Docket: A-417-16
Citation:
2017 FCA 210
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CORAM:
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PELLETIER J.A.
BOIVIN J.A.
GLEASON J.A.
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BETWEEN:
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WSÁNEĆ SCHOOL
BOARD
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Applicant
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and
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B.C. GOVERNMENT
AND SERVICE EMPLOYEES’ UNION
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Respondents
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REASONS
FOR JUDGMENT
GLEASON J.A.
[1]
In this application for judicial review, the
applicant, the WSÁNEĆ School Board (the WSB), seeks to set
aside the decision of the Canada Industrial Relations Board (the CIRB or the
Board) dated September 23, 2016 in WSANEC School Board v. B.C. Government
and Service Employees’ Union, 2016 CIRB 838. In that decision, the CIRB
dismissed the WSB’s application to exclude from the all-employee
bargaining unit those employees whose primary duties focus on the revitalization
of the SENĆOŦEN language and culture and on the transmission of WSÁNEĆ
beliefs and teachings (the SENĆOŦEN employees). The CIRB made the
decision in question without holding an oral hearing.
[2]
For the reasons that follow, I would dismiss
this application for judicial review, without costs.
I.
Background
[3]
The WSÁNEĆ are an indigenous people
whose traditional lands are located on Vancouver Island. They have in the past
been referred to in English as the “Saanich”.
The WSB (previously known as the Saanich Indian School Board) is a First
Nations School Board that provides education to First Nations children, youth
and adults. It is located on the TSARTLIP Reserve and serves the WSÁNEĆ
people of four First Nations, each of which is a band within the meaning of the
Indian Act, R.S.C. 1985, c. I-5.
[4]
In 1998, the CIRB certified the respondent, the B.C.
Government and Service Employees’ Union (the BCGSEU), as the bargaining agent
for a bargaining unit comprised of all employees of the Saanich Indian School
Board working at a school and adult education centre operated by the Board.
Subsequently, the description of the bargaining unit was amended so that it reads
as follows:
[A]ll employees of the WSANEC School Board employed
at or from the tau Welnew Tribal School, the Saanich Adult Education Centre,
and the Saanich Child Care Centre, excluding the Administrator, HR
Manager, Bookkeeper, Principal, Director of Saanich Adult Education Centre,
Operations Manager, Financial Controller, and Child Development Manager.
[Emphasis in original]
[5]
The bargaining unit is comprised of professional
employees (certified teachers and early childhood educators),
para-professionals (mainly teaching assistants and special education
assistants), support, operations and maintenance staff. At the time the WSB
made its application to the CIRB, there were 9 SENĆOŦEN employees in
the bargaining unit of approximately 110 employees.
[6]
The traditional language of the WSÁNEĆ
people is SENĆOŦEN. Until recently, it was an entirely oral language.
In the mid-1980’s, the WSB began to teach some basics of the
SENĆOŦEN language to students by having SENĆOŦEN exposure
teachers attend English classes periodically to teach students the
SENĆOŦEN alphabet and some basic SENĆOŦEN words. These exposure
teachers are part of the bargaining unit.
[7]
More recently, the WSB developed a
SENĆOŦEN Immersion Program, which is focussed on the revitalization
of the SENĆOŦEN language in accordance with the ĆELÁNEN, the
traditional beliefs and teachings of the WSÁNEĆ people. The
SENĆOŦEN Immersion Program is taught by the SENĆOŦEN
employees. At paragraphs 15 and 16 of its memorandum of fact and law, the WSB
describes the ĆELÁNEN and its impact on the roles and
responsibilities of the SENĆOŦEN employees as follows:
15. At the risk of oversimplification,
ĆELÁNEN refers to and encompasses the beliefs and teachings of the WSÁNEĆ
People. It includes, among other important matters, specific rules, rights and
responsibilities associated with the transmission of knowledge of the
SENĆOŦEN language and WSÁNEĆ culture, beliefs and
teachings. More specifically, it includes rules, rights and responsibilities
that relate to, inter alia, who has the right and responsibility to
teach which aspects of the language, culture and beliefs, how, and in what
circumstances, as well as the responsibility of the Member Nations and the WSÁNEĆ
community to care for, support and protect those who keep and transmit the
language and cultural knowledge. [Citation omitted]
16. In other words, the rights and
responsibilities of these SENĆOŦEN Employees and the employer vis a
vis each other, as well as the students and the broader WSÁNEĆ
community are seen by the WSÁNEĆ People to be governed by their
teachings, which teachings belong to the WSÁNEĆ People.
