LB-1954  
2022 NSLB 54  
ORDER  
LABOUR BOARD  
Nova Scotia  
BETWEEN  
United Association of Journeymen & Apprentices of  
the Plumbing & Pipe Fitting Industry of the United  
States and Canada, Local 56  
- Applicant  
-and-  
Canadian Maritime Engineering (“CME”)  
- Respondent  
NATURE OF MATTER  
Complaint of Unfair Labour Practice under Section  
53 of the Trade Union Act  
DATE OF FILING  
BEFORE  
August 3, 2021  
Frank DeMont, Q.C., Vice-Chair  
Larry Wark, Employee Member  
Gordon MacLean, Employer Member  
REPRESENTATIVES  
Ronald Pink, Q.C. and George Franklin, for the  
Applicant  
Noella Martin, Q.C. and Michael Bourgeois, for  
the 2nd Respondent  
CASE MANAGEMENT DATES  
November 10, 2021  
DATES AND PLACE OF HEARING  
December 13, 14, 20, 22, 2021. Video Hearing  
(December 23, 2021, scheduled but not heard)  
ORDER  
The Complaint of an Unfair Labour Practice is  
upheld. The Board orders the reinstatement of  
Mr. Harroun with full redress and retains  
jurisdiction with respect to the implementation of  
the reinstatement of and redress for Mr. Harroun.  
REASONS FOR DECISION  
I. INTRODUCTION  
[1]  
This decision considers two issues: whether Canadian Maritime Engineering Limited  
(CME”) is a successor employer to Aecon Atlantic Industrial (“Aecon”) at the Pictou  
Shipyard, in Pictou, Nova Scotia according to section 31 of the Trade Union Act; and  
whether CME committed Unfair Labour Practices in their dismissal of Mark Harroun.  
[2]  
The matter arises from the fact that on May 31, 2021, Aecon ceased their operations at  
the Pictou Shipyard, and on June 1, 2021, CME commenced operations at the same  
location.  
[3]  
[4]  
We will delve deeper into the facts below, but for the sake of the narrative a cursory  
overview will be helpful.  
Pictou County and the Town of Pictou have a long and storied history of shipbuilding.  
Various iterations of shipyards have been extant for many years in Pictou County, some  
say for centuries. Over those many years, the Pictou Shipyard has had its ups and downs,  
largely related to economic cycles (See Employer Book Tabs 4, 5, and 6).  
[5]  
After a multi-year hiatus, the shipyard was restarted in 2008 or 2009, when Aecon Fabco  
took a lease on the property. Aecon (‘Aecon’ is used to refer to all the various legal forms  
the various Aecon related companies including Aecon Fabco, Aecon Atlantic Industrial,  
and [Aecon’s] Pictou Shipyard) spent several millions of dollars refurbishing the facility,  
including spending somewhere between a budgeted $5,000,000 and an estimated actual  
expenditure of $7,000,000 upgrading a “marine railway” running from the waters of  
Pictou Harbour onto land. This railway allowed large vessels to be brought on-shore for  
repairs and refurbishing.  
[6]  
[7]  
[8]  
On May 31, 2021, Aecon ended its lease with the shipyards owner, Banc Properties  
Limited, and left the site. When Aecon ceased operations, they abandoned virtually all  
the fixtures and almost all the equipment they had used on site. Some of the equipment  
and the fixtures had been included in the lease and belonged to the property owner; other  
equipment was left as part of the deal in getting out of the lease early.  
The day after Aecon left, CME arrived with a new lease with Banc Properties in hand and  
plans to build up and expand upon their shipbuilding and ship repair businesses. The  
Pictou marine railway was a central part of CME’s plans and therefore the principal reason  
why this site was so attractive. CME wanted to have an on-shore facility to supplement  
their “alongside” ship repair work in Atlantic Canada.  
On June 30, 2021, one month after CME took possession of the Shipyard, the United  
Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry of the  
United States and Canada, Local 56 (“UA 56” or the “Union”), filed a claim for successor  
rights pursuant to s. 31 of the Trade Union Act. Their assertion was that as Aecons  
successor, CME is bound by the Collective Agreement between UA 56 and Aecon in accord  
with the Act.  
[9]  
Section 31 provides for “successor” rights. It reads as follows:  
TRANSFER OF BUSINESS AND SUCCESSOR RIGHTS  
Effect of transfer of business  
31 (1) Where an employer sells, leases or transfers or agrees to sell, lease or transfer  
his business or the operations thereof or any part of either of them and either  
(a) the employer or the purchaser, lessee or transferee or any of them is a  
party to or is bound by a collective agreement with a bargaining agent on  
behalf of any employees affected by the sale, lease or transfer or contract;  
(b) one or more bargaining agents have been certified as bargaining agent  
for any such employees;  
(c) one or more trade unions have applied to be certified as bargaining agent  
for any such employees; or  
(d) one or more bargaining agents have given or are entitled to give notice  
under either Section 33 or 34 with respect to any such employees,  
unless the Board otherwise directs, the collective agreement, certification,  
application, notice or entitlement to give notice continues in force and is binding  
upon the purchaser, lessee or transferee.  
[10] In addition, the Union has claimed that CME committed Unfair Labour Practices (“ULP”)  
in dismissing Mark Harroun, a member of UA 56 and a former employee of Aecon, on July  
5, 2021. The claim is that CME terminated his employment, contrary to s. 53(3)(a) of the  
Act, because of his membership in the Union.  
[11] A third matter, an Unfair Labour Practice complaint by the Employer against the Union  
(LB-1959), was brought before the Board alleging that Union actions against a former  
Union member, Paul MacNeill, amounted to Unfair Labour Practices. The Board heard  
evidence in relation to this third issue, but at the end of the hearing the Employer sought  
to withdraw the complaint. As is its practice, with the consent of the parties, the Board  
ultimately dismissed the Employer’s complaint.  
[12] After setting out the statement of issues we will address the evidentiary issues, then the  
Successorship Application (LB-1934) and then the Union’s ULP (LB-1954).  
[13] Before addressing the two main issues in this case, we will first attend to an argument  
raised by the Employer related to the successor rights matter. The Employer argued that  
the Union did not have the right to act as the bargaining agent for the shipyard in Pictou,  
and that the United Steelworkers of America, Local 4702 ("Steelworkers”) are the proper  
bargaining agent. The Steelworkers were the bargaining agent for Pictou Industries,  
operating out of the Pictou Shipyard in the early 2000s.  
[14] The Employer argued that the Steelworkers’ representation rights had never been  
extinguished. They pointed out that the general policy of the Board is not to apply the  
concept of abandonment. They argued that the infrequently applied concept is  
recognized only in a unique situation, and this is not such a situation (see Employer Brief  
reference to Nova Scotia Power Inc. v Cape Breton Island Building & Construction Trades  
Council, 2009 NSLRB 3 wherein the concept of abandonment was recognized).  
[15] The Board staff sought the advice of the Steelworkers, asking if they had any interest in  
these matters before the Board. The Steelworkers were served with a Notice to Interested  
Parties. On behalf of the Steelworkers, Lawrence E. McKay, Area Coordinator, Atlantic  
Provinces, advised Board staff that they were not interested in participating in the  
matters before the Board.  
[16] The Nova Scotia Labour Board has taken reasonable steps to offer the Steelworkers an  
opportunity to participate. The best evidence is that they last signed a Collective  
Agreement on behalf of workers in the shipyard in Pictou in 2005, 17 years ago. If they  
have rights to pursue, they have lost the right to do so based on laches, or estoppel, or by  
abandonment.  
[17] Were the Steelworkers to have pursued their interests, the Board would have had to give  
detailed consideration to any claims raised. They did not, and frankly in the absence of  
their pursuit of such claims, this Board need not delve any further into the issue. We  
dismiss the Employer’s argument on this point.  
II. STATEMENT OF ISSUES  
[18] A. Issue 1: Did the Union demonstrate on the balance of probabilities that CME is a  
successor to Aecon in accordance with the provisions of s. 31 of the Act.  
B. Issue 2: Did the Employer refuse to continue to employ or otherwise discriminate against  
Mr. Harroun due to his membership in a trade union contrary to s. 53 of the Act and  
thereby commit an unfair labour practice?  
[19] For the reasons below, we find that the Union’s Successor Rights application fails. The  
Board concludes on the evidence before it that Aecon did not transfer a “business or the  
operations thereof or any part of either of them thereof to CME” such that the Trade  
Union Act successorship provisions found in s. 31 apply.  
[20] For the reasons that follow, the Board finds that the Employer did commit an unfair labour  
practice in dismissing Mr. Harroun, and therefore the Union’s ULP complaint is upheld. In  
particular, we find that the Employer did violate s. 53(3)(a)(i) of the Trade Union Act in  
that it failed to continue to employ Mr. Harroun or otherwise discriminated against him  
because of his membership in a trade union.  
III. GENERAL LEGAL PRINCIPLES  
[21] Before we delve into the issues specific to this case, it is worthwhile setting out the  
general and uncontroversial legal principles applicable in this matter. They fall under two  
headings, the first related to successorship and the second related to unfair labour  
practices.  
A. Issue 1: Legal Principles Related to Successorship  
[22] The general principles set out below relate to issues of successor rights and are well-  
known, substantively agreed upon by the parties, and not controversial among  
Arbitrators and Labour Boards. These general principles include the following:  
1. Broad, full and liberal interpretation of Successorship legislation  
[23] Courts and Arbitrators look to broadinterpretation (Justice McLachlin, as she then was,  
in (W.W.) Lester (1978) Ltd. v. U.A., Local 740, [1990] 3 S.C.R. 644, 1990 CarswellNfld 68  
(“Lester”) at paragraph 48) or full and liberalinterpretation of Successorship legislation  
(Arbitrator Paul Weiler in Kelly Douglas and Co. and RWDSU, Local 580, Re 1974  
CarswellBC 623 (B.C. L.R.B.) (“Kelly Douglas”) at paragraph 15). The same view is noted in  
U.S.W.A. v. Thorco Manufacturing Ltd. 1965 CarswellOnt 715 (OLRB) (“Thorco”) under the  
heading Law Interpreted(page 11) where the Ontario Labour Relations Board uses the  
phrase, “we are impelled to give the section a large and liberal rather than a narrow or  
restrictive construction.”  
