Sproule Lumber v. United Food and Commercial Workers Union Canada, Local 864

Sproule Lumber v. United Food and Commercial Workers Union Canada, Local 864 Court Supreme Court Date 2023-04-14 Citation 2023 NSSC 122 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, Local 864, 2023 NSSC 122 Date: 20230414 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 Written submissions: February 3, 6 and March 8, 2023 Written Decision: April 14, 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: [1] The following is my decision on whether this matter is to be remitted to the same or a different arbitrator for determination. In my decision, reported at 2023 NSSC 12, I allowed the application of Sproule Lumber, a division of J.D. Irving Limited (“Sproule”), for judicial review and quashed the decision of the Arbitrator. [2] In relation to remedy, I said the following in my decision: [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. [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. [3] The United Food and Commercial Workers Union Canada, Local 864 (“UFCW” or “the Union”) provided its written submission on whether the matter should be remitted to the same or a different arbitrator on February 3, 2023. Sproule provided its’s submission on February 6, 2023. I allowed a further brief submission by the Union on March 8, 2023. Positions of the Parties UFCW [4] UFCW submits that the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, said the usual remedy in a judicial review, where the decision is quashed, is to remit the matter back to the original decision maker. UFCW says referring back to the Arbitrator will serve the remedial interests articulated in Vavilov: the proper administration of the justice system, access to justice, and efficient dispute resolution. It refers to a number of cases since Vavilov where courts have remitted the matter to the same decision maker: Partridge v. Nova Scotia (Attorney General), 2021 NSCA 605; Shupe v. Redmond, 2022 NSCA 7; Nova Scotia (Environment) v. Tynes, 2020 NSSC 123; Grafton Developments Inc. v. Labourers International Union of North America, Local 615, 2022 NSSC 208; Georgakakos v. International Brotherhood of Electrical Workers Local 625, 2021 NSSC 128; NARL Refining Limited Partnership v. United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740, 2020 NLSC 100. [5] UFCW submits that the Arbitrator had the benefit of hearing viva voce evidence at a time when the dispute was fresh. More than two years have now passed since the alleged collective agreement breach. Appointing a new arbitrator would create significant overlap, effectively requiring the parties to "re-do" the case, frustrating the remedial concerns articulated in Vavilov. [6] UFCW submits that Sproule’s position is inconsistent with Vavilov, as there is no extraordinary reason why the court should deviate from the usual remedy; there is no suggestion that the Arbitrator demonstrated bias or had a closed mind to the arguments of either party. [7] UFCW refers to paragraph 12 of Sproule’s submission, and submits that whether the Arbitrator approached the matter with an open mind was not a ground for judicial review. There has been no finding in this regard. Rather, the court simply found that his reasons did not meet the Vavilov reasonableness standard. [8] Finally, UFCW says collective agreement interpretation is the raison d'etre of labour arbitrators. If a matter that was overturned for failing to meet the reasonableness standard on a matter of interpretation is sent to a different arbitrator, then all arbitration awards overturned on judicial review must be remitted to different arbitrators. That result would effectively reverse Vavilov on remedy. Sproule [9] Sproule submits that remittance to a different arbitrator is not, in any way, contrary to the principles set out in Vavilov. It says a new arbitrator is appropriate in the current circumstances. [10] Sproule submits that five of the six cases (excluding Vavilov) cited by the UFCW are distinguishable, as they relate to remittance to a board or tribunal panel and not an individual or sole decision maker. Remittance to a panel versus a sole arbitrator raise separate considerations, requiring different lines of inquiry. [11] Sproule says that a review of the case law indicates that Canadian courts routinely remit matters to a different arbitrator and refers to paragraphs 91 to 94 of Canadian Union of Postal Workers v. Canadian Post Corporation, 2010 NSSC 331. Sproule says courts have held that remitting a matter to a different arbitrator is warranted if an objective observer could perceive that the first arbitrator could not reconsider the matter with a completely open mind. While Sproule agrees with UFCW that there has been no suggestion that the Arbitrator demonstrated bias, it says the decision illustrates a closed mind that is unlikely to be remedied if the matter is remitted to the same arbitrator. Analysis [12] As set out above, the Supreme Court of Canada in Vavilov said the question of remedy must 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. Giving effect to these principles in the remedial context means that where a decision cannot be upheld, it will most often be appropriate to remit the matter to the decision maker for reconsideration, with the benefit of the court’s reasons (paras 140 and 141). [13] The court in Vavilov, when