LB-0943

ORDER

2015 NSLB 213

LABOUR BOARD
Nova Scotia
BETWEEN
International Alliance of Theatrical Stage Employees, Moving
Picture Technicians, Artists and Allied Crafts of the United
States, its Territories and Canada, AFL-CIO-CLC, Local 849

- Complainant

-andEgg Films, Inc.

- Respondent

NATURE OF MATTER

Complaint of Failure to Bargain under Section 35 of the

Trade Union Act.

DATE OF FILING

March 11, 2015

BEFORE

Augustus Richardson, Q.C., Vice-Chair

REPRESENTATIVES

Ronald Pink, Q.C., for the Complainant

Sarah Thomas, for the Respondent

CASE MANAGEMENT DATE

April 7, 2015

HEARING DATES

August 27 and 28, 2015 in Halifax, Nova Scotia

August 31, 2015, cancelled

ORDER

For the following reasons the Board accordingly makes the

following declaration:
a.

Egg Films breached its duty pursuant to s.35(a) of

the Act to make every reasonable effort to conclude
and sign a collective agreement; and

b.

Egg Films unlawfully locked out its employees in

March 2015, contrary to s.47(1) of the Act.

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The Board also makes the following orders as a result of
these declarations:
a.

The parties are to return to collective bargaining

within 14 days of the date of this order;

b.

On their return to collective bargaining the parties

shall use as a starting point for those negotiations
the terms and conditions of the first collective
agreement, as appended to Egg Films No.2. The
parties are free to negotiate over changes to those
terms and conditions, subject to the following
restrictions:

c.

i)

Egg Films cannot insist on a threshold higher

than the one set out in Article 2.4 unless it
provides to the Union at the same time with
reasonable proof of budgets and finances of
its productions since September 2013,
subject to such redactions as may
reasonably be necessary to preserve the
identity of clients;

ii)

Egg Films cannot insist on changes to Articles

3.3, 3.4 and 4 of the first collective, save and
except that Article 4.1 should be read as
requiring at least 48 hours notice;

iii)

Egg Films cannot insist on a change to Article

2.5 of the first collective agreement; and

iv)

Egg Films cannot insist on a term of any

collective agreement less than 2 years; and

Egg Films is to pay compensatory damages pursuant

to s.36(2) of the Act to the Union in respect of any
work performed in 2015 that would normally have
been performed by members of the Union at the
rates of pay provided for under the first collective
agreement.

The Board will retain jurisdiction with respect to any issues

arising out of its remedial order.

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REASONS FOR DECISION
Introduction
[1]

This is a complaint filed by the Union on March 10, 2015 that the Employer (Egg Films)
has breached its obligation pursuant to s.35(a) of the Trade Union Act, RSNS 1989,
c.475, as amended (the Act) to make every reasonable effort to conclude and sign a
collective agreement. The Minister of Labour and Advanced Education referred the
Complaint to the Labour Board on March 11, 2015.

[2]

The collective bargaining process mandated by the law of this province does not require
employers, and the unions who represent their employees, to arrive at a collective
agreement. It recognizes that reasonable parties in pursuing their reasonable interests
may reasonably disagree. It recognizes too that some differences of opinion between
employers and their unionized employees can only be resolved through industrial strife,
whether by strike or lockout. But before the parties are permitted to employ their
weapons of last resort, the law requires them first to make a good faith reasonable
effort to conclude and sign a collective agreement.

[3]

This approach to collective bargaining has been in place in this province for generations.
It is well understood. It has reduced the social and economic harm caused to both
employers and their employees by strikes and lockouts. It has reduced the wider social
and economic disruption caused by such strife. It has worked so well because of its basic
assumption: that rational parties acting reasonably in the pursuit of their own selfinterests can find common ground upon which to build a collective agreement.

[4]

It is a matter of regret then that in this case that assumption has proved false. On the
evidence before it, and for the reasons set out below, the Board is satisfied that Egg Films
clearly failed to make any reasonable effort to find common ground with the Union.
Indeed, its posture throughout has been one of unrelenting hostility to the Union, coupled
with an adamant refusal to accept the legal processes governing labour relations in this
province. Given the Employers conduct the real issue for the Board will be the remedy it
will have to craft.

History
[5]

Egg Films is a commercial production company based in Halifax. It has been in operation
since 2003. The majority of Egg Films business comes from corporate and web video
work. It also creates television, radio and web based commercials. These commercial
productions generally take less than 24 hours, covering one or perhaps two days.

[6]

The owners of Egg Films and its principal and guiding officers are Mr. Michael Hachey, its
CEO, and Ms. Sarah Thomas, a Partner and Executive Producer.

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[7]

The Union is the Atlantic Canadian local of the International Alliance of Theatrical Stage
Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its
Territories and Canada (the International). It represents 18 crafts involved in film,
television and theatrical productions, such as hair and makeup workers, transport
workers, microphone boom workers, stagehands and the like. It has 320 members. It has
collective agreements in the film industry, where production shoots often cover several
weeks if not several months. It had not, up until its certification of a bargaining unit of
workers at Egg Films in 2011, had any collective agreements with commercial production
companies.

[8]

The hearing with respect to the Unions complaint took place before the Board on August
27 and 28, 2015. Mr. Gary Vermeir, the Unions Business Agent, was the only witness
called by either party. Ms. Thomas had earlier advised the Board that she intended to call
a large number of witnesses. However, on the day of the hearing she advised that no one
was available. She had not issued subpoenas to compel the attendance of any of them.
Nor was she prepared to give evidence herself. She limited her role to cross-examination
of Mr. Vermeir, and to making submissions on behalf of Egg Films.

[9]

Mr. Vermeirs evidence, and the submissions of the parties, took place within the context
of a relationship between them that could at best be described as strained, and at worst
as acrimonious. To understand that history is to understand the outcome, and for that
reason we set it out below.
The Original Certification Proceedings

[10]

On March 5, 2011 the Union filed a certification application pursuant to s.21 of the Trade
Union Act, RSNS 1989, c.475, as amended (the Act) to become certified as the
bargaining agent for its members employed by Egg Films on its commercial productions:
LB-0011. The Labour Board (the Board) issued a decision on April 3, 2012 in which it
found that the technicians in question were employees rather than independent
contractors (as Egg Films had argued), and that the proposed bargaining unit was
appropriate for certification: International Alliance of Theatrical Stage Employees, Moving
Picture Technicians, Artists and Allied Crafts, Local 849 v. Egg Films Inc. 2012 NSLB 120
(CanLII) (Egg Films No. 1"). The Board certified the Union as bargaining agent on
September 27, 2012 after lengthy and hotly contested hearings.
Judicial Proceedings

[11]

Egg Films applied to the Nova Scotia Supreme Court for judicial review of the Boards
decision to certify the Union for a bargaining unit composed of the workers it employed
on its commercial shoots: Egg Films Inc. v. Nova Scotia (Labour Board) 2013 NSSC 123.
The application was heard March 6, 2013. Egg Films argued, amongst other things, that
the Boards decisions that the workers Egg Films hired were employees within the
meaning of the Act, and that it was appropriate to certify a bargaining unit composed of
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such workers, was wrong. In reasons dated April 17, 2013 the Court concluded that there
was nothing unreasonable in the decision of the Boardor at least, not so unreasonable
as would grant the Court jurisdiction to set the decision aside.
[12]

That decision was appealed to the Court of Appeal: Egg Films Inc. v. Nova Scotia (Labour
Board) 2014 NSCA 13. The appeal was heard December 9, 2013. Egg Films again took the
position that the Boards decision was unreasonable because the technical workers were
not employees within the meaning of the Act; and because the bargaining unit
composed of such workers was not appropriate for collective bargaining under the Act:
para.22. In reasons released April 3, 2014 a majority of the Court of Appeal held that the
Boards decision was not unreasonable. The appeal was dismissed.

[13]

Egg Films then sought leave to appeal to the Supreme Court of Canada. The Supreme
Court dismissed the application on September 25, 2014: Egg Films Incorporated v. Labour
Board et al 2014 CanLII 56698 (SCC).
Collective Bargaining Following the Boards Certification Decision

[14]

The Boards order certifying Egg Films production workers triggered the requirements
under the Act that the parties enter into collective bargaining in an attempt to fashion a
collective agreement. These negotiations took place while the judicial challenges (above
noted) were going on. They also took place under a new provision in the Act, one that
granted the Board the jurisdiction under certain circumstances to direct the settlement
of the provisions of a first collective agreement between the parties by arbitration:
s.40A(1).

[15]

Whatever bargaining took place did not prove fruitful. On July 16, 2013 the Union made
an application for settlement of a first collective agreement pursuant to s.40A of the
Trade Union Act: LB-0592.

[16]

There were two days of mediation in September 2013. Written submissions were filed.
The parties remained far apart. For reasons dated December 23, 2013 the Board
determined the provisions of the first collective agreement pursuant to s.40A of the Trade
Union Act: International Alliance of Theatrical Stage Employees, Moving Pictures
Technicians, Artists and Allied Crafts of the United States, its territories and Canada,
Local 849 v. Egg Films Inc. 2013 NSLB 167 (Egg Films No. 2). The collective
agreement was for the period September 19, 2013 to September 18, 2014.

[17]

For purposes of what follows it is necessary to make note of some of the provisions
dealing with the scope of the collective agreement. Article 2.3 provided that the
agreement would not apply at all to productions with a total budget under $10,000.00.
Article 2.4 then provided that certain Articles of the agreement (for example, those
dealing with hours of work, overtime, meal breaks, and holidays) would not apply for
productions with total budgets that were between $10,000 and $69,999.99. Productions
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with total budgets of $70,000.00 and higher would be subject to all of the agreements
provisions.
[18]

As explained by the Board in its decision in Egg Films No. 2, both parties had endorsed
the idea of thresholds. However, Egg Films had wanted the upper threshold set at
$80,000.00. The Union had proposed a threshold of $60,000.00, and had also suggested
that the agreement not apply at all to any production with a budget of less than
$10,000.00. The Board decided to split the difference insofar as the upper threshold was
concerned, noting that [t]his kind of compromise is precisely what parties do under the
pressures of a lengthy negotiation and the threat or reality of job action: Egg Films No.
2 at para.14; and see generally paras.10-13. The Board also accepted the Unions proposal
to fully exempt all productions less than $10,000.00: see para.15.
September 2013 to September 2014 Relations Between the Parties Under the First
Collective Agreement

[19]

Mr. Vermeir testified at the hearing on August 27, 2015 as to the relationship between
the Union and Egg Films during the term of that first collective agreement. He testified in
direct that during the period in question there were roughly 13 commercial shoots. On
these shoots Egg Films had complied with all of the terms and conditions of the collective
agreement. The shoots were generally one to two days in duration. He had never been
provided with budget information by Egg Films and so was not able to say whether any of
the shoots were above or below the thresholds set in the agreement. He had not received
any complaints from Egg Films (and in particular Ms. Thomas or Mr. Hachey) about
working under the collective agreement. There had been no complaint about the impact,
if any, of the collective agreement on the companys ability to compete for contracts, or
on its operations. He had not received any indication that the wages or benefits payable
under the collective agreement posed any problems for the company. Indeed, he had had
virtually no communications with either Mr. Hachey or Ms. Thomasand certainly none
about the terms and conditions of the agreement. Nor had he received any complaints
from any of the Unions members working on those shoots.

