COURT OF APPEAL FOR ONTARIO 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)

Counsel: 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.

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 Society’s representation of employees in the bargaining unit. The allegations were based on New Horizon’s refusal to disclose the Master Services Agreement (the “MSA”), the contract governing New Horizon’s 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 Society’s representation of its members and concluded that the Society’s 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 Society’s 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 Board’s decisions were reasonable and would dismiss the appeal.

[5] Below, I outline the background leading to the Society’s request for the MSA. Then I address the Society’s three-part argument:

1. the Board’s interpretation of s. 70 of the Act in the November 2018 decision was unreasonable;
2. the Board’s November 2018 conclusion that the Society’s 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 Board’s 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 OPG’s 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 Horizon’s 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 Horizon’s 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 Society’s application for judicial review.

III. DISCUSSION

[17] The Society appeals, with leave, arguing that the Board’s 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 maker’s 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 Board’s 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 Board’s 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 employer’s freedom to express views, so long as the employer does not use coercion, intimidation, threats, promises or undue influence. [Emphasis added.]

(a) The Board’s decision

[21] In its November 2018 decision, the Board held that New Horizon’s refusal to disclose the MSA did not constitute interference with the Society’s 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 Board’s 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 Board’s view, the information the Society seeks through an unredacted MSA is, at best, ancillary to the Society’s 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 Court’s decision

[25] The Divisional Court held that the Board’s 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 employer’s disclosure obligation under s. 70, but that the Board rejected the invitation to do so. The Divisional Court concluded that the Board’s 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. 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 Society’s ability to represent bargaining unit members. The Divisional Court accordingly dismissed the Society’s argument that the Board’s decision respecting s. 70 was unreasonable.

(c) The issues raised by the Society

[27] On appeal to this court, the Society argues that the Board’s interpretation of s. 70 is unreasonable for four reasons.

[28] First, it says that the Board’s 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 Board’s 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 Board’s 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 Board’s finding, the information that the Society seeks through the MSA is not “ancillary” to the Society’s representation of its members.

[31] Finally, it says that the Board failed to balance New Horizon’s 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, 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 Horizon’s 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 Board’s decision with respect to s. 70 was reasonable. As the Divisional Court articulated, the Board’s 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 Society’s ability to represent bargaining unit members. Its explanation was internally coherent and rational: Vavilov, at para. 85.

(i) The Board’s interpretation did not frustrate the purpose of s. 70 and was not unreasonably narrow

[33] The Society’s first two arguments are interrelated. It submits that the Board’s interpretation of s. 70 is inconsistent with the provision’s 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 Board’s 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 union’s 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 union’s 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 union’s 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, which in turn cited International Wallcoverings (which I discuss below in addressing the Society’s fourth argument), the Board in Millcroft, at para. 17, articulated a two-step approach to determine whether the employer’s refusal to provide employees’ contact information in that case amounted to an unfair labour practice. The first question is whether the employer’s refusal amounts to interference in the union’s 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 union’s 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 union’s capacity to represent the employees for whom it has bargaining rights was impeded or detrimentally affected by the employer’s 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 union’s interest in being able to effectively able to represent its constituency.

[41] Similarly, in Bernard, the Public Service Labour Relations Board found that the employer’s 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 board’s decision requiring disclosure of the employee’s home contact information was reasonable. It explained that two rationales fueled the board’s 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 Board’s words, “the information the Society seeks through an unredacted MSA is, at best, information ancillary to the Society’s representation of its members.” Contrary to the Society’s assertion, the Board’s 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 Society’s 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 Horizon’s refusal to provide the MSA did not amount to interference with the Society’s capacity to represent bargaining unit members.

(ii) The Board’s finding that the information sought was ancillary to the Society’s representation of its members was reasonable

[49] This leads to the Society’s third argument: that the Board’s findings that the MSA is a commercial services contract and that the information sought was, at best, ancillary to the Society’s 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 Board’s 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 Society’s 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 Society’s representation of its members.

(iii) The Board’s failure to explicitly balance the parties’ competing interests did not render its decision unreasonable

[53] I turn, then, to the Society’s 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 Horizon’s and the Society’s conflicting interests with respect to the disclosure of the MSA.

[54] Again, contrary to the Society’s assertion, the Board’s 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 employer’s 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 employer’s 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, 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 employer’s 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 employer’s non-disclosure of information violates s. 70, a balancing of the union’s and the employer’s conflicting interests need be undertaken as a second step only if, at the first step, the employer’s refusal to provide the disclosure sought amounts to interference with the union’s ability to represent them. In Millcroft, the Board described the balancing exercise at this second step somewhat differently than in International Wallcoverings: is there a sound business purpose which would counterbalance the adverse impact upon the union’s 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 Society’s 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 Society’s 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 Society’s argument that the Board’s interpretation of s. 70 of the Act was unreasonable.

(2) The Board’s 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., 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), at para. 36.

(a) The Board’s 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 Horizon’s 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 Society’s 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 Board’s December 2018 decision

[68] The Board recounted that after the Society received New Horizon’s 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 Horizon’s 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 union’s access to an employer’s otherwise confidential information during collective bargaining. Based upon New Horizon’s 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 Horizon’s 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 Horizon’s bargaining agenda.

[73] It required the Society’s 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 Court’s decision

[75] With respect to the Board’s 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 Board’s jurisprudence.

[76] With respect to the December 2018 decision, the Divisional Court rejected the Society’s 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 Board’s 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 Board’s 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 Board’s “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 Board’s November adjournment of the Society’s 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 Board’s conclusion that the Society’s application was premature because no actual bargaining proposals had been made was reasonable, particularly in light of the evidence that New Horizon’s 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 Board’s jurisprudence on an employer’s disclosure obligations under s. 17, it was reasonable for the Board to conclude in November 2018 that the Society’s application was premature.

[86] This brings me to the Society’s second argument regarding the Board’s s. 17 analysis. As to the Board’s 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 Horizon’s 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 Horizon’s 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 Horizon’s bargaining agenda, and explained that, in light of New Horizon’s bargaining positions, the Society should have access to certain unredacted portions of the MSA.

[90] I would accordingly dismiss the Society’s argument that the Board’s interpretation of s. 17 of the Act was unreasonable.

(3) The Board’s Reliance on Counsel’s Representation

(a) The Board’s 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 Horizon’s counsel stated that the article in question “addresses OPG’s 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 Court’s decision

[95] The Divisional Court concluded that the Board’s decision was reasonable:

I see nothing unreasonable in the Board’s 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 counsel’s 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 Board’s January 2019 decision was unreasonable because it was an abdication of the Board’s role to decide whether the contested subsection was within the scope of the Board’s 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.”