[24] We are bound to give s. 31 of the Act a broad and liberal reading. A broad and liberal  
interpretation is one that is purposive and consistent with the remedial nature of the  
legislative intentions.  
2. Purpose of Successorship Legislation  
[25] The purpose of Successorship legislation is to prevent employees from losing union  
protection when a business is sold or transferred or when changes are made to the  
corporate structure of a business.” (Lester at paragraph 41) (See Adams, George Canadian  
Labour Law, 2nd Ed at 8:2)  
[26] The purpose of successor rights is to protect the institutional rightsof a trade union and  
the contractual rightsof its members (Fundy Drywall Ltd v. United Brotherhood of  
Carpenters & Joiners of America, Local 1392, 2003 87906 (NS LRB), 2003 CarswellNS  
806 at paragraph 18).  
[27] It is a common theme running through virtually all the cases on successorship that the  
purpose is the protection of the bargaining and the bargained rights of Unionized  
employees. It is this purpose that attracts the broad, full and liberal interpretation  
referenced above.  
3. Legal Structure is not important  
[28] Noted author and Arbitrator, George Adams wrote in his text, Canadian Labour Law, 2nd  
Ed (“Adams”), at 8:2, “it is the substance rather than the form of the transaction which is  
determinative of whether or not the business has been transferred.” This principle can be  
found in leading cases by Labour Boards across Canada. See Thorco at page 11 where it is  
noted that what is critical issubstance rather than its form.Likewise, the leading case,  
C.U.P.E. v. Metropolitan Parking Inc., 1979 CarswellOnt 1306 (O.L.R.B.) (“Metropolitan  
Parking”) at paragraph 30 notes, quoting from Kenmir v. Frizzell et al, 1968 1 All E.R. 414,  
that substance matters, legal form does not.  
In deciding whether a transaction amounted to the transfer of a business, regard  
must be had to its substance rather than its form, and consideration must be given  
to the whole of the circumstances, weighing the factors which point in one direction  
against those which point in another. In the end, the vital consideration is whether  
the effect of the transaction was to put the transferee in possession of a going  
concern, the activities of which he would carry on without interruption.  
(Emphasis in Metropolitan Parking)  
[29] We did not review any cases (nor do we expect that there are any that fall within  
correctly decided cases”) that would express concern for the legal structure over the  
substance of the transaction.  
4. The manner of the transfer is largely irrelevant  
[30] Lester tells us that in “keeping with the purpose of successorship provisions… labour  
boards have interpreted “disposition” broadly to include almost any mode of transfer and  
have not relied on technical legal forms of business transactions.” (Paragraph 48)  
[31] Further in Lester at paragraph 49, Justice McLachlin wrote: “the technical legal form of a  
disposition [of a business] will not be determinative.”  
[32] It is widely acknowledged that businesses transfer, principally, through the purchase and  
sale of assets or the purchase and sale of shares. On ‘share deals,’ the transfer of the  
business is largely unquestioned as a transfer of a business consistent with the successor  
rights legislation. It is the purchase and sale of assets that causes more difficulty in  
determining if a business was transferred consistent with the legislation or if there was a  
transfer of a group of “idle assets” that do not form a business or a discernible part  
thereof.  
[33] There is a third category of case where there is no transfer of shares nor any formal  
transfer of assets but where, as is seen in the instant case, one “business” leaves a  
location and another entity takes possession of the location and the assets associated  
with the location.  
[34] As noted, the technical legal form is largely irrelevant, but what is relevant is whether  
there is a transfer of a “business,” a “going concern,” or a “dynamic activity.” Labour  
Boards have considered what “factors” are consistent with a business transfer as opposed  
to a collection of assets (Metropolitan Parking at paragraph 30; Atlantic Meatpackers v.  
Maple Leaf Foods, 2012 NSLB 150 (“Atlantic Meatpackers”) at paragraph 8), or a  
“performance of a like function by another business entity” (Curtis and Fraser Wharves  
Ltd. 2014 CarswellBC 3049 (Curtis”) at paragraph 63).  
5. Successorship follows the Business,not the assets or the employees  
[35] Furthermore, and also in keeping with the purpose of successorship legislation the  
protection of union and member rights the rights acquired do not attach to specific  
people as individuals or particular assets. Were it so, an Employer seeking to undermine  
union rights could substitute different employees or assets to avoid the protections  
successor rights legislation brings to the Union and its members.  
[36] The successor rights attach to the business. See for instance, Lyric Theatre Ltd. v. I.A.T.S.E.,  
Local 348, 1980 CarswellNat 1347 (C.L.R.B.) (Lyric Theatre) at paragraph 15, quoting  
from N.A.B.E.T. (referenced below):  
Bargaining rights are typically granted to a trade union as bargaining agent for a unit  
of employees of an employer employed in certain classifications or at a certain  
location, or for all employees with specified exceptions. Bargaining rights do not  
attach to certain specific employees as individuals.  
(Emphasis in Lyric Theatre)  
[37] N.A.B.E.T. v. Radio CJYQ Ltd. 1978 CarswellNat 644 (C.L.R.B.) (“N.A.B.E.T”) relates to  
employees or people. At paragraph 16, the C.L.R.B. writes:  
The importance of this is that since the object of the provision is to protect bargaining  
rights of a trade union there must be a continuity in the work performed because, in  
actual fact, it is to this that bargaining rights attach and not to groups of individual  
persons, although the continuance of the bargaining rights depends, in part, on the  
timely expression of wishes by employees in the bargaining unit.  
(See also Metropolitan Parking at paragraph 36 in relation to “the work.”)  
6. A Business is more than a collection of Assets  
[38] Assets are a part of a business, but for there to be a transfer of a business, according to  
Metropolitan Parking, there must be a transfer of the  
…essential elements of the business as a block or as a ‘going concern’. A business is  
not synonymous with its customers or the work it performs or its employees. Rather,  
it is the economic organization which is used to attract customers or perform the  
work…  
7. The Business must have a Discernible Continuity  
[39] Labour Boards across Canada have considered Successorship on many occasions. One of  
the clear themes is that there must be a “discernible continuity of business” that “would  
indicate that its business is being continued…” (Zellers Inc. v. UFCW, Local 1518, 2012  
CarswellBC 3562 (“Zellers”) at paragraph 86).  
[40] In other instances, Labour Boards have used phrases such as the successor “draws its life  
blood” from the predecessor (Lyric Theatre at paragraph 13; and reference therein to  
Thorco) and that there is a “dynamic activity”, a “going concern”, or a “functional  
economic vehicle” (Curtis at paragraph 63) that transfers from predecessor to successor.  
8. A close corporate connection may indicate successorship  
[41] In Lester at paragraph 60, Justice McLachlin noted that “[a] close corporate connection  
may sometimes support the inference that a transaction was designed to circumvent the  
bargaining rights and thus be contrary to the purposes attributed to successorship  
provisions.” Metropolitan Parking is cited, noting that Boards are sensitive to any “pre-  
existing corporate, commercial or familial relationship between the predecessor and the  
alleged successor.”  
9. Boards look to a non-exhaustive list of factors to determine successorship  
[42] A list of factors was set out in Lyric Theatre. They are:  
1. goodwill  
2. logo or trademark  
3. customer lists  
4. accounts receivable, existing contracts, inventory  
5. covenants to maintain a good name or not to compete  
6. the same employees  
7. the same or similar work  
8. hiatus in production  
9. service or lack of service to former customers  
10. direct contact or lack of contact between the predecessor and successor  
employer  
11. arm's length between the predecessor and successor employer.  
IV. EVIDENCE  
A. Books of Exhibits  
[43] The Parties filed extensive exhibit books. The Union’s included 14 Tabs, and the  
Employer’s contained 11 Tabs.  
[44] The gist of the Union’s documentary evidence was to demonstrate the relationship  
between Aecon and UA 56 through bargained agreements. We reviewed the Agreement  
between the Canadian Pipe Fabricators Association (“CPFA”) and the UA (on behalf of its  
affiliated locals), and the Agreement between the Nova Scotia Construction Labour  
Relations Association Limited (“CLRA”) and UA 56.  
[45] It was explained that the CPFA and UA agreement was a master agreement supplemented  
by local agreements relating to localized issues, particularly wages. The two agreements  
referenced in paragraph 44 combined make up the UA 56 Collective Agreement. Aecon is  
or was a member of CLRA, so the wage rates contained in the CLRA agreement applied  
while Aecon was operating from the Pictou Shipyard. (We note that the MISA agreement,  
referenced in paragraph 59 below, also forms a part of the overall labour relations  
agreements.)  
[46] The Employer’s book of exhibits provided details into the history of the shipyard. It  
included Collective Agreements between the Steelworkers and former occupants of the  
shipyard. Also included were news reports of historical changes in ownership and  
occupation of the shipyard. Details of corporate ownership of Aecon, and the CME  
Employee handbook provided to Mr. Harroun on his being hired by CME were included in  
the Book. Mr. Harroun’s Record of Employment were also included in the Employer’s  
Book.  
[47] We received additional Exhibits throughout the hearing. Those exhibits included Aecon’s  
Management Discussion and Analysis for the years 2014 - 2021, a redacted Lease  
between Banc Properties Limited and CME, and an Equipment List.  
B. Witnesses’ Evidence  
[48] We heard from eight witnesses over four days. The Union called Darren Muise, business  
manager for the Union; Mark Harroun, former Shop Steward for Aecon and Union  
member; Ken McCormick, Aecon’s former site manager; and Brendon Fitzpatrick, former  
facility manager for Aecon.  
[49] The Employer called Jamey Nicholson and Paul MacNeill, the two managers that carried  
out the dismissal of Mr. Harroun. Both played a management role at CME in Pictou. The  
Employer also called Dean Mitchell, Operations Manager at CME, and Tony Kennedy,  
President of CME.  
[50] A summary of the evidence given follows:  
1. Darren Muises Evidence  
[51] Mr. Muise is the Business Manager and Financial Secretary of UA 56 and has been so  
employed for five years. He testified that UA 56 has about 1250 members mostly working  
as plumbers, pipe fitters, metal workers, and working in refrigeration, sprinkler systems,  
and in instrumentation. There are about thirty-seven employers UA 56 works with. They  
have seven staff who administer the Union, including overseeing the Collective  
Agreements, providing services to members (including health and welfare benefits), and  
providing for training opportunities. Mr. Muise is a Red Seal plumber and steamfitter.  
