, including Canadian Union of Public Employees, Local 8920 v. Nova Scotia Health Authority, 2019 NSLB 66 at paras. 35-36. [98] It is noteworthy that the Nova Scotia Labour Board in National Gypsum referenced the Canada Industrial Relations Board’s decision in Air Canada, 2001 CIRB 131. In that case, the Canadian Union of Public Employees, Airline Division, Air Canada Component (the union) filed a complaint of unfair labour practice alleging that Air Canada (the employer) had violated s. 94(1)(a) by interfering with union administration and the representation of its members through improper communication with employees. The Board’s review of the law on s. 94(1)(a), while lengthy, is highly instructive. The Canada Labour Code provisions are very similar to sections 53(1) (a) and 58(2) of the Trade Union Act and are as follows: Unfair Practices Employer interference in trade union 94 (1) No employer or person acting on behalf of an employer shall participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union; … Exception (2) An employer is deemed not to contravene subsection (1) by reason only that they … express a personal point of view, so long as the employer does not use coercion, intimidation, threats, promises or undue influence. [99] In Air Canada the Board said the following regarding the factors relevant to a consideration of employer interference: 15 In order to determine what specific communications fall into the realm of proscribed contact, the Board has, in the past, examined three critical factors. In Saskatchewan Wheat Pool, supra, the Board defined these factors as: ... the labour relations context within which such communications take place, the content of the communications themselves, and the consequences, intended or not, that they have on the authority of the bargaining agent... (page 136) 16 It is clear from the Board’s decision in Saskatchewan Wheat Pool, supra, however, that the test is not a tiered test, whereby each element must be satisfied; in that case, the Board held that the accuracy of the content did not diminish the negative effect that would result from the communication. Instead, the three elements are to be considered together to determine whether the impugned communication crosses the line from acceptable contact to interference. It is useful to review each of the three elements in turn, in light of the relevant jurisprudence and the applicable legal standard. (a) Labour Relations Context 17 The context in which an employer communicates to its employees has been recognized as a determining factor in any complaint of employer interference. Generally, the word “context” has been interpreted broadly to refer to the relationship between the employer and the employees, the employer and the union, and the union and its membership. Labour boards in Canada have often interpreted the context solely according to the length of time the workplace has been unionized. In Canadian Pacific Air Lines Limited (1985), 61 di 140; and 10 CLRBR (NS) 62 (CLRB no. 520), for example, the Board held that: ... the actual effects of employer communications, even where they could be deemed roughly equivalent in nature, if that were possible, may well be much greater in a union organizing context than in one where unionization and collective bargaining have been firmly established over a long period of time. ... (pages 156; and 77) 18 Similarly, the Alberta Labour Relations Board held in Pride of Alberta, a Limited Partnership of Burns Food (1985) Ltd., [1996] Alta. L.R.B.R. 143, that: ... Where an organizing campaign is underway or where the collective bargaining relationship is a new one, Boards will scrutinize employer speech more critically. ... (page 148) 19 At the same time, the Board has held that the immediate circumstances in which communications take place can be determinative in some cases. In Aéroports de Montréal (1995), 97 di 116 (CLRB no. 1115), the Board recognized that the particular circumstances of ongoing collective bargaining may affect the impact of a communication…. 20 When examined in light of the purposes behind section 94, to protect the employees’ right to choose a bargaining agent and to protect the union’s position as exclusive bargaining agent, these cases suggest that an interpretation of the labour relations context depends largely on the parties’ vulnerability. If the union is in a vulnerable position with respect to its ability to represent its members, or with respect to its members’ faith in that ability, the Board ought to consider the impact of the communication in light of this vulnerability. It is not surprising, therefore, that labour boards in Canada have consistently held that communications issued in a long-standing unionized workplace should not be subject to the same scrutiny as those issued during an organization campaign; a union in the latter position is far more likely to be vulnerable to attack. However, in considering the length of the bargaining relationship, the fundamental principle of the bargaining agent’s relative vulnerability should not be ignored. (b) Content 21 The Board’s position with respect to the content of the employer’s communication has been somewhat ambivalent, and tends to reflect a reliance on the more predominant elements of the legal test, context and effect. Generally, the Board frowns upon outright lies or threats, but