[20]

Mr. Vermeir also testified that from time to time the Union had received requests from
Egg Films pursuant to Article 3.3 to permit it to hire non-Union workers. Article 3.3
provided as follows:
Only members in good standing. The Company agrees to give priority in
employment to Members in good standing with the Union, for
productions with a budget of $10,000 or greater. Should the Company be
unable to fill positions with Members in good standing with the Union a
duly authorized Union Work Permit shall also constitute good standing
with the Union. The Union will not unreasonably deny a request for a
Union Work Permit.

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[21]

Mr. Vermeir testified that to the best of his knowledge the Union had never refused any
request from Egg Films to hire a non-Union member. As he explained, part of the
agreement was that we would not unreasonably reject a request to hire a non-member.

[22]

Mr. Vermeir was not cross-examined about this part of his testimony by Ms. Thomas.
Collective Bargaining November 2014

[23]

The first collective agreement expired September 18, 2014. Prior to that expiry date Mr.
Vermeir sent a letter to Ms. Thomas on July 24, 2014 serving notice that the Union wished
to begin bargaining for a new collective agreement to ensure a seamless transition from
the imposed collective agreement to one that is mutually agreeable to both parties: Ex.
U1, Tab 1.

[24]

The parties were not able to meet to bargain until November 2014. Mr. Vermeir was the
Unions representative. Egg Films retained an outside human resources consultant, Mr.
Ivano Andriani, to bargain on its behalf. As already noted, Mr. Vermeir was the only
witness called as to what happened during the bargaining sessions. Mr. Andriani was not
called by Ms. Thomas to provide his own evidence as to those negotiations. Notes were
taken by the Union during the bargaining process, and Mr. Vermeir testified that they
were an accurate record of what had been discussed: see Ex. U2, Tab 1.

[25]

Mr. Vermeir testified that he and Mr. Andriani first met over coffee to get to know each
other. Mr. Vermeir thought him very cordial. Mr. Andriani told him he understood that
the relationship between the Union and Egg Films had been a bit rocky, but that he
hoped to have a fruitful bargaining sessions.

[26]

Mr. Vermeir and Mr. Andriani met to commence negotiations on November 27, 2014. Mr.
Vermeir presented the Unions two-page proposal: Ex. U1, Tab 2. The proposal assumed
the continuation of most of the terms and conditions of the first collective agreement. It
proposed to add a provision dealing with the appointment of a shop steward. It called for
the provision of more details from the company in the event that it wanted to hire a nonmember. And it proposed some changes to the dues and benefit plan payments.

[27]

Mr. Andriani presented the companys two-page proposal: Ex. U1, Tab 3. The proposal
was headed with a preamble that described the company as operating in a marketplace
where its competitors are nimble, lean, flexible, efficient with its resources, aggressive
with pricing and extremely competitive. The preamble went on discussing the market in
which Egg Films operated in similar terms, concluding with the observation that it
required concessions but that it remained open to ideas, discussion and proposals that
result in an agreement that position[s] us to compete on a more level basis for the
opportunities that exist in our community: Ex. U1, Tab 3.

[28]

There are several comments about the companys proposal that warrant mention here.
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[29]

First, it was not draftedas in the case of the Unions proposalas a list of proposed
changes or amendments to the first collective agreement that had expired. It did not, in
other words, accept the first collective agreement as a starting point for negotiating
particular parts that may have proved problematic for Egg Films in its day to day
operations. It was instead drafted as a completeand much differentcollective
agreement to be executed by both parties. It was moreover expressed in words (as in its
preamble) less expressive of a collective agreement and more as a policy statement in
terms of how Egg Films intended to manage its workforce and its operations.

[30]

Second, the draft removed the standard types of terms and conditions of employment
such as rates of pay, hours of work, overtime and so on that one normally sees not just in
a collective agreement, but in any form of employment contract. Moreover, many of the
conditions were terms that, Mr. Vermeir testified, had been agreed to by the parties
during the mediation process leading up to the Boards decision in Egg Films No. 2. And,
bearing in mind Mr. Vermeirs testimony that in the period September 2013 to September
2014 the Union had received no complaints from Egg Filmsor indeed its membersas
to the conditions of employment in the collective agreement, Mr. Vermeir was left to
wonder why it was necessary to delete them. Mr. Andrianis explanation was that various
Nova Scotia statutes already provided for basic terms and conditions of employment,
making it unnecessary to provide for the same in a collective agreement.

[31]

Third, clause 5 provided as follows:

The Employer agrees to be bound to this agreement for any productions
shot in Nova Scotia over $120,000 (one-hundred-twenty-thousand
dollars): Ex. U1, Tab 3.

[32]

This clause was coupled with the removal of any provision similar to 2.5 of the first
collective agreement, which had required the company on request to provide
reasonable proof of the budget of a production. This meant that Egg Films was asking
the Union to agree that the collective agreement would not apply at all to productions
under $120,000.00 without at the same time giving it the information necessary to know
whether the collective agreement should apply for any particular production. This
provision would, if agreed to by the Union, undercutand indeed possibly eliminate
the Unions jurisdiction for all practical purposes. In effect, it represented the offer of an
agreement not to agree.

[33]

Mr. Vermeir testified that he and Mr. Andriani discussed the companys proposal. Egg
Films had recently lost one of its major clients due to a merger, and Mr. Vermeir
acknowledged that that would create a difficult business environment. He explained
however that it was a difficult environment for the Unions members as well. Mr. Vermeir
testified that when discussing the concessions being requested by Egg Films it became
clear that the concessions in the companys document meant removal of rates of pay and
working conditions and removal of the Unions jurisdiction. The latter was a reference
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to the companys proposal to increase the upper threshold below which any collective
agreement would not apply. He explained that without any information concerning the
budgets of the companys commercial shoots the Union could not assess the proposed
change. His concern was that an increase in the threshold to $120,000.00 would end up
covering most if not all of the companys productionsmeaning that the Union would
have little or no jurisdiction left.
[34]

Mr. Vermeir testified that he discussed with Mr. Andriani the Unions concerns with the
companys proposed agreement. He told him that the Union had no way to evaluate the
potential impact of the $120,000.00 threshold because the company had never provided
the Union with any information as to the budgets of the shoots that had been worked on
during the first collective agreement. If all or most of the companys productions were
less than the threshold figure there would be no role for the Union to play on behalf of
its members. Mr. Vermeir testified that Mr. Andriani understood that we were punching
in the dark and that he promised to get the budgetary information.

[35]

The negotiations lasted about four hours. They broke off, to reconvene the next day,
November 28th.

[36]

Mr. Vermeir testified that Mr. Andriani presented a revised proposed collective
agreement on behalf of the company: Ex. U1, Tab 4. The revised draft agreement added
provisions for the appointment of a shop steward; for the provision of call sheets for all
productions over $10,000; for meal breaks; and for the deduction of union dues (but not
benefits): Ex. U1, Tab 4, items 8, 9, 10 and 11. It also added a provision that terms of
employment for all productions over $10,000.00 should be governed by the Employment
Standards Act, the Occupational Health and Safety Act, the Human Rights Act and the
Workers Compensation Act: Ex. U1, Tab 4, item 2. The threshold in clause 5 below which
the agreement would not apply was reduced from $120,000.00 to $110,000.00: Ex. U1,
Tab 4, item 5.

[37]

Mr. Vermeir testified that he was surprised and disappointed by the second proposal. In
part he did not understand how clause 2 (which purported to make Nova Scotian
employment legislation applicable to shoots over $10,000.00) could be squared with
clause 5 (which bound the employer to the agreement only to shoots over $110,000.00).
He also pointed out that Item 2 was invalid in any event, since one could not legally
exclude the provisions of Nova Scotias employment or human rights legislation to shoots
under $10,000.00 (or for any amount for that matter).

[38]

Mr. Vermeir testified that Mr. Andriani appeared a little sheepish. The latter had
promised to obtain budget information for Mr. Vermeir but had not been able to get it
from the company. The second proposal was not much different from the first. If accepted
there would be no standards, no regular rates of pay, it would just be the free market.
Mr. Vermeir was also concerned about the proposed agreements removal of any terms
and conditions of employment (other than those already present under employment and
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human rights legislation). He discussed this point with Mr. Andriani, who said that he
would go back to the company to see if he could get any changes to its position. They
agreed to end the session at that point.
[39]

Mr. Vermeir testified that he was depressed about the state of the negotiations at that
point. It seemed to him that the company was paying lip service to the duty to bargain,
and that its positions were designed to cut the Union off at the knees. He said to Mr.
Andriani that he thought that conciliation was the only way to go at this point. Mr.
Andriani urged him to wait, and to give him time to talk to the company. Mr. Vermeir
agreed to do that. He waited for a week and heard nothing. He sent an email to inquire
as to what was happening, and heard nothing. Another week went by and he then
emailed Mr. Andriani. He was advised by Mr. Andriani at that point that there was no
movement that he was unable to get his client to come up with another proposal so that
we could seriously negotiate. Mr. Andriani recommended that the Union seek
conciliation.

[40]

We note here that during Ms. Thomas cross-examination of Mr. Vermeir she asked
whether the Union had taken the companys proposed draft collective agreement to its
membership. Mr. Vermeir responded that one did not take employer proposals to the
membership during the negotiation stage. As he noted, you cant negotiate by a
committee of 300. Counsel for the Union in any event objected to this line of crossexamination on the grounds of relevance. He submitted that the Union was under no
obligation to take unworthy proposals to the membership; and that whether it did or not
was up to the Union and not the employer. Ms. Thomas argued in response that the
questions were relevant because the agreement I proposed is perfectly fine for this
Union to sign and that it could have done so instead of going through a litany of slander
against us. (This last observation was a reference to events that happened some time
after the end of collective bargaining.) She also asked Mr. Vermeir whether the Unions
membership had agreed with the Unions decision to file the s.35 complaint, to which
counsel again objected on the grounds of relevance.

[41]

Mr. Vermeir was also cross-examined about the terms respecting working conditions in
the first collective agreement that had been removed by Egg Films in its November 27 th
proposed draft collective agreement and replaced with the references to Nova Scotian
labour standards legislation. He was asked why the Union would object to that in the
negotiations. Mr. Vermeir replied that they had already been agreed to in the first
collective agreement. Ms. Thomas responded by calling it the imposed collective
agreement, to which Mr. Vermeir (who had been involved in the negotiations leading up
to the s.40A hearing in September 2013) responded that many of those terms had been
agreed to prior to the Boards decision.

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Conciliation Efforts
[42]

On December 9, 2014 Mr. Vermeir wrote to the Minister of Labour and Advanced
Education to request the appointment of a conciliator: Ex. U2, Tab 3. A conciliator was
appointed. Conciliation took place but was not successful. On February 20, 2015 the
conciliation officer reported to the parties that her report had been made to the Minister
in accordance with s.38(2) of the Trade Union Act: Ex. U2, Tab 5.
Failure of Conciliation

[43]

On March 4, 2015 Egg Films served notice in accordance with s.47(3)(b) of the Trade Union
Act of its intention to lockout the Union: Ex. U1, Tab 5.

