Executive Summary: Key Legal and Evidentiary Issues

• Central issue whether the Labour Board had jurisdiction to hear Mr. Morse’s duty of fair representation complaint in light of the mandatory ninety day filing period in s. 55(2) of the Trade Union Act.
• Core factual focus on Mr. Morse’s placement on unpaid leave effective December 1, 2021, under a COVID-19 vaccine mandate and the Union’s 2021 decision not to grieve that situation.
• Question whether later events in 2023 and 2024, including invitations to return to work and deemed resignations, created any new actionable event capable of restarting the limitation period.
• Separate jurisdictional issue whether Mr. Morse failed to exhaust internal union remedies as required by s. 55(3), including his decisions not to pursue the NSGEU’s grievance appeal process in 2021 and after the July 26, 2024 deemed resignation.
• Determination that reasonableness is the applicable standard of review for the Labour Board’s decision, based on Vavilov and Nova Scotia Court of Appeal authorities dealing with the Trade Union Act.
• Rejection of Mr. Morse’s allegation of a reasonable apprehension of bias on the part of the Labour Board, including his assertions regarding vaccine mandates and NSGEU membership of Board staff.

Factual background

The Applicant is Kendall Lloyd Morse. He sought judicial review of a decision of Leigh Davis, vice chair of the Nova Scotia Labour Board, issued on November 25, 2024, which dismissed his complaint under s. 54A(3) of the Trade Union Act alleging that the Nova Scotia Government and General Employees Union (NSGEU) had breached its duty of fair representation. The complaint was filed using the Board’s Form 22 and alleged that the Union and/or its representative had represented him in a manner that was arbitrary, discriminatory, and in bad faith. In the description of his complaint, Mr. Morse stated that it related to his deemed resignation on February 6, 2024 and the fact that the Union had ultimately decided not to grieve it. The Union had cancelled the grievance appeal hearing after his employer, NSYC, agreed to rescind the deemed resignation and reinstate him. Mr. Morse filed his complaint with the Labour Board on July 22, 2024. On July 26, 2024, by which date he had not returned to work, the employer again deemed him to have resigned. Mr. Morse did not appeal the Union’s decision not to grieve this second deemed resignation. In his complaint, he explained that his “entire position” was based on his disagreement with his employer’s decision to place him on unpaid leave on December 1, 2021, under a COVID-19 vaccine mandate. He stated that he felt violated by his employer, NSYC, and that he had not been adequately represented by his union of more than 15 years when he was “unlawfully mandated to inject a medical product” that, in his view, had not been thoroughly tested, had failed to stop transmission or infection, and had caused reported harms. He referred to an “Appendix Q – The Case Against Mandatory Vaccines” and said that his original concerns and grievances in 2021 “fell on deaf ears.”

Nature of the complaint and requested remedies

Mr. Morse’s complaint sought remedies that went beyond the 2024 deemed resignation. He asked that the Board direct the Union to file a grievance with respect to the February 6, 2024 deemed resignation. He also sought remedies related to the COVID-19 vaccine mandate and the circumstances under which he had been placed on unpaid leave in 2021, including back pay dating back to December 1, 2021, a written apology from the employer (NSYC and specified officials) and from the Union (the whole executive and his Employee Relations Officer), and to “be Made Whole.” He further referred to “The Legal Opinion of Pink Larkin to NSGEU.” In another portion of his complaint, he asserted that “Dr. Strang was acting ultra vires the HPA and not one person from the Union checked on this,” stating instead that NSGEU relied on the legal opinion of Pink Larkin. These allegations were part of his broader narrative that the Union’s support for the mandate and its response to his unpaid leave were arbitrary, unreasonable, discriminatory, and in bad faith.

Preliminary concerns raised by the Labour Board

After receiving the complaint, the Labour Board wrote to Mr. Morse on August 6, 2024, raising concerns that his complaint was noncompliant with s. 55 of the Act. The Board stated that, from an initial review, the complaint appeared premature because he had not accessed a grievance or internal appeal process regarding the “present issue” between him and his employer, namely the terms of his return to work. The letter pointed out that he had been appealing the Union’s decision not to file a grievance, that the Union had reversed that decision and cancelled the appeal process after the employer reinstated him, and that there was no evidence he had accessed a grievance or internal appeal regarding the terms of his return to work. The Board indicated that it did not then have jurisdiction because he had not exhausted the Union’s representation before bringing a complaint. Mr. Morse replied on August 20, 2024. He referred to the cancellation of the NSGEU grievance appeal hearing and stated that the aggrievement he planned to present encompassed all of the Union’s actions “dating back to 2021, regarding both the ‘administrative leave’ and eventual ‘resignation’.” He added that grieving the resignation alone did not resolve his grievance with the Union.

