



COURT OF APPEAL FOR ONTARIO

CITATION: Society of United Professionals v.
    New Horizon System Solutions, 2021 ONCA 503

DATE: 20210712

DOCKET: C68664

Rouleau, Hoy and van Rensburg
    JJ.A.

BETWEEN

The Society of United
    Professionals

Applicant

(Appellant)

and

New Horizon System Solutions

and the Ontario Labour Relations Board

Respondents

(Respondents)

Jeffrey M.
    Andrew and Balraj Dosanjh, for the appellant

Daryn M. Jeffries and Alexandra
    Jamieson, for the respondent, New Horizon System Solutions

Lindsay Lawrence and Aaron Hart, for
    the respondent, Ontario Labour Relations Board

Heard: June 1, 2021 by video conference

On appeal from the judgment of the
    Divisional Court (Justices Katherine E. Swinton, Michael A. Penny and Freya Kristjanson),
    dated May 20, 2020, with reasons reported at 2020 ONSC 3153, affirming the decisions
    of the Ontario Labour Relations Board, dated November 19, 2018, December 27,
    2018, and January 17, 2019, with reasons reported at 30 C.L.R.B.R. (3d) 100 (Ont.
    L.R.B.), [2018] O.L.R.B. Rep. 1002, and 2019 CanLII 4176 (Ont. L.R.B.).

Hoy J.A.:


I.

OVERVIEW

[1]

The Society of United Professionals (the Society) brought an
    application to the Ontario Labour Relations Board (the Board) alleging that
    New Horizon Systems Solutions (New Horizon) violated ss. 17 and 70 of the
Labour Relations Act
, 1995, S.O. 1995, c. 1, Sch. A (the
    Act) by failing to negotiate in good faith and by interfering with the
    Societys representation of employees in the bargaining unit. The allegations
    were based on New Horizons refusal to disclose the Master Services Agreement
    (the MSA), the contract governing New Horizons relationship with Ontario
    Power Generation (OPG).

[2]

The Board rendered three decisions. First, in a decision dated November
    19, 2018, it rejected the allegation that New Horizon had violated s. 70 of the
    Act by interfering with the Societys representation of its members and
    concluded that the Societys application under s. 17 was premature. Second, in
    a decision dated December 27, 2018, it found New Horizon had violated the duty
    in s. 17 of the Act to bargain in good faith and ordered partial disclosure of
    the MSA. Third, in a decision dated January 17, 2019, the Board rejected the Societys
    request to order disclosure of one further provision of the MSA.

[3]

The Society sought judicial review of the three decisions. The
    Divisional Court dismissed the application for judicial review, holding that
    the decisions of the Board were reasonable. The Society appeals the order of
    the Divisional Court, dismissing its application for judicial review.

[4]

I agree with the Divisional Court that the Boards decisions were
    reasonable and would dismiss the appeal.

[5]

Below, I outline the background leading to the Societys request for the
    MSA. Then I address the Societys three-part argument:

1.

the Boards interpretation of s. 70 of the Act in the November 2018
    decision was unreasonable;

2.

the Boards November 2018 conclusion that the Societys application
    under s. 17 of the Act was premature and its December 2018 decision ordering
    partial disclosure of the MSA were unreasonable; and

3.

the Boards reliance in its January 17, 2019 decision on a
    representation of counsel to New Horizon in declining to order further
    disclosure was unreasonable.


II.

THE BACKGROUND

[6]

Around 2001, OPG transferred its employees involved in information
    technology (IT) services to New Horizon. In connection with the transfer, New Horizon
    assumed OPGs pension and benefits obligations to the affected employees. The
    Society had represented the bulk of the transferred employees when they were
    employed by OPG and New Horizon recognized the Society as their bargaining
    agent.

[7]

Since the transfer, New Horizon has provided IT services to OPG pursuant
    to a Master Services Agreement. The most recent version of the MSA, dated
    October 8, 2015, sets out the scope of services, service level requirements,
    and performance standards. OPG is New Horizons only client. New Horizon has regularly
    undertaken headcount reductions. In 2001, New Horizon employed 400 members of
    the Society. At the time of the application to the Board in 2018, New Horizon
    employed 174 members of the Society.

[8]

The MSA contains a non-disclosure covenant, binding on New Horizon. The Society
    is not a party to the MSA and there is no reference to it in the collective
    bargaining agreement between New Horizon and the Society. The unredacted MSA
    was not provided to the Board and does not form part of the record on this
    appeal, though the Society filed a partially redacted version, which it
    obtained from OPG through a freedom of information request. At the hearing of
    this appeal, counsel for the appellant advised the court that the MSA, which
    was set to expire in January 2021, has been renewed for one year.

[9]

The collective agreement between New Horizon and the Society provides
    for a voluntary separation program (VSP). Under the VSP, employees who accept
    an offer to terminate their employment have three options with respect to their
    pensions. They can elect to transfer the commuted value of the plan to another
    retirement vehicle, draw a pension from the plan, or take a deferred pension.
    An employee who elects to take the commuted value of the plan becomes
    ineligible for certain post-retirement benefits.