[44]

On March 10, 2015 the Union filed the within application, seeking a declaration that Egg
Films had breached its obligation under the Act to bargain in good faith.
Events After the Lockout, and the Unions Application, in March 2015: Social Media
Campaign

[45]

What ensued in the following months was a battle royal between and amongst supporters
of the company and of the Union. The struggle on Egg Films behalf was carried on chiefly
by Mr. Hachey and Ms. Thomas. It was waged in public meetings and protests, and on
social media (Facebook and Twitter), press releases and web pages: see Ex. U1, Tabs 615; Ex. U2, Tabs 6-9.

[46]

It is not necessary at this point to review in detail the evidence of that post-lockout
campaign. Suffice it to say that it was bitter, and that Egg Films (chiefly through Mr.
Hachey and Ms. Thomas) made clear that it had no intention of negotiating with the Union
ever again, and that it still adamantly rejected the Boards original decision to certify the
Union. The following samples of the hundreds if not thousands of tweets and Facebook
postings by Egg Films, and in particular Mr. Hachey and Ms. Thomas, provide the flavour
of their attitude:
a.

Egg Films had no intention of ever bargaining with the #bullies

of @IATSE849: Ex. U1, Tab 9, p.21;

b.

The Boards agenda [in certifying the Union] was to unionize

freelancers and our case was ... [its] chance. It took ... [the
Board] 9 months to write ... [its] unprecedented decision.
#corrupt #biased #agenda: Ex. U1, Tab 12, p.12;

c.

August 15, 2015: Update: Now the International Alliance of

Theatrical Stage Employees (IATSE) wants @eggstudios to
disclose the financial information to them and our corrupt Labour
Board (thats right IATSE and NS Labour Board both parties are
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corrupt). In Marchweeks after negotiations ended in an impasse
and after the lock-out of workers by Egg they filed an Unfair
Labour Practice complaint saying we would not negotiate. We
did try to negotiate made some concessions, but these union
officials from the International wanted their contract and nothing
else so it went nowhere in the end.
We will not negotiate with a gun to our heads! They are trying
every deplorable trick in the book and its not going to work
@IATSE. We speak for the workers and they dont want you in
their freelance business. This wont work, not [sic] any other
tactic you think of ... http://www.dontberotten.org/
nslabourboard8 ... /egg-films-denied.
What private company out there would disclose their private
financial information? #BulliesNeverWin: Ex. U2, Tab 6, p.3.

[47]

In the Boards view none of this evidence was relevant to the primary issue before it,
which was whether Egg Films breached its duty to bargain in good faith in November
2014. The Board accepted the evidence, however, because such evidence could have
some relevance in the event the Board concluded that Egg Films did breach its duty to
bargain in good faith prior to its decision to lockout the Union. In that event the Board
would have to consider the appropriate remedy, and in that case the post-breach conduct
of the parties could play a role in determining what an appropriate remedy might be.
Post-March 2015 Procedural Wrangling

[48]

Egg Films was advised by the Board of the Unions s.35 complaint on March 13, 2015.

[49]

Mr. Hachey responded on behalf of Egg Films to the Unions complaint in a letter dated
March 20, 2015. The reply consisted of eight paragraphs, all repeating almost word-forword the same thing. Responses ii and iii are representative of the overall position of Egg
Films in its reply:

[50]

ii.

We deny the unions allegations. The employer, in the normal course

of bargaining, has proposed an agreement that reflects the
practicality required for the employer to compete efficiently with
similar businesses in Nova Scotia and abroad. The union has been
unwilling to negotiate any of the items they raise in section ii.

iii.

We deny the unions allegations. The parties have met 3 times faceto-face, including conciliation. The employer has attempted to
negotiate with the intent of concluding a collective agreement. The
union has not modified any of its opening positions.

The reply introduced what became Egg Films principal position throughout these
proceedings:
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[51]

a.

it could not compete in the market place if it was subject to the

terms and conditions of a collective agreement;

b.

the change in its proposals between November 27th and

November 28th represented good faith bargaining on its part; and

c.

the failure of the negotiations lay with the Unions failure to

respond to its proposals of November 27th or November 28th.

On March 23rd the Boards Chief Executive Officer (CEO) acknowledged Egg Films
response. She added that she would begin the process to schedule a case management
conference and our office will be in touch with the parties involving the same. The next
day, March 24th, she sent a follow up email to Mr. Hachey as follows:
Good morning Mr. Hachey,
In preparation for setting up the Case Management Conference (CMC)
I [am] writing to ask whether you will be represented by counsel at the
CMC and subsequent hearing?

[52]

Mr. Hachey, in an email copied to Ms. Thomas and Mr. Andriani responded on March 24th
as follows:
We didnt think there would be a hearing and thought complaint would
be dismissed. When do you want to do the conference call? We are busy
and in and out of the province over the next month. During negotiations
we were represented by Ivano Andrianihe will be on this call and is ccd
here.

[53]

On the same day Mr. Andriani weighed in with an email to the Boards CEO, copied to Mr.
Hachey and Ms. Thomas, as follows:
Just a point of clarification in your email you speak of the subsequent
hearing. I have read the Boards Procedural Statement re CMC. Have we
misunderstood the purpose and process of the CMC? We didnt
understand that a subsequent hearing is automatic. Please clarify so
that the employer can take appropriate decisions.

[54]

The Board finds Mr. Hacheys and Mr. Andrianis responses odd. In suggesting that a CMC
would be set up the Boards CEO was following the normal practice of the Board when
dealing with s.35 (and indeed most) applications. Most if not all s.35 applications proceed
to hearings before the Board if they do not settle beforehand. Case management
conferences (CMCs) are employed by the Board in normal course in order to flesh out
issues in dispute and deal with any preliminary matters necessary to secure the most
effective use of the Boards and the parties time and resources. And Egg Films must have
known this. It has since 2011 been represented from time to time by skilled and
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knowledgeable management-side lawyers. It has had a number of matters before the
Board, both with respect to the initial certification application and then later with the first
contract application. It cannot seriously have thought that its letter of March 20th would
have been sufficient to dispose of the Unions complaint. Nor can it have reasonably
thought that the CEOs question as to whether it would be represented by counsel at the
CMC and subsequent hearing was anything but administrative in nature. But, as we shall
see, it and the counsel it subsequently retained apparently did think that her question
revealed a biased predetermination on the part of the Board.
[55]

On March 26, 2015 Egg Films notified the Board that it had retained counsel (Mr. Blair
Mitchell).

[56]

On March 31st the Boards CEO advised the parties that a CMC would be held on April 7th,
and that she would be the moderator on the call.

[57]

On April 2nd Mr. Blair advised the Boards CEO on behalf of Egg Films that he objected to
her moderating the CMC because of what he called an apprehension of bias. He advised
that he had reviewed the standard list of topics generally covered in a CMC (such as
identities of parties and counsel, identification of agreed facts, issues to be addressed,
witnesses to be called, whether any further investigation was required, selection of
hearing dates and so on). He pointed to the email correspondence between her and Mr.
Andriani on March 24th and then said as follows:
The relevant subject matter is, firstly, your preclusion that the matter
would be referred to a hearing in individual communications with Mr.
Andriani. It is, secondly, your unilateral determination, without
consultation, once the matter was raised, to inform the Complainant
through one of its lawyers, Mr. Pink, by way of copy, that the relevant
query had been raised by the Respondent.

[58]

[59]

Counsel added that these facts demonstrated the following:

1.

Predisposition that this matter will be referred to hearing;

2.

Your pre-emptive determination that the Complainant should be

notified of the issue.

Counsel concluded as follows:

In these circumstances, informed of these circumstances, acting
reasonably, and having thought the matter through, Egg Films Inc.
respectfully apprehends bias should you chair this impending pre-hearing
conference and respectfully requests that the chair be assumed by an
individual whose conduct is free from the apprehension.

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[60]

On April 6th counsel for the Union objected to Mr. Mitchells letter of April 2nd. He
submitted that there was no basis for the concern expressed by Egg Films as to the Boards
CEO acting as a moderator of the CMC, pointing out that her role was solely an
administrative one. He argued that accommodating the request that she recuse herself
would only delay matters.

[61]

The CMC proceeded as planned with Vice-Chair Lafferty clarifying for the parties that she
was chairing the CMC and the Boards CEO was the moderator. The parties had no
objection to Vice-Chair Lafferty chairing the CMC.

[62]

At the CMC Mr. Mitchell raised preliminary issues with respect to the Unions complaint.
He was advised that CMCs were designed to deal with matters of procedure and not of
substance. He agreed to file his submissions with respect to the preliminary issues he was
raising by July 6th. The parties also agreed to exchange binders of the evidence they
intended to rely upon by August 3rd. Hearing dates were set for August 27, 28 and 31,
2015.

[63]

On June 30th Mr. Mitchell advised the Board that he wanted to exercise access to the
case management file or files pertaining to LB-0592 and LB-0011. These were the files
with respect to the first collective agreement (Egg Films No. 2) and the certification (Egg
Films No. 1) respectively.

[64]

Mr. Mitchell was not able to file his submissions with respect to his preliminary objections
until July 10th. The substance of the objections he raised are contained in the preliminary
overview, as follows:
[The Unions] complaint represents the structural misuse of the process
of the Minister and the Board by the Applicant, IATSE Local 849 and its
International to support and further its Internationals ambitions of
expansion into the commercial production sector elsewhere in Canada.
To that end it seeks to use process to provide a platform to market the
International to the field elsewhere in Canada to extend its control into
that market. To that end, the complaint seeks to support secondary
activities against Egg, including activities which are wrongful and
unlawful, and to use the Boards process to attempt to support those
activities and to achieve or influence an agreement that it would not and
could not expect to achieve in collective bargaining.

[65]

He added that what he termed was Egg Films:

... objection of abuse of process should be heard immediately, before the
substantive complaint is entertained. The Unions complaint should be
rejected in its entirety and Egg awarded such further relief as the full
jurisdiction of this Board may permit.

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[66]

There followed 28 pages of submissions. Included in them were complaints about what
Mr. Mitchell alleged were false comments made about Egg Films position in the social
media campaign following the lockout; suggestions that the Union was simply a stalking
horse for plans he said the International Union had to organize other locals across Canada;
and the alleged existence of bias on the part of Vice-Chair of the Board who had sat on
the panel that decided to certify the Union in Egg Films No. 1. Mr. Mitchell submitted that
given this context the Unions complaint and application represented an abuse of process
and should be dismissed: Unions Book of Documents received Sept 1, 201 (hereafter
UBD), Tab 7.