the jurisprudence does not clearly set out how the varying degrees of truth and opinion affect the legality of a communication. A broad statement related to the range of acceptable communication is set out in Sedpex Inc., supra, quoted more recently with approval in Canadian National Railway Company, supra: In short, if an employer speaks the truth, and does so moderately and rationally, exercising appropriate recognition of the legitimacy and role of the bargaining agent, the communication will probably be judged to be within the realm of permissibility. Where the communication does not distort the truth or mislead, sets out a reasonably fair and accurate summary of the situation, does not denigrate the union or have the purpose and effect of undermining its efforts to represent its people, it can be considered to be outside the prohibition of section 184(1)(a) [now section 94(1)(a)]. (page 54; emphasis added by CIRB) 22 Although this excerpt seems to indicate the types of content approved by the Board, in practice, the content of employer’s communications is rarely determinative of an interference complaint. In Saskatchewan Wheat Pool, supra, for example, the Board held that the presentation of completely truthful material to employees could nonetheless constitute a violation of the Code (see page 101). At most, an examination of the content of a communication may determine the outcome of the complaint if that content is so benign on its face that it could not, under any circumstances, actually interfere with the union’s representation of its members. Otherwise, the content of a communication must be examined, but should be viewed according to its context and its effect. 23 An exception to this general approach has arisen with the introduction of section 94(2)(c), which has a potential impact on employer interference complaints, which goes beyond these limits. However, it must be noted at this time that whatever that impact may be, section 94(2)(c) indicates the particular form of content, which is not a violation of section 94(1): 94. (2) An employer is deemed not to contravene subsection (1) by reason only that [he] ... (c) express[es] a personal point of view, so long as the employer does not use coercion, intimidation, threats, promises or undue influence. 24 Although this section is new to the Code, it is similar to corresponding provisions in provincial labour legislations, such as Alberta and Ontario. In those provinces, labour boards have generally interpreted the “expression” and “coercion, intimidation, threats, promises or undue influence” at face value, creating a fairly straightforward factual test (see, for example, Calgary (City), [2001] Alta. L.R.B.R. 250, at page 265). If, therefore, a communication is found, as a matter of fact, to consist of personal expression, and is not found to contain coercion, intimidation, threats, promises or undue influence, it should fall into the exception created by section 94(2)(c) and be deemed not to constitute a violation of the Code. (c) Effect of Communication 25 The effect of an employer’s attempt to communicate directly to employees is often the single determinative factor in a complaint of employer interference. If a communication is found to have the effect of interfering with a union’s administration or the representation of its members, that communication will be found to breach section 94(1). 26 Intention to interfere with the union is not required to substantiate a complaint of interference. Although in Sedpex Inc., supra, the Board counted communications, which do not “have the purpose and effect of undermining its [the union’s] efforts” among its list of acceptable employer communications, it is clear in Saskatchewan Wheat Pool, supra, that the intention to interfere is not necessary: ... The employer’s subsequent action to communicate detailed information of the plan to the same employees through its hierarchical channels, however well intentioned, had the effect of undermining the role of the certified bargaining agent. In the Board’s view, this conduct is contrary to the Code. (pages 137-138; emphasis added by CIRB) 27 Neither a general anti-union animus nor a more specific intention to interfere with some aspect of the union’s representation is therefore necessary to establish a complaint of employer interference. Such intention, especially when known to employees, may have an impact on the effect of the communication, but it is neither required nor determinative. 28 Because the effect of employer communication is, by nature, a matter of fact for the Board to decide, there is little jurisprudence to indicate when interference has been established. It is for the Board to decide whether the communication has actually undermined the union’s ability to represent or undermined the membership’s faith in the union. It should be noted, however, that Canadian Pacific Air Lines Limited, supra, suggests that employer communication can contravene the Code without the actual effect of interference taking place. It was stated in that case that the Board must determine: ... the context of the communications, the communications themselves and whether they could reasonably be expected to have a detrimental effect on the interests of the union and its members... (page 160; emphasis added by CIRB) 29 However, the Board did qualify this amendment