[10]

In
    March 2018, New Horizon initiated the VSP process by a proposed reduction of
    seven positions. New Horizon explained that it was required to further reduce
    costs to OPG in 2018 by the terms of the MSA.

[11]

The
    Society requested disclosure of the MSA, arguing that it needed it to adequately
    represent the affected employees during the VSP, particularly with respect to
    their options under the pension plan. New Horizon denied the request.

[12]

Shortly
    thereafter, New Horizon advised the Society, as it had in similar annual
    pension plan meetings, that if the defined benefit pension plan were wound up
    at that time, there would be a shortfall in the pension plan, and that the
    benefits would be worth about 70% of their currently calculated value. In some
    previous years, the shortfall was more severe.

[13]

On April 17, 2018, the Society filed an unfair labour practice application
    to the Board, requesting a declaration that New Horizons refusal to disclose
    an unredacted copy of the MSA interfered with its obligation to represent the
    employees and thereby violated s. 70 of the Act.

[14]

On
    May 17, 2018, the Society gave official notice to bargain a new collective
    agreement. In its notice, it requested an unredacted copy of the MSA. New
    Horizon again denied the request.

[15]

On
    June 8, 2018, the Society amended its application to the Board, to assert that,
    by refusing to provide a copy of the MSA after the Society gave notice to
    bargain, New Horizon had also violated its duty to bargain in good faith under s. 17
    of the Act.

[16]

In
    a series of three decisions, the Board ordered New Horizon to disclose certain
    parts of the MSA but otherwise dismissed the application. The Divisional Court
    dismissed the Societys application for judicial review.

III.

DISCUSSION

[17]

The
    Society appeals, with leave, arguing that the Boards decisions are
    unreasonable and should be quashed.

[18]

The parties agree that the applicable standard of review is
    reasonableness. As the Supreme Court recently explained in
Canada (Minister of Citizenship and Immigration) v. Vavilov
, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 85, a reasonable
    decision is one that is based on an internally coherent and rational chain of
    analysis and that is justified in relation to the facts and law that constrain
    the decision maker. Reasonableness review requires the reviewing court to read
    the reasons in light of the history and context of the proceedings and to be
    alert to the decision makers experience and expertise:
Vavilov
, at
    paras. 93-94. The onus is on the party challenging the decision to demonstrate
    that it is unreasonable:
Vavilov
, at para. 100. Before setting aside a
    decision as unreasonable, the reviewing court must be satisfied that there are
    sufficiently serious shortcomings in the decision such that it cannot be said
    to exhibit the requisite degree of justification, intelligibility and
    transparency:
Vavilov
, at para. 100.

[19]

In
    this case, the Society argues that the Boards interpretation and application
    of ss. 17 and 70 of the Act were unreasonable. In addition, it submits that the
    Board unreasonably relied on a representation of counsel when it declined to
    order further disclosure. As I explain below, I reject each of these arguments.

(1)

The Boards Interpretation of s. 70 of the Act Was Reasonable

[20]

Section
    70 of the Act provides:

No employer
or employers organization and no person acting on behalf of an employer or an
    employers organization
shall

participate
    in or
interfere with
the
    formation, selection or administration of a trade union or
the representation of employees by a trade
    union
or contribute financial or other support to a trade union,
    but nothing in this section shall be deemed to deprive an employer of the
    employers freedom to express views, so long as the employer does not use
    coercion, intimidation, threats, promises or undue influence.  [Emphasis added.]

(a)

The Boards decision

[21]

In
    its November 2018 decision, the Board held that New Horizons refusal to
    disclose the MSA did not constitute interference with the Societys representation
    of employees. The Board described the scope of the information that might
    support a finding of a violation of s. 70 if not disclosed by the employer to
    the union in the period when no collective bargaining is underway:

[I]n circumstances where a trade union seeks disclosure of an
    otherwise confidential business document or information in the period when no
    collective bargaining is underway, the document or information should at least
    be directly and concretely connected to information specific to employees
    covered by the collective agreement or some entitlement or right specifically
    arising in the collective agreement.

[22]

It
    explained that an employer is not necessarily required to disclose information
    that falls within that description:

Further, even if the document could be said to come within
    these parameters, that is not necessarily enough (on its own) to warrant
    disclosure. In each such case the issue will be whether refusal to disclose
    constitutes interference with the trade union under section 70 of the Act.

[23]

The
    Board concluded that the MSA did not fall within the parameters of information
    that a union could properly seek:

In the Boards view, the information sought by the Society in
    this application pursuant to section 70 of the Act is not information directly
    connected to individual employees or arising directly from the New
    Horizon/Society collective agreement. The MSA is a commercial services contract
    between New Horizon and OPG, the Society is a stranger to it and the MSA is
    nowhere referenced in the  collective agreement. In the Boards view, the
    information the Society seeks through an unredacted MSA is, at best, ancillary
    to the Societys representation of its members.