The Union’s submissions and the Applicant’s reply

Following Mr. Morse’s response, the Board invited submissions from the Union on compliance with s. 55. The Union took the position that the complaint, filed July 22, 2024, was out of time because, in pith and substance, it concerned the vaccine mandate and Mr. Morse’s placement on unpaid leave in 2021. The Union pointed out that in November 2021 it had advised Mr. Morse that it would not be grieving that matter and had given him access to its internal grievance appeal process, which he did not use. It relied on the ninety day time limit in s. 55(2) and Board and court jurisprudence holding that the limit is mandatory and cannot be extended. Alternatively, the Union argued that the complaint was premature and noncompliant with s. 55(3) because, at the time of filing, Mr. Morse had been reinstated and invited to return to work, and the specifics of that employment were still live issues for which the Union continued to represent him. The Union recounted that after Mr. Morse filed his complaint, the employer again deemed him to have resigned on July 26, 2024, that the Union advised him it would not grieve this second deemed resignation, and that it discussed with him whether he wished to initiate an internal grievance appeal. He did not do so, but continued to rely on his July 22 complaint. Mr. Morse filed a reply submission. He did not dispute the main factual points raised by the Union but focused on how they should be interpreted. For example, he argued that, according to Article 28.03, his second resignation would have occurred well before July 26, 2024, placing emphasis on the employer’s timetable and asserting that his good faith belief was based on that timetable. He referred to his position that he had effectively been constructively dismissed for two years and noted his communication of December 21, 2021 to the employer and the NSGEU Employee Relations Officer, where he said there was “no legal way” he could be mandated to inject experimental mRNA products and that the “NSHPA” gave the Chief Medical Officer of Health no power to levy the mandate.

The Labour Board’s findings on limitation and internal remedies

In its November 26, 2024 decision, the Labour Board framed the issue as whether Mr. Morse’s complaint satisfied the jurisdictional prerequisites in the Trade Union Act, in particular the ninety day period in s. 55(2) and the exhaustion of internal union remedies in s. 55(3). The Board held that the complaint did not satisfy these statutory prerequisites and dismissed it for lack of jurisdiction. The Board found that the pith and substance of the complaint was directed at Mr. Morse’s placement on unpaid leave effective December 1, 2021 under a mandatory COVID-19 vaccination policy. It accepted that he had asked the Union to grieve the vaccine mandate and unpaid leave in 2021, that the Union advised it would not, that he was informed on November 18, 2021 of his option to appeal this decision to the NSGEU Grievance Appeal Committee, and that he did not pursue that appeal or file a duty of fair representation complaint at that time. The Union maintained its position not to grieve the unpaid leave from its effective date. The Board summarized later events: Mr. Morse was invited to return to work in mid-2023 and on February 6, 2024 but declined, raising concerns about the lack of resolution of his unpaid leave. On February 13, 2024, the employer wrote to confirm that he was deemed to have resigned as of February 6, 2024. The Board noted that his focus in grievance appeal materials and in his complaint remained on his administrative leave in 2021 and his view that the direction to return to work provided no remedy for what had happened then. It accepted the Union’s explanation that it had identified procedural inconsistencies in the employer’s actions regarding the February 2024 deemed resignation, secured his reinstatement in May 2024, and then cancelled the appeal hearing because reinstatement left nothing to grieve. The Board recorded that Mr. Morse again declined to return to work and that, as a result, on July 26, 2024 the employer again deemed him to have resigned. It referred to the Union’s July 29, 2024 letter in which the Union stated that it did not believe a grievance over the deemed resignation would be successful but offered Mr. Morse the opportunity to appeal that decision and said it could arrange an appeal committee meeting if he wished. The Board found that Mr. Morse did not pursue an appeal of the Union’s decision not to grieve the second deemed resignation.

Board’s conclusions under sections 55(2) and 55(3) of the Trade Union Act

On the duty of fair representation issue, the Board concluded that Mr. Morse’s complaint primarily challenged the Union’s response to the employer’s COVID-19 vaccination policy and sought remedies such as lost wages, seniority, and a formal apology related to the 2021 unpaid leave. It found that the Union’s communications in 2023 and 2024 reaffirmed the 2021 decision not to grieve without introducing a new actionable event. The Board held that no new actionable event arose to restart the limitation period and that Mr. Morse’s July 22, 2024 complaint was therefore untimely under s. 55(2). The Board went on to state that even if the complaint had been timely, s. 55(3)(b) required complainants to exhaust all internal union remedies before filing a complaint with the Board. It concluded that Mr. Morse did not appeal the Union’s decision not to grieve the 2021 unpaid leave and that he could not revisit that decision now. It further concluded that although he had initially appealed the Union’s decision not to grieve his February 2024 deemed resignation, the appeal became unnecessary once the Union secured his reinstatement and the employer rescinded that action, leaving nothing to grieve or appeal. Finally, it found that he did not pursue an appeal of the Union’s decision not to grieve the second deemed resignation in July 2024. On these bases, the Board dismissed the complaint for lack of jurisdiction.

