Executive Summary: Key Legal and Evidentiary Issues

• Whether the Nova Scotia Labour Board’s majority decision to permit fragmentation of the bargaining unit under section 28 of the Trade Union Act was justified under the Vavilov reasonableness standard.

• The admissibility of limited affidavit evidence on judicial review to demonstrate an absence of evidence supporting material factual findings by the Board.

• The Labour Board’s failure to provide adequate justification for departing from its well-established policy and precedent against fragmentation without compelling reasons.

• Issues arising from the Board blending legal tests applicable to section 28 and section 23 applications under the Trade Union Act.

• Concerns about the Board disregarding agreed facts stated at the hearing, raising procedural fairness issues.

• Whether the Board’s reasons sufficiently justified its decision in light of relevant law, precedent, and the record before it.

Facts of the case

The Halifax Regional Centre for Education (HRCE) is a regional centre for education established under the Education Act, SNS 2018, c. 1. The Nova Scotia Union of Public and Private Employees (NSUPE) is the bargaining agent for a unit of HRCE employees that includes custodial, trades, maintenance, and repair employees. In 2023, NSUPE applied under sections 28 and 23 of the Trade Union Act, RSNS 1989, c. 475. The section 28 application sought to amend the certification to exclude trades and maintenance employees from the existing bargaining unit. The section 23 application sought certification of NSUPE as the bargaining agent for this proposed new unit.

There were approximately 40 trades and maintenance employees and about 550 custodial employees in the existing bargaining unit. The trades and maintenance employees worked across all schools in the region, while custodial employees were assigned to specific schools. The applications were heard jointly by the Nova Scotia Labour Board on November 17, 2023. The HRCE opposed the section 28 application, preferring to deal with a single bargaining unit that had functioned without work stoppages for more than two decades. The Board’s majority allowed the section 28 application and permitted the section 23 application to proceed. The majority found that trades and maintenance employees had a stronger community of interest with each other than with custodial staff, lacked an effective voice within the larger unit, and that the impact on the employer would be minimal. The majority also referred to differences in hours, training, supervision, and interaction with staff, and noted that the existing structure was a historical accident not reflected in other Centres for Education in the province. The decision described the separation as a “friendly divorce” and distinguished it from Dalhousie University, 2011 NSLB 94.

The Vice-Chair dissented, finding that while the proposed structure might have been preferable if designed at the outset, the union had not met the heavy burden required to justify fragmentation, as set out in decades of precedent including IMP and Dalhousie University.

Outcome of the judicial review

HRCE applied for judicial review. The Supreme Court of Nova Scotia quashed the Board’s decision. The court held that the majority’s reasons did not meet the justification requirement under Vavilov. The majority failed to justify its departure from longstanding Board precedent requiring compelling reasons to fragment an existing unit. The court found that the majority did not adequately explain its reliance on Glace Bay, 1989 CanLII 8346, which had allowed fragmentation only in unique circumstances where the employer did not object. The majority also made findings that were unsupported by evidence, including the assertion that the structure was not reflected in other Centres for Education, despite agreed facts stating otherwise. Limited portions of an affidavit from HRCE’s counsel were admitted on review to demonstrate the absence of evidence for specific findings. The court ordered the matter to be reheard de novo by a new panel of the Board.

No monetary award, damages, or specific costs were ordered at the time of the decision.