[24]

Moreover,
    and in any event, while the Board could see why the Society might wish to have
    the MSA disclosed to it, it concluded that the MSA was not within the category
    of information to which a disclosure obligation under s. 70 might apply,
    because the refusal to provide it does not constitute interference with the
    Society.

(b)

The Divisional Courts decision

[25]

The Divisional Court held that the Boards decision with respect
    to s. 70 was reasonable. It noted that the Society acknowledged that it sought
    to push the envelope with respect to the scope of the employers disclosure
    obligation under s. 70, but that the Board rejected the invitation to do so.
    The Divisional Court concluded that the Boards decision was consistent with
    the existing jurisprudence and it was justifiable on the facts of the case.

[26]

In
    coming to that conclusion, the Divisional Court noted that the Board considered
    the two leading cases,
Hotel & Restaurant Employee CAW
    Local 448

National
    Automobile, Aerospace, Transportation and General Workers Union of Canada v.
    The Millcroft Inn Ltd.
, 2000 CanLII 12208 (Ont. L.R.B.) and
Bernard v. Canada (Attorney General)
, 2014 SCC 13, [2014]
    1 S.C.R. 227. While both cases dealt with the disclosure of employees contact
    information, the Board accepted that s. 70 could apply to require disclosure of
    more than contact information. The Board explained why, in the circumstances,
    the refusal to provide the MSA would not constitute interference with the
    Societys ability to represent bargaining unit members. The Divisional Court accordingly
    dismissed the Societys argument that the Boards decision respecting s. 70 was
    unreasonable.

(c)

The issues raised by the Society

[27]

On
    appeal to this court, the Society argues that the Boards interpretation of s.
    70 is unreasonable for four reasons.

[28]

First,
    it says that the Boards interpretation of s. 70 frustrates the broader purpose
    of the section, which it describes as ensuring that employers cooperate with
    unions so that unions can fulfill their broad statutory duties to represent
    their members.

[29]

Second,
    it says that the Boards interpretation of s. 70 is unreasonably narrow and
    inconsistent with the approach in
Millcroft
,
    endorsed by the Supreme Court in
Bernard
, at
    para. 26, of putting unions on an equal footing with the employer with respect
    to information relevant to the collective bargaining relationship and
    requiring employers to provide information which is of value to the union in
    representing employees.

[30]

Third,
    it argues that the Boards characterization of the MSA as a commercial
    services contract, which underpinned its conclusion, is unreasonable. The MSA
    is a contract between New Horizon and its only client respecting the collective
    bargaining arrangements with the Society. Contrary to the Boards finding, the
    information that the Society seeks through the MSA is not ancillary to the
    Societys representation of its members.

[31]

Finally,
    it says that the Board failed to balance New Horizons and its conflicting
    interests with respect to the disclosure of the MSA  an approach it says the
    Board endorsed in
Canadian Paper Workers Union, Local 305
    v. International Wallcoverings
, 1983 CanLII 764 (Ont. L.R.B.), at
    para. 28, and is consistent with American labour jurisprudence in relation to
    disclosure. The Society argues that New Horizon did not identify any particular
    interest in not disclosing the information, other than that the MSA contained a
    non-disclosure covenant, and that New Horizons confidentiality concerns were
    easily safeguarded through the confidentiality conditions which the Society
    proposed. Accordingly, the Society argues, its interest in disclosure should
    have outweighed that of New Horizon in not disclosing the MSA.

(d)

Analysis

[32]

I
    would not give effect to these arguments. I agree with the Divisional Court
    that the Boards decision with respect to s. 70 was reasonable. As the
    Divisional Court articulated, the Boards decision was justified in light of
    the existing jurisprudence and the facts of the case. The Board explained why,
    in the circumstances, the refusal to provide the MSA would not constitute
    interference with the Societys ability to represent bargaining unit members. Its
    explanation was internally coherent and rational:
Vavilov
,
    at para. 85.

(i)

The Boards interpretation did not frustrate the purpose of s. 70 and
    was not unreasonably narrow

[33]

The
    Societys first two arguments are interrelated. It submits that the Boards
    interpretation of s. 70 is inconsistent with the provisions purpose and the
    broad approach endorsed in
Millcroft
and
Bernard
. Given the
    overlap in these arguments, I will treat them together.

[34]

In
    its submissions, the Society says the Boards interpretation of s. 70 was
    unreasonably narrow because the document sought need not be directly and
    concretely connected to information specific to employees covered by the
    collective agreement or some entitlement or right specifically arising in the
    collective agreement, as the Board held. Based on
Millcroft
and
Bernard
, the Society argues that it is
    entitled to be on an equal footing with New Horizon with respect to any
    information relevant to and of value to its role in representing and advising
    its members in the collective bargaining relationship and that the unredacted
    MSA is such information.