[67]

On the same day Mr. Mitchell wrote to the Unions counsel to reject a request for
documents that the Union had made on April 28th: UBD, Tabs 8 and 2. The Union had
requested production of financial documents, including copies of contracts for
commercial productions over $10,000.00; copies of unsuccessful bids for productions
over $10,000.00; and copies of audited financial statements for the years 2013 and 2014:
UBD, Tab 2. Mr. Mitchell in his correspondence suggested that the Union had never asked
for such documentation during the November 2014 negotiations. He suggested that the
information sought was irrelevant, and that the request is not an ingenuous exercise of
the process of the Board, that IATSEs failure to seek this information in a timely way
disqualifies it and that the exercise of the request is an abuse of the Board: UBD, Tab 8.
He further explained the position of Egg Films as follows:
It is simply not sustainable that an International Union such as IATSE, with
all of the national and international resources it has brought to bear in
this case, has acted in any but a tactical sense to seek to obtain this
information. It is likewise wholly unsustainable to suggest that otherwise,
that, while it slept for six or four months as the case may be, it suddenly
came to, post-lockout, to the sudden realization that there had been an
unfair labour practice and that it should now seek access to financial
information of our client: UBD, Tab 8.

[68]

Again on the same day, July 10th, Mr. Mitchell sent his own demand to Mr. Pink, counsel
for the Union, seeking documents and records that included (but not limited to) the
following:
a.

Documents touching upon or concerning IATSEs certification of

the commercial production field in Canada from 2009 to the time
of the certification of Egg;

b.

Documents touching upon or concerning the feasibility of

collective bargaining in the commercial production field in Nova
Scotia prepared prior to the certification of Egg;

c.

Documents touching upon or concerning the feasibility of

collective bargaining in the commercial production field
elsewhere in Canada prepared prior to the certification of Egg;
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d.

Communications or records of communication between and

amongst the International headquarters, the Union and other
IATSE locals in Canada touching upon or concerning the
implications of the certification of Egg in respect of organizing in
Ontario commercial production; and

e.

Records of communications pertaining to any Board decision

involving Egg Films and the Union, the Supreme Court of Nova
Scotia, the Nova Scotia Court of Appeal or the Supreme Court of
Canada with reference to organizing commercial production in
Ontario or in Canada elsewhere than in Nova Scotia: UBD, Tab 9.

[69]

On July 13th counsel for the Union wrote to the Board. He asked that a teleconference be
set up with the parties to discuss Egg Films refusal to produce the requested documents:
UBD, Tab 10.

[70]

Counsel for Egg Films responded on July 16th: UBD, Tab 11. He complained that the
request of counsel for the Union did not explain his interest in having the teleconference,
what he sought to achieve, or the basis for his request. He continued:
This is not adequate notice to allow our client to consider whether the
subject matter of the request is, in its view, a necessary or appropriate
matter for such a conference, to consider its own position in respect of any
outcome sought, or the facts or authorities in support of the same. These
are fundamentals of notice and are at the foundation of procedural fairness
to which any party to this matter is, of course, entitled: UBD, Tab 11.

[71]

On July 21st Mr. Pink, counsel for the Union advised that it would not be producing the
documents that had been sought in Mr. Mitchells letter of July 10 th: UBD Tab 12. In his
view none of the documents sought were relevant to the issue of whether Egg Films had
breached its duties under s.35 of the Act.

[72]

Also on July 21st Mr. Pink wrote to the Board to suggest that a notional hearing be
convened to consider the respective positions of the parties with respect to document
production: UBD, Tab 13. (A notional hearing is a procedure developed by the Board to
deal with preliminary matters, particularly those dealing with the production of
documents, that may require a Board order: see, for e.g., Labourers International Union
of North America, Local 615 v. Total Demolition Limited and Maritime Demolition Limited
2011 NSLB 92 (CanLII) at para.3.)

[73]

On July 24th counsel for the Union filed its submissions with respect to the preliminary
objections of Egg Films: UBD, Tab 14. On the same day Mr. Mitchell repeated his request
to the Board that it provide him with access to the Boards case files, as originally
requested in his correspondence of June 30th.

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[74]

On July 27th the Boards CEO advised the parties that a notional hearing would be set up
for a day during the week of August 10th, and sought dates from counsel mutually
convenient to them: UBD, Tab 15.

[75]

On July 28th the Boards CEO responded to Mr. Mitchells request for access to the Board
case files in LB-001 (the certification decision) and LB-0592 (the first collective agreement
decision). She advised him that Board files were divided into two sections. One section
contained material that the Board received from or sent to parties in a proceeding. That
part was available, and a copy of those sections of the two files was sent to him. The other
section contained internal administrative notes of Board staff and members which were
considered confidential and for use of the Board only. This part of the file was not to be
released to the public in general or to parties. Hence a copy of that section was not
provided to him.

[76]

Mr. Mitchell replied to the CEO on July 28th. He demanded that the Board at its first and
immediate convenience set out the legal authority on which it relies to preclude access
to this information [i.e., the confidential section of a Board file].

[77]

On July 30th Mr. Mitchell wrote to object to the Boards advice that a notional hearing was
to be held. The substance of his objections appeared to be that his abuse of process
motion should be dealt with first; that the Board lacked jurisdiction to hold a notional
hearing; and that it appeared to him that the Board had already pre-judged (in the Unions
favour) the s.35 application, since the documents sought by the Union becomes relevant
only if the complaint is entertained: UBD, Tab 16.

[78]

Mr. Mitchells letter crossed in the mail with a letter from the Board dated July 30 th, in
which the Board advised that a notional hearing would be held on August 13 th to deal
with the Unions request for documents: UBD, Tab 17.

[79]

After a further flurry of emails and correspondence the Board issued directions on August
7th with respect to the objections raised by counsel for Egg Films, and the dispute over
the production of documents. The direction was that the hearing of the Unions complaint
would proceed on the dates that had already been set (namely, August 27 th, 28th and 31st);
that the motion of Egg Films to strike the application on the grounds that it constituted
an abuse of process would be dealt with at the hearing; and that the respective demands
of the parties for documentary production would be heard at the notional hearing now
scheduled to be heard August 13th: UBD, Tab 33.

[80]

On August 7th Mr. Mitchell responded to the Boards direction. He asked that it be
reconsidered. He argued that the direction:
... is wholly unanticipated, was unsignalled, gives new directions in
respect of the matter, not in accordance with past communications to
and including as recently as August 5, issued without notice, without

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notice [sic], without the opportunity to be heard and contrary to
expectations created by the Board, as recently as 36 hours ago.
With deference the Respondent submits that this new, wholly
unexpected and wholly without notice direction is not consistent with the
rules of natural justice or principles of natural justice or principles of
procedural fairness in matters of utmost important to all ... commercial
and other interests at play in this matter for, at least, the Respondents:
UBD, Tab 34.

[81]

Mr. Mitchell then served a Notice of Motion in the Supreme Court of Nova Scotia,
returnable August 12th, seeking a stay of the notional hearing: UBD, Tabs 35 and 36. On
August 11th the Honourable Justice McDougall reviewed the materials that had been filed.
His Lordship advised that he was not prepared to hear the motion on such short notice,
especially one that in ordinary course would more likely take days rather than hours to
hear: UBD, Tab 39.

[82]

Mr. Mitchell then sent a letter to the Board dated August 11 th, seeking an adjournment
of the notional hearing to permit judicial review to proceed as promptly and efficiently
as possible: UBD, Tab 40. The Board refused the request for an adjournment the same
day: UBD, Tab 45.
The Notional Hearing on August 13th

[83]

[84]

The notional hearing came on before Vice-Chair Richardson on August 13th. Three
motions were before him:
a.

A motion by Egg Films for an order directing access to that part

of the Boards file that contains internal notes, memoranda,
correspondence or emails between and amongst Board staff,
and between and amongst Board staff and members of the
Board, or between and amongst members of the Board;

b.

A motion by the Union for an order requiring Egg Films to

produce documents itemized in the letter dated April 28th, 2015
(referenced above); and

c.

A motion by Egg Films for production of the documents listed in

the letter dated July 10th (referenced above).

After hearing extensive argument and submissions from counsel for the parties, the Board
issued an order (with reasons to follow) on August 14th that:
a.

Dismissed the two motions of Egg Films, and

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b.

Ordered production by August 21st of some (but not all) of the

Egg Films financial information that had been sought and listed
in the Unions letter of April 28th. The order also contained a
confidentiality provision limiting review of the information to the
Unions counsel and their instructing representative: IATSE, Local
849 v. Egg Films Inc. 2015 NSLB 147.

[85]

We pause here to note that the reasons for the allowance of the Unions request for
production, and the denial of that of Egg Films, will be dealt with later in these reasons.
The reasons for the dismissal of the motion for access to the Boards internal, confidential
communications between and amongst Board staff and members of the Board can be
dealt with here.

[86]

In the Boards opinion it is beyond doubt that the record of such communications is
privileged and confidential. They are part of the Boards internal administrative and
decision-making processes. Board staff must be free to communicate amongst each other
for the purpose of processing applications made by parties to the Board. Board members
must be free to communicate amongst each other, and with Board staff, in the same way.
Providing public access to such communications would impose a chill on such
communications that would be detrimental to the Boards administration and the
resolution of the matters brought to it.

[87]

Separate and independent of this point, counsel for Egg Films had submitted that one of
the reasons he sought access to the Board files was to support his submission (and that
of Egg Films) that the Boards decision in Egg Films No. 1 to certify the Union had been
the product of bias on the part of Vice-Chair Archibald, who sat on the panel in question.
Mr. Mitchell offered no evidence in support of this submission, other than an article
written some years ago by Vice-Chair Archibald in his capacity as a labour law professor.

[88]

There were two difficulties with this submission. First, Mr. Mitchell had to concede that
the article in question was known to the parties and to previous counsel for Egg Films at
the time of its various judicial review applications before the Supreme Court of Nova
Scotia and the Court of Appeal. If there was an argument to be made on that basis (and
the Board does not think that there was), the time to have made it was then. Second, and
flowing from the first, the attempt to raise the issue now, well after the fact, suggested
that the motion for access was a fishing expedition in aid of a collateral attack on the
Boards earlier decision with respect to certification. But that decision had been made
long ago. It had survived three challenges to it in the courts. It was time to move on.

[89]

Egg Films collateral attack on the Boards earlier decisions also underlay its motion for
production of the documents it sought from the Union. As noted above, Mr. Mitchell was
seeking documents between the Union and the International made prior to the original
certification application, and relevant not to the Union in Nova Scotia but to the
Internationals unionization efforts (if any) in Ontario and Canada as a whole. But the
International was not a party to these proceedings. And more importantly, the issue in
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these proceedings was whether Egg Films had bargained in good faith in November 2014.
That issue had nothing to do with what happened in other years with non-parties with
respect to other events. The documents sought were wholly irrelevant to the
proceedings, and Egg Films motion for production of them was dismissed for that reason.
[90]

Returning to the chronology, shortly after the release of the Boards order for disclosure
on August 14th Egg Films dismissed Mr. Mitchell as its counsel. Ms. Thomas (who had been
present with Mr. Mitchell at the notional hearing) advised the Board that Egg Films would
be representing itself at the hearing. Ms. Thomas was the representative who appeared
at the hearing.