discussing remedial discretion, was focused on whether a court that quashes a decision should exercise its discretion to remit the matter for reconsideration (paras 139-142). For example, the court indicated that 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. However, it does not follow from the court’s comments in Vavilov that remitting a matter to an administrative decision maker necessarily means remitting it to the same panel or arbitrator who made the decision under review. The court in Vavilov does not offer any guidance on when a matter should be remitted to the same panel or arbitrator who made the original decision as opposed to remitting it to a different panel or arbitrator. [14] In Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada, (Toronto: Thomson Reuters Canada, 2022) at §5:36, the authors discuss examples of when courts have exercised their discretion to remit matters to differently constituted panels or decision makers: Although referrals may be made to the same authorities who decided the matter originally, unless not permitted by statute, a court may order that the matter be remitted to a differently-constituted panel or to a different decision-maker. Indeed, this is the usual order following a finding of bias. Similarly, where the error is an erroneous finding of fact or a natural justice error, or the conclusion is such that it indicates a risk of prejudgment, or the appearance thereof, remission to a different decision-maker is appropriate and will usually be ordered, as it will if any other appearance of unfairness would result from having the matter redetermined by the same persons, including an unlawful refusal to give reasons for the decision. When such a remission is made, a complete rehearing will be required, unless the matter requiring redetermination does not require a complete rehearing. [Emphasis added] [15] There are many court decisions pre and post Vavilov that discuss when matters will be remitted to a different decision maker. Some cases have been remitted to a different decision maker when the conclusion of the arbitrator indicates there is a risk of prejudgment. Where there is a reasonable apprehension that the original decision maker may not determine the matter objectively, it is within the discretion of the reviewing court to remit the matter to a new decision maker. [16] In Dayco (Can.) Ltd. v. C.A.W., 1990 CarswellOnt 826 (Ont. C.A.) aff ‘d 1993 CarswellOnt 883 (S.C.C.), the Ontario Court of Appeal said the following: 48 The company objects to arbitration being continued by the same arbitrator because of an apprehension of bias. Mr. Justice J. Holland remarked at p. 218 O.R., p. 466 D.L.R. that had his decision been different [I]t would have been appropriate to refer the matter back to a different arbitrator as clearly the arbitrator here has already determined the substantive issue by having concluded that the right to grieve was vested. 49 While I see little merit in the company's objection, I recognize that the arbitrator, in deciding the dispute was arbitrable, had to satisfy himself that it was arguable that the parties intended benefits to survive the termination of the agreement. Accordingly, without in any way reflecting on the integrity of the arbitrator and for the purpose only of removing a ground for objection to the disposition of the second part of the arbitration, I would direct that the arbitration be continued by another arbitrator. [17] The Newfoundland Court of Appeal in Newfoundland & Labrador (Treasury Board) v. N.L.N.U., 2007 NLCA 59, said that where an objective observer could perceive that the first arbitrator could not reconsider the matter with a completely open mind, the matter should be remitted to a different decision maker. The court also referred to various cases holding that where there are questions of fact involving findings of credibility of witnesses, courts will be inclined to remit to a different decision maker: 26 However, the nature of the issue may be considered in deciding whether a new panel is the appropriate order. For example, where there are questions of fact involving findings of credibility of witnesses, the courts will be inclined to remit the matter to a different panel (C.J.A., Local 579 v. Northland Contracting Inc. (2006), 261 Nfld. & P.E.I.R. 256 (N.L. C.A.), at paragraph 38; B.C.N.U. v. British Columbia (Labour Relations Board), [1997] 6 W.W.R. 81 (B.C. C.A.), at paragraph 14). In considering whether a matter should be remitted to a new panel, the comment by Green J. (as he then was) in DGH Construction Ltd. v. Newfoundland (Workers' Compensation Commission) (1997), 150 Nfld. & P.E.I.R. 50 (Nfld. T.D.), is helpful: [79] The decision to remit to a new adjudicator is discretionary; nevertheless, it should be exercised whenever there is any concern on the part of the court that, as a result of statements made or the approach taken, the previous adjudicator might, perhaps even inadvertently, have given the impression that he might not approach the matter with a completely open mind. In this case, there is nothing to indicate that the Chief Review Commissioner is actually biased; however, in view of the fact that he expressed the view in his reasons that he agreed with the Commission's decision on the merits instead of directly addressing whether or not the decision was consistent with the Act, regulations and policy, that expression of view on the merits might well cause a reasonably informed participant in the process to be concerned that there might have been a prejudging of the issue if the matter were reconsidered by the same adjudicator. For that reason, it is appropriate to err on the side of caution and to order that the matter be remitted to a new review commissioner. 