[35]

In
Vavilov
, at para. 112, the Supreme Court recognized that
    [a]ny precedents on the issue before the administrative decision maker or on a
    similar issue will act as a constraint on what the decision maker can
    reasonably decide. As the Divisional Court noted, however, the Board
    considered both
Millcroft
and
Bernard
,
recognizing
    that both cases addressed a unions right to contact information of bargaining
    unit members, but also observing that s. 70 could cover more than disclosure of
    contact information. The Board held that the circumstances of this case were
    not at all like those that arose in either
Millcroft
or
Bernard
.

[36]

In
    both
Millcroft
and
Bernard
,
    access to employee contact information outside the collective bargaining
    process was at issue. In
Millcroft
, citing
    privacy concerns, the employer refused to provide the employees contact
    information to the union without the employees consent. In
Bernard
, a case involving the
Public Service
    Labour Relations Act
, S.C. 2003, c. 22, an employee who had not
    joined the union representing her bargaining unit argued that the provision of
    her home contact information to the union violated her privacy rights.

[37]

At
    para. 16 of
Millcroft
, the Board wrote:

A violation of section 70 of the Act does not require an
    anti-union
animus
. If the result of certain
    conduct is interference with the unions capacity to represent its members,
    that can be sufficient to constitute a breach of the provision. The conduct may
    be lawful and
bona fide
; it may be free of any
    anti-union taint, yet if its effect is to harm the unions capacity to
    represent its members, it may be a violation. It will be a violation if there
    is no business rationale for the interference.

[38]

Citing
C.U.P.E., Local 2424 v. Carleton University
, 1998
    CarswellOnt 2648 (Ont. L.R.B.), which in turn cited
International
    Wallcoverings
(which I discuss below in addressing the Societys
    fourth argument), the Board in
Millcroft
, at
    para. 17, articulated a two-step approach to determine whether the employers
    refusal to provide employees contact information in that case amounted to an
    unfair labour practice. The first question is whether the employers refusal
    amounts to interference in the unions ability to represent the employees. If
    it does, then the second inquiry asks whether there is a sound business purpose
    which would counterbalance the adverse impact upon the unions capacity to
    represent the employees.

[39]

The
    Board in
Millcroft
noted, at paras. 20-29,
    that a union has statutory duties to employees under the Act and wider
    obligations as result of
Weber v. Ontario Hydro
,
    [1995] 2 S.C.R. 929, to protect the legal interests of the employees vis-à-vis
    the employer in the bargaining unit it represents. In order to fulfill these
    duties, it must be able to communicate directly with each employee it
    represents.

[40]

The
    Board concluded, at paras. 35-37, that the unions capacity to represent the
    employees for whom it has bargaining rights was impeded or detrimentally
    affected by the employers refusal to provide the contact information and
    amounted to interference to represent them. The employer had no business
    rationale for refusing to disclose the employees contact information. Its sole
    concern was the employees privacy interests, and that concern did not trump
    the unions interest in being able to effectively able to represent its
    constituency.

[41]

Similarly,
    in
Bernard
, the Public Service Labour
    Relations Board found that the employers refusal to disclose employee home
    contact information was an unfair labour practice under s. 186 of the
Public Service Labour Relations Act
. The Supreme
    Court held that the boards decision requiring disclosure of the employees
    home contact information was reasonable. It explained that two rationales
    fueled the boards conclusion.

[42]

First,
    the union owes legal obligations to all employees, including employees who
    elected not to join the union, and, as explained in
Millcroft
,
    it needs effective means of contacting employees in order to discharge its
    representational duties.

[43]

The
    Society seizes on what Abella and Cromwell JJ., writing for the majority,
    described as the second and more theoretical rationale, at para. 26:

[T]he union must be on an equal footing with the employer with
    respect to information relevant to the collective bargaining relationship.
    Disclosure of personal information to the union is not like disclosure of
    personal information to the public because of the tripartite relationship
    between the employee, the employer and the union. To the extent that the
    employer has information of value to the union in representing employees, the
    union is entitled to it.

[44]

However,
    this passage cannot be read in isolation. At para. 28, Abella and Cromwell JJ.
    explained further:

The tripartite nature of the employment relationship means that
    information disclosed to the employer
that
    is necessary for the union to carry out its representational duties
should be disclosed to the union in order to ensure that the union and employer
    are on an equal footing with respect to information relevant to the collective
    bargaining relationship. [Emphasis added.]

[45]

In
    other words, the scope of information that must be disclosed must be more than
    merely relevant to and of value, as the Society argues. For the
    non-disclosure to constitute interference, and therefore an unfair labour
    practice, the information sought must be necessary for the union to carry out its
    representational duties.