[91]

On August 21st Ms. Thomas advised the Board and counsel for the Union that Egg Films
... will not produce financial statements, contracts, nor invoices per the
Production Order dated 2015-08-14.
The production of our financial documents is an invasion of our privacy
and the privacy of our valued clients. Our clients have an expectation of
confidentiality with Egg Films. We have agreed to keep their information
private and confidential and the request by the union, and the
subsequent order of the Board is a direct breach of our contracts with our
clients. Egg Films will not disclose any information about them, their
contracts, nor billing information.
We will submit our documents and extensive witness list [for the hearing]
on Monday: UBD Tab 48.

[92]

As it turned out, Ms. Thomas called no witnesses, having subpoenaed none. According to
her all were working or were otherwise unavailable.

Submissions on Behalf of the Union

[93]

Mr. Pink commenced his submissions with the observation that the Act requires parties
during collective bargaining to make every reasonable effort to conclude an agreement.
They have to make a good faith effort, not just go through the motions. The test as to
whether that duty has been complied with is objective.

[94]

Counsel submitted that in this case it was clear that Egg Films had breached its duty to
bargain in good faith. But since a good faith effort to arrive at an agreement was a
precondition to conciliation, which in turn was a precondition to the exercise of the right
to lock out employees, the failure of Egg Films to bargain in good faith meant that its lock
out was unlawful.

[95]

Counsel took the Board through the history of the relations between Egg Films and the
Union. He noted that at every step of the way the former had resisted the latters
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certification. It had adopted the position that only it had the best interests of its workers
at heart, and that its workers could not and should not be unionized. That approach
paralysed their [Mr. Hachey and Ms. Thomas] thought process. They were not able to
accept the Boards earlier decisions and kept attempting to subvert them. Ever since 2011
Egg Films has made and continued to make the same arguments: its workers were not
employees; unionization was not appropriate for commercial productions; a collective
agreement cannot work in this industry. Indeed, Mr. Mitchell, while counsel for Egg Films,
made the same arguments in his written submissions of July 10, 2015 to the Board.
[96]

Counsel then pointed to the Boards decision in Egg Films No. 2. He submitted that it was
clear from that decision that the parties had been able to get close to agreement on a
number of terms and conditions of employmentsome of which ended up in the first
collective agreement. But in the November 2014 negotiations those terms and conditions
were suddenly out the window. Egg Films had instead reverted to the position that it
had adopted at the very start, that the Union had no role to play on behalf of its workers.
Egg Films in its proposals established upper thresholds that would exclude the Union.
They were designed to drive the parties to impasse. That was what Mr. Vermeir thought.
There was no evidence from Egg Films to contradict that conclusion. The Board should
infer that Mr. Andriani was not called because Egg Films knew that his evidence would
not support its position.

[97]

Counsel submitted that the real intent of Egg Films in adopting the bargaining positions
that it did was simply to be able to say that it had tried bargaining so that it could then
proceed to conciliation and, eventually, to lock out the Unions members.

[98]

Counsel submitted that the jurisprudence was clear that for an employer to press to
impasse a position that would in effect exclude a union from its role as bargaining agent
was to bargain in bad faith: see, for e.g., Re Vancouver Symphony Society v. IATSE, Local
118 [1993] BCLRBC No. 468 at paras.45-46, 48-49; CUPE, Local 1788 v. John M. Cuelenaere
Library Board [1991] SLRBC No. 14 at paras.19-24; UFCW, Local 401 v. Economic
Development Edmonton 2002 CarswellAlta 1748 (Alta LRB); Amalgamated Transit Union,
Local 1374 v. Brewster Transport Company Limited 1986 CarswellNat 940 (CLRB) at
para.103.

[99]

Turning to what he submitted was Egg Films unlawful act, counsel submitted that the
Board had the jurisdiction under s.36(2) of the Act to order compensation by way of the
wages that employees would have earned had the lockout not happened: Scott Chapman
et al and International Association of Machinists and Aerospace Workers, Local 1763 and
Courtesy Chrysler 2001 CarswellNS 519 (NS LRB) at paras.59-61.

[100] Counsel further submitted that the Board had the power to order Egg Films to not simply
return to the bargaining table, but to severely restrict, curtail and limit what it could
bargain about: International Association of Machinists and Aerospace Workers, Local

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Lodge 1763 v. 2201336 Nova Scotia Limited, cob as Courtesy Chrysler 2002 CarswellNS
763 (NS LRB); CUPE, Local 4027 v. Iberia Airlines of Spain 1990 CarswellNS 980 (CLRB).
[101] Counsel for the Union in his submissions at the hearing argued for several remedies. In
brief they were as follows:
a.

A declaration that Egg Films had breached its duty to bargain in

good faith pursuant to s.35(a) of the Act;

b.

A declaration that the lock out was accordingly unlawful, and an

order for compensatory damages flowing from the lock out;

c.

An order for compensatory damages with respect to the Unions

expenses associated with the notional hearing in August;

d.

A declaration that the parties return to collective bargaining

within 14 days of the Boards order;

e.

A declaration that Egg Films remove any clause or proposal that

had the effect of removing the Unions jurisdiction from the
bargaining unit, though Egg Films could still seek to negotiate a
higher threshold than $70,000.00;

f.

In the event that negotiations broke down and the parties went
to conciliation, that within 36 hours of the breakdown of
conciliation the parties return to the Board; and

g.

That the Board retain jurisdiction with respect to any matters

arising from its order.

[102] In subsequent written submissions dated August 31, 2015 counsel modified the remedies
sought to include, amongst other things, an order for mandatory arbitration. (Ms. Thomas
was given an opportunity to respond to these written submissions but did not.)
Submissions on Behalf of Egg Films
[103] Ms. Thomas commenced her submissions on behalf of Egg Films by reading the preamble
to the proposed draft collective agreement that Mr. Andriani had presented to Mr.
Vermeir on November 27, 2014. She argued that Egg Films had to be nimble and quick
to survive in a competitive environment. She argued that the draft was modelled on
something the Union had presented to Egg Films years before its application for
certification in 2011.
[104] Ms. Thomas submitted that Egg Films had on the second day of bargaining altered its
proposal by reducing the threshold to $110,000.00, and by adding some terms (for
example, one dealing with the appointment of shop stewards). The Union, she said, had
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not altered its first position and indeed had made no counter-proposal to either of Egg
Films proposed collective agreements. Nor in the five months following the end of
negotiations on November 28th had the Union provided anything else. She submitted that
the Union had instead employed bullying tactics once the lockout began by holding
public demonstrations and launching Facebook and Twitter social media campaigns
against Egg Films.
[105] During this final submission/argument stage of the hearing Ms. Thomas also attempted
to introduce a video taken at one such demonstration to demonstrate what she referred
to as the Unions bullying behaviour. Counsel for the Union objected, and the Board ruled
that it was too late for her to introduce such evidence at this pointparticularly since she
had refused to present either herself or any other witness for Egg Films. Ms. Thomas
nevertheless submitted that the Unions campaign was a form of hard bargaining, and if
the Union could do it she did not see why Egg Films could not do the same during the
November sessions.
[106] During her submissions Ms. Thomas made two positions of Egg Films clear: first, that it
did not acknowledge the Unions role as bargaining agent for its members; and second,
that Egg Films was entitled to negotiate directly with those members. So, for example, in
referring to the draft collective agreement that had been presented to Mr. Vermeir in
November 2014 she stated that we presented a good proposal that worked for us and
for our employees. She added that its negotiation stance was an attempt to get more
money in the crews pockets. When the Board asked her at one point whether it was not
the Unions responsibility to represent its members during bargaining her reply was that
she begged to differit is always my job to care about our employees.
[107] Ms. Thomas submitted that the first collective agreement was too long and too complex
to be applied to one- or two-day shoots that were typical of commercial productions. A
two-page agreement, such as the one it had presented in November 2014, was more
appropriate. That being the case, Egg Films presentation of that type of an agreement
could not be taken as bargaining in bad faith. She argued too that what the Union was
trying to do was use the Egg Films collective agreement as a springboard for a
unionization drive in Toronto, where there was a more robust commercial production
industry. She submitted that the Unions conduct throughout consisted of bullying tactics
and lies, and that only the Board could stop itby dismissing the Unions application.
Reply on Behalf of the Union
[108] In reply Mr. Pink submitted that much of what Ms. Thomas had said during her
submissions was based on no evidence properly before the Board. It was in any event
irrelevant, or a collateral attack on the Boards certification decision, or both. The
arguments advanced were the same arguments that had been made again and again over
the history of the relationship between Egg Films and the Union.

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Analysis and Decision

[109] We commenced with the observation that it is important to emphasize what this
application is not about. It is not about whether the Boards decision to certify the Union
as the bargaining agent for a bargaining unit composed of workers engaged by Egg Films
in their commercial shoots was right or wrong. The decision was one that was reasonable
and within the Boards jurisdiction to make. The courts of Nova Scotia have affirmed that
position twice. The Supreme Court of Canada saw no reason to change that.
[110] Nor is this an application to the Board to ask it to reconsider, vary or revoke that decision.
Such applications can be made pursuant to s.19(1) of the Act.
[111] Nor is this an application to decertify the Union. Section 29 of the Act provides that under
certain circumstances an application can be made to revoke a unions certification where
the Board is satisfied that the union is not fulfilling its obligations or that it no longer
represents a majority of the employees in the unit.
[112] Both these avenues were and are open to either Egg Films or the employees in the
bargaining unit. They are the means by which changed circumstances can lead to
amendments toor revocation ofBoard orders. They are the lawful and legal steps that
Egg Films or other interested players can take to return the situation to what Egg Films
says it should beand the situation that it says is supported by the workers it employs.
[113] What Egg Films cannot do is ignore the law. It cannot conduct itself as if it is not bound
by the Act or by the decisions of the Board. It cannot carry on as if the battles it has lost
were never fought and never lost. It must, as the saying goes, man up, take its lumps and
move on. To do otherwise is to invite chaos.
[114] What this application is about is whether Egg Films made every reasonable effort to
conclude and sign a collective agreement pursuant to a duty that applies to both parties
during the bargaining process pursuant to s.35(a) of the Act. What does this duty mean
and what does it entail? A good explanation is found in United Electrical and Machine
Workers of America v. DeVilbiss Canada Ltd [1976] 2 CLRBR 101:
The section imposes an obligation upon both employers and trade unions
to enter into serious discussion with the shared intent to enter into a
collective bargaining agreement. Once a trade union is certified as the
exclusive bargaining agent of employees within an appropriate
bargaining unit the employer of those employees must accept that status
of the trade union. It cannot enter into negotiations with a view to ridding
itself of the trade union. And thus it can be said that the parties are
obligated to have at least one common objectivethat of entering into a
collective agreement and s.14 is intended to convey this obligation. But
this is not to say that they will or are obligated to have common objectives
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with respect to the contents of any collective agreement they might enter
into. The legislation is based upon the premise that the parties are best
able to fashion the law that is to govern the work place and that the terms
of an agreement are most acceptable when the parties who live under
them have played the primary roles in their enactment. In short, the
legislation is based upon the notion of voluntarism and reflected in the
many administrative and judicial pronouncements that neither trade
union nor employer is, by virtue of the bargaining duty, obligated to agree
to any particular provision or proposal. Therefore, while they must share
the common objective to enter into a collective agreement, the
legislation envisages that they have differences with respect to just what
the content of that agreement should be and those differences may force
the parties to have recourse to economic sanctions. (emphasis added)