[52] UA 56 and its predecessor, UA 244, have been involved with the Pictou Shipyard since  
about 2008. Sometime prior to 2008, the Shipyard was organized by the United  
Steelworkers of America, Local 4702.  
[53] Mr. Muise testified about his knowledge of what work was undertaken at the Shipyard  
property in Pictou, from his experience, since about 2008. He testified that the operations  
were run by Mr. “Kenny” McCormick who was the General Manager and a Vice President  
of Operations for Aecon. Mr. McCormick was assisted by his son, Brendan McCormick,  
and one other senior leader.  
[54] According to Mr. Muise, during the McCormick years between about 2010 to 2016, Aecon  
worked on naval tugboats, and barges. He described the “marine slip” or marine railway  
as a side-loading rail system that allowed various water transportation vessels to be  
removed from the water and moved sideways so that Aecon could conduct repairs. He  
thought Aecon spent about $10,000,000 on refurbishing the facility, but not all of that  
was spent on the marine railway.  
[55] He listed vessels that were worked on at the shipyard. He described equipment used in  
the processes, including forklifts, cranes, scaffolding, cutting tables, milling machines and  
a mechanical iron worker.  
[56] Mr. Muise noted that the big project Aecon was working on was the preparation of large  
sea-based turbines for a hydroelectric project taking advantage of Bay of Fundy tidal  
waters.  
[57] He testified that Aecon gave notice to the Union in April of 2021 that they were going to  
“leave operations,” which he understood to mean they were going to stop working the  
facility. He understood that would put the UA 56 members out of work. He was told by  
either the owners or the departing Aecon leadership that there was a view that “others  
were interested and would be “taking over” the site.” Apparently in late April or early  
May there were “two proponents to [possibly] take it over.”  
[58] Once Mr. Muise found out it was CME that would take over the property, he reached out  
to Tony Kennedy, who he thought was the General Manager for CME, but believed could  
have instead been CME’s General Manager for the Nova Scotia operations. The aim of this  
outreach was to determine if CME was ready to discuss the Collective Agreement with  
the Union. After a short telephone conversation, a meeting was arranged between UA 56  
and CME. The attendees included legal counsel for CME and for UA 56. At the end of the  
meeting Mr. Muise believed that CME would “get back to us” and counsel for CME would  
send a draft, replacement collective agreement. This, according to Mr. Muise, was sent  
but was “unacceptable” to the Union. This draft was identified at Tab 4 of the Union  
exhibit book.  
[59] Mr. Muise testified about the collective bargaining relationship in place with Aecon. He  
described a “yellow label” agreement with the CPFA and the CLRA wage agreement. In  
addition to these two documents, there is also the Marine Industry Services Agreement  
(“MISA") found at Tab 3 of the Union’s book of exhibits. Although this version of the  
document was unsigned, Mr. Muise indicated that there was a MISA in force, which  
governed parts of the UA 56 work at the Shipyard.  
[60] As Aecon had no “slip” at their Dartmouth location, they used the Pictou facility for bigger  
or different projects than the “alongside” work they had been doing before coming to the  
Shipyard. Mr. Muise testified that Aecon had a “fab shop” or fabrication facility at the  
Pictou Shipyard. He said they were “definitely there for marine work.” At some point,  
Aecon changed the signage at the front of the facility to rebrand it as “Pictou Shipyard.”  
[61] Mr. Muise noted that once CME took control of the premises, they needed the same type  
of workers as had been working at Aecon, including Metal trades workers, fabricators,  
millwrights, and mechanics. He believed these workers would be working with equipment  
left behind by Aecon. He said the “equipment was all still there. Nothing removed. Not to  
my knowledge.” He testified that all the heavy equipment, some consumable as well as  
power tools, were all left behind by Aecon. He said very few pieces of equipment went  
with Aecon to their Ontario site.  
[62] Mr. Muise looked at the list of Aecon employees and noted who was “still working” at the  
facility after the change in control of the site. Two individuals were specifically mentioned,  
Mark Harroun and Brendan Fitzpatrick. Mr. Harroun was a production employee and Mr.  
Fitzpatrick was the “Facility Manager” under Aecon. Neither continued to work at CME  
for long. Mr. Fitzpatrick remained only for one day, and Mr. Harroun for less than five  
weeks.  
[63] Mr. Muise identified a lease from Banc Properties to Aecon Fabco (Tab 9) and the Health  
and Welfare benefits booklet from the Union (Tab 6). He described the role of the  
Trustees of the plan and differentiated it from the Union itself.  
[64] He also referenced the Union Constitution found at Tab 5.  
[65] Mr. Muise testified that as part of the Union's process to support its activities, he  
organized a meeting of members for the evening of May 31, 2021. Due to COVID, the  
meeting was held on the Zoom platform. Two invitees to the meeting were Mr. Harroun  
and Paul MacNeill, both Union members. There were about thirty Union members on the  
Zoom call. The meeting started with a few words about confidentiality then got into the  
topic of discussion, a successor rights application and an application for certification in  
the event the successor rights application was unsuccessful.  
[66] Mr. Muise testified that Mr. Harroun was a shop steward with UA 56 under the Aecon  
collective agreement and had been so engaged for about five or six years. Mr. Harroun  
had a “Union phone” so that members in need of assistance could reach him.  
[67] Mr. Muise testified that late in the day on July 5, 2021, he received a call from Mark  
Harroun who advised Mr. Muise that he had been fired by CME. Mr. Harroun relayed that  
the Employer representative that delivered his termination was Paul MacNeill, the same  
Mr. MacNeill who had participated in the membership meeting and was aware that the  
Union had been considering a successorship application that had indeed been filed on  
June 30, 2021.  
[68] Sometime after learning of Mr. Harroun’s termination, Mr. Muise called Mr. MacNeill to  
advise him that the benefits he had been receiving as a member of the Union would be  
terminated as he had not paid his Union dues and that consequently he was no longer in  
“good standing” with the Union.  
[69] That conversation was short and generally agreed to have been fairly heated.  
[70] Mr. Muise was cross-examined in relation to the varied agreements that comprise the  
Collective Agreement. It was clear that there were a number of differences in what entity  
was engaging at the Shipyard, including Aecon Fabco, Aecon Shipyard, Aecon Mining  
Consulting Services, and Aecon Atlantic Industrial Inc.  
[71] Mr. Muise acknowledged that Mr. McCormick left Aecon in 2016, several years before  
Aecon left the Shipyard.  
[72] The Employer elicited evidence in relation to what and where Aecon had facilities, what  
CLRA was, and received Mr. Muise’s confirmation that CLRA was accredited for the  
Construction Industry in Nova Scotia (see s. 92(h) of the Trade Union Act for the various  
“sectors” of the construction industry).  
[73] Employer counsel tried, unsuccessfully, to get Mr. Muise to acknowledge that there was  
little if any shipbuilding carried out at the Pictou Shipyard under Aecon’s management.  
Counsel and the witness discussed what equipment was removed and what remained  
after Aecon left on May 31, 2021.  
[74] There was extensive evidence called in relation to the events surrounding the Employer’s  
later abandoned unfair labour practice claim. For the purposes of this decision, the details  
are not pertinent. It is sufficient to note that the tenor of the discussions between Mr.  
Muise and Mr. MacNeill were hostile.  
[75] The Employer’s counsel explored the circumstances under which Mr. Harroun and others  
were hired by CME. Each employee was given a record of employment by Aecon and a  
new employment relationship was set up with CME. Included in the CME welcoming  
package was an employee handbook, a copy of which was included in the Employers  
book of documents at Tab 10. At page 26, the handbook sets out the use of portable  
electronic devices. In particular, there is a section relating to cell phones. It reads as  
follows:  
The use of cell phones is now commonplace. Cell phone technology has created more  
problems for law enforcement and could lead to a reduction and company  
productivity. All employees are required to follow the letter of the law regarding cell  
phone use when travelling and company vehicles it is against the law in the province  
to use a hand-held cell phone or text-message while driving. Cell phone use during  
working hours is to be limited to company calls only, with few exceptions. Personal  
use of cell phones whether company provided or self-supported, during regular  
working hours is restricted to 10 minutes (normal break time) in the morning and  
afternoon as well as during your normal lunch period. In the event of an emergency  
these policies may be over-ridden.  
All company provided cell phones must have an up to date personal voice mail  
message, which identifies the owner of the phone and that they are unavailable to  
take the call but will return the call as soon as possible.  
If the employer has supplied you with a cell phone, you must be asked to sign a  
separate contract that lays out expectation, cost, etc. When the company is cost  
sharing your phone plan, we will pay an agreed flat fee and the employee will be  
responsible for any additional charges.  
[76] Mr. Muise confirmed that CME did not “bring over everyone” from Aecon. He also  
confirmed that Mr. Harroun was terminated from his employment early in July 2021. Mr.  
Harroun had advised Mr. Muise that the termination came from Mr. MacNeill and Mr.  
Nicholson. Immediately after the termination Mr. Harroun called Mr. Muise, who  
cautioned him to leave without incident and said they would discuss next steps after Mr.  
Harroun left the property. Mr. Muise denied that he was aware of or made any threats  
towards either Mr. MacNeil or Mr. Nicholson.  
[77] Mr. Muise was asked questions on redirect examination by the Union relating to his  
conversation with Mr. MacNeil surrounding the termination of Mr. McNeill's benefits.  
This related to the Employer’s ULP Complaint, which was later withdrawn and ultimately  
dismissed at the request of the Employer.  
2. Mark Harrouns Evidence  
[78] The next witness called by the union was Mark Harroun. He is a 47-year-old journeyman  
pipe fitter who did welding, fitting, cutting with torches, and many other jobs while  
working for Aecon. He was a member of UA 56. Mr. Harroun testified that he had been a  
"rolls operator" at another employer, DSTN in Trenton Nova Scotia, prior to being hired  
by Aecon. With Aecon he had served as a union shop steward for "about five or six years.”  
He described that role as helping his colleagues, other members of UA 56, with medical,  
dental, pension, and other union benefits. His job was to give advice and to follow up. He  
described helping, for instance, “a brother whose wife died".  