[46]

Applying
    these principles, the Board in this case essentially concluded that the
    unredacted MSA was not
necessary
for the Society
    to carry out its representational duties. In the Boards words, the
    information the Society seeks through an unredacted MSA is, at best, information
    ancillary to the Societys representation of its members. Contrary to the
    Societys assertion, the Boards decision is consistent with
Millcroft
and
Bernard
. As
    the Society conceded before the Divisional Court, the Society sought to push
    the envelope in this case, but the Board declined to do so.

[47]

It
    is ultimately of no moment on this appeal whether the Board exhaustively
    encapsulated the type of information the non-disclosure of which might trigger
    a s. 70 violation when it observed that the document or information
    should at least be directly and concretely connected to information specific to
    employees covered by the collective agreement or some entitlement or right
    specifically arising in the collective agreement. Its finding that the
    information sought was, at best, ancillary to the Societys representation of
    its members was determinative.

[48]

This is not a case where the Board failed to explain or justify a
    departure from a binding precedent in which the same provision had been
    interpreted:
Vavilov
, at para. 112. On the contrary, the Board
    considered the relevant case law and, applying that jurisprudence, explained
    why New Horizons refusal to provide the MSA did not amount to interference
    with the Societys capacity to represent bargaining unit members.


(ii)

The Boards finding that the information sought was ancillary to the
    Societys representation of its members was reasonable

[49]

This
    leads to the Societys third argument: that the Boards findings that the MSA
    is a commercial services contract and that the information sought was, at best,
    ancillary to the Societys representation of its members, were unreasonable. I
    would not give effect to this argument. In my view, these findings of fact are
    fully justifiable.

[50]

As the Supreme Court observed in
Vavilov
, at para. 125,
    [i]t is trite law that the decision maker may assess and evaluate the evidence
    before it and that, absent exceptional circumstances, a reviewing court will
    not interfere with its factual findings. While [t]he reasonableness of a
    decision may be jeopardized where the decision maker has fundamentally
    misapprehended or failed to account for the evidence before it (
Vavilov
,
    at para. 126), this is not such a case. The Boards findings are justified
    on the record before it.

[51]

There
    is no dispute that the MSA sets out the business terms of the relationship
    between New Horizon and OPG, including the scope of services, service level
    requirements and performance standards. The Society is not a party to the MSA.
    The collective agreement between New Horizon and the Society does not mention
    the MSA. Headcount reductions under the VSP have been a reasonably regular
    occurrence at New Horizon, and the VSP in question was not the first one where there
    was a potential pension plan shortfall in the event of windup. The Societys
    witness acknowledged that pension plan members regularly receive information
    and advice about the pension plan and their own benefit entitlements from a
    variety of generally reliable sources. During previous VSP cycles, the Society
    did not have and did not seek to obtain, an unredacted copy of the MSA.

[52]

In
    my view, based on this record, it was open to the Board to conclude that the
    MSA is a commercial services contract and that the information sought by the
    Society was, at best, ancillary to Societys representation of its members.

(iii)

The Boards failure to explicitly balance the parties competing
    interests did not render its decision unreasonable

[53]

I
    turn, then, to the Societys final argument in relation to s. 70, namely that
    in finding that New Horizon did not interfere with its ability to represent
    bargaining unit members, the Board departed from the balancing approach espoused
    in
International Wallcoverings

by failing to balance New Horizons and the Societys conflicting
    interests with respect to the disclosure of the MSA.

[54]

Again,
    contrary to the Societys assertion, the Boards decision is consistent with
    the existing jurisprudence.

[55]

This
    case is very different from
International Wallcoverings
.
International Wallcoverings
was not about
    disclosure of information. The issue in
International
    Wallcoverings
was whether the employers discharge of a group of
    employees during a strike violated s. 70 of the Act (which was then s. 64). All
    the employees had been involved in picketing and strike activity, which are
    rights under the Act. The terminations followed an incident during which a van
    of strike replacements was intercepted at a restaurant parking lot away from
    the employers plant. Two of the strike replacements were assaulted, and the
    van was attacked and damaged. Not all of the discharged employees were involved
    in the assault. Based on the facts that it found and the inferences as to
    motive that it drew, the Board determined that the discharge of six of the
    employees violated s. 70.

[56]

The
    Board in
International Wallcoverings
cited
A.A.S. Telecommunications
, 1976 CarswellOnt 717 (Ont.
    L.R.B.), at para. 30, for the proposition that a distinction must be made
    between employer conduct that actually interferes with a trade union, and
    employer conduct that only incidentally affects a trade union. In this context,
    the Board wrote of the balancing that the Society relies upon, at para. 28:

Presumably an adverse impact on union activity would be
    characterized as incidental where, relying on its expertise, the Board
    accepted the employers action as classic business or collective bargaining
    activity not inconsistent with the scheme of the Act. In effect, the Board
    would balance the conflicting interests of labour and management, honouring
    accepted relationships but being vigilant that intrusions on statutory
    entitlements have suitable justifications However, we wish to stress that the
    balancing has been more one of examining the record for a legitimate management
    interest to support the adverse impact on union activity. It has not usually
    involved a delicate weighing of legitimate but conflicting interests with
    labour boards being the final arbiters of the right policy mix. [Emphasis omitted.]