[115] We have emphasized the passages that we did so as to make clear that Egg Films was not
obligated in November 2014 to conclude a collective agreement with the Union. But it
was obligated to make a good faith effort to do so. It was obligated to recognize that the
Union was the party with whom it was to negotiate. It did not have to agree with the
Unionbut it was not entitled to try to rid itself of the Union; or to undercut its
representation of the workers in the bargaining unit; or to insist that the Union accept
terms and conditions that would, in substance if not in form, lead to its neutering. Yet this
is what Egg Films did during the course of its negotiations with the Union.
[116] It is appropriate at this point to deal with the issue of Egg Films refusal to comply with
the Boards order to produce some of its financial records. It is the appropriate point
because the refusal of an employer to produce financial records can, in some situations,
be relevant to an allegation that it has failed to discharge its obligation to bargain in good
faith.
The Duty to Disclose in the Context of the Duty to Bargain in Good Faith
[117] The duty to bargain in good faiththat is, the duty to make every reasonable effort to
negotiate a collective agreementserves two purposes:
a.

it reinforces the obligation on an employer to recognize the

bargaining agent; and

b.

it is intended to foster rational, informed discussion thereby

minimizing the potential for unnecessary industrial conflict:
UEW v. DeVilbiss (Canada) Ltd [1976] 2 Can LRB Rep 101 (OLRBAdams) at p.114.

[118] This duty plays a role when determining whatif anyinformation the parties are required
to disclose to each other in the course of collective bargaining. In ordinary course an
employer is not obligated to open its books to the union during negotiations: MarshallWells Company Ltd v. Retail, Wholesale & Department Store Union, Local 454 [1956] SCR
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511 at p.512. Collective bargaining is a card-game of sorts, and the parties are as a general
rule entitled to hold their cards close to their chests.
[119] There are however exceptions to this general rule. One exception arises when the
information is fundamental not just to the employers position at the bargaining table,
but to the unions ability to understand and respond to that position. Take the following
example. An employer says that it needs a wage concession. The reason for that
concession lies in its deteriorating financial condition, but it refuses to produce that
information. The union is left without the information necessary to evaluate the
employers request for a concession. It refuses the concession, and recommends to its
members that they strike if the employer continues to insist on it. A strike ensues. The
employer goes under. The members are out of a job. Such a result is clearly not in the
interests of the employer, the unions members or society as a whole. On the other hand,
had the employer provided the information the union could have taken a different course
of action. Once it understood the employers financial condition it could have considered
altering its stance, or recommended a different course of action to its members.
[120] In this example the disclosure of financial information serves a number of the purposes
enshrined in law as well as in the Act. First, unions are bargaining agents for the
employees in the bargaining unit. In the world of commerce as in the world of labour
relations, agents are under a duty to keep the best interests of their principals in mind
when making recommendations to them. For agents to fulfill this duty they need to have
information that is fundamental to the decisions they make with respect to what
recommendations they are to make. Second, providing unions with the information
necessary for them to fulfill their duties as bargaining agents can lead to the avoidance of
unnecessary labour strife. Third, and related to the second, it can strengthen its role as
the bargaining agent for the employees in the bargaining unit. Indeed, it is for this reason
that an employers refusal to provide financial information that is fundamental to a
position it takes at the bargaining table can lead to an inference that the employer is
trying to undercut or negate the unions role as a bargaining agentand hence the
conclusion that the employer is bargaining in bad faith: see USE v. Inglis Limited [1977]
Ont LRB Rep March 128 (Burkett) at para. 16; International Woodworkers of America,
Local 2-69 v Consolidated Bathurst Packaging Ltd [1983] OLRB Rep. September 1411
(Adams) at paras.41-44; see also Halifax Regional Municipality and Halifax Regional Fire
and Emergency Services v. Halifax Professional Firefights, Local 268 2011 NSLB 65 (CanLII)
at paras.99-100, 101-108.
[121] Turning to Egg Films, throughout these proceedings the company has alleged in part that
the market in which it operated demanded that it be nimble and flexible. Those demands
meant, as Mr. Mitchell had argued in his written submissions of July 10, 2015, that the
commercial production sector was structurally unable to support meaningful collective
bargaining relationships: UBD, Tab 7, p.3. That position grounded its proposal during the
bargaining in November 2014 that it could agree to a collective agreement only if it did
not apply to productions with budgets less than $110,000.00. Yet it refused to provide
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the Union with any financial information at all that would assist the Union in evaluating
what impact such a threshold would have on its jurisdiction. Would it exclude all of Egg
Films productions from the scope of the collective agreement? Most? Some? Without
such information the Union was left in the dark as to the impact of the proposed threshold
on its jurisdiction. Nor could it evaluate the economic reasonableness of Egg Films
position. Such conduct undercut the Unions role as bargaining agent for its members. It
also rendered the Unions ability to advise its members nugatory. What answer could it
give its members as to the impact of the proposed threshold on its jurisdiction? The
answer is none.
[122] It is for this reason that the Board made the production order that it did on August 14,
2015. If Egg Films position was supported by its financial position then the Unions
complaint of bad faith bargaining would be undermined. On the other hand, if it did not,
the Unions argument would be strengthened.
[123] But as already noted, Egg Films defied the Boards order, and continued its refusal to
provide any evidence to support its position (other than bald assertions and argument)
that it had bargained in good faith. Ms. Thomas attempted to justify that decision by
raising concerns about its impact on client privacy. However, in doing so she made no
reference to the conditions respecting confidentiality and privacy that had been included
in the Boards order. We note as well that Egg Films made no request to the Board to
modify those conditions in order to protect the privacy of their clients (to the extent that
it may not have already been protected under the terms of the order). Nor was there any
explanation why the audited financial statements of Egg Films (ordered produced under
the Order) were subject to the same privacy concerns with respect to their clients. There
was simply a blanket refusal to comply with the Order. The Board can only draw an
adverse inference from such conduct, that the documents requested would have
supported a conclusion that the upper threshold insisted upon by Egg Films in its
negotiations would have had the practical effect of excluding the Unions jurisdiction from
most if not all of Egg Films commercial productions. Such a result is clearly not one that
the Union could have accepted. That in turn leads to the further inference that Egg Films
was intentionally bargaining to impassethat is, insisting on a provision not because it had
to, but because it wanted to force the Union either to leave (agree in effect to decertify)
or to resort to conciliation so that Egg Films could move to the next step: a lock out.
[124] With these observations in hand we turn to the Unions s.35 complaint.
The November 2014 Negotiations
[125] We begin here with the factual context to the negotiations. Between September 2013
and September 2014 Egg Films produced roughly 12 commercials. Union members were
employed on those productions. During that time there was no sign of any concern or
complaint from Egg Films. There was nothing to suggest that working under or pursuant
to the terms of a collective agreement caused any difficulty of any kind with its
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operations. Nor indeed was there any evidence that the Union members who worked on
the shoots were upset or unhappy or inconvenienced in any way by working under the
terms and conditions of employment laid out in the first collective agreement.
[126] We next move to Egg Films position that the terms of the collective agreement should
apply only to productions with budgets over $120,000.00. The level of the threshold
would be of obvious concern to the Union. The higher the threshold the fewer the
productions that would fall under its jurisdiction under a collective agreement.
[127] We should say that it is clear from the history of the negotiations leading up to the Boards
decision with respect to the first collective agreement that the Union was prepared to
accept or at least consider some limit to its jurisdiction under the collective agreement. It
had after all proposed a lower threshold of $10,000.00 in its negotiations with Egg Films
in September 2013. It had at the same time proposed an upper threshold of $60,000.00
below which only a few of the collective agreement provisions would apply. Nor was there
any evidence to suggest that the Union was not prepared to be similarly flexible during
the negotiations in 2014. But it is difficult to understand how it could be expected to
consider exercising such flexibility when Egg Films refused to provide any financial or
budgetary information concerning its productions. So, to take an example, if few if any of
Egg Films productions involved budgets higher than $110,000.00, the Union would be
excluded from its role as the bargaining agent and representative of its members. It
would, in effect, be decertified in fact if not in law. That being the case Mr. Vermeir would
need to have some idea of how many productions would in ordinary course exceed the
threshold and how many would not.
[128] The Board also notes that when the issue of thresholds had arisen during the negotiations
preceding the first collective agreement Egg Films had (as noted above) proposed a
threshold of $80,000.00. No explanation was provided to Mr. Vermeir by Mr. Andriani of
the reason or rationale for a figure that was not just higher than the $70,000.00 that had
been in place during the first collective agreement, but significantly higher than what Egg
Films had itself proposed only a year earlier. It had not provided such information during
the first collective agreement. It had not indicated at any point that the $70,000.00
threshold imposed significantor indeed anyeconomic hardship on it.
[129] Mr. Vermeirs evidence was that he asked for some budgetary information to enable him
to evaluate the proposal to increase the threshold to $120,000.00and that Mr. Andriani
advised that he would attempt to get it. He did not refuse outright. That to the Board
suggests that Egg Films own negotiator recognized the reasonableness of the Unions
request. But Egg Films clearly did not agree with its own negotiator, since it refused to
produce the information requested. In that context Egg Films proposal the next day to
reduce the upper threshold by $10,000.00 was meaningless.
[130] As noted above, as a general rule employers are not obligated to produce their financial
records to a union during the course of collective bargaining. However, an employer who
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argues that it must have certain concessions on pain of financial collapse should in
ordinary course be prepared to provide some financial information to back up its position.
Unions are not as a rule interested in running employers into the ground or in bankrupting
them. Such a result is not in their interest or in the interest of their members. But to be
able to fulfill their mandated role as bargaining agents they need to be satisfied that the
employers arguments are sound. And to do that they need some financial information
from the employer. And in this case the refusal of Egg Films to produce such information
either during the negotiations in November 2014 or pursuant to the Boards production
ordersupports a conclusion that the intent of Egg Films in seeking that upper threshold
was to exclude the Union from any practical engagement as an agent for its members.
Egg Films would be a non-union shop in substance if not in form.
[131] Then there is the issue of clause 2 in Egg Films proposal of November 27, 2014, the one
limiting terms and conditions of employment to those of various Nova Scotia statutes
governing working conditions and human rights.
[132] Ms. Thomas argued during her submissions was that there was no need for the articles in
the first collective agreement specifying working conditions (regarding such things as
hours of labour, rates of pay, holidays, overtime and the like) because all of these things
were covered by various labour legislation in Nova Scotia. There is some theoretical merit
to such an argument. And there is certainly nothing to prevent an employer from trying
to negotiate towards the minimum. The argument is undercut however when the
employer does not spell out what it wants those minimum standards to be. We think it is
fair to say that the standards imposed by labour standards and occupational health and
safety legislation are not clearly and easily spelled out. The value of a collective agreement
is that it specifies just exactly what those standards will be. Hence to say simply that the
terms of employment shall be subject to the provisions of Nova Scotian labour standards
legislation invites confusion and dispute. It does not establish just what it is that the
parties are agreeing to insofar as terms of employment are concerned. All of this is to
suggest then that Egg Films was not really serious in suggesting that it was prepared to
negotiate a collective agreement with terms of employment equal to those available
under Nova Scotia labour standards legislation. Had that been its intent one would have
expected more clarity as to just what those terms and conditions would be.
[133] This conclusion is strengthened by the second version of clause 2 which Mr. Andriani
presented the next day. Added to the proposed clause was now the statement that [t]he
provisions listed in this section (2) shall apply for commercial productions over $10,000.00
(ten-thousand). As Mr. Vermeir noted in his evidence, the section now reads as if the
minimal terms and conditions of employment mandated by the laws of Nova Scotia would
not apply in the case of commercial productions with budgets of less than $10,000.00.
Such a provision would of course be unlawful. Why then would Egg Films make such a
suggestion? It may be that it was a mistake, and that Egg Films did not intend such a result.
But if that is the case, its unthinking offer of a proposal that incorporated such a result
suggests that it was simply going through the motions of negotiating. That is, it was
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engaged in a form of surface bargainingconduct which appears to be collective
bargaining but is in fact inconsistent with an intent to enter into a collective agreement.
[134] One of the other arguments made by Ms. Thomasand indeed by Mr. Mitchell prior to his
dischargewas that the Unions application was brought long after November 2014. To
that alleged delay was added the suggestion that the Unions request for financial
documentation was made in bad faith, or represented an abuse of processagain
because, as Egg Films and Mr. Mitchell alleged, the request had not been made in
November 2014 during the negotiations.
[135] Both allegations were quite simply wrong. As already noted, Mr. Vermeir did ask for
financial information on the first day of negotiations to support the demand of Egg Films
that the upper threshold be set at $120,000.00. Mr. Andriani was initially prepared to get
that information, but he returned the next day with the news that it would not be
produced.
[136] As for the late filing of the s.35 application, again, in the Boards view there was no
delay on the part of the Union. Mr. Vermeirs evidence was clear that after November
28th he was waiting for the promised response from Mr. Andriani. When that eventually
did not come he asked for conciliation, a step that in normal course is undertaken with
the hope that it will assist the parties to get back to the bargaining table. Filing a s.35
application prior to the conclusion of the conciliation process would only generate bad
feelings and frustrate the conciliation process before it started. A section 35 application
would be more reasonable, if one was to be brought, after it was clear that conciliation
would not work. Even then a union hopeful that negotiations might nevertheless be restarted would be slow to aggravate an employer by filing a s.35 application, since it could
serve only to harden rather than soften feelings. With this in mind it does not strike the
Board as surprising that the Union should have refrained from filing its application until
Egg Films signalledby way of its notice of lockoutthat it had no interest in further
negotiations.
[137] The Board is accordingly satisfied that Egg Films breached its duty under s.35 of the Act
to make every reasonable effort to arrive at a collective agreement. In fact, it made no
effort at all. The positions it took on November 27th and 28th were designed not to foster
rational discussion but rather to wage by other means a war it had been waging against
the Union since 2011. It was looking to unseat the Union rather than negotiate with it. It
sought to achieve that goal by making proposals designed to exclude the Union from any
meaningful role as a bargaining agent. It made proposals that were unlawful on their face
even if, perhaps, not unlawful in intent. It refused to provide information that would
support the positions it said were necessary for its survival. It retained a negotiator whose
apparent recommendations it refused to accept. This was surface bargaining at its worst.