[79] Mr. Harroun described the kinds of work that Aecon did while in control of the Pictou  
shipyard facility. He said they worked on a major Bay of Fundy tidal energy project. This  
project was to build turbines to be taken to the Bay of Fundy and used for energy  
generation. He described some of the other work, including work on several ferries,  
barges, and supply, survey or seismic boats.  
[80] He described that there was work “on the slip, on the back 40 and in the shop”. Some of  
that work was replacing or repairing steel, shafts and also included painting and blasting.  
[81] Mr. Harroun described the equipment that was used on site. The list included various  
cranes and forklifts as well as a “plasma table”, saws, lathes, presses, drills, ironworkers,  
and welding tables. This was the same equipment, put to similar uses, as employed by  
Aecon prior to the change in control of the facility. He said it was "the exact same  
equipment Aecon used as on my last day at CME.”  
[82] Mr. Harroun said the work with CME was “similar” to that with Aecon. Likewise, the trades  
employed at the shipyard before and after were "similar," including fitters, welders, crane  
operators, machinist, labourers, and mechanics. He said the basic skills were "similar."  
[83] Mr. Harroun also identified some of the employees that worked for both Aecon and CME.  
[84] He described how he obtained his job with CME. He said that he was approached by Mr.  
Nicholson and Dean Mitchell. There was no résumé provided, simply a short conversation.  
After this "basic interview" he was told he would start the next day, June 3 or June 4,  
2021. He was advised he would be paid $28 per hour.  
[85] Mr. Harroun described the Union’s May 31, 2021, Zoom meeting. He participated as did  
Mr. MacNeill and others, about thirty in total. He described the discussions on the Zoom  
call as relating to getting back to work, and successorship and certification of the Union  
with CME.  
[86] Mr. Harroun acknowledged that he had a "union cell phone." He said all Shop Stewards  
of UA 56 had phones, and all the members at Aecon had his phone number. During his  
time with Aecon, he used the phone to resolve issues for union members. He described  
Aecon permitting him to use it "anytime I wanted."  
[87] He advised that when Aecon left, he still had the phone, but he did not bring the phone  
onto the shop floor, instead leaving it in the lunchroom. He testified that he did not use  
the phone contrary to the CME policy, and that he had read the policy the day he was  
hired. It came as no surprise to him as it was similar to most policies he had been aware  
of. He said, "the policies are the same everywhere."  
[88] He advised that he knew CME was aware he had the union cell phone as he had told them  
that when he got hired. They knew he was a union shop steward while at Aecon.  
[89] He described that sometime after CME took possession of the facility, Paul MacNeill said  
to him that he should get a different phone. He thought this was "weird" and that “things  
didn't seem right”. As a result of his unease, he did at one point obtain a new “SIM” card  
which he said provided him with a new phone number. He did this because he had a "gut  
feeling something was going on.”  
[90] Mr. Harroun testified that he was terminated on July 5 at around 3:30 PM. He was working  
on the shop floor when called in to the lunchroom to meet with Mr. Nicholson and Mr.  
MacNeill. He testified that they told him they were letting him go “due to his union ties”  
to which he replied, “Are you serious?” This reason for his termination was repeated after  
which Mr. Harroun testified that he uttered a profanity, and asked Mr. Nicholson if "this  
clown [MacNeill] was running the Pictou shipyard?” Mr. Harroun grabbed a few personal  
items and left.  
[91] Union counsel quizzed him whether or not the cell phone was discussed at the  
termination meeting. He answered that nothing was said at the meeting about the phone,  
there was no discussion of his work ethic, the quality of his work, nor any "workplace  
related issues.”  
[92] At the conclusion of his direct examination Mr. Harroun again confirmed that he was not  
provided with any letter of termination nor any explanation for the termination other  
than his “union ties.He stated that there was no allegation of poor workmanship,  
dishonesty or any reference to the quality of his work or his use of the cell phone. He  
confirmed that he had never received any verbal or written warnings nor had he been put  
on any performance improvement plans.  
[93] Mr. Harroun testified that he made a few fleeting efforts to get his job back by reaching  
out to Mr. Mitchell. He described the dismissal’s impact on him, saying he was hurt, mad,  
and he suffered from depression and was drinking more. He said "it really bothered me.”  
He said he hadn't worked since.  
[94] He described his familial ties with the Pictou shipyard. His grandfather worked there and  
his mother worked there. He considered it “his home.”  
[95] Mr. Harroun was cross-examined by Employer Counsel. He confirmed his role as Shop  
Steward under Aecon. He was asked about what documents constituted the Collective  
Agreement as he knew it. Although somewhat unsure, he confirmed that the CPFA  
agreement and the MISA document were the Collective Agreement, along with the wages  
being set by the CLRA agreement.  
[96] He testified that he had not worked anywhere after the termination from CME. That  
proved to be untruthful as later the Employer demonstrated, and the Union conceded,  
that he had worked at Steel Pro in Pictou.  
[97] Employer Counsel reviewed Mr. Harroun’s resume with him. She explored the reason for  
its development, and its content. Counsel pointed out that Mr. Harroun had left the CME  
stint off his list of employers. When asked why, Mr. Harroun testified that it was “easier  
not to tell the whole story.”  
[98] Mr. Harroun testified about his understanding of the history of the shipyard over the  
years from WWII forward. Sometimes, he acknowledged, it was not run as a shipyard. For  
instance, Mr. Mansour ran a construction business, Partners Construction, from the  
facility at a time before Aecon took possession. He confirmed that the site had also been  
left vacant from time-to-time.  
[99] Mr. Harroun testified to the manner through which his employment with CME came to  
be. The witness and Employer Counsel differed in who approached whom did Mr.  
Harroun go to Mr. Mitchell, or the other way around? Mr. Harroun said that about six or  
ten people were hired very shortly after CME took possession of the property, he being  
one of them. He said that CME knew he was the Shop Steward before they hired him.  
[100] He was again taken through the events leading up to the termination meeting and the  
events of the meeting and what he did thereafter. He testified incorrectly that the date  
of the termination was June 5, 2021. On redirect he confirmed the correct date, July 5,  
2021.  
3. Ken McCormicks Evidence  
[101] Mr. McCormick testified that he is 65 years old and lives in Pictou County. He works with  
Comhar Inc., a company that provides “white collar services to shipyards in Canada and  
the United Kingdom.” Mr. McCormick described their work as providing “strategy and  
planning” services. He's been five years with the company and has worked on projects in  
Vancouver, Pictou, and Halifax.  
[102] Mr. McCormick also serves as CPFA general manager. This association assists fabrication  
and manufacturing employers across Canada. It is a not-for-profit organization which  
members are free to join or not. It is the CPFA that negotiates agreements with the UA.  
CPFA was founded in the early 1980s.  
[103] Mr. McCormick spent 11 years in Pictou and immediately before that worked in Halifax.  
He has a history of working in the shipbuilding industry starting in 1972. He described the  
history of his employment through a number of employers between 1972 and the  
present. He was originally hired by Aecon in 2001. He described Aecon as a company that  
has annual revenues with "lots of zeros." He described the relationship between Aecon  
and Fabco to create a joint venture "Aecon Fabco”, which was working out of the Pictou  
shipyard for a period of time. Eventually Fabco ended the joint venture and in 2006 or  
2007 Aecon took over the whole venture.  
[104] He described Aecon Fabco as a good fit, as both companies were interested in machining,  
marine work, pipeline, and steel structure work.  
[105] Mr. McCormick said that Aecon was quite busy, noting that their shipbuilding work was  
"alongside refits," meaning that the work was done while ships remained in the water.  
He said that there was about 100 employees at the time and that they worked on  
fabrication or shipbuilding, whatever was necessary to keep everyone employed. He said,  
"we could do it all."  
[106] Mr. McCormick testified that the move from Dartmouth to Pictou related to the Marine  
Railway. Although it was unusable at the time they arrived in Pictou, the plan was to  
"move up the food chain," meaning to go from alongside work to on-shore work. To do  
so, the marine railway was required.  
[107] Initially the move to Pictou was a six month “proof of concept.” The objective was to  
determine if there were people and skills and a sufficient management team to be able  
to get the work and be successful at it. Within six months, Aecon had confirmed the proof  
of concept and entered into a five-year lease of the Pictou Shipyard. They also negotiated  
a five-year renewal. Part of the work at the shipyard was to clean things up and to get the  
railway refurbished. He testified that Aecon spent approximately $7 million on the  
railway. In addition, Aecon spent money on a variety of other improvements including  
“Quonset huts," a gate house, and ventilation and maintenance work.  
[108] When asked if the Pictou shipyard was “a marine facility, a shipyard,” Mr. McCormick  
testified that “you don't spend $7 million [on a Marine slip] if not in the Marine business.”  
[109] Mr. McCormick testified that there was a considerable amount of equipment on site and  
it was used to it carry out their work, which included working on "vessels, barges, and  
dredges." He said they did all kinds of projects including building pipe, fibreglass pipe, and  
building a variety of barges.  
[110] When asked if the ship building was “incidental” to the main work, he said over his time  
in Pictou that was "clearly not the case." He said over the last five years of his time, there  
were about 20 vessels on site including naval tugs, minesweepers, Maersk supply ships,  
ships for Clearwater, and two ferriesthe Confederation, and the Holiday Island. Mr.  
McCormick noted that the work obtained at the shipyard by Aecon was typically based  
on competitive bids. He was aware that throughout his time there, Aecon competed  
against CME on a number of bids. He said sometimes CME won and other times Aecon  
was the successful bidder. On other occasions neither won, and the contracts went to  
others, including Irving Shipbuilding.  
[111] Mr. McCormick testified about the equipment at the shipyard, and as far as he knew the  
equipment remained after Aecon left, which he said CME would've had the benefit of  
when they took over the facility on June 1, 2021.  
[112] Mr. McCormick was asked why he left Aecon in 2016. He said that his mentor at Aecon  
had been killed in an automobile accident and so he left at age 60. He said he "left, shook  
hands and took his shares [in Aecon stock].”  