Standard of review before the Supreme Court of Nova Scotia

The first issue before the Supreme Court of Nova Scotia was the applicable standard of review. The Applicant argued against reasonableness, but the Court held that the Respondent Board was correct. Citing Canada (Minister of Citizenship and Immigration) v. Vavilov, the Court noted the presumption that reasonableness is the applicable standard in judicial review, subject to limited exceptions such as statutory appeals, general questions of law of central importance to the legal system, or questions about jurisdictional boundaries between administrative bodies. The Court referred to decisions of the Nova Scotia Court of Appeal, including Canadian Union of Public Employees, Local 3912 v. Nickerson and Murphy v. Unifor Local 4606, which had held that reasonableness is the standard when reviewing Labour Board decisions interpreting and applying the Trade Union Act. The Court concluded that reasonableness clearly applied in this case. The judge then summarized principles from Vavilov and Paladin Security Group Limited v. Canadian Union of Public Employees, Local 5479 about what makes a decision reasonable. The Court highlighted that reasonableness review is a “reasons first” approach, that both the outcome and the reasoning matter, and that a decision must be based on an internally coherent and rational chain of analysis and be justified in relation to the facts and law that constrain the decision maker. It noted that minor or peripheral shortcomings do not justify intervention; only flaws sufficiently central or significant to render the decision unreasonable will suffice.

Assessment of the Labour Board’s reasoning and jurisdictional conclusions

Turning to the Board’s decision, the Court held that the reasons were intelligible, logical, and transparent. It found that the Board’s respect for the language of the Act and for relevant jurisprudence demonstrated the rationality of its decision. The Court agreed that the Board’s finding that the relevant timeline for Mr. Morse’s complaint originated in November 2021 flowed logically from its reasons, including references to Mr. Morse’s own statements and requested remedies, which were “almost entirely derived” from his placement on unpaid leave coincident with the vaccination mandate. The Court referred to authorities, including Skinner v. Nova Scotia (Labour Board), for the proposition that in circumstances like those in this case, the Board had no discretion to provide an extension of the ninety day time limit in s. 55. It agreed that this lack of discretion meant that the out-of-time nature of the complaint was an “insurmountable impediment” to the Board’s jurisdiction. The Court also agreed with the Board’s alternative conclusion that Mr. Morse had not exhausted the internal appeal process provided by NSGEU before applying for relief, and that this independently prevented the Board from having jurisdiction. It quoted an earlier Labour Board decision, Morris v. Nova Scotia Government and General Employees Union, Local 191, where the Chair explained that, as a matter of policy, a union must be given an opportunity to represent the employee prior to being exposed to a complaint before the Board, and that grievance processes are understood to include the member’s responsibility to exhaust any internal union appeal processes. The Court accepted that once those processes are complete, the member is given a finite opportunity to complain, providing certainty.

Allegations of bias and final outcome

Mr. Morse raised, in his brief to the Court, an allegation of reasonable apprehension of bias on the part of the Labour Board. He argued that the Board and the Union “share of the material fact that all of them enforced mandates for the injection of experimental mRNA products to maintain employment,” that the Board hearing a matter involving the correctness of actions surrounding the mandating of mRNA products could reasonably be assumed to have legal implications for the Board as an employer following the same mandates, and that employees of the Labour Board are also employees of NSGEU. He contended that, because of this, the Board had a “direct material interest in its outcome.” The Court observed that these contentions appeared in his brief and, even if considered, were without merit. It explained, relying on Coates v. Sharp, that the Labour Board does not make decisions corporately like a hospital or commercial corporation and that the decision maker in this case was the panel, not Board staff. The Court stated that the Labour Board necessarily renders decisions on matters involving NSGEU under its statutory authority and that there was no basis to conclude that the Board was not impartial by virtue of union membership of any member of Board staff. The Court found “nothing even remotely suggestive of bias” in the Board’s procedure or reasoning and concluded that nothing raised a reasonable apprehension of bias on the part of the decision maker. In the result, the Court dismissed Mr. Morse’s application for judicial review. It stated that the parties had thirty days within which to attempt to agree on costs, failing which the judge would accept brief submissions. The successful parties were the Respondents—the Nova Scotia Labour Board, the Attorney General of Nova Scotia, and the Nova Scotia Government and General Employees Union—and because no specific amount of costs, damages, or other monetary award was fixed in this decision, the total amount ordered in their favor cannot be determined from the text.