Executive Summary: Key Legal and Evidentiary Issues

• Three Unfair Labour Practice complaints were filed by the Union against Cessco Fabrication & Engineering Ltd. under the Labour Relations Code, RSA 2000, c L-1, alleging bad faith bargaining, interference with union representation, and intimidation.
   
• The Alberta Labour Relations Board dismissed two of the complaints (ss. 60 and 149(1)(c)) and granted only declaratory relief on the third (s. 148(1)(a)), prompting the Union to apply for judicial review.
   
• Procedural fairness was at issue because the Board unilaterally deferred its decision on the ss. 60 and 148(1)(a) complaints until after a second hearing on the s. 149(1)(c) complaint — over the Union's express objection.
   
• On judicial review, the Court found the Board's deferral decision was procedurally unfair, but declined to grant the Union's requested remedy of a new expedited hearing before a fresh panel.
   
• Substantive unreasonableness was alleged across nine grounds, including the Board's credibility findings, its application of the reverse onus under s. 149(2), and its conclusions on bad faith, surface, and backwards bargaining.
   
• All substantive grounds of review were dismissed, with the Court finding the Board's analysis fell within a range of reasonable outcomes warranting deference.
   

Facts of the case

The International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge 146 (Union) had been the certified bargaining agent for employees of Cessco Fabrication & Engineering Ltd. (Cessco) for more than 70 years. Following the expiry of their collective agreement in February 2018, the Union and Cessco entered collective bargaining under new leadership, agreeing to a "fresh start" bargaining process. Negotiations broke down, eventually leading to a lockout and strike in June 2020. On or about November 22, 2019, the Union filed three Unfair Labour Practice complaints with the Alberta Labour Relations Board (Board), alleging Cessco had breached s. 60 (duty to bargain in good faith), s. 148(1)(a) (interference with union representation), and s. 149(1)(c) (intimidation or threats to discourage union activity) of the Labour Relations Code, RSA 2000, c L-1 (Code).

Policy and legislative provisions at issue

The central legislative provisions were ss. 60, 148(1)(a), and 149(1)(c) of the Code. Section 60 imposes a duty on parties to bargain in good faith, which the Board assessed by examining the totality of Cessco's bargaining conduct. Section 148(1)(a) prohibits employer interference with union representation of employees. Section 149(1)(c) prohibits intimidation or threats intended to discourage union activity, with s. 149(2) imposing a reverse onus on the employer once the factual elements are established. The preamble to the Code also featured in the analysis, as it directs the Board to facilitate fair, equitable, and expedient resolution of labour disputes — a mandate the Court found the Board had undermined through its handling of the delay.

Reasoning and analysis

The s. 149(1)(c) complaint was summarily dismissed in June 2020, but that dismissal was quashed by the Alberta Court of Appeal in April 2022 (International Brotherhood of Boilermakers v Alberta Labour Relations Board, 2022 ABCA 139). The ss. 60 and 148(1)(a) complaints had already proceeded to a first hearing on February 3–5, 2021. Following the Court of Appeal's decision, the Board held a case management meeting on July 6, 2022, at which it directed that the s. 149(1)(c) complaint be determined at a second hearing, and indicated it would not issue its decision on the ss. 60 and 148 complaints until all three complaints had been heard together. The Union objected to this approach throughout. A second hearing on the s. 149(1)(c) complaint was held on January 28–29, 2023, after the proposed September 2022 hearing dates fell through. The Board released a single consolidated decision on all three complaints on September 21, 2023 — 31.5 months after the first hearing. The Union then filed this application for judicial review.

On the procedural fairness question, Justice Hayes-Richards found the Board's decision to defer its ruling on the ss. 60 and 148 complaints was procedurally unfair to the Union, which had expressly objected to further delay and was prepared to receive a decision on those complaints without the benefit of the intimidation evidence. However, the Court declined to find that the delay amounted to an abuse of process under the framework in Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 and Law Society of Saskatchewan v Abrametz, 2022 SCC 29, concluding the overall 31.5-month delay — while encompassing a complaint that was not returned to the Board until almost 15 months after the first hearing — was not inordinate in the circumstances. The Court also rejected the Union's argument that the delay gave rise to a reasonable apprehension of results-driven reasoning, distinguishing this case from R v Teskey, 2007 SCC 25, as the Board had not announced any interim or final disposition before issuing its Decision.

On the substantive grounds, the Court applied a reasonableness standard, confirming that all parties agreed this was the applicable standard for the Board's merits decision. Regarding the s. 149(1)(c) intimidation complaint, the Board had accepted evidence from Cessco's President/CEO, Mr. Dave Hummel, that he did not threaten or intimidate employees, including during conversations with employee Mr. Tyler Gergely (who had become a manager at Cessco by the time of the hearings). The Court found the Board treated Mr. Hummel's evidence with appropriate caution, noting his credibility shortcomings, but concluded the Board's acceptance of his testimony as sufficient to discharge the reverse onus was reasonable and grounded in the evidentiary record. On the s. 60 bad faith bargaining complaint, the Board viewed Cessco's bargaining conduct in totality and found that, although Cessco engaged in hard bargaining — including maintaining positions on seniority and pensions and reintroducing certain proposals — this did not amount to surface bargaining, backwards bargaining, or a demonstrated absence of genuine intent to reach an agreement. The Court held the Board correctly identified the legal principles distinguishing hard bargaining from bad faith and applied them to the evidence in a manner that was coherent and entitled to deference.

Ruling and overall outcome

Justice Hayes-Richards dismissed the judicial review application. While the Court found the Board's procedural decision to defer the ss. 60 and 148 rulings until after the second hearing was unfair to the Union, no remedy was granted on that basis given the absence of abuse of process, the good faith rationale underlying the Board's procedural choice, and the Court's dismissal of all substantive grounds. On the s. 148(1)(a) complaint, the Board had upheld the Union's complaint and granted declaratory relief only, finding that a letter sent by Cessco to bargaining unit employees disparaged the Union's competence in a manner that crossed the line into unlawful interference — the Board being the successful party on that narrow issue. The Union's requests for more expansive relief and a new hearing were denied. All other grounds of review, both procedural and substantive, were dismissed. No monetary award was ordered.