[113] During his tenure at the shipyard, he said, there were “welders, fitters, labourers, some  
painting, staging and subcontracted work.” He said most of the employees were  
interchangeable between vessel work and shop work. He described the various  
agreements referenced above and acknowledged that the CLRA agreement provided the  
rates of pay while the other agreements set the terms other than pay. He confirmed  
Aecon was bound by the series of agreements as the "collective agreement" with UA 56.  
[114] He testified that he was familiar with the people in Pictou running the enterprise for CME.  
[115] Mr. McCormick said he felt that Aecon left the Pictou Shipyard because with their lease  
running out there, Aecon had no desire to continue with the Marine project. He testified  
that but for shipbuilding and ship repair, there was no longer a need to be in Pictou and  
therefore Aecon was prepared to let the lease of the property go.  
[116] He described the Marine rail as "paramount" to the ship building and ship repair work  
carried out by Aecon under his leadership. He described the rebranding of the Pictou  
Shipyard as important because of the “one-hundred-year history” of shipbuilding in  
Pictou Harbour.  
[117] Mr. McCormick identified the “collective agreement documents” and the Aecon lease.  
[118] Employer counsel had Mr. McCormick confirm that the CPFA was not a registered  
corporate entity in Canada. She confirmed various corporate changes including name  
changes to Aecon, including Aecon Atlantic and Aecon Fabco. Mr. McCormick testified as  
to the various changes and provided a high-level description of the reasons for those  
changes.  
[119] Mr. McCormick spoke to various corporate documents, including the landing page for  
Aecon's website and financial statements from 2014 to 2021. He described Aecon as a  
large organization and noted that it was publicly traded, consequently the Pictou  
operations did not figure highly in the management discussion and analysis. In fact, they  
were barely mentioned at all in the financial reports.  
[120] Mr. McCormick described preparing the MISA documents and confirmed that he had  
negotiated the CPFA agreements over the years.  
[121] Mr. McCormick acknowledged the lease with Banc Properties and confirmed that  
equipment was included. He described that equipment as "old and sub-standard.” He  
testified that Aecon had brought in some new equipment.  
4. Brendon Fitzpatricks Evidence  
[122] Mr. Fitzpatrick testified that he worked for CME at the Pictou shipyard and worked at  
Aecon, starting as a steamfitter/pipefitter and working his way up to supervisor, then  
finally as facility manager after Mr. McCormick left in 2016. He testified that in the latter  
role he "knew what was going on and that [he] was the co-highest authority, local  
employee alongside Aileen Farrell.”  
[123] He testified that he attended the May 31, 2021 Zoom meeting. Arising from his  
participation in that meeting he agreed to let the Union know who was working at the  
facility after June 1, 2021. He testified that he was hired to work for CME for one month  
and was to be paid $40 an hour. On his first day, June 1, he set up his computer with a  
CME profile. At about 2 o'clock, Dean Mitchell advised him that his services would not be  
needed. He testified that he left that day and was not paid for this day’s work. He testified  
that he was never told why he was let go except for the phrase that, "his services would  
not be needed.”  
[124] Mr. Fitzpatrick testified to the work done by Aecon, the equipment they used and the  
equipment that had been left behind after Aecon terminated their lease. His evidence  
was no different than as provided by Mr. McCormick, Mr. Harroun, and Mr. Muise.  
Aecon’s work was fabrication and shipbuilding, the equipment used was as described  
above, and the skills and services of the employees were essentially the same under  
Aecon and CME.  
[125] Other than described above, Mr. Fitzpatrick's evidence was unremarkable.  
5. Jamey Nicholson’s Evidence  
[126] Mr. Nicholson testified on behalf of the Employer. He advised that he had come to be the  
manager at the CME-based facility in Pictou. He had been with CME for 16 years prior to  
coming to Pictou. He had worked in CME’s mechanical department, as a crane operator  
and worked his way up through various supervisory roles. He described the nature of  
CME's business and that he was at the meeting where Mr. Harroun was terminated.  
[127] Mr. Nicholson described the termination meeting as a very short meetingabout 10  
minutes long. He testified that the reason given for the termination was “due to the use  
of the cell phone and [Mr. Harroun] having told the Employer that he did not have a union  
cell phone" which, Mr. Nicholson said, “was not true.”  
[128] He described Mr. MacNeill's tone at the meeting as "normal" and said that Mr. Harroun  
was “belligerent.”  
[129] He said Mr. Harroun "couldn't believe it” and had “raised his voice.” He described Mr.  
Harroun as "very vocal” and "loud and agitated." He testified that Mr. Harroun said the  
decision was “bullshit.According to Mr. Nicholson, Mr. Harroun was told that if he didn't  
leave, the RCMP would be called. With that, Mr. Nicholson said, Mr. Harroun grabbed his  
lunch can and left.  
[130] Under cross-examination by Union Counsel, Mr. Nicholson confirmed his work with CME  
as largely in the shipbuilding and ship repair industry. He was unable to confirm who CME  
bid against for this type of work. He described the hiring process, and in particular the  
hiring of Mr. Harroun.  
[131] Mr. Nicholson confirmed that he knew that CME was aware that Aecon was a “union  
shop.”  
[132] Mr. Nicholson was asked if there were issues with Mr. Harroun’s work. He testified that  
Mr. Harroun was “showing his phone pictures and his new girlfriend.” He was asked to  
stop, whereupon Mr. Harroun put his phone away. Mr. Nicholson testified this was a  
verbal warning, and not reduced to writing, nor was any ‘investigation’ undertaken.  
[133] Mr. Nicholson testified that on July 5, 2021, he had been told by Mr. MacNeill that Mr.  
Harroun still had a union cell phone. Furthermore, he was told that Mr. Harroun had  
advised management that he returned the union cell phone. Mr. Nicholson and Mr.  
MacNeill communicated with Mr. Mitchell, who said "that's enough we will get rid of  
him.” Mr. Nicholson was questioned about Mr. MacNeill having said that Mr. Harroun had  
"used it during working hours” and that he had "admitted it.” Mr. Nicholson said that Mr.  
MacNeill hadn’t said "during working hours.”  
[134] According to Mr. Nicholson, the basis for knowing that Mr. Harroun had the Union cell  
phone was that Mr. MacNeil had called the union phone on five occasions on July 1, 2021.  
On the fifth occasion Mr. Harroun answered it and said “hello” and then Mr. MacNeill  
hung up.  
[135] Mr. Nicholson’s stated his belief as to why Mr. Harroun was terminated as:  
1. He had the Union phone, and  
2. He had lied about having gotten rid of it and for this reason Mr. Harroun couldn’t be  
trusted.  
[136] Mr. Nicholson confirmed that he was aware of the CME policy about progressive  
discipline, and of the Performance Improvement Plan section of the Employee’s  
Handbook (Tab 10 Employer’s Book of Exhibits).  
[137] Mr. Nicholson denied any anti-union animus held by CME or himself.  
6. Paul MacNeill’s Evidence  
[138] Mr. MacNeill testified that he is one of two Paul MacNeills at the Pictou shipyard. He is  
“Mechanic Paul” and the other is “Painter Paul.” Mr. MacNeil began at CME on June 1,  
2021 working as a supervisor. He had worked at Aecon for about five years in  
Maintenance for the facility and marine equipment.  
[139] Mr. MacNeill testified that he had never seen the UA constitution, nor had he made the  
UA “pledge” found a section 153 of the UA Constitution. He testified about his treatment  
by the Union relating to the abandoned claim of an unfair labour practice by the Union.  
[140] Mr. MacNeill was asked about his relationship with Mr. Harroun. He described it as  
"tolerable." During the Aecon days, Mr. Harroun did not report to Mr. MacNeill, however  
the reporting structure changed once CME took over the facility. Mr. MacNeill testified  
that it had been explained to Mr. Harroun that CME was not interested in the Union and  
that Mr. Harroun was asked to stop carrying the union cell phone. According to Mr.  
MacNeill, Mr. Harroun had assured him, over a couple of exchanges, that he no longer  
had the Union phone.  
[141] Mr. MacNeill testified that he called the union cell phone five times in a row, and on the  
fifth occasion Mr. Harroun answered, saying “hello”, after which Mr. MacNeill hung up. It  
was then that Mr. MacNeill knew Mr. Harroun still had the union cell phone and had been  
untruthful to him. Mr. MacNeill testified that "it was decided by management above me  
that they would not tolerate lying and a decision was made to terminate Mr. Harroun.”  
The termination was completed by Mr. MacNeill and Mr. Nicholson on July 5, 2021.  
[142] Mr. MacNeill testified that in the termination meeting, he accused Mr. Harroun of lying  
about the cell phone and told him that it was he that had called on July 1 when Mr.  
Harroun had answered. He described Mr. Harroun’s behaviours in the meeting as "yelling  
and screaming, shouting ‘bullshit’ and saying that it was not him on the phone.Mr.  
MacNeill said, "I know it was you, I know your voice.” According to Mr. McNeill there were  
lots of profanities and that Mr. Harroun had threatened Mr. MacNeill, saying "Pictou is a  
small town.”  
[143] Mr. MacNeill testified that it was he who had filed a Notice of Intervention in respect to  
the Union’s application to the Labour Board.  
[144] On cross-examination, Mr. MacNeill testified that he had participated in the Union’s Zoom  
meeting on May 31, 2021. He confirmed that the Union’s plan was to file for successor  
rights and also for certification if necessary. He also confirmed that he told CME  
Management, specifically Dean Mitchell, that Mr. Fitzpatrick had confirmed on that Zoom  
call that he would ‘keep the union informed’ about who had been hired by CME.  
[145] Mr. MacNeill testified that he had concerns about Mr. Harroun using the Union cell phone  
during working hours. He said Mr. Harroun had been showing pictures on the phone to  
other employees. Mr. MacNeill also confirmed that he had told Mr. Harroun to “get rid of  
the Union cell phone,” which he described as “friendly advice.” Mr. MacNeill testified that  
there were “no more issues” between June 10 and July 1, 2021 relating to the phone.  
[146] He said that on the morning of July 1, 2021, Painter Paul had told him that Mr. Harroun  
still had the Union phone. Mr. MacNeill testified that “he [Harroun] had lied to me,  
therefore I called until he answered.” The calls Mr. MacNeill made to the Union cell phone  
were placed mid-morning on July 1, 2021, the Canada Day holiday.  