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If The Duty to Bargain in Good Faith Was Breached, Was the Lockout Lawful?
[138] The rights to strike and to lockout are not unfettered. Insofar as is relevant to the facts of
this case s. 47(1) of the Act provides that an employer shall not declare a lock-out of
employees until:
a.

the union is entitled to require an employer to commence

collective bargaining;

b.

the union and the employer have bargained collectively and

have failed to conclude a collective agreement or a revision
thereof, and

c.

a conciliation officer has been appointed and has failed to bring

about an agreement and fourteen days have elapsed from the
delivery of the conciliators report.

[139] These three steps are conjunctive, as signalled by the use of the word and. All must be
complied with before an employer can lawfully lockout its employees. On the facts it is
clear that steps one and three were satisfied. The question, however, is whether step
twothe requirement that the parties have bargained collectively and have failed to
conclude a collective agreement or a revision thereof has been satisfied.
[140] Did the parties bargain collectively? The Union says that Egg Films did not satisfy this
condition because it failed to comply with its obligation under s.35(a) to make every
reasonable effort to conclude and sign a collective agreement. The Board agrees with
this submission. The intent and purpose of the Act is to ensure that resort to industrial
strife is authorized only when the parties have made a good faith effort to resolve their
differences by peaceful negotiation. That purpose would be negated if parties paid only
lip service to the requirements of s.35(a). In this case the Board is satisfied that Egg Films
had no intention of reaching any agreement with the Union. It wanted the Union gone. It
insisted on the upper threshold as means of neutering and sidelining the Union. It knew
or should have known that the Union could not agree to such terms. To attempt to
negotiate a collective agreement that one knowsor should knowthat the other
cannot accept is not to negotiate at all. It is to bargain with the intent that the result be
an impasse rather than an agreement.
Declaration
[141] Based on the facts and reasoning set out above the Board is satisfied that Egg Films
breached its duty pursuant to s.35(a) of the Act to make every reasonable effort to
conclude and sign a collective agreement and so declare.
[142] The Board further declares that the lock out imposed by Egg Films was unlawful because
it had not made every reasonable effort to conclude and sign a collective agreement.
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Orders Arising From the Declaration That Egg Films Failed to Bargain in Good Faith and Must
Return to Collective Bargaining
[143] There are two questions here. First, can the Board make mandatory arbitration a part of
any remedial order it makes. Second, if not, what order should the Board make with
respect to the bargaining that is to take place.
1: Can the Board Make Mandatory Arbitration a Term of its Order to Return to the
Bargaining Table?
[144] At the close of his submissions the Board asked counsel whether the Board could order
mandatory arbitration with respect to any or all terms that the parties might not be able
to agree upon during any collective bargaining that might be mandated by the Board.
Counsel requested time to consider the Unions position, and on August 31, 2015 made
written submissions to the effect that mandatory arbitration was an option that the Board
should consider.
[145] At the hearing Ms. Thomas was advised that Egg Films had the right to file reply
submissions after the Unions written submissions were received. No such reply was filed
by Egg Films.
[146] The first question to address then is whether the Board has jurisdiction to order
mandatory arbitration at all. Section 36(2) of the Act provides that where a party has
breached its obligations under s.35 the Board may make an order requiring any party to
the collective bargaining to do the things that, in the opinion of the Board, are necessary
to secure compliance with section 35. Could the power to make an order requiring Egg
Films and the Union to do the things ... necessary to secure compliance with the duty
to bargain in good faith include an order for mandatory arbitration?
[147] At first glance such a conclusion would appear to negate the basic principle of labour
relations legislation, which is that the parties should be free to bargain as they see fit.
[148] In the Boards opinion the law does recognize that labour boards do have a power to
impose arbitration on parties in order to secure compliance with their obligation to
bargain in good faith. While the relevant statutory provisions in various jurisdictions with
respect to remedies for the failure to bargain in good faith vary somewhat, we believe
the wording of s.36(2) is arguably broad enough either to include the jurisdiction to make
such an order or, if not, and as suggested earlier by this Board in International
Association of Machinists and Aerospace Workers, Local Lodge 1763 v. 2201336 Nova
Scotia Limited, cob as Courtesy Chrysler 2002 CarswellNS 763 (NS LRB) at para.52, to
impose strict terms on what the parties can bargain about.

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[149] It is also clear, however, that precisely because such a power undercuts the principle of
free collective bargaining it can be employed only in the most dire and exceptional of
circumstancesonly where, for example, there is no other way to secure the various
social policies that underlie labour relations legislation. So, for example, where the failure
to bargain in good faith, in part, led to labour strife marked by violence, bombings and
death such an order can be made: Royal Oak Mines Inc. v. Canada Labour Relations Board
[1996] 1 SCR 369; see also Telus Communications Inc. v. Telecommunication Workers
Union 2005 FCA 262 at paras.76-79. Another example may arise where the employers
bad faith and anti-union animus following certification and the negotiations over a first
collective agreement has led to the decimation of the bargaining unit represented by the
union, such that the latters ability to negotiate was undermined by the task of having to
organize the workplace once again: Teamsters Local Union 91 v. D.H.L. International
Express Limited [2001] CIRB No. 129. at paras.135-36; and see Teamsters Local Union 91
v. D.H.L. International Express Limited [2002] CIRB No. 159 at paras.7, 23 and 27. Such an
order may also be made if the party that engaged in bad faith bargaining had in fact made
binding arbitration a part of its proposals during collective bargaining. In such a case the
order would affirm rather than negate the principles of free collective bargaining since it
is what the party itself was prepared to accept prior to its lapse into bad faith conduct:
see Teamsters Local Union 91 v. Boldrick Bus Services Ltd 2010 CanLII 51873 (ON LRB). As
well, a labour relations board may retain jurisdiction to declare by way of binding
arbitration (final offer selection) any term that the parties still cannot agree upon
following a return to collective bargainingbut, we note, as a last rather than as a first
resort: see, for e.g., Communications, Energy and Paperworkers Union of Canada v. Intek
Communications Inc 2013 CCRI 683; see also Unifor and its Locals 127 and 35 v. Navistar
Canada Inc 2015 CanLII 16341 (ON LRB).
[150] This Board is not satisfied that the impact of Egg Films bad faith bargaining has been as
drastic as in Royal Oak or in DHL International. The nature of the industry and of the way
in which Union members work for various film and commercial productions means that
the bargaining unit has not been impaired in the way that it was in the DHL International
case. While the social media campaign that followed the lockout was sometimes vicious
and was certainly acrimonious, it remains the case that the violence was verbal only
and, as appears from the Facebook and Twitter postings, often conducted under the cloak
on anonymity. (There is too the point that emotions run high during a strike or lockout,
and parties often use their freedom of speech to say things that may seem one-sided or
incorrect from the other sides perspective.)
[151] For these reasons the Board does not feel that mandatory arbitration should be part of
its order in this case at this point. The parties are directed to return to the bargaining
table. Egg Films deserves a chance to remedy its breach of its duties, and thereby,
hopefully, learn how to bargain in the appropriate way. The parties accordingly have the
opportunity to return to the bargaining table to negotiate freely, subject to what we say
below.