to the last part of the test as follows: When the Board announced its decision to the parties at the end of the hearing, on the eve of the taking of a strike vote, it had no way of peering into the future to see what the effect of the employer communications might actually be. A decision had to be made in respect of their face value and apprehended effect. ... (pages 162; and 84) 30 Given the reasons set out above, and given that there was and is no such urgency in the instant case, there is no reason to justify that the potential effect of the employer communications should be considered. If such “constructive effect” is considered, it should be viewed only in light of the labour relations context, which context must be carefully and diligently examined. Otherwise, only the actual effect of the communication should be considered by the Board. [Emphasis added] [100] As noted above, the National Gypsum decision was before Adjudicator Richardson, and indeed was referred to in his reasons. He did not, however, apply the s. 53(1)(a) analysis – in particular, the requirement for evidence of actual interference – in determining whether the Sproule letters interfered with the Union’s representation rights. [101] Arbitrator Richardson continued at paragraph 155 of his decision, writing: Here, and by way of contrast, the Employer's comments in the three letters in November 2020 represented a direct attack on the competence--personal and organizational--of the bargaining agent and in particular of Mr Hosford--and an invitation to investigate Mr Hosford's conduct. The message to the members of the bargaining unit was clear--your bargaining agent (and in particular Mr Hosford) was disrupting "the labour relationship by refusing to conduct yourself in good faith." That in turn amounted to an allegation that the employees would be better off with someone else to represent them--a type of allegation similar to the one found to be an interference with a union's representation rights in the National Gypsum case at paras. 113-21. [Emphasis added] [102] In the paragraphs of National Gypsum referenced by the Arbitrator (113-121), the Board considered whether the employer had breached s. 53(3)(e) of the Trade Union Act. Section 53(3)(e) provides: 53(3) No employer and no person acting on behalf of an employer shall … (e) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a pecuniary or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of a trade union or to refrain from (i) testifying or otherwise participating in a proceeding under this Act, (ii) making a disclosure that he may be required to make in a proceeding under this Act, (iii) making an application or filing a complaint under this Act; [103] Section 53(3)(e) prohibits an employer from “seeking” to compel a person – whether by intimidation, threat, the imposition of a penalty, or other means – to refrain from becoming or to cease to be a member, officer or representative of a trade union, or to refrain from taking certain actions under the Trade Union Act. Since s. 53(3)(e) prohibits an employer from “seeking” to achieve a specific result, evidence that it was actually successful in achieving that result is not necessary to find a breach. In Amalgamated Transit Union Local 508 v. Zinck’s Bus Company Limited, NSLRB Decision 4137 Supplementary, May 2, 1994, the Labour Board explained that s. 53(1)(a) does not prohibit “seeking to interfere with the representation of employees” because “seeking” to achieve a prohibited result is already dealt with under s. 53(3)(e): Since the Legislature has addressed the issue of when the "seeking" to achieve a prohibited result is an employer unfair labour practice [in Section 53(3)(e)], we do not regard it as legitimate to add to the list of prohibited conduct under Section 53(1)(a), a "seeking to interfere with the representation of employees", etc. [page 27] [104] Although the Arbitrator held that the employer’s allegation in the Sproule letters that the employees would be better off with someone other than the bargaining agent to represent them was “a type of allegation similar to the one found to be an interference with a union’s representation rights in the National Gypsum case at paras. 113-121”, nowhere in these paragraphs of National Gypsum did the Labour Board find “an interference with a union’s representation rights.” It referred only to a violation of s. 53(3)(e). At paragraphs 119-120, the Board stated: [119] In our view, the Union has met its burden. Having considered the totality of the evidence, which includes what was said; where it was said; who said it; the lack of any local messaging about the Halifax plant’s safety performance; and the fact that Mr. Corsi’s message was accompanied by a clear statement of an anti-union preference leads us to the conclusion that National Gypsum has contravened section 53 (3) (e). In our view, Mr. Corsi’s statement about safety and non-unionized plants constitute a “kind of threat” or “other means” used to try to achieve his preference for non-union plants. [120] Mr. Corsi’s comments, made in the setting of the mandatory employee meeting; repeated on the television screen in the lunchroom; and repeated by Ralph Wardrope, are not protected by section 58. As we noted earlier, when considering the question of “undue influence, we are concerned with “what is likely to impair