Accordingly, this aspect of the ĆELÁNEN has a profound impact on
the way in which the employment relationship with the SENĆOŦEN
Employees must be governed – both on the part of the employer and on the part
of the SENĆOŦEN Employees. [Citation omitted].
[8]
In 2015, at approximately the same time as it
gave notice to bargain for a renewal of the collective agreement applicable to
the WSB unit, the BCGSEU learned that the WSB had been treating
the SENĆOŦEN employees as falling outside the bargaining unit and had
not been deducting union dues from their wages. Shortly thereafter, the WSB
sought to have the BCGSEU agree to the exclusion of the SENĆOŦEN
employees from the bargaining unit. The BCGSEU declined to do so and the WSB
therefore applied on October 1, 2015 to the CIRB under sections 18 and
18.1 of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code) to amend
the bargaining unit description to exclude the SENĆOŦEN employees. Prior
to making the application to the Board, the WSB did not attempt to
negotiate different terms and conditions of employment for the
SENĆOŦEN employees.
[9]
In its application to the CIRB, the WSB
outlined its reasons for seeking the exclusion of the SENĆOŦEN
employees. These focussed on the assertion that inclusion of these employees in
an all-employee bargaining unit would negatively impact the constitutional
rights of the WSÁNEĆ First Nations under sections 25 and 35 of the Constitution
Act, 1982 being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11 (Constitution Act, 1982) to control the transmission of
their language and culture.
[10]
More specifically, the WSB submitted that
the Code must be interpreted and applied in a manner that respects these constitutional
rights and takes into account the values and principles that underpin them,
including the need for reconciliation. According to the WSB, it is
incompatible with these values and principles to include the SENĆOŦEN
employees in an all-employee bargaining unit because so doing offends some of
their traditional beliefs and leads to a fundamental loss of control over the
way in which those beliefs and the SENĆOŦEN language are transmitted.
[11]
As examples of such incompatibility, the WSB
listed the grievance and arbitration procedure and the provisions in the
collective agreement regarding eligibility, hiring, seniority and hours of
work. The WSB submitted that the foregoing provisions would need to be
fundamentally altered to allow the SENĆOŦEN employees to perform
their tasks in accordance with the ĆELÁNEN. The WSB also took
the position that strikes are foreign to the WSÁNEĆ culture and
expressed concern that exercise of the right to strike would deprive WSÁNEĆ
children of their birthright to learning their language and culture.
[12]
Given the minority status of the
SENĆOŦEN employees in the all-employee bargaining unit, the WSB
submitted that the only way to retain the control the First Nations were
entitled to exercise over the way in which their traditional beliefs and the
SENĆOŦEN language are transmitted would be by excluding the
SENĆOŦEN employees from the bargaining unit.
[13]
The WSB requested that the Board hold a
hearing into its application if the BCGSEU contested the application and stated
that a hearing would allow for an explanation of the WSÁNEĆ beliefs
and teachings in accordance with the oral traditions of the WSÁNEĆ
people. However, no details were provided as to the nature of the oral evidence
that the WSB intended to call and no explanation was given regarding the
importance of oral testimony in the WSÁNEĆ culture. In a
supplemental submission to the CIRB, counsel for the WSB further nuanced
the request for an oral hearing by stating that the request was made in
alternative and that a hearing was requested only in the event that the CIRB
were disinclined to grant the application. Counsel wrote in this regard as
follows:
The WSB takes the position that it
has indeed supplied sufficient information for the CIRB to find that the SENĆOŦEN
Employees ought not to be included in the bargaining unit. However, if more
detailed information is required in regard to the social, cultural, legal and
historical context and in regard to the teachings and beliefs of the WSÁNEĆ
People, in order to properly consider and apply the constitutional values
identified above, the WSB takes the position that the CIRB must hear
evidence about the teachings and beliefs of the WSÁNEĆ People,
which can only properly be conveyed in the oral tradition and in the SENĆOŦEN
language. It is for that reason that an oral hearing has been requested, and it
is the WSB’s position that in the circumstances the WSB’s
application cannot be dismissed without an oral hearing. (Application Record,
pages 122-123)
II.
