CANADA S. H. No. 78282 PROVINCE OF NOVA SCOTIA IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS and ASBESTOS WORKERS, LOCAL 116 and THE HONOURABLE LEROY S. LEGERE, The Minister of Labour and Manpower for the Province of Nova Scotia DECISION HEARD BEFORE: The Honourable Mr. Justice K. Peter Richard PLACE HEARD: Halifax, Nova Scotia DATE HEARD: September 25, 1991 (Orally) DECISION DATE: September 25, 1991 COUNSEL: Raymond F. Larkin for the Applicant Jonathan Davies for the Respondent Eric Durnford, Q.C. for the Intervenor 1991 S. H. No. 78282 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS and ASBESTOS WORKERS, LOCAL 116 and THE HONOURABLE LEROY S. LEGERE, The Minister of Labour and Manpower for the Province of Nova Scotia Respondent Richard, J. (Orally) This is matter of major concern in the construction industry in Nova Scotia. It arises from decision sometime ago, by myself in Boyd Garland v. International Union of Operating Engineers, Local 721 [1988], 85 N.S.R. (2d) 397, which was upheld on appeal. have opted to give brief oral decision to dispose of this matter, so that the parties may move further as they see fit. The Appeal Court has spoken in the Boyd Garland case and am bound by that decision. If the case is to be re‑considered, then it is proper for the Appeal Division to do that. In the first instance I have to deal with the question of whether or not certiorari lies in this case, with respect to the actions of the Deputy Minister. The whole matter arose as result of June 2, 1991 letter, addressed to Mr. Larkin and signed by Paul F. Langlois, Assistant to the Deputy Minister. No question has been raised as to whether or not Mr. Langlois was speaking for the Deputy Minister at that time, or the Minister, so nothing turns on that point. To quote from Mr. Langlois' letter: "I have conducted a check of our records and found that Local 116 is neither certified nor is party to a voluntary recognition agreement with Steen Contractors Limited. It has also been confirmed that Steen Contractors Limited is not member of the Labour Management Bureau Limited's Insulator Trade Division. Since none of these conditions have been met, there is no collective agreement binding on the parties and, consequently, no authority to make an appointment under Section 107 of the Trade Union Act." am of the view, after having reviewed the authorities, that Coopers and Lybrand v. Minister of National Revenue 1978 CanLII 13 (SCC), [1978], 24 N.R. 163 (S.C.C.), concerns an interpretion of the relevant provisions of the Federal Court Act. am more persuaded by the decisions in Morin v. Comite National, 60 N.R. (123) and in Martineau v. Matsqui Institution 1979 CanLII 184 (SCC), [1979], 30 N.R. 119, which, in my view, state the present statuts of the law with respect to an application for certiorari. refer to quotation from Morin v. Comite National, where the Court relied on the British case, Padfield v. Minister of Agriculture [1968], A.C. 997, and quoted from it as follows: The Minister in exercising his powers and duties, conferred upon him by statute, can only be controlled by prerogative writ which will only issue if he acts unlawfully. Unlawful behavior by the Minister may be stated with sufficient accuracy for the purposes of the present appeal (and here adopt the classification of Lord Parker, C.J. in the Divisional Court) (a) by an outright refusal to consider the relevant matters, or (b) by misdirecting himself in point of law, or (c) by taking into account some wholly irrelevant or extraneous consideration, or (d) by wholly omitting to take into account relevant consideration." I again refer to the letter of Mr. Langlois, where he states:" ... Local 116 is neither certified nor is party to a voluntary agreement ...". So, the Minister, in refusing to appoint an arbitrator in this case considered those two preconditions. now refer to page of the Boyd and Garland decision which is at the crux of this entire matter: In its submission Boyd argued that there are only two methods by which an employer can become bound by collective agreement and those are (1) certification and (2) voluntary recognition. In the absence of any statutory provisions, that is quite true. However, by virtue of sections 89 et seq of the Trade Union Act the legislature has provided for a rather hybrid scheme of labour relations applicable to the construction industry. One of the features of that scheme is that an employer can assign its bargaining and negotiating rights to an accredited employers\' association\'. The Labour Management Bureau is just such an association. These provisions, in effect, provide for a third method of union recognition ‑ quite apart from certification and voluntary recognition. Having entered into the agreement with the Labour Management Bureau, Boyd is clearly bound by any agreement made on its behalf'." then refer to the decision of the Appeal Division in Boyd and Garland where Chipman, J.A. stated, in part: "I accept he view of Richard, J. that the provisions of Part II establish a scheme where, in the construction industry, there is an exception to the general rule that there are only two methods by which a union can obtain bargaining rights for the employees, i.e. (a) certification and (b) voluntary recognition." On that basis, it is my finding in accordance with the tests laid out in the Morin case, that Mr. Langlois, misinterpreted point of law and thus gave rise to the review of his decision by this Court. He misdirected himself on a point of law by stating that there were only two methods by which a party can attain bargaining rights, whereas Boyd and Garland, on appeal affirmed there was a third method pursuant to Part 2 of the Act. For that reason, there is sufficient ground to grant an order of mandamus with certiorari in aid, ordering the Minister to exercise his discretion under Section 107(4) of the Trade Union Act according to law as set out in Part 2 of the Act as confirmed by Boyd and Garland. It seems to me that this removes any barrier to appointing an arbitrator to hear the subject grievance. The parties will bear their own costs on this application. J. Halifax, Nova Scotia September 25, 1991 1991 S. H. No. 78282 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ASBESTOS WORKERS, LOCAL 116 and THE HONOURABLE LEROY S. LEGERE, The Minister of Labour and Manpower for the Province of Nova Scotia RESPONDENT DECISION OF RICHARD, J.
The applicant union sought an order of mandamus with certiorari in aid, ordering the defendant Minister to exercise his discretion to appoint an arbitrator to hear a grievance. The Minister had refused on the grounds the union was neither certified nor a party to a voluntary agreement. Granting the application, that the Minister had misdirected himself on a point of law. Quite apart from certification and voluntary recognition, the union could attain bargaining rights pursuant to Part II of the Trade Union Act, which allowed an employer in the construction industry to assign bargaining and negotiating rights to an 'accredited employers' association' such as the Construction Management Labour Bureau Ltd. The Court ordered the Minister to exercise his discretion under s.107(4) of the Act according to law as set out in Part II of the Act and confirmed by the Appeal Division in Boyd &amp; Garland.