[57]

The
    Board discussed the role of motive or intent when a violation of s. 70 is
    alleged. It cited a number of American authorities addressing the non-motive
    approach. The Board held that without direct evidence of motive, there must be
    a 
a considerable imbalance of interests
in favour
    of the protected activity before a violation will be established: at para. 31
    (emphasis added). It reasoned that in the type of situation before it, a
    non-motive approach to [s. 70] should be reserved for instances of clear
    mistake or for discipline clearly out of all proportion to the misconduct in
    issue: at para. 37.

[58]

Subsequently,
    in
Millcroft
, at para. 17, the Board held that
    where a union asserts that an employers non-disclosure of information violates
    s. 70, a balancing of the unions and the employers conflicting interests need
    be undertaken as a second step only if, at the first step, the employers
    refusal to provide the disclosure sought amounts to interference with the
    unions ability to represent them. In
Millcroft
,
    the Board described the balancing exercise at this second step somewhat
    differently than in
International Wallcovering
:

is
    there a sound business purpose which would counterbalance the adverse impact
    upon the unions capacity to represent the employees?

[59]

In
    the present case, the Board found that the non-disclosure of the MSA did not
    interfere with the Societys ability to represent the members of the bargaining
    unit. Based on
Millcroft
, the Board was not
    required to engage in a balancing of the competing interests.

[60]

As a result, although the Board did not explicitly balance the
    parties competing interests, this does not render its decision unreasonable.
    In
Vavilov
, at para. 131, the Supreme Court observed that, absent
    justification, a decision that depart[s] from longstanding practices or
    established internal authority may be unreasonable. Here, however, it was
    entirely consistent with
Millcroft
to refrain from undertaking the
    exercise of balancing the parties competing interests given the absence of
    interference.

[61]

Moreover,
    in this case the Board was not faced with direct evidence of motive or intent
    to interfere with the Societys representation of its members. Even had the
    Board been required to engage in a balancing of the parties competing
    interests, this is not a situation where the considerable imbalance of
    interest in favour of the union that the Board wrote of in
International Wallcoverings

was
    present.

[62]

In light of the foregoing, I reject the Societys argument that the
    Boards interpretation of s. 70 of the Act was unreasonable.

(2)

The Boards Interpretation of s. 17 of the Act Was Reasonable

[63]

Section
    17 of the Act provides:

The parties shall meet within 15 days of the giving
    of notice or within such further period as the parties agree upon and they
    shall bargain in good faith and make every reasonable effort to make a
    collective agreement.

[64]

In
United Electrical, Radio and Machine Workers of America v.
    DeVilbiss Canada Ltd.
,

1976 CarswellOnt 592 (Ont. L.R.B.), at para. 15, the Board recognized
    that one of the functions of the duty to bargain in good faith is to foster
    rational, informed discussion thereby minimizing the potential for unnecessary
    industrial conflict. An obligation to disclose information during the
    bargaining process developed to further that informed discussion:
Royal Conservatory of Music Faculty Assn. v. University of Toronto
    (Royal Conservatory of Music)
, 1985 CanLII 1085 (Ont. L.R.B.), at
    para. 36.

(a)

The Boards November 2018 decision

[65]

The
    Board concluded that whether an employer is required to disclose confidential
    business information during the bargaining process in order to fulfill its duty
    to bargain in good faith is dependent on the proposals made by the party which
    holds the otherwise confidential information.

[66]

No
    bargaining proposals had been made and the evidence was clear that New
    Horizons bargaining proposals would likely be affected by the ongoing talks
    between New Horizon and OPG about whether the MSA would be renewed beyond its
    current expiry date in 2021.

[67]

Accordingly,
    the Board adjourned the Societys application under s. 17. It provided that the
    Society could renew its request for disclosure of an unredacted MSA under s. 17
    in writing in the event that a bargaining proposal made by New Horizon prompted
    it to again request disclosure of an unredacted MSA and New Horizon
    refused to provide disclosure.

(b)

The Boards December 2018 decision

[68]

The
    Board recounted that after the Society received New Horizons bargaining
    agenda, and just before their bargaining session scheduled for late November
    began, the Society renewed its request for an unredacted MSA and New Horizon
    again refused disclosure. The parties were unable to reach agreement on a
    renewal collective agreement at their November bargaining session and had
    referred the matter to an interest arbitrator by the time the matter returned
    before the Board.

[69]

Under
    the terms of the agreement referring the matter to interest arbitration, the
    actual bargaining proposals made by the parties during the November bargaining
    session were withdrawn. However, New Horizons bargaining agenda, which sought
    concessions in respect of specific terms and conditions of employment, had not
    been withdrawn by the agreement referring the matter to interest arbitration.