The Decision of the CIRB
[14]
In the decision under review, the CIRB first
outlined the background to the application and the relevant facts. It then
moved to address and dismiss the WSB’s request for an oral hearing.
Noting that section 16.1 of the Code provides it discretion to decide any case
before it without an oral hearing, the Board concluded that the documents filed
were sufficient to allow it to rule on the WSB’s application without an
oral hearing. Citing NAV Canada v. International Brotherhood of Electrical
Workers, 2001 FCA 30, 267 N.R. 125 [NAV Canada], the CIRB underscored
that it was entitled to decide the case based on the parties’ written
submissions without providing advance notice of its intention to do so.
[15]
The Board then considered the merits of the WSB’s
application to exclude the SENĆOŦEN employees from the bargaining
unit. It began its analysis by summarizing the relevant principles from its
case law, which favour the maintenance of all-employee bargaining units and
require that an applicant show compelling reasons to fragment such a unit. It
further noted that such compelling reasons might include matters such as a
diverging community of interest, geographic factors, specific statutory
provisions and the likelihood that a larger unit may not be viable. The Board further
stated that these factors must be weighed against interests that favour
maintenance of the existing unit, such as the need to avoid dilution of a trade
union’s bargaining power, the need to promote industrial stability and the need
to ensure that employees do not lose their access to union representation.
[16]
Turning to the specifics of the WSB’s
application, the CIRB identified the decision of the Supreme Court of Canada
in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré]
as the governing legal framework for its analysis given the nature of the WSB’s
claims. In applying this framework, the CIRB approached the decision it was
required to make as one that required it to balance its overarching position
that broader bargaining units “protect the stability of
labour relations” and “the fundamental right of
employees to associate and bargain collectively” (CIRB Reasons at paras.
36, 39) against the constitutional interests of the WSÁNEĆ First
Nations, which the CIRB described as “[t]he aboriginal right
to self-determination and the crucial importance to the WSANEC people of
preserving their language and culture. […] in accordance with their own
teachings” (CIRB Reasons at para. 37).
[17]
In conducting this balancing exercise, the CIRB characterized
the WSB’s application as invoking a claim that the SENĆOŦEN
employees had a distinct community of interest in light of their unique role
and responsibilities. It noted that, in other contexts, the Board has dealt
with arguments regarding a claimed lack of community of interest by assessing
whether a group’s unique characteristics may be addressed through the inclusion
of specific provisions in the collective agreement. The CIRB held that the WSB
had not established that a similar approach would not be open to address the
concerns expressed regarding the SENĆOŦEN employees. The Board made
reference to provisions in the existing collective agreement that already
afforded a certain degree of flexibility in respect of the matters that the WSB
claimed required the exclusion of the SENĆOŦEN employees. It noted in
this regard that the collective agreement already contained a purpose clause
that reflects “the uniqueness of the workplace and
incorporates access to a dispute resolution mechanism that may be more
appropriate for the WSANEC People” (CIRB Reasons at para. 42). The Board
also noted that it was open to the parties to negotiate additional provisions
to address the needs of the SENĆOŦEN employees “to permit them to perform and fulfill their duties in the
manner deemed appropriate” (CIRB Reasons at para. 44). The CIRB
therefore concluded that, while the SENĆOŦEN employees might have
interests that diverge from those of other employees in the unit, there were no
sufficiently compelling reasons to exclude them from the unit.
[18]
The Board also highlighted the fact that
allowing the application would leave the SENĆOŦEN employees without
trade union representation – a factor which further favoured dismissal of the
application.
[19]
The Board thus concluded that “balancing its policy against fragmentation which supports
freedom of association and industrial stability with the WSANEC People’s ability
to protect their language and culture through the SENCOTEN Employees’ manner of
teaching, does not preclude it from including the SENCOTEN Employees in the
existing bargaining unit” (CIRB Reasons at para. 47). It accordingly
dismissed the WSB’s application.
III.
Analysis
A.