freedom of choice.” A reasonable employee, as concerned about his or her personal safety as he or she is with respect to job security, should not be presented by a senior executive with the choice between unionization and having a safer workplace. [Emphasis added] [105] The Arbitrator does not explain how the finding in National Gypsum of a breach of s. 53(3)(e) is relevant to his own finding that the Employer, in sending the Sproule letters, interfered with or breached the Union’s representation rights. As noted earlier, evidence of actual interference is required for a finding that direct employer communication interfered with a union’s representation rights under s. 53(1)(a). [106] Assuming without deciding that seeking to interfere with a union’s representation rights could amount to a violation of both s. 53(3)(e) and the representation clause in a collective agreement, the Arbitrator did not find that the Employer was “seeking” to interfere with the Union’s representation rights; he found that it did interfere with those rights. As noted earlier, the Arbitrator summarized his conclusion on the issue as follows: [162] Based on the facts and reasons set out above, I … b. declare that the Employer breached Arts. 3.1, 4.1 and 4.2 of the Collective Agreement by interfering with the Union’s representational rights when it sent the letters that it did in November and December 2020, and order the Employer to pay to the Union $5,000.00 damages for that breach. [Emphasis added] [107] Moreover, the Arbitrator did not address the requirement under s. 53(3)(e) for evidence of anti-union animus. While it is certainly clear from the Sproule letters that the Employer had animus toward Mr. Hosford, and felt that he was not properly discharging his obligations as Union representative, the Arbitrator did not refer to any evidence that the Employer, like the employer in National Gypsum, preferred a non-unionized environment. Indeed, Mr. Barrow opened the November 3 Letter by stating, “As a starting point, we want to confirm our respect for UFCW as your bargaining agent and representative.” If the Arbitrator concluded that, in fact, the Employer did harbor anti-union animus, his reasons do not make that clear. [108] With respect to the December 8 Letter, which was not sent to the membership, Arbitrator Richardson found that it was “notice that the Employer intended to knowingly breach its obligation under the Collective Agreement to remit union dues to the Union” (para. 156). He stated: [156] There was no evidence that Mr Green’s letter of December 8, 2020 was sent to the membership. But it was just as serious an interference with the Union’s representational rights. The letter was not just an expression of a difference of opinion over how Art. 3.1 should be interpreted or applied. It was rather notice that the Employer intended to knowingly breach its obligation under the Collective Agreement to remit union dues to the Union. It was a threat to ignore the grievance process laid down in Art. 7. It represented an assault both on the utility of the agreement itself (because the Employer was going to ignore it in favour of self-help), and on the Union’s ability to represent its members. The two options Mr Green proposed—to deduct dues but hold them in trust until the Union complied, or leave it to the Union to collect them directly—represented direct attacks on the Union’s ability to represent its members. The first would undercut the Union’s finances and hence its ability to represent its members. The second would be so administratively difficult as to amount to the same result—and would as well create tensions and confusion between the Union and its members over why the change had taken place. [157] The threat to act unilaterally in direct violation of the Collective Agreement represented a form of self-help that collective agreements are intended to prevent. The fact that the threat was not realised--no doubt because of the MOA that was reached shortly thereafter--does not diminish its seriousness. Parties to a collective agreement should not be encouraged in a belief that they can get what they want by acting outside the grievance process (to which they agreed), or by threatening to act in violation of their clear obligations. The Union here was obviously powerful enough to have been able to call the Employer's bluff (if bluff it was) if it had come to that. But smaller and weaker unions might not be in the same position--which is why threats like the one made by Mr Green was such a serious assault on the representational rights of the Union, and why it has to be treated as such. … [159] Be that as it may, I am satisfied for the above reasons that the Employer's three letters of [sic] to the membership in November 2020, and Mr Green's letter of December 8th, did represent a serious breach of the Union's representational rights under the Collective Agreement. The former represented a direct attack on the competence of the members' union representative (Mr Hosford) and an invitation to investigate his conduct. The latter represented an attempt to bend the Union to the Employer's will by threatening to knowingly breach a provision important to the Union's operations. Both represented breaches of the Employer's obligations pursuant to Art. 3.1, 4.1 and 4.2. The question then becomes remedy. [Emphasis added] [109] In