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LABOUR RELATIONS BOARDS - Appeals and judicial review - Standard of review - Reasonableness

Wednesday, March 01, 2017 @ 8:58 AM  

Appeal by the Nova Scotia Government and General Employees Union from a judicial review judgment in favour of the employer, Metro Community Living Support Services. The employer and Union operated under various collective agreements for a decade. The original certification covered full-time and regular part-time employees. In the first collective agreement, casual employees hired on a day-to-day basis were excluded. Only permanent full-time and term employees were recognized by the collective agreement. A provision in the first collective agreement contemplated negotiation of the terms and conditions of any part-time employment. In the third agreement, only regular part-time employees working at least 20 hours per week were included in the definition of permanent employees. Those who worked less than 20 hours per week were expressly excluded as casual employees. During the next negotiation, the Union was unsuccessful in its attempt to negotiate inclusion of part-time employees working less than 20 hours per week. Instead, the Union obtained a Labour Board order adding a new employee classification to the bargaining unit that included all regular part-time employees. The employer sought judicial review. The reviewing judge quashed the Board's decision as unreasonable. The Union appealed, seeking restoration of the Board's order.

HELD: Appeal allowed. The reviewing judge erred in the application of the reasonableness standard of review. The Board's decision-making process was justified, transparent and intelligible. It found that the original certification order remained alive for the purpose of exercising its discretion to amend it. The Board found an identifiable classification that shared a community of interest with other bargaining unit members. It exercised its discretion to see them included. The Board provided a logical explanation rejecting arbitration as an alternative to the Union's request. The Board's decision fell within the range of acceptable outcomes. The reviewing judge's opinion to the contrary was incorrect.

Nova Scotia Government and General Employees Union v. Metro Community Living Support Services Ltd., [2017] N.S.J. No. 41, Nova Scotia Court of Appeal, M. MacDonald C.J.N.S., J.W.S. Saunders and C.A. Bourgeois JJ.A., February 8, 2017. Digest No. 3640-011