Standard of Review
[20]
I turn now to the WSB’s application to this
Court to set aside the CIRB decision and begin by considering the standard of
review this Court should apply. The CIRB’s decision involves two determinations,
each of which is challenged by the WSB, namely, the CIRB’s decision to
dispose of the application without a hearing and its determination on the
merits.
[21]
In terms of the former determination, as the CIRB
noted in its reasons, section 16.1 of the Code provides the Board authority to
decide any matter without an oral hearing. To borrow the words of Evans, J.A.
in paragraph 14 of Boshra v. Canadian Association of Professional Employees,
2011 FCA 98, 415 N.R. 77 when describing the effect of a similar provision in
the Public Service Labour Relations Act, S.C. 2003, c. 22, section 16.1
of the Code “trumps the common law” and leads to
the conclusion that the dictates of procedural fairness do not require that a
hearing be held by the Board in all cases. Rather, the section specifically leaves
it to the Board to decide when it will hold a hearing.
[22]
The case law of this Court recognizes that
determinations by the CIRB that it will not hold a hearing should be afforded
deference unless there has been a failure to allow a party to put forward its
position on the merits of a case: see. e.g., NAV Canada at paras. 9-11, Madrigga
v. Teamsters Canada Rail Conference, 2016 FCA 151 at paras. 26-27, 486 N.R.
248; Grain Services Union (ILWU-Canada) v. Friesen, 2010 FCA 339 at
paras. 22-24, 414 N.R. 171. In so holding, this Court (notwithstanding the
dissent of Stratas, J.A. in Maritime Broadcasting System Ltd. v. Canadian Media
Guild, 2014 FCA 59, 455 N.R. 115) has applied the correctness standard to
the assessment of whether there has been a violation of procedural fairness by
the CIRB.
[23]
Thus, on the first question, the applicable
standard of review is correctness, and the circumstances where a violation of a
party’s procedural fairness rights may be said to be violated are narrow and are
limited to situations where the Board has not allowed the party to put its
position forward.
[24]
Turning to the Board’s determination on the
merits, it is well-established that the reasonableness standard applies
generally to the review of CIRB decisions interpreting and applying provisions
in the Code in light of the function of the CIRB, the nature of the questions
remitted to it and the very strictly-worded privative clause found in section
22 of the Code: see, for example, Canadian Broadcasting Corp. v. Canada
(Labour Relations Board), [1995] 1 S.C.R. 157 at paras. 34, 43-44, 121
D.L.R. (4th) 385; International Longshoremen’s and Warehousemen’s
Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996]
2 S.C.R. 432 at paras. 24 and 42, 135 D.L.R. (4th) 385; Dumont v.
Canadian Union of Postal Workers, Montréal Local, 2011 FCA 185 at paras. 33-34,
423 N.R. 143; Cadieux v. Amalgamated Transit Union, Local 1415, 2014 FCA
61 at para. 23, 458 N.R. 325; McAuley v. Chalk River Technicians and
Technologists Union, 2011 FCA 156 at para. 13, 420 N.R. 358. In my view, there
is no reason to reach a different conclusion in this case, despite the
invocation by the WSB of sections 25 and 35 of the Constitution Act,
1982.
[25]
More specifically, in the present case, the WSB
did not seek to have the CIRB rule on the scope of its aboriginal rights to
control education nor did it advance an argument to the effect that such rights
brought the labour relations of the SENĆOŦEN employees outside the
purview of the Code. Had it done so, the CIRB’s decision on these issues would
have been reviewable on the correctness standard: see, for example, Clyde
River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40, 411 D.L.R. (4th)
571; Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.,
2017 SCC 41, 411 D.L.R. (4th) 596; NIL/TU,O Child and Family
Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC
45, [2010] 2 S.C.R. 696; Paul v. British Columbia (Forest Appeals Commission),
2003 SCC 55 at para. 31, [2003] 2 S.C.R. 585.
[26]
Rather, the WSB instead argued that the
principles and values enshrined in sections 25 and 35 of the Constitution
Act, 1982 required the Board to determine that the SENĆOŦEN
employees should be excluded from the all-employee bargaining unit represented
by the BCGSEU. Indeed, it submitted as follows to the Board:
To be clear, although the WSB and its
Member Nations do take the position that the WSÁNEĆ People have the
right, protected under s.35 of the Constitution, to maintain and protect
their language and culture in accordance with their own teachings, the WSB’s
application is not dependent on such a finding and the WSB will not be
seeking to establish that s.35 right at a hearing of this matter. Rather, the WSB
takes the position that in interpreting and applying the concept of what makes
an appropriate bargaining unit (or conversely what would make a bargaining unit
inappropriate), the CIRB must consider the underlying social, cultural,
legal and historical context of the WSB and the Member Nations as well
as the constitutional values enshrined in s.35 and s.25 of the Constitution.