stating that the December 8 Letter was “not just an expression of a difference of opinion over how Art. 3.1 should be interpreted or applied”, the Arbitrator appeared to apply the same standard to the December 8 Letter, which was not sent to the Union’s membership, as he applied to the communications which were made directly to employees (para. 155). Leaving aside the appropriateness of this approach, the Arbitrator still did not acknowledge the requirement for actual evidence of interference. The fact that the alleged employer interference with a union’s representation rights by way of employer communication is framed as a breach of the Recognition Clause rather than as a breach of the unfair labour practice provisions does not mean an arbitrator is free, without explanation, to adopt a wholly different standard for a finding of interference than that outlined by the Nova Scotia Labour Board. [110] In my view, by not acknowledging the requirement for evidence of actual interference with a union’s representation rights that applies to employer communications, nor explaining why, in his mind, there was no such requirement on the facts of this case, Arbitrator Richardson made an unreasonable decision. His reference to paragraphs 113-121 of National Gypsum is puzzling. Reading between the lines, Arbitrator Richardson appeared to find that certain statements made by employers to employees or union representatives are inherently destructive, thereby dispensing with any need for proof of actual interference. That conclusion (if it was indeed what he intended to convey) is inconsistent with the Nova Scotia Labour Board jurisprudence. The Labour Board has consistently exempted employer messages, which can have a legitimate business purpose, from the category of inherently destructive conduct which, by its nature, “can have no legitimate or significant employer or entrepreneurial business justification and simply cannot, as a matter of Board policy, be permitted.” By not explaining his reasoning for departing from the relevant authorities (or even acknowledging that he was making such a departure), Arbitrator Richardson produced a decision that is neither based on an internally coherent and rational chain of analysis, nor justified in relation to the facts and the law that constrained him. [111] Legal precedent that is settled can constrain the range of acceptability and defensibility available to the decision-maker. Vavilov says the following regarding statutory and common law precedent: [111] It is evident that both statutory and common law will impose constraints on how and what an administrative decision maker can lawfully decide: see Dunsmuir, at paras. 47 and 74. For example, an administrative decision maker interpreting the scope of its regulation-making authority in order to exercise that authority cannot adopt an interpretation that is inconsistent with applicable common law principles regarding the nature of statutory powers: see Katz Group Canada Inc. v. Ontario (Health and Long Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at paras. 45-48. Neither can a body instructed by legislation to determine what tax rate is applicable in accordance with an existing tax system ignore that system and base its determination on a “fictitious” system it has arbitrarily created: Montréal (City), at para. 40. Where a relationship is governed by private law, it would be unreasonable for a decision maker to ignore that law in adjudicating parties’ rights within that relationship: Dunsmuir, at para. 74. Similarly, where the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable decision will generally be one that is consistent with the established understanding of that standard: see, e.g., the discussion of “reasonable grounds to suspect” in Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006, at paras. 93-98. [112] Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide. An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision had been interpreted. Where, for example, there is a relevant case in which a court considered a statutory provision, it would be unreasonable for an administrative decision maker to interpret or apply the provision without regard to that precedent. The decision maker would have to be able to explain why a different interpretation is preferable by, for example, explaining why the court’s interpretation does not work in the administrative context: M. Biddulph, “Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law” (2018), 56 Alta. L.R. 119, at p. 146. There may be circumstances in which it is quite simply unreasonable for an administrative decision maker to fail to apply or interpret a statutory provision in accordance with a binding precedent. For instance, where an immigration tribunal is required to determine whether an applicant’s act would constitute a criminal offence under Canadian law (see, e.g., Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 35 to 37), it would clearly not be reasonable for the tribunal to adopt an interpretation of a criminal law provision that is inconsistent with how Canadian criminal courts have interpreted it. [113] That being said, administrative decision makers will not necessarily be required to apply equitable and common law principles in the same manner as courts in order for their decisions to be reasonable. For example, it may be reasonable for a decision maker to adapt a common law or equitable doctrine to its administrative context: see Nor-Man Regional Health Authority, at paras. 