[70]

The
    Board reviewed what it described as the reasonably well-settled law regarding a
    trade unions access to an employers otherwise confidential information during
    collective bargaining. Based upon New Horizons bargaining agenda, the Board
    concluded that the Society should have access to at least some unredacted
    portions of the MSA for it to be able to reasonably assess the bona fides of
    New Horizons bargaining positions.

[71]

It
    ordered New Horizon to disclose unredacted portions of the MSA that do or may
    deal with:

1.

staffing levels and pricing;

2.

the description of work to be performed by Society-represented members;
    and

3.

Society-represented member pension obligations and liabilities.

[72]

It
    was not persuaded that any provisions in the MSA beyond those three areas were
    reasonably connected to any of the concessions sought in New Horizons
    bargaining agenda.

[73]

It
    required the Societys collective bargaining representatives to whom the
    unredacted provisions were disclosed to confirm in writing that they would keep
    such information confidential.

[74]

The
    Board instructed that it remained seized of any issues arising from the
    application of its directions.

(c)

The Divisional Courts decision

[75]

With
    respect to the Boards November 2018 decision, the Divisional Court held, at
    para. 38, that:

The Board reasonably decided that it should consider the scope
    of the duty to bargain in good faith, and the disclosure required, in light of
    the bargaining demands of the employer. It also provided a streamlined process
    so that it could react quickly to a new request for disclosure. This was
    reasonable in the circumstances and, again, consistent with the Boards
    jurisprudence.

[76]

With
    respect to the December 2018 decision, the Divisional Court rejected the
    Societys arguments that it was unreasonable because the disclosure came too
    late, after bargaining had ended, and because the Board failed to order full
    disclosure of the MSA.

[77]

It
    explained that the disclosure did not come after bargaining was complete: the
    parties were on their way to interest arbitration and were not precluded from further
    bargaining. And, again, the Board followed the principles set out in the
    jurisprudence and applied it in the context of this case, exercising its
    expertise in matters of labour relations and collective bargaining. The
    decision is logical and justified, and the disclosure ordered was reasonable.

(d)

Analysis

[78]

On
    appeal, the Society makes two main arguments. First, it renews its argument
    that the Boards November 2018 decision that its application was premature was
    unreasonable.

[79]

More
    specifically, in framing its first argument, the Society says the decision was
    unreasonable because it had provided notice to bargain, the parties had
    discussed the bargaining agenda, and New Horizon had communicated that it would
    be seeking concessions during bargaining because it had cost reduction
    obligations under the MSA. The Society argues that, in November, the Board had
    before it much of the same information that was in the bargaining agenda, which
    the Board relied upon to order disclosure in its December decision.

[80]

It
    says that as a result of the Boards November 2018 decision, by the time it
    received disclosure of parts of the MSA, bargaining had failed and the matter
    was in interest arbitration. The Boards narrow interpretation, which
    required bargaining proposals to have been made, frustrated the purpose of s.
    17.

[81]

I
    agree with the Divisional Court that the Boards November adjournment of the
    Societys s. 17 application was reasonable.

[82]

In
Royal Conservatory
, the Board distinguished
    between information relating to current terms and conditions of employment and
    other information sought by a trade union during collective bargaining. At
    para. 37, it explained that, apart from the duty to disclose information
    relating to the current terms and conditions of employment, the obligation to
    disclose information as a function of the duty to bargain in good faith is
    contingent upon the information being necessary for one party to adequately
    comprehend the position taken by the other.

[83]

Thus,
    an obligation to disclose the unredacted MSA did not arise simply because the
    Society had given notice to bargain, as New Horizon concedes was the case with
    respect to information relating to current terms and conditions of employment.
    As the Board fully appreciated, it turned on whether the unredacted MSA sought
    was necessary to comprehend a bargaining position taken by New Horizon.

[84]

The
    Boards conclusion that the Societys application was premature because no
    actual bargaining proposals had been made was reasonable, particularly in light
    of the evidence that New Horizons position would likely be affected by the
    ongoing discussions with OPG.

[85]

Further,
    the fact that the parties were on their way to interest arbitration when the
    issue returned before the Board in December does not render its November
    decision unreasonable.
As the Supreme Court observed in
Vavilov
,
    at para. 94, reasons must be read in light of the history and context of the
    proceedings in which they were rendered. Given the history and context of
    these proceedings, as well as the Boards jurisprudence on an employers
    disclosure obligations under s. 17, it was reasonable for the Board to
    conclude in November 2018 that the Societys application was premature.


[86]

This
    brings me to the Societys second argument regarding the Boards s.