[27]
This argument is entirely analogous to the position
advanced by the appellant in Doré, who argued that the Disciplinary
Council of the Barreau du Québec could not sanction him for comments he made
without violating his freedom of expression guaranteed under subsection 2(b)
of the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.
11 (the Charter). In Doré, the Supreme Court determined that the
reasonableness standard applied to the review of the decision of the
Disciplinary Council and described the content of such review at paragraph 57
as requiring the determination of whether “the decision
reflects a proportionate balancing of the Charter protections at play”
in light of “the nature of the decision and the
statutory and factual contexts”.
[28]
The approach outlined in Doré has been
applied by both the Supreme Court and this Court to similar administrative
decisions in situations where an applicant contends that the decision does not
respect the values enshrined in the Charter: see, for example, Loyola High
School v. Quebec (Attorney General), 2015 SCC 12 at para. 35, [2015] 1
S.C.R. 613; Divito v. Canada (Public Safety and Emergency Preparedness),
2013 SCC 47 at para. 49, [2013] 3 S.C.R. 157; Lewis v. Canada (Public Safety
and Emergency Preparedness), 2017 FCA 130 at para. 43, 280 A.C.W.S. (3d)
130; Canadian Arab Federation v. Canada (Minister of Citizenship and
Immigration), 2015 FCA 168 at paras. 19-21, 475 N.R. 380.
[29]
I do not believe there is any basis to adopt a
different analytical framework when the values invoked arise under section 35
of the Constitution Act, 1982 instead of under the Charter. In both
cases, the basis of the argument is the same, namely, that a particular constitutionally-protected
right mandates that the administrative decision-maker reach a particular
result. Likewise, in both cases, similar considerations must be weighed by the
administrative decision-maker. I thus believe that the analytical framework set
out in Doré applies to the review of the Board’s assessment of the
merits of the WSB’s application and that, accordingly, this Court is
tasked with determining whether or not that assessment was reasonable.
B.
Did the CIRB err in Proceeding without a
Hearing?
[30]
Having settled the applicable standards of
review, I move now to consider whether the Board violated the WSB’s
procedural fairness rights and conclude that it did not do so for several
reasons.
[31]
First, and perhaps most importantly, the WSB
did not clearly request a hearing nor clearly explain why it felt one was
required. I agree with the WSB that the case law recognizes that the
rules of evidence should be adapted to allow for oral histories of aboriginal peoples
to be brought before the courts to elucidate the aboriginal perspective in
cases where that perspective is relevant: Delgamuukw v. British Columbia,
[1997] 3 S.C.R. 1010 at paras. 84-87, 153 D.L.R. (4th) 193. However,
such recognition does not translate to a right to present oral history in every
case merely upon making a request to do so. Rather, as the Supreme Court of
Canada recognized in Mitchell v. Minister of National Revenue, 2001 SCC
33, [2001] 1 S.C.R. 911 at paragraph 31, it remains incumbent on those who seek
to call such evidence to satisfy the decision-maker of the need to hear the
evidence in question.
[32]
In the instant case, WSB provided very
little detail as to the nature of the evidence it intended to call and
virtually no explanation as to why it believed it was important for the CIRB to
hold a hearing for purposes of presenting oral history. Moreover, the request
for a hearing was equivocal as the WSB’s primary position was that it
had provided sufficient details in writing to allow the Board to decide in its
favour.
[33]
Secondly, the WSB must be taken to have
been aware of the Board’s ability to decide cases without a hearing and of the
need to therefore provide fulsome written submissions. As noted, section 16.1
of the Code expressly provides the Board the authority to decide cases without
hearing. In addition, sections 7 and 9 of the Canada Industrial Relations
Board Regulations, 2012, SOR/2001-520 contemplate that cases will be
decided based on the materials filed unless the Board decides to order a
hearing.