[147] The fifth call Mr. MacNeill placed to the Union phone number on July 1 was answered  
with one word: “hello.” When asked if he could “swear it was Mr. Harroun on the phone,”  
Mr. MacNeill acknowledged that he could not. Mr. MacNeill said he had previously  
“ordered” Mr. Harroun to get rid of the phone, “because it was a Union phone.”  
[148] Mr. MacNeill confirmed that during the termination meeting, Mr. Harroun was not given  
an opportunity to provide explanations, if any, for his behaviours. It was clear, and  
consistent with the advice from Dean Mitchell to Mr. Nicholson, that the decision had  
been made to terminate his employment in advance of the meeting, in Mr. Mitchell’s  
words to Mr. Nicholson, “get rid of him.”  
[149] Finally, Mr. MacNeill testified as to the work of Aecon and CME at the facility. He named  
and described some of the vessels that Aecon had worked on during their occupation of  
the shipyard.  
7. Dean Mitchell’s Testimony  
[150] Mr. Mitchell testified that he is the Operations Manager at CME. His responsibility was  
for lining up work including bidding on tenders. He has worked at CME for 33 years as a  
mechanic, a supervisor, a Marine service services manager, and an operations manager.  
His responsibility is to keep the yards busy.  
[151] Mr. Mitchell met Mr. Harroun in advance of CME taking over the facility. He was aware  
that Mr. Harroun was the shop steward. On June 1, Mr. Harroun came for an interview  
and because of his past knowledge of the yard and his skills, a decision was made to hire  
him on a probationary basis for three months. Mr. Harroun was provided with the  
employee handbook and started work the next day.  
[152] Mr. Mitchell advised that he became aware that Mr. Harroun had the union cell phone  
because other employees had told him so. He testified it was of no concern that he had  
the union cell phone so long as it was not used on company time. Mr. Mitchell had been  
advised that Mr. Harroun had given up the union cell phone. It came to his attention that  
Mr. Harroun continued to hold the union cell phone, which caused him considerable  
concern, not because of the phone itself, but because of the dishonesty. As a result, Mr.  
Mitchell called Mr. Nicholson and asked him and Mr. MacNeill to dismiss Mr. Harroun.  
[153] Employer Counsel took Mr. Mitchell through a variety of questions relating to CME taking  
control of the shipyard property. In particular they reviewed the letter dated September  
10, 2021 from Rick Dunlop, legal counsel for Aecon, in response to questions from Union  
Counsel, found at Exhibit 1, Tab 8.  
[154] Mr. Mitchell confirmed there was no transfer of equipment, no jobs or contract on the  
books when CME began their lease, no written agreements between Aecon and CME, and  
there was no sharing of training or safety documentation. Mr. Mitchell testified that CME  
use their own documentation, bid on their own projects, and anyone hired was done so  
on a new contract of employment.  
[155] Asked about Mr. Harroun's termination and subsequent events, Mr. Mitchell confirmed  
that he had said he would "take a second look" at Mr. Harroun's circumstances.  
[156] Under cross-examination, Mr. Mitchell confirmed that CME is “adamantly non-union” but  
denied that he or CME would do whatever was necessary to keep a union out.  
[157] Mr. Mitchell said that Mr. Harroun was terminated, not because of holding the union  
phone, but because he was lying about it. When pressed about what difference it could  
possibly make that Mr. Harroun had lied about having the phone, Mr. Mitchell testified,  
“something this minute, he lied, he can’t be trusted.”  
[158] Mr. Mitchell testified about the equipment left behind, and that some equipment had  
been purchased by CME from Banc Properties. He was not sure of the price paid, but it  
was more than a couple of hundred thousand and less than one-half million dollars. He  
was not aware who CME bid against for marine work.  
8. Anthony “Tony” Kennedy  
[159] Mr. Kennedy is the president of CME and oversees the operations from coast to coast.  
CME has 10 locations across Canada. He started with the company as a welder/fitter doing  
ship repair and shipbuilding. He testified that in 1986 he became a company partner and  
the “ship repair manager.”  
[160] By the year 2000, CME was under his control and working in a number of shipyards across  
Canada.  
[161] Mr. Kennedy was aware that UA 56 was involved with the Pictou Shipyard when Aecon  
was the tenant. He had met Mr. Muise, briefly, six or seven years prior. By March 2021 he  
understood Aecon would be leaving and CME may have an opportunity to take over the  
facility. He testified that he had not been provided with the collective agreement for the  
Pictou Shipyard. He had not seen it recently.  
[162] The principal issues addressed by Mr. Kennedy's testimony related to the difference in  
work undertaken by Aecon and by CME. The gist of his evidence was that Aecon was not  
a member of a number of industry associations and CME was. The organizations included  
the Nova Scotia Boat Builders Association, the Canadian Ship Builders Association, the  
Canadian Ferry Operations Association and the Defence Industry Association. He was not  
aware that Aecon was competitive in the shipbuilders industry.  
[163] Mr. Kennedy testified that as of June 1, 2021, CME was starting to clean up the facility,  
working to get the marine rail re-certified, and seeking shipbuilding work. It was clear  
from his testimony that there was no work transferred from Aecon to CME. He was not  
aware who won or lost tenders except those on which CME bid, and in those cases he  
only knew if CME won or lost.  
[164] On cross examination, Mr. Kennedy testified that the Marine Railway was “purpose built”  
infrastructure and was a big part of why CME wanted to lease the Pictou shipyard facility.  
Much of the equipment and fixtures were also "purpose built" and very helpful to CME.  
[165] Mr. Kennedy testified that there were conversations between CME and UA 56. Ultimately  
no arrangement or agreement was reached between the two parties and Aecon ended  
their lease and CME leased the property from Banc Properties.  
V. ARGUMENTS  
[166] The gist of the successor rights question in this case is whether the assets at the shipyard  
constituted a “business” or the “operations thereof” or a part of either, and thus  
successor rights may apply. Alternatively, if they were a collection of idle assets, taken  
control of by another similar business wishing to use the assets to meet their market  
needs, all the while performing a like function to the first business, then the successor  
rights claim must fail.  
[167] Some businesses will expand their market reach by acquiring other businesses. Those are  
generally clear cases invoking successor rights. Other businesses will expand by building  
or expanding their own capacity through the acquisition of tools, machines, labour,  
capital, or other implements of business. In those instances, businesses will either secure  
the tools of commerce in the broader market, for instance by acquiring tools and  
equipment from their manufacturers and hiring new staff in the open market, or by  
acquiring some or all of the assets of a competitor. The commercial lawyer would describe  
the first case as a “share purchase” and the latter two as “asset” purchases.  
[168] Share purchases as noted are easy cases for successor rights. Asset purchases, like share  
deals, are sometimes straightforward cases of successor rights, when the seller and buyer  
agree to the transfer of all or substantially all of the assets of the vendor to the purchaser.  
These agreements often have characteristics requiring non-competition by the seller, or  
transfers of business names, trademarks, and other forms of good will.  
[169] It is in the third type of case where a line-drawing exercise is generally required. When  
the acquiring business obtains some smaller part of a predecessor’s assets, directly or  
indirectly, the acquiring party may or may not be found to be subject to successor rights  
and as a successor business.  
[170] It is the distinction between these two types of asset transfer cases where Boards are  
called upon to adjudicate. These are the hard cases. This is one such case.  
A. The Union’s Arguments  
[171] On successor rights, the Union argues that the transfer of the shipbuilding business at  
Pictou Shipyard is captured by s. 31 of the Trade Union Act. They claim the three elements  
required have been proved.  
[172] They say they have demonstrated through cogent evidence that there has been a transfer  
of a business or the operations thereof, or in this case, a part of either of them, and it has  
been demonstrated that Aecon, the (transferor) employer, is a party to and bound by a  
collective agreement with UA 56 (See s. 31(1) of the Act).  
[173] The gist of the argument is that Aecon had a shipbuilding business at the Pictou Shipyard.  
That business transferred to CME through a surrender of a lease, and a new lease to CME.  
The same equipment at the same location was used by CME to do the same work Aecon  
did: building, repairing and retrofitting ships. They claimed they demonstrated that the  
work of Aecon was shipbuilding and that it is also CME’s work.  
[174] The Union’s argument in relation to the Unfair Labour Practice is a claim that Mr. Harroun  
was dismissed:  
-because of his membership in the Union, contrary to section 53(3)(a)(i);  
-because he had “participated in a proceeding” under the Act contrary to section  
53(3)(a)(iii) of the Act. The proceeding would either be participation in filing the  
application for a declaration of successorship, or his prospective testimony in the  
matters currently before the Board;  
-in a manner that through intimidation, threat of dismissal, or any other kind of  
threat sought to compel a person to refrain from or to cease to be a member of a  
trade union contrary to s. 53(3)(e); and  
-in a manner that interfered with the formation or administration of a trade union  
contrary to s. 53(1)(a) of the Act.  
[175] The Union furthermore claims that once the Union has demonstrated that it is reasonable  
to believe that the Employer failed to comply with s. 53(3)(a), the Employer bears the  
burden of the reverse onus in s. 56(3) to prove on the balance of probabilities that there  
was no such failure by the Employer, and that the Employer failed to meet that burden.  
B. The Employer’s Argument  
[176] The Employer said that there was no transfer of a business, merely a surrender by Aecon  
of their lease on the Pictou Shipyard to the lawful owner, Banc Properties. What Banc  
Properties did with their lands after Aecon left was entirely Banc Properties’ business. The  
lease to CME, even though only one day later, was not a transfer of a business.  
[177] CME said that the fact that CME used the property for its purposes, which included some  
work similar to what Aecon had been doing, was not a transfer of a business or part  
thereof, but rather was CME taking up some idle assets, which they employed for their  
preexisting business.  
[178] They claim to have established that there was no transfer of customers or ongoing work,  
nor of intellectual property or systems, and no continuity of any employees because  
everyone was dismissed from Aecon, and CME had their own hiring process. The fact that  
some overlap occurred in the names of the employees is entirely on account of the  
somewhat limited group of skilled employees in the Pictou County area. There was a  
break in employment for any of those former Aecon employees who became CME new  
hires.  
[179] CME said there was no transfer of assets of any kind between Aecon and CME. The only  
cooperation was that Aecon let CME on the site before CME’s lease started so they could  
see what was there, just as any departing tenant might do.  
