Executive Summary: Key Legal and Evidentiary Issues

• Pond Inlet Housing Association sought judicial review of the Canada Industrial Relations Board's decision refusing to exclude the assistant manager position from the union bargaining unit

• The Board required evidence that the assistant manager was actually performing management functions or acting in a confidential capacity in matters relating to industrial relations

• Applicant argued the Board failed to properly address the job description, the union's lack of objection, and that the change in duties had been deferred pending the Board's decision

• Reviewing courts must refrain from reweighing evidence under the Vavilov standard of reasonableness review

• Established caselaw requires that the Board be persuaded individuals proposed for exclusion actually exercise the functions attributed to their position before bargaining rights can be removed

• The Federal Court of Appeal dismissed the judicial review application but exercised its discretion not to award costs

Background of the dispute

Pond Inlet Housing Association, an employer, applied to the Canada Industrial Relations Board seeking a review and reconsideration of the bargaining certificate held by the Public Service Alliance of Canada. The employer's goal was to exclude the position of assistant manager from the bargaining unit represented by the union. The Board issued its decision on November 13, 2024, declining to exclude the position. The employer then sought judicial review of this decision with the Federal Court of Appeal.

The Board's reasoning

The Canada Industrial Relations Board concluded that it could not exclude the assistant manager position without sufficient evidence that the assistant manager was actually performing management functions or was acting in a confidential capacity in matters relating to industrial relations. The Board relied on a well established line of caselaw, particularly the Algoma Central Marine cases, which recognized that, in light of the fundamental nature of the collective bargaining rights that are removed by a decision to exclude a position from the bargaining unit, the Board must be persuaded that the individuals proposed for exclusion actually exercise the functions attributed to their position.

The employer's arguments on appeal

The employer submitted that the Board failed to properly address the evidence contained in the job description, the lack of objection from the respondent, and that the change in duties for the position had been deferred pending the Board's decision. The employer also pleaded that the Board tacitly held that the employer needed to create "chaos" by actually having the assistant manager position assume the duties, thus leading to an unreasonable interpretation of section 3(1) of the Code.

The Court's analysis and ruling

The Federal Court of Appeal rejected the employer's arguments for two reasons. First, the Court found that the employer's submission was ultimately an invitation to reweigh the evidence, which reviewing courts must refrain from doing, as instructed by the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov. Second, and more importantly, the Board relied on a well established line of caselaw as it is entitled to do. While, like the Board, the Court was not unsympathetic to the employer's position, it underscored that it is not the Court's role to conduct a de novo analysis or seek to determine the correct solution to the problem, which is the opposite of the deference reasonableness review requires. The application for judicial review was dismissed. Given the circumstances in the present case, the Court exercised its discretion not to award costs in the judicial review.