5-6, 44-45, 52, 54 and 60. Conversely, a decision maker that rigidly applies a common law doctrine without adapting it to the relevant administrative context may be acting unreasonably: see Delta Air Lines, at paras. 16-17 and 30. In short, whether an administrative decision maker has acted reasonably in adapting a legal or equitable doctrine involves a highly context-specific determination.. [112] The Supreme Court further stated in Vavilov: [131] Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable. In this sense, the legitimate expectations of the parties help to determine both whether reasons are required and what those reasons must explain: Baker, at para. 26. We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole. [132] As discussed above, it has been argued that correctness review would be required where there is “persistent discord” on questions on law in an administrative body’s decisions. While we are not of the view that such a correctness category is required, we would note that reviewing courts have a role to play in managing the risk of persistently discordant or contradictory legal interpretations within an administrative body’s decisions. When evidence of internal disagreement on legal issues has been put before a reviewing court, the court may find it appropriate to telegraph the existence of an issue in its reasons and encourage the use of internal administrative structures to resolve the disagreement. And if internal disagreement continues, it may become increasingly difficult for the administrative body to justify decisions that serve only to preserve the discord. [113] The Federal Court of Appeal in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2020 FCA 100, said the following in relation to decision-makers being constrained by statutory provisions or settled decisions: [33] On the other hand, administrative decision-makers that are constrained by specifically worded statutory provisions or settled decisions of the courts may find their decisions set aside if they ignore these constraints: see Vavilov at paras. 108-113; and in this Court, see, e.g., Abraham at paras. 37-50, Canadian Human Rights Commission at para. 14, Farwaha at paras. 93-97 and Emerson Milling at para. 70. [34] Administrative decisions more akin to the legal determinations courts make, governed by legal authorities, not policy, can be relatively constrained: Vavilov at paras. 108-100; and in this Court, see, e.g., Canada v. Kabul Farms Inc., 2016 FCA 143, 13 Admin. L.R. (6th) 11 at paras. 24-25, Walchuk v. Canada (Justice), 2015 FCA 85, 469 N.R. 360 and Globalive Wireless Management Corp. v. Public Mobile Inc., 2011 FCA 194, [2011] 3 F.C.R. 344. [35] Specific methodologies and strict language set out in statutes can be like recipes that must be followed. They too can constrain and, if they are not respected, reversal can result: Vavilov at paras. 108-110; and in this Court, see, e.g., Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203, Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1 at para. 34 and Heffel at para. 34. [36] As well, decisions of great significance to the individual call for administrative decision-makers to supply more justification and explanation: Vavilov at paras. 133-135; and in this Court, see, e.g., Farwaha at paras. 91-92, Boogaard at para. 49, Walchuk at para. 33, Sharif at para. 11, Erasmo v. Canada (Attorney General), 2015 FCA 129, 473 N.R. 245 and Kabul Farms at paras. 24-26. … [47] Even under the standard of review of reasonableness, the Board was heavily constrained in what it could acceptably do by: • the text, context and purpose of subsection 2.4(1.1) and the accepted methodology for considering these elements (see Vavilov at paras. 120-121 and pre-Vavilov authorities, above); • case law decided in this area such as Entertainment Software Association and Rogers Communications Inc. concerning the meaning of a "communication to the public by telecommunication" (Vavilov at paras. 111-112 and pre-Vavilov authorities, above); • case law concerning the interrelationship between domestic law and international law and the general primacy of the former over the latter (ibid. at paras. 111-114 and pre-Vavilov authorities, above). [48] In its interpretation of subsection 2.4(1.1), the Board offended these constraints and reached an unreasonable decision. [114] I note as well that in Manitoba Government and General Employees' Union, the Manitoba Court of Appeal stated: [58] On the other hand, decisions which are "constrained by specifically worded statutory provisions or settled decisions of the courts" (at para 33), may be easier to set aside if these constraints are ignored by the decision-maker. Stratas JA explained that administrative decision-makers that pay mere lip service to text, context and purpose, rather than conducting a genuine analysis, may well have their legislative interpretations quashed (see para 42), but also warns that a decision-maker's failure to examine every pertinent aspect of text, context or purpose, will not necessarily mean the decision is unreasonable (see para 44). Ultimately, the reviewing court must determine whether the omitted aspect of the analysis leads to the conclusion