[180] CME said they and Aecon were in different businesses, or to a limited extent, perhaps,  
competitors. They said in the absence of a transfer of anything, there can be no  
successorship.  
[181] As to the Unfair Labour Practice complaint, CME said that the initial burden is on the  
Union to demonstrate that anti-union animus was a factor in the termination of Mr.  
Harroun. Only if that burden is met is the Employer called upon to demonstrate on the  
balance of probabilities that anti-union animus was not a “significant factor” (see Vice  
Chair Ashley’s comments in SEIU, Local 2, Brewery, General and Professional Workers’  
Union and Hebron Hospitality Group Inc., Re, 2018 NSLB 77 at paragraph 34).  
[182] According to CME, the factors to be considered by a Board dealing with an anti-union  
animus termination are:  
1. Existence of a pattern of anti-union activity;  
2. The knowledge of union activity and the employee’s involvement therein;  
3. The manner of discharge; and  
4. Witness credibility.  
[183] CME claimed there was no pattern of anti-union activity, and no advantage to the  
Employer vis-a-vis the Union by the dismissal. They said that the manner of dismissal was  
consistent with Employer practices, and the credibility factor runs against the Union as  
Mr. Harroun was demonstrated to be untruthful on other matters and should not be  
believed on the manner of termination.  
[184] The Employer said that if they truly had an anti-union animus, they would not have hired  
Mr. Harroun in the first place as they knew he was an Aecon Shop Steward. They also  
argued that if they were anti-union, they would not have offered a draft collective  
agreement to the Union as they did.  
[185] CME says there was no “actual interference” with the Union proved as is required by the  
authorities (see Amalgamated Transit Union Local 508 v. Zinck’s Bus Company Limited,  
1994 17662 (NS LRB), “Zinck’s Bus”).  
[186] CME also says the reason for termination of Mr. Harroun was not his union participation,  
but the work ethic, his dishonesty, and his violation of workplace policies. They also claim  
that there is no evidence to demonstrate the Employer held an anti-union animus, and  
no evidence of any intimidation, threat or otherwise sufficient to allow the Board to make  
a balance of probability finding against the Employer under s. 53(3)(e).  
[187] To the Union’s claim that the Employer interfered with the formation or administration  
the Union, contrary to s. 53(1)(a) of the Act, the Employer says that, absent the egregious  
conduct referenced in the cases cited by the Nova Scotia Labour Board in IUOE, Local 721B  
v. National Gypsum (Canada) Limited, 2018 NSLB 50, the Union needs to demonstrate  
proof of interference.  
[188] The Employer argued that the Board should dismiss the claim for successorship and also  
the claim of an Unfair Labour Practice.  
VI. ANALYSIS  
A. ISSUE 1 Did the Union demonstrate on the balance of probabilities that CME is a successor  
to Aecon in accordance with the provisions of s. 31 of the Act.  
[189] There are a multitude of cases involving Labour Boards throughout Canada that consider  
the issues of successor rights. The cases speak to the purpose of successor rights  
legislation, how it should be interpreted, the implications of the manner of transfer, what  
is certified, and also discuss principles of the continuity of the business as something  
‘transferred’ from a predecessor to the successor. These principles are not controversial  
and are outlined above.  
1. Categories of Successorship cases  
[190] The cases are clear; there must be a ‘transfer’ of a ‘business.’ And, a business is more than  
a collection of surplus assets; a business has ongoing characteristics, it has a dynamic  
quality, it is a ‘going concern’ and is ‘carried on’ (see Metropolitan Parking at paragraph  
30; and Atlantic Meatpackers at paragraphs 8 and 9). One ought to be able to trace the  
“life-blood” of the business from predecessor to successor, although that may not be a  
direct route; it might involve an intermediary.  
[191] The analysis of cases falls into various categories, which are often combined or  
intermingled. For instance, some cases are “location” cases, others “common corporate  
control” cases. Some are “asset transfer” cases, others “know how” or “key person” cases.  
Some contain elements of several categories.  
[192] The cases have frequently been discussed by arbitrators in relation to the type of business  
transferred. Arbitrators have noted that some factors will impact analysis of certain types  
of businesses more than in others. For instance, grocery store cases and hotel cases (see  
HERE, Local 75 v Accomodex Franchise Management Inc., [1993] OLRB Rep 281  
("Accomodex") typically have a strong emphasis on the importance of location and  
purpose, while other cases have greater focus on “goodwill” transferred or not, or other  
factors such the transfer of trade names, or logos or “brand”. In some cases, the analysis  
reflects more on the types of customers, or the type of assets transferred.  
[193] For example, in the Zellers case (see also Adams at 8:2, p. 9), Zellers locations were taken  
up by the United States retailer, Target. The Union in that case alleged Target was a  
successor company because they had acquired many of Zellers’ physical locations. Target,  
in its approach to the marketplace, sought to distinguish itself from the Zellers “brand”  
and brought its own business model, systems and know-how to the locations.  
[194] Target was already successful as a business operating in the United States and entered  
into the Canadian market by acquisition of Zellers’ leases. The result was that despite  
some transfer of business information, and Zellers leaving the market altogether, the  
distinction between brands and systems was sufficient so as not to constitute a transfer  
of a business for successor rights purposes. Despite the similarities, Target ran a different  
business to that of Zellers.  
[195] We have considered the various cases supplied by the parties and in some instances the  
cases referenced in those cases. Each has characteristics that help to identify if a  
“transfer” of a “business” has taken place. Different businesses have different  
characteristics, therefore Boards have emphasized or weighted various factors  
differently. To be clear there is no “bright line” rule that divides the cases neatly. Boards  
are called upon to balance the various interests, the purpose of successor rights  
legislation, the Union’s rights, the Employer’s rights, their respective duties, all in the  
context of the individual case.  
[196] In each instance, the question is whether there is a continuity of the business, or a transfer  
of a “going concern” or alternatively is it a case where one enterprise ceased operations,  
and anothera competitorcame in and began or expanded their operations at a pre-  
existing, but purpose-built facility.  
[197] This case turns on the Board’s conclusion that there was not a transfer of a “business,”  
rather there was a successor lessee of a property used as a shipyard that included some  
fixtures and equipment. In this case, one business, Aecon, left the shipbuilding industry  
and another, CME, a former competitor, continued its ongoing and successful business  
from the same facility left by Aecon. CME, with several locations across Canada, continued  
at this new-to-them location, and did so by acquiring a desirable and purpose-built site  
including fixtures and equipment belonging to the lessor, Banc Properties.  
[198] The Board has concluded that a reasonable person with sufficient business expertise  
looking at what actually transpired in this case would be unlikely to come to the  
conclusion that CME is a successor to Aecon. This is so because the factors simply do not  
establish successorship as provided for in the Trade Union Act. There was no transfer of  
goodwill, customers, or ongoing work. All the employees of Aecon were either dismissed  
or went to other Aecon facilities. Although there is overlap in the employee list, that  
would be expected as CME required employees with trades and skills similar to those  
required by Aecon. It is in the nature of the work at a shipyard that welders and fitters  
are going to be required.  
[199] There was no transfer of “know-how” or “systems”, such as Occupational Health and  
Safety systems. There was no evidence of any transfer of licenses.  
[200] Before turning to the analysis of considerations or factors found in the authorities, we will  
review various “types of business” categories and explain why, in each instance, the  
instant case is distinguishable.  
a) Grocery Store Cases  
[201] The Union relied on several grocery cases, in particular two Gordons Markets cases:  
C.F.A.W., Local 175 v. Gordons Markets, 1978 CarswellOnt 1170 (O.L.R.B.) (“C.F.A.W.”)  
and Gordons Markets Ltd. v. Retail Clerks' Union, Local 206, 1978 CarswellOnt 1070  
(O.L.R.B.) (“Retail Clerks’ Union”). In these cases, Loblaws operated grocery stores in  
Chatham Ontario.  
[202] In the first case, C.F.A.W, Loblaws held a closing out sale in October of 1977 and  
afterwards closed the store and removed the equipment. In March of 1978 Zehrmart  
Limited began renovations on the site, adding to the size of the premises and entered into  
a new lease with Kmart Canada, the landlord. In May, Zehrmart opened for business,  
selling groceries.  
[203] Zehrmart’s majority shareholder is Loblaws. There was a “corporate relationship”  
between Loblaws and Zehrmart; both were controlled and a part of the Weston Group of  
Companies. They had overlapping directors on their respective boards. There were  
discussions between the predecessor tenant and the landlord over arranging a “lapse” in  
the surrender of the premises and the successors lease commencement. This was said to  
be “to do with labour problems.”  
[204] The Board acknowledged that in the retail food business location of the premises is a  
significant factor in conserving the sale of a business (paragraph 32). They also noted that  
based on the purposes of successorship legislation,  
The lack of direct contact or transfer between predecessor and successor employers  
will not in itself defeat an application under section 55 [our s.31]. This is particularly  
true where two corporations within a common corporate organization are involved.  
[205] The facts are similar in the second Gordons case, Retail Clerks’ Union. That case involved  
a surrender of a lease, a one-day gap and a new lease by an affiliated company. Again the  
players were Loblaws and Zehermart. In the result, the Board wrote at paragraph 25:  
Part of Loblaws' business may be defined by the nature of the lease arrangement it  
had with Cambridge. The Board agrees with the submissions of counsel for the union  
that in most of its significant elements, Cambridge plugged Gordons into the old lease  
arrangement. Although there were some alterations in the lease, the situation looks  
more like one where Zehrmart simply took over Loblaws' old lease rather than  
entered an entirely independent lease arrangement of its own. We note for example  
that the lease runs for a time equivalent to the remaining term of the original lease  
with Loblaws; it establishes the same rent and in each case the premises could be  
used only as a supermarket. The continuity of the two transactions is further marked  
by their precise timing; the surrender took effect on September 30th, the new lease  
took effect on October 1st and each aspect of the arrangement was conditional on,  
rather than independent of, the other.  
(our emphasis)  
[206] Aside from the close corporate connection, there are several factors in these grocery  
cases that leads one at first blush to see them as analogous to this case. Principally, the  
same work is being done in the same location by the same or similarly qualified  
employees, a feature found in this case.  