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2: Should Any Conditions Be Attached to the Order to Return to the Bargaining Table?
[152] In the circumstances of this case the Board believes that the starting point for the
negotiations between the parties should be the first collective agreement, as appended
to its decision in Egg Films No. 2. Egg Films demonstrated in November 2014 that it did
not understand its duties under the Act, nor did it understand how the law expected it to
carry on those negotiations. Its bad faith approach to the duty to bargain can only be
correctedand Egg Films can only be educated as to the proper approachby requiring
the parties to start with the first collective agreement and then negotiate from there.
[153] In coming to this conclusion the Board takes some comfort from the history of the
negotiations leading up to the first collective agreement. The parties at that time had
been able to agree on some things. In particular, there appears to have been substantial
progress towards agreement on the basic terms and conditions of employment. That this
was so is reflected in both the testimony of Mr. Vermeir and the Boards decision at the
time: see Egg Films No. 2.
[154] Subject to what follows, the parties are free to make every reasonable effort to conclude
and sign a collective agreement from a starting point framed by the terms and conditions
of the first collective agreement. That does not mean (subject to what we say below) that
they must agree to those termsbut it does mean that they must serve as the starting
point.
[155] There are however some limitations that are necessary given Egg Films breach of its duty,
and the need to remedy the effects of that conduct. They are as follows.
A: Threshold
[156] The Board notes that Egg Films had originally pushed for a threshold of $80,000.00 in the
mediation that led up to the first collective agreement. It also notes the evidence that
during the period September 2013-September 2014 Egg Films expressed no complaint
about the impact if any of the Boards selection of $69,999.99 as the threshold beyond
which Articles 5 (Hours of Work and Workweek), 7 (Overtime Hours), 8 (Meal Breaks and
Monies), 9 (Rest Periods and Days Off), 10 (Premiums and Penalties), 11 (Holidays) and
14 (Production Zones and Travel) apply.
[157] The Board recognizes that the film and commercial production industry is constantly in
flux, and that some variation in the threshold might reasonably be necessary. On the
other hand, and on the facts of this case, to permit Egg Films to negotiate a change in that
threshold without providing a rational justification for such a change would simply
replicate the problem that led to the breakdown in negotiations in the first place.
[158] Accordingly, the Board orders that Egg Films cannot negotiate for a change in the
threshold unless it provides the Union with reasonable proof of budgets and finances,
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subject to such redactions as may be reasonable to preserve the identity of clients prior
to seeking any such change.
B: Articles 3.3, 3.4 and 4 (Priority to Members in Good Standing, Individual Freedom to
Negotiate and Application for Work Permits)
[159] As explained in the Egg Films No. 2, Articles 3.3, 3.4 and 4 represented a significant
compromise of the Unions normal interest in having a closed shop and a significant
concession to the employers interest in being able to select the best worker for a
particular job. Given the strength of antagonism for the Union expressed by Egg Films
during the social media campaign it does not strike the Board as appropriate to allow
negotiations over these three conditions. Together they represent a significant
compromise of what one normally sees in Union positions, one that the Union was
prepared to grant prior to September 2013. The Unions only proposal in November 2014
with respect to these particular articles is a proposal that the request under Article 4.1 be
made at least 48 hours prior to shooting: Ex. U1, Tab 2. That strikes the Board as an
appropriate proposal on the Unions part, given that reasonable notice should reduce the
potential for conflict over whether particular non-Union members can be hired. To permit
negotiation over the balance of those articles would not cure the effects of Egg Films
initial bad faith since it would only encourage it to revive its original aim, that being the
neutering of the Union.
[160] The Board accordingly directs that Articles 3.3, 3.4 and 4 are off the table for purposes of
collective bargaining, save and except that Article 4.1 is now read as requiring at least 48
hours notice.
C: Article 2.5 (Budget Information)
[161] Budgetary information is clearly relevant and important where a collective agreement
contains thresholds with respect to its applicability, whether in whole or in part, that are
based on the value of production contracts entered into by the employer. Indeed, this
case illustrates the importance of such a clause. That being the case it is the Boards
direction that article 2.5 is removed from the bargaining table.
D: Term of an Agreement
[162] The Union in its proposal, and in its submissions to the Board, sought to limit Egg Films
ability to negotiate the term of the new agreement it sought to three years: see Ex. U1,
Tab 2. Egg Films did not respond to that proposal in either of its November 2014 positions:
see Ex. U1, Tabs 3 and 4.
[163] The Board appreciates that collective agreements often run for three year periods. But
the term of a collective agreement is a factor in the give-and-take of collective bargaining.
Parties will give up or require more of some things in exchange for longer or shorter
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terms. On the other hand, the duties associated with good faith bargaining can be
fostered when parties have time to learn how to work with one another under a collective
agreement. In this case the one year established by the first collective agreement appears
to have provided only a breathing space for Egg Films to prepare to renew its battle
against the Union once collective bargaining started again. A year, in other words, was
too short a time for Egg Films to discover that accommodation with the Union in its dayto-day operations might be possible.
[164] Taking these points into consideration it is the Boards view that a two-year term
represents an appropriate limit. This does not mean that Egg Films is not entitled to
bargain for a longer term in exchange, perhaps, for concessions from the Union on other
points. It does mean, however, that it cannot bargain for a term less than two years.
Compensatory DamagesThe Motion for Production and Egg Films Refusal to Comply With
the Boards Order Respecting the Same
[165] The Union seeks compensatory damages equivalent to the actual costs incurred by the
Union leading up to and including the notional hearing held on August 13, 2015, including
the cost of responding to Egg Films ex parte application to the Supreme Court for an
order staying the hearing scheduled for the end of August.
[166] The Union casts this remedy in the form of an award for compensatory damages, but in
substance what it seeks is an award of costs on a solicitor-and-client basis. It appears that
this Board in the past on rare occasions made such orders pursuant to its powers under
s.78 but only in extraordinary circumstances: International Association of Machinists
and Aerospace Workers, Local Lodge 1763 v. Courtesy Chrysler 2002 CarswellNS 763 at
para.54. It is not clear however that the scope of remedial powers granted to this Board
under s.78 is in fact wide enough to encompass such a power. Administrative tribunals
such as the Board do not have the jurisdiction to award costs absent express statutory
wording to that effectand recasting what is sought as compensatory damages as
opposed to costs will not get around that problem: CUPE v. Labour Relations Board
(Nova Scotia) [1983] 2 SCR 311; Johnson v. Halifax (Regional Municipality) Police Service
2005 NSCA 70 at para.24. Given that there is no such express wording in the Act it would
appear that the Board does not have the jurisdiction to make the award that the Union
seeks.
[167] Even if the Board does have such a power, it is clear that it would not extend to an award
with respect to costs incurred in court proceedings. That jurisdiction rests exclusively with
the court, and not with the Board. That conclusion thus rules out that portion of the
compensatory damages relating to Egg Films abortive ex parte application to the court
in August.
[168] Turning to the production motion before the Board, the fact is that such motions are from
time to time made to the Boardhence the development of notional hearings. There is
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nothing about resort to the practice that could be called extraordinary. The fact that
the basis for the motion (whether for access to Board files or for production of documents
irrelevant to the issues in the complaint) was particularly ill-conceived does not elevate
the motion to an extraordinary circumstance. But if the cost of bringing or responding
to such motions is something that in ordinary course is borne by the parties and is outside
the Boards normal jurisdiction to order there is no basis to compensate the Union for
those costs.
[169] In the Boards opinion the real foundation for the remedy sought by the Union is not the
fact that the motions were made, but the fact that Egg Films subsequently refused to
comply with the order made against it. In other words, Egg Films committed a wrongful
act in refusing to comply with the order and should be punished for it. The difficulty here
is that an award made on that basis would be punitive in nature, and it is well recognized
that as a general rule the jurisdiction of labour relations boards are remedial rather than
punitive in nature: Royal Oak Mines Inc. v. Canada (Labour Relations Board) [1996] 1 SCR
369. There is nothing in our Act that leads the Board to conclude otherwise. Indeed, it
appears clear that the power to enforce Board orders is reserved exclusively for the
courts, whether by registration of an order pursuant to s.77, or by prosecution pursuant
to sections 79-82, of the Act.
[170] The Board notes by way of parenthetical comment that the refusal of Egg Films to comply
with the production order did in fact have consequences for the company. Its refusal to
produce the documents in question generated a negative inference that they would not
have supported its position that thresholds of $120,000.00 or $110,000.00 were
reasonable, or that such thresholds would not have the effect of removing the Unions
jurisdiction from all of the companys operations. It also added support for the Unions
submission that certain limits should be imposed on the positions Egg Films could take on
its return to collective bargaining.
[171] This part of the Unions relief must accordingly be dismissed.
Compensatory Damages With Respect to the Unlawful Lockout
[172] The Union seeks an order that Egg Films pay to the Union within 30 days compensatory
damages for the illegal lockout for each position employed on the single 2015 Halifax
shoot equivalent to the average daily earnings of each Union classification across the 13
shoots during the life of the expired first collective agreement. In other words, and as the
Board understands it, the Union is seeking payment of its members at the same rates and
under the same terms that would have applied had the terms and conditions of the first
collective agreement remained in effect as of the 2015 shoot.
[173] Such an order is within the jurisdiction of the Board. An employer is entitled to change
the terms and conditions of employment only after certain conditions have been satisfied.
One of those is the fact that the parties have bargained collectively and have failed to
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conclude a collective agreement: s.35(b)(ii). That in turn presupposes that the parties
bargained pursuant to their duty to make every reasonable effort to conclude and sign
a collective agreement pursuant to s.35(a) of the Act. Since Egg Films breached its duty
to bargain in good faith it was not entitled to lockout the members of the Union; nor was
it entitled to alter the terms and conditions of employment that would otherwise have
applied under the expired collective agreement. In such a case section 36(2) of the Act
gives the Board the power to order an employer to pay to an employee compensation
not exceeding a sum which ... is equivalent to the remuneration that would, but for the
failure to comply with clause (b) of section 35, have been paid by the employer to the
employee.
[174] The Board is accordingly prepared to make the order requested.
[175] The Board is of the view that the simplest way to arrive at the amount payable is to order
that any work performed on the 2015 shoot that would normally have been performed
by members of the Union should be paid to the Union at the rates of pay provided for
under the first collective agreement.
Retained Jurisdiction
[176] The Board has declared that Egg Films failed to bargain in good faith; and that accordingly
its lock out was unlawful. The Board has also ordered the parties back to the bargaining
table. A failure to reach an agreement following such continued negotiations will
require the parties to pursue a second round of conciliation before taking industrial action
pursuant to s.47 of the Act.
[177] However, this is also an exceptional case. The employer has exhibited an adamant and
ongoing hostility to labour relations practice under the Act. That hostility led it to breach
its obligations under the Act. As a result the Board considers it appropriate to retain
jurisdiction with respect to the remedies it has ordered so that it can determine whether
Egg Films has in fact cured its breach. In that event the Board may consider other or
alternative remediesincluding mandatory arbitrationto ensure compliance by Egg Films
with its duties under the Act.
MADE BY THE LABOUR BOARD AT HALIFAX, NOVA SCOTIA ON THE EIGHTEENTH (18TH) DAY OF
NOVEMBER, 2015 AND SIGNED ON ITS BEHALF BY THE CHIEF EXECUTIVE OFFICER.

MARY-LOU STEWART
CHIEF EXECUTIVE OFFICER

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