27 Similarly, in Newfoundland & Labrador (Treasury Board) v. N.A.P.E., 2007 NLCA 48 (N.L. C.A.), Mercer J.A., for the Court, wrote: [54] ... Remission to a different arbitrator is warranted as an objective observer could perceive that the first arbitrator could not reconsider the matter with a completely open mind on its disposition. ... [18] In Walton v. Alberta (Securities Commission) 2014 ABCA 446, the Alberta Court of Appeal set out some factors for consideration in relation to remitting to a new panel. The court commented as follows: 9 When a matter is remitted back to an administrative tribunal, there is no fixed rule respecting the composition of the new panel. The factors that can be considered are set out in Edmonton Police Service v. Furlong, 2013 ABCA 177, 86 Alta. L.R. (5th) 198, 553 A.R. 126 (Alta. C.A.); U.M.W.A., Local 1656 v. Elk Valley Coal Corp., 2009 ABCA 407, 474 A.R. 145, 18 Alta. L.R. (5th) 13 (Alta. C.A.) and Walsh v. Mobil Oil Canada, 2012 ABQB 527 (Alta. Q.B.) at paras. 54-5, (2012), 71 Alta. L.R. (5th) 343 (Alta. Q.B.): (a) Fairness and the Appearance of Impartiality. If the original panel of the tribunal pronounced on a specific issue and was reversed, a new panel will usually be nominated to avoid any appearance of prejudging. If the issue requiring reconsideration is new, or is supplementary or collateral to the issues generating the rehearing, it is sometimes appropriate for the same decision maker to continue. Whether the issue on which a rehearing has been directed would raise considerations of impartiality in the mind of a reasonable person is a matter of degree. (b) Practicality. The size and composition of some tribunals might preclude remitting the issue back to the same panel, or alternatively it might make remission to the same panel inevitable. (c) Efficiency. If the reconsideration will involve a re-weighing of the evidence, it could be wasteful or expensive to have a new panel conduct a fresh hearing. If the issues raised are primarily issues of law or policy, or if they can be satisfactorily resolved based on the evidentiary record from the first hearing, a new panel might be practical. [19] In determining whether Sproule interfered with the UFCW’s representation rights, the Arbitrator said there was no real dispute of fact and that the dispute tended to lie with the inferences or legal consequences of the facts. The Arbitrator drew various inferences from the evidence to ground his finding of breach of representational rights. He found serious breaches of the Union’s representation rights, including in relation to a letter that was not sent to the union membership. The Arbitrator described the letter as “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 Arbitrator also awarded damages against Sproule. I reference the above solely in relation to my consideration as to whether, in all of the circumstances, the matter should be remitted to the same Arbitrator. [20] In my judicial review decision, I said the following regarding the Arbitrator’s decision: [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. [Emphasis added] [21] There is absolutely nothing in the decision to indicate that the Arbitrator was biased. However, without in any way reflecting on the integrity of the Arbitrator, I am of the view that a reasonably informed person could be concerned that there may be a prejudging of the issue, if the grievance were reconsidered by the same arbitrator. Where a reviewing judge concludes that “an objective observer could have a concern about prejudging” or “an objective observer could perceive that the first arbitrator could not reconsider the matter with a completely open mind”, it is within his or her discretion to remit to a different decision maker. I am of the view there were various findings by the Arbitrator, that could lead to concern about prejudging. This matter should be remitted to a different arbitrator to consider all of the evidence afresh, unencumbered by prior expressions of opinion on it. In my view, in these circumstances, remitting to a different arbitrator is not contrary to the remedial objectives discussed in Vavilov, nor does it mean, as suggested by the Union, that all arbitration awards overturned on judicial review must be remitted to different arbitrators. The discretion to do so rests with the court and the presiding judge will exercise his or her discretion judicially, in light of the circumstances in each case. [22] As to the prejudice identified by the Union, including having to “re-do” the case, I am not persuaded that it is sufficient to override this conclusion. The Arbitration took place over two days and, in total, there were three witnesses. There was no indication that the witnesses are no longer available. I cannot see that there would be any substantial delay resulting from remitting the matter to a new, rather than the same, arbitrator. [23] I order that the matter be remitted for consideration to a new arbitrator, selected by the parties. Jamieson, J.