that the decision-maker's interpretation is impossible to sustain … [Emphasis added] [115] Taken as a whole, the decision of the Arbitrator is incompatible with the precedent in National Gypsum and the other cases referenced above. The decision-maker failed to grapple with the relevant factors as established by prior jurisprudence. The Arbitrator disregarded the precedent and failed to give any explanation for doing so. [116] The legal constraints imposed on the Arbitrator required that he address whether the elements necessary for a finding of a violation of the Union’s representation rights were present. His failure to do so means that his reasons did not demonstrate an internally coherent and rational chain of analysis in arriving at his decision that the Employer interfered with the Union’s representation rights when it sent the letters. Where, as here, a decision-maker departs from longstanding practices or established authority, that decision-maker bears the justificatory burden of explaining that departure in its reasons (Vavilov, para. 131). See also Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64 at paras. 39-40 (a reasoned explanation was not discernable for a departure from a past practice or past decision). Departures from previous administrative decisions must be justified. Here, the Arbitrator failed to offer any explanation for his departure from the requirement of evidence of actual interference. Consequently, I find the Arbitrator’s decision is unreasonable. The decision lacks justification, transparency and intelligibility. Conclusion [117] Sproule’s application for judicial review is allowed. [118] On the issue of remedy, the Arbitrator’s decision must be quashed. That leads to the question of what comes next. The Union argued that if the court determined that Arbitrator Richardson’s decision is unreasonable, the matter should be remitted to him for reconsideration. Although Sproule asked that the Arbitrator’s decision be quashed, it did not address whether the court should quash the decision and not remit the matter, effectively dismissing the grievance; quash the decision and remit the matter to Arbitrator Richardson; or quash the decision and remit the matter to a new arbitrator. [119] In Vavilov, the court offered guidance as to the appropriate remedy where a decision-maker is determined to have made an unreasonable decision: [140] Where the reasonableness standard is applied in conducting a judicial review, the choice of remedy must be guided by the rationale for applying that standard to begin with, including the recognition by the reviewing court that the legislature has entrusted the matter to the administrative decision maker, and not to the court, to decide: see Delta Air Lines, at para. 31. However, the question of remedy must also be guided by concerns related to the proper administration of the justice system, the need to ensure access to justice and “the goal of expedient and cost-efficient decision making, which often motivates the creation of specialized administrative tribunals in the first place”: Alberta Teachers, at para. 55. [141] Giving effect to these principles in the remedial context means that where a decision reviewed by applying the reasonableness standard cannot be upheld, it will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision, this time with the benefit of the court’s reasons. In reconsidering its decision, the decision maker may arrive at the same, or a different, outcome: see Delta Air Lines, at paras. 30-31. [142] However, while courts should, as a general rule, respect the legislature’s intention to entrust the matter to the administrative decision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended: D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167, at paras. 18-19. An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose … [citations omitted] Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed: see MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6, at paras. 45-51; Alberta Teachers, at para. 55. [Emphasis added] [120] In this particular case, were I satisfied that there was no evidence before the Arbitrator to support a finding of actual interference, and, as such, that dismissal of the grievance was inevitable, I would decline to remit the matter. As I have no transcript of the viva voce evidence from the hearing, I am not in a position to conclude that a particular outcome is inevitable and that remitting the matter would serve no useful purpose. I will, therefore, apply the general rule and remit the matter for reconsideration. [121] I would ask the parties to attempt to reach agreement on whether the matter should be remitted to the same or a different arbitrator. If they are unable to agree, they may provide written submissions prior to February 6, 2023 on the point for further decision by me. Jamieson, J. [1]Section 43B(2)(h) specifically authorizes an arbitrator to “treat as part of the collective agreement the provisions of any statute of the Province governing relations between the parties to the collective agreement.” In addition, s. 56(2) empowers the Board to refuse to hear and determine a complaint of a breach of s. 53 “in respect of a matter that, in the opinion of the Board, could be referred by the complainant pursuant to a collective agreement to an arbitrator or arbitration board.”