[207] The clearly distinguishing features are two. First, the grocery store business is one without  
a customer order book or customer lists which can be transferred to a purchaser. In other  
words, there is no ongoing work to transfer. The second distinguishing factor is the  
importance of location of the supermarket. As was noted in Retail Clerks’ Union at  
paragraph 21 quoting from Dutch Boy Food Markets:  
…the very nature of a retail food business, with the exception of the name, a vendor  
has no goodwill which he can effectively give or withhold from a purchaser. The  
success of a food supermarket is dependent on large measure, upon the support of  
the people who live in the area in which the store is located.  
[208] Although there was but one day between Aecon leaving and CME coming onto the  
property, and there was considerable equipment and fixtures left behind and similarity  
between the two leases, up until Aecon left the Shipyard, the weight of the evidence  
discloses that CME and Aecon were competitors, both bidding on the same tenders and  
projects within the marine industry. There certainly was not a close corporate connection  
or association, quite the opposite.  
[209] Shipbuilding has customer lists, project contracts, and ongoing relationships, which in  
appropriate circumstances, along with other “assets”, constitute a “business” or a going  
concern. These assets are the “goodwill” which in part make a sale valuable. Aecon did  
not gain (nor lose) from giving up its lease and having CME come in. Banc Properties may  
have done so, but that is not relevant to the transfer question under s. 31 of the Act.  
[210] Location was, by any consideration, important in this case, but unlike grocery store cases,  
the location was important only because it was a) on the Pictou Harbour, and b)  
accompanied by a functioning marine railway, paramount to shipbuilding. Any business  
willing to pay market rates for the site, would be doing so due to the marine railway.  
b) Theatre Cases  
[211] The theatre cases include Lyric Theatre. In Lyric Theatre, a Vancouver movie theatre shut  
down due to financial difficulties, and after a fourteen-month hiatus it was purchased,  
and the Lyric Theatre came to be. Lyric spent considerable sums to refurbish the property.  
[212] The Canadian Labour Relations Board noted that projectionists working at the Lyric  
Theatre would be doing the same work, in the same location, likely on the same  
equipment. According to the Board, that was not enough for a finding of successor rights.  
The Board referenced Kelly Douglas and at paragraph six of their decision wrote:  
Undoubtedly there are some prior British Columbia decisions which have focussed  
on the phrase "the employees may find themselves still working at the same plant,  
at the same machine, under the same working conditions but for a different  
employer". (Kelly Douglas [1974] 1 Can. LRBR 77 at 81). That is a strong and simple  
phrase, but it was posed as the answer to a very different situation one in which  
existing employees come in one morning to find that overnight a corporate shuffle  
has dealt them a different employer. By no stretch of the imagination is this the same  
case. If the phrase is now taken as meaning that a union which is once certified for  
an employee in a building at a machine is forever certified to that building or  
machine, then it has been taken too far.  
(Our emphasis)  
[213] The Board found that the Lyric Theatre was not a successor. To come to that conclusion,  
they carefully examined the various factors appropriate in the circumstances. The Board  
considered the factors referenced in Amalgamated Meat Cutters & Butcher Workmen of  
North America v. Culverhouse Foods Ltd. 1976 CarswellOnt 708 (“Culverhouse Foods”),  
quoting at length from paragraph 16 of that case:  
…the cases offer a countless variety of factors which might assist the Board in its  
analysis, among other possibilities the presence or absence of the sale or actual  
transfer of goodwill, a logo or trademark, customer lists, accounts receivable, existing  
contracts, inventory, covenants not to compete, covenants to maintain a good name  
until closing or any other obligations to assist the successor in being able to  
effectively carry on the business may fruitfully be considered by the Board in deciding  
whether there is a continuation of the business. Additionally, the Board has found it  
helpful to look at whether or not a number of the same employees have continued  
to work for the successor and whether or not they are performing the same skills.  
The existence or non-existence of a hiatus in production as well as the service or lack  
of service of the customers of the predecessor have also been given weight.  
(as found in paragraph 7 of Lyric Theatre)  
[214] In Lyric Theatre, the Board’s decision largely turned on the hiatus in production. That gap  
was a significant factor, and not one present in the instant case. Nevertheless, in Lyric  
Theatre, the Board restated the factors to consider. In this case, there was no transfer of  
anything except the right to access of the property, and that was abandoned by Aecon to  
the owner, and then taken up by CME from that same owner, Banc Properties.  
[215] Another Theatre case came to an opposite conclusion: Town Cinema Theatres (1975) Ltd.  
v. Alberta Projectionists and Video Technicians Local 302, (IATSE) 1996 CarsewellAlta 1714  
(Alta. L.R.B.). In that case, Cineplex Odeon had a ten-year lease over the Millwoods Drive-  
in. At the end of the lease, the property reverted back to the owner, Towne Cinema.  
[216] The next spring, Towne Cinema opened the Drive-in, under their name, using the lands  
and equipment that belonged to them, and had so belonged prior to the Cineplex lease.  
Applying a “large and liberal” interpretation of the successorship legislation, the Board  
found that Towne was the successor to Cineplex. The Board relying on another similar  
case, H.J.M. Investments Ltd. v. Alberta Projectionists, Local 302 (1982), 22 Alta. L.R. (2d)  
165, 39 A.R. 515 (Alta. Q.B.), concluded that the surrender of the lease was a “disposition”  
and a trigger to the successorship legislation.  
[217] While we understand the Union’s reliance on this case, and the obvious analogous  
elements, in particular the movie theatre equipment being similar to the marine slip, this  
Board sees as a distinguishing factor that similar to the Grocery cases, Drive-in theatres  
have no customer lists to transfer. The theatre business is more akin to grocery stores  
than a shipyard. The “contract” with the customers are very short lived, not extensive  
longer-term arrangements such as is required for a retrofit of a ship. The shipyard obtains  
customers through bids or tenders, while the drive-in sells tickets for one night’s  
showings.  
[218] Lastly, although the Drive-in “business” was under new ownership, no customers would  
notice. Dissimilarly to theatre cases, and to paraphrase the comment in Lyric Theatre, a  
shipyard is not a business “… in which existing customers would come in” and wouldn’t  
notice any difference.  
c) Bar/Pub Cases  
[219] The Union provided the Katsuras case (International Beverage Dispensers' & Bartenders  
Union, Local 280 v. Katsuras 1987 CarswellOnt 1276) in which Katsuras bought a tavern  
from a ‘mortgagee in possession’.  
[220] The Union relied on this case in support of their position that having an intermediary  
between the predecessor and the new owners is not a bar to successor rights in and of  
itself. This case provides for an interesting view on where the line might be drawn  
between transfer of a business and a subsequent owner of idle assets.  
[221] In Katsuras, the predecessor was M&M Edwards Equities, which after failing to meet its  
mortgage commitments was stripped of its interests in the tavern. The mortgagee in  
possession shut it down and commenced the sale process. The interesting factor in this  
case is that Katsuras, as a condition of purchase, required a provision that sought to keep  
the M&M Edwards liquor license in place. The Board noted:  
Mr. Katsuras also conceded that he bought the premises for the purpose of operating  
a drinking establishment and that he could not do so without a licence. We note that  
subsequent events demonstrated that it was not just a liquor licence that was of  
value to Mr. Katsuras, but the particular licence he obtained as a result of the sale.  
(Our emphasis)  
[222] Included in the sale was a specific asset instrumental to the going concern analysis,  
namely the liquor license. The Board quoted from Culverhouse Foods, “in each case, the  
decisive question is where or not there is a continuation of the business.Culverhouse  
concluded that it is the nature of the business, not a continuum in time that matters.  
[223] The distinction of Katsuras from this case is the importance in Katsuras of the  
continuation of the singularly important asset, the liquor license. And in the absence of  
customer lists or long-lasting projects, like the grocery and theatre cases, there is little  
else to the business but for the location of the property, and the license. In the instant  
case, the location is irrelevant, rather the critical pieces are the appurtenances to the  
property, the Pictou Harbour and the marine railway.  
[224] There was also an agreement of purchase and sale between the mortgagee in possession,  
standing in the place of the bankrupt, and the purchaser Katsuras.  
d. Hotel Cases  
[225] Accomodex is a case involving the transfer of a Toronto hotel. Virtually all the assets were  
transferred. The purported successor said it was merely a collection of assets that was  
transferred. The case noted that commercial lawyers know all too well that the transfer  
of assets can be a transfer of a business. Labour Boards recognize this too.  
[226] As the Board in that case wrote: “…Kelloryn acquired the land, building and all of its  
contents, which included fixtures, furniture, kitchen and dining room equipment, laundry  
equipment, telephone equipment, linens and other laundry and housekeeping  
supplies…”. This amounted to all the assets except a few that had been seized by  
creditors. The Board noted that the “business and the nature of the work" remained the  
same including rental of guest rooms, conference and meeting rooms, and running  
dining facilities.  
[227] In Accomodex, there was an Agreement of Purchase and Sale, confirming the sale of  
assets including: lands, buildings and structures, fixtures, attachments, machinery,  
equipment, furniture, appliances and other tangible personal property. The Agreement  
excepted trade names and trademarks. The Board was of no doubt that the successor was  
taking ownership of an “economic vehicle.”  
[228] Accomodex is an example of a case where a successor may not see themselves as buying  
a business but nevertheless, they are deemed a successor by the Labour Board. In that  
case, to the Ontario Labour Relations Board, this configuration of the assets purchased  
was clearly the “business” of the former Skyline Triumph Hotel.  
[229] Our case differs in that there was at best a transfer of the control of the assets on site;  
the ownership was and remained with the property owner, Banc Properties, and formed  
part of the lease between Banc and Aecon, and later, Banc and CME.  
[230] We find that in our case there was no transfer of an “economic vehicle.”  
d) Meat Cases  
[231] Two cases came before the Board involving manufacturing of meat products. United Food  
& Commercial Workers, Local 175 v Pavao Meats Wholesale & Retail Ltd, 2016  
45355 (ON LRB) (“Pavao Meats”), an Ontario case, and Atlantic Meatpackers, from the  
Nova Scotia Labour Board.  
[232] The Atlantic Meatpackers case resulted in a dismissal of a successorship application by  
the Board. The principal reasons were