J. Q.B.G. A.D. 1998 No. 300 J.C.R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: LORAAS DISPOSAL SERVICES LTD. and CARMAN LORAAS and SASKATCHEWAN JOINT BOARD, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION and THE LABOUR RELATIONS BOARD OF SASKATCHEWAN RESPONDENT N.S. Sandomirsky, Q.C. for the applicants L.W. Kowalchuk for the respondent, Saskatchewan Joint Board, Retail, Wholesale and Department Store Union M. A. Baldwin for the respondent, The Labour Relations Board of Saskatchewan JUDGMENT HRABINSKY J. February 17, 1998 JUDGMENT [1] The applicants apply for an order of certiorarito quash that portion of the order of the LabourRelations Board dated the 5th day of January, 1998, whichfound that the applicants, Loraas Disposal Services Ltd.and Carman Loraas, engaged in an unfair labour practicewithin the meaning of s. 43 of The Trade Union Act, R.S.S.1978, c. T-17 by failing to provide the Union and Ministerof Labour with notice of technological change. [2] The applicants challenge the decision of the LabourRelations Board as being patently unreasonable and that theword "removal" as found in s. 43(1)(c) of The Trade Union Actread separately or in conjunction with the remainder of thesaid ss. 43(1)(c) cannot reasonably be interpreted to includeclosure of a business or part thereof so as to constitute atechnological change within the meaning of the said s. 43 ofThe Trade Union Act. [3] The applicants also apply for an injunction restraining The Labour Relations Board from requiring rectification plan for violation of s. 43 of The Trade Union Act or for making further remedial orders related to the said violation of s. 43 of The Trade Union Act, which relief is sought pursuant to Rule 664(2)(b) of the Rules of Court. [4] In its decision at p. 19, the Labour Relations Board concluded that the applicants made decision to close the vacuum truck division. It stated: The decision was made for personal reasons relating to their workloads. Economic factors, that is, the rate of return on investment, also played role in deciding which part of the overall business they were prepared to close. In this instance, Loraas did decide to close portion of its operations, being the vacuum truck division. It implemented its decision by selling some of the assets of the division to SEDA International, by laying off the drivers and two office workers, and by contracting out various other incidental portions of the work performed by the vacuum truck division. Both parties agreed in their arguments that 20% or more of the employees in the bargaining unit were affected by the decision to close the vacuum truck division. In these circumstances, the Board finds that the decision to close the vacuum truck division was technological change within the meaning of s. 43(1)(c) of the Act that is, it was "removal or relocation outside of the appropriate unit by an employer of any part of the employer's work, undertaking or business". As such, Loraas was required to give 90 days advance notice to the Union and the Minister of Labour under s. 43(2) of the Act. The evidence indicated that the Union did not become aware of the closure of the vacuum truck division until June 14, 1997, the day that employees were advised of the closure by Loraas. The Union filed its application claiming that Loraas failed to give notice of the technological change on July 4, 1997, which is within the 30 day time period required by s. 43(5) of the Act. [5] At p. 20 the Labour Relations Board found that: Loraas's decision to close the vacuum truck division, which is alleged to be discriminatory response to the union activity engaged in by the employees, lacks the ability to be so motivated because it was made prior to Loraas's becoming aware of the Union's organizing drive. [6] The Labour Relations Board found that the closure of the vacuum truck division by the applicants was technological change within the meaning of s. 43(1)(c) of The Trade Union Act. The Labour Relations Board concluded that the applicants were required to provide the Saskatchewan Joint Board, Retail, Wholesale and Department Store Union with notice of technological change because the closure of the vacuum truck division constituted "removal or relocation outside of the appropriate unit of part of the employer's work, undertaking or business." (1) Was the finding of the Labour Relations Board that the applicants' decision to close the vacuum truck division technological change within the meaning of s. 43(1)(c) of The Trade Union Act patently unreasonable? [7] Section 43(1)(c) of The Trade Union Act reads: 43(1) In this section, "technological change" means: (c) the removal or relocation outside of the appropriate unit by an employer of any part of the employer's work, undertaking or business. [8] In my view the issue before this court has beensettled by the decision of Mr. Justice Geatros in ReginaExhibition Association Limited et al v. Saskatchewan JointBoard, Retail, Wholesale and Department Store Union et al,Q.B. No. 3454 (1997) J.C.R., dated January 16, 1998. Althoughthis decision is now before the Saskatchewan Court of Appeal,I am bound by it. In that case the Labour Relations Board held that the permanent closure of the Silver Sage Casino was technological change within the meaning of s. 43(1)(c) of The Trade Union Act. Mr. Justice Geatros disagreed. At pp. 19-20 he stated: Not only do merely disagree with the result arrived at by the Board, but find there is no rational basis for its conclusion that the decision by REAL to permanently close the Silver Sage Casino was technological change within the meaning of s. 43(1)(c) of the Act. To look upon the 1994 amendment as overriding consensus held by the Board for twenty years lacks the faculty of reason. The Board, in myjudgment, made a patently unreasonable error in theperformance of its function. The "severe test" alluded to has been met. It follows that am unable to defer to the decision of the Board on its interpretation of "technological change" in s. 43(1)(c) of the Act. [9] find that the closure by the applicants of the vacuum truck division of the business is not technological change within the meaning of s. 43(1)(c) of The Trade Union Act. The Labour Relations Board made a patently unreasonableerror in the performance of its function by holding otherwise. [10] Accordingly, there shall be an order quashing thatportion of the order of the Labour Relations Board datedJanuary 5, 1998 which found that the applicants engaged in anunfair labour practice within the meaning of s. 43 of TheTrade Union Act by failing to provide the Minister of Labourwith notice of technological change. [11] I find that under the circumstances it would not beappropriate at this stage to deal with the application for aninjunction. Rather, I direct that this matter be remittedback to the Labour Relations Board to be dealt with havingregard to my finding that the closure of the vacuum divisionis not a "technological change" within the meaning of s.43(1)(c) of The Trade Union Act. [12] The applicants shall have one set of costs against the respondents.
The applicants applied for an order of certiorari to quash the portion of the order of the Labour Relations Board which found that the applicants engaged in an unfair labour practice within the meaning of s43 of the Trade Union Act by failing to provide the Union and Minister of Labour with notice of technological change. The applicants challenged the decision of the Labour Relations Board as being patently unreasonable and that the word removal as found in s43(1)(c) read separately or in conjunction with the remainer of the section could not reasonably be interpreted to include closure of a business or part thereof so as to constitute a technological change within the meaning of s43. HELD: The portion of the order which found that the applicants engaged in an unfair labour practice was quashed. The matter was remitted to the Labour Relations Board to be dealt with having regard to the finding that the closure of the vacuum division is not a 'technological change' within the meaning of s43(1)(c) of the Trade Union Act. 1)The Board made a patently unreasonable error. The issue had been settled by the decision in Regina Exhibition. Although this decision was now before the Court of Appeal the Court was bound by it. 2)It was not appropriate at this stage to deal with the application for an injunction.  3)The applicants were awarded one set of costs against the respondents.