17 analysis. As to the Boards December 2018 decision,
    the Society argues on appeal that the Board did not explain why other
    provisions of the MSA were somehow less necessary than those ordered disclosed,
    and there is no reasoning path available to understand how and why the Board
    reached its decision. For example, the Society says, New Horizons bargaining
    agenda stated that it wished to continue cost / risk mitigation for Pension
    and OPEB [other post-employment benefits] liability, and any other
    Health-Dental plans and STD/LTD [short-term disability/long-term disability]
    plans, but the Board did not order New Horizon to disclose provisions of the
    MSA dealing with benefits other than pension benefits.

[87]

In
    response, New Horizon argues that while the bargaining agenda referred to continuing
    discussion of cost / risk mitigation for Pension & OPEB liability and
other
Health-Dental plans and STD/LTD plans (emphasis
    added), the bargaining agenda only included specific proposals with respect to
    pension and OPEB liability.

[88]

The
    Board had New Horizons bargaining agenda before it. It explained that it was
    not persuaded that any areas of the MSA beyond those in relation to which it
    ordered disclosure were reasonably connected to any of the concessions sought
    in the bargaining agenda. In the circumstances, its reasons were adequate.

[89]

As noted in
Vavilov
, at para. 100, the
    burden is on the party challenging a decision to establish that it is
    unreasonable. Administrative decision makers are not expected to respond to
    every argument or line of possible analysis or make an explicit finding on
    each constituent element, however subordinate, leading to its final
    conclusion:
Vavilov
, at para. 128 (quoting
Newfoundland and
    Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board)
, 2011
    SCC 62, [2011] 3 S.C.R. 708, at paras. 16, 25). In this case, the Board
    reviewed the applicable legal principles, considered New Horizons bargaining
    agenda, and explained that, in light of New Horizons bargaining positions, the
    Society should have access to certain unredacted portions of the MSA.

[90]

I would accordingly dismiss the Societys argument that the Boards
    interpretation of s. 17 of the Act was unreasonable.

(3)

The Boards Reliance on Counsels Representation

(a)

The Boards decision

[91]

In
    its January 2019 decision, the Board explained that the Society had written to
    it, alleging that New Horizon had not complied with the disclosure obligation
    it had imposed in its December decision. The Society submitted that Article
    3.06(4) of the MSA arguably came within at least one of the three subject
    matters with respect to which the Board had ordered disclosure in its December
    decision and New Horizon had refused to disclose it.

[92]

The
    Board noted that there was urgency to the resolution of the issue: the parties
    were scheduled to commence an interest arbitration hearing on January 19, 2019
    and the Society sought disclosure before that hearing commenced.

[93]

The
    Board recounted that, in a letter to it dated January 11, 2019, New Horizons
    counsel stated that the article in question addresses OPGs successor rights
    obligations or limitations (or lack thereof).

[94]

Based
    on that letter, the Board concluded that its December decision did not require
    New Horizon to disclose Article 3.06(4) of the MSA:

The Board has no reason not to accept the assurance of [New
    Horizon] counsel as to the content of Article 3.06(4), as counsel does not say
    that he has been told same by his client, or some other statement would lead
    the Board to conclude that his statement is not based on his own direct knowledge.
    In short, the Board takes the statement of [New Horizon] counsel to be a
    representation by counsel to the Board as to the topical contents of Article
    3.06(4) of the MSA.

(b)

The Divisional Courts decision

[95]

The
    Divisional Court concluded that the Boards decision was reasonable:

I see nothing unreasonable in the Boards decision. The Society
    had asked for a further disclosure on an urgent basis, writing to the Board on
    January 17, 2019 stating that they needed a decision right away because the
    parties were scheduled to begin their interest arbitration on January 19, 2019.

The Board responded immediately, giving its decision with brief
    reasons on January 17. It accepted counsels statement as to the content of the
    provision and explained why. In the circumstances, its reasons were adequate
    and the decision reasonable.

(c)

Analysis

[96]

The
    Society argues that the Boards January 2019 decision was unreasonable because
    it was an abdication of the Boards role to decide whether the contested
    subsection was within the scope of the Boards prior decision. It was
    unreasonable for the Board to adopt an unsubstantiated representation by
    counsel on the very issue before the Board and it shielded the source of the
    information from cross-examination.

[97]

The
    Board had before it a redacted copy of the MSA, the written submissions filed
    on behalf of New Horizon, and documentary evidence filed by the Society. It
    also had all the oral evidence and submissions that had been presented during
    the proceedings which commenced in November. However, the Board did not have an
    unredacted copy of the MSA.

[98]

In assessing the reasonableness of the decision, the court must be
    alert to the history and context of the proceedings:
Vavilov
, at para.
    94. When the decision is read in this light, I am not satisfied that the
    Society has met its burden of showing that the decision was unreasonable.


IV.

DISPOSITION

[99]

For these reasons, I would dismiss the appeal with costs to New
    Horizon paid by the Society in the all-inclusive amount of $7,500.

Released: July 12, 2021 P.R.

Alexandra
    Hoy J.A.

I
    agree. Paul Rouleau J.A.

I
    agree. K. van Rensburg J.A.