[34]
Further, by letter to the parties of October 9,
2015, the Board’s Regional Director (and Registrar) for the Western Region
confirmed that the Board was empowered to rule on the application without a
hearing based on the parties’ written submissions and the report of the
investigating officer. In light of this, the Director cautioned that it was “in the parties’ best interests to file complete, accurate
and detailed submissions in support of their respective positions”
(Application Record, page 46). The WSB was therefore on notice of the
need to fully outline all aspects of its case, including the reasons why it was
requesting an oral hearing.
[35]
Third, the WSB was afforded the
opportunity to put forward as much evidence as it wished in writing and filed
two sets of written submissions, in which it detailed its position. It was
therefore not denied the opportunity to put a case forward in writing.
[36]
Finally, the Board accepted the veracity of the
matters in respect of which the WSB stated that it wished to call oral
history testimony and, in particular, accepted that the constitutional
interests of the WSÁNEĆ First Nations included the importance of
preserving their language and culture in accordance with their own teachings.
[37]
In light of the foregoing factors, the
determination of the Board to proceed without a hearing cannot be said to have
violated the WSB’s rights to procedural fairness.
C.
Was the Decision on the Merits Reasonable?
[38]
Turning to the merits of the Board’s decision, in
my view, it cannot be said to be unreasonable as the Board followed and applied
its existing case law and made reasonable factual conclusions based on the
evidence before it.
[39]
In declining to fracture an existing
all-employee bargaining unit, the CIRB followed a long and well-established line
of authority in which it has held that larger units are preferable to smaller
ones and should not be fractured in the absence of compelling reasons: see, for
example, Trade of Locomotive Engineers v. Canadian Pacific Ltd., [1976]
1 Can. L.R.B.R. 361 at paras. 57-60, 76 C.L.L.C. 16, 018; Canadian
Aircraft Maintenance Assn. v. Air Canada, 2005 CIRB 341 at paras. 46-47, 128 C.L.R.B.R. (2d) 157; Syndicat des employé-es de TV5 -
CSN v. Consortium de télévision Québec Canada Inc., [2003] C.I.R.B. No. 235
at paras. 30-32, 105 C.L.R.B.R. (2d) 109; I.U.O.E.,
Local 904 v. Oceanex (1997) Inc., 2000 CIRB 83 at para. 39, [2000]
C.I.R.B.D. No. 37.
[40]
The CIRB applied these principles in a
reasonable fashion as the Board’s conclusion that the WSB had not
offered compelling reasons for the exclusion of the SENĆOŦEN
employees was well-supported by the evidence. Given that the WSB had
previously succeeded in negotiating special provisions in the collective
agreement to address the cultural needs of the WSÁNEĆ First
Nations, it was open to the Board to conclude that further flexibility could
have been obtained in respect of the SENĆOŦEN employees, particularly
in circumstances where the WSB had not even tried to bargain about obtaining
such flexibility.
[41]
In many ways, the WSB’s application to
the Board was premature as the WSB simply had no way of knowing whether
or not the BCGSEU would have acceded to the terms and conditions the WSB
wished to have applied to the SENĆOŦEN employees. Concerns about an
eventual strike were also premature and theoretical in the absence of any evidence
that a strike was likely. Further, it might well have been possible for the
parties to have agreed to settle collective bargaining disputes other than by
way of a strike, as is contemplated by section 79 of the Code.
[42]
In the absence of evidence that the WSÁNEĆ
First Nations would actually have lost control over the way in which the
SENĆOŦEN employees performed their duties, it was not unreasonable
for the Board to have concluded that the balancing exercise it was required to conduct
needed to weigh in favour of maintaining the all-employee bargaining unit. I
therefore believe that the CIRB’s reasoning and result are reasonable and,
consequently, that there is no basis to interfere with its decision.
IV.
Proposed Disposition
[43]
In light of the foregoing, I would dismiss this
application for judicial review. While costs would normally follow the event,
both parties submitted that no costs award should be made against it in the
event it were unsuccessful. In light of the nature of the issues, I agree that
no costs award should be made.
“Mary J.L. Gleason”
“I agree.
J.D. Denis Pelletier J.A.”
“I agree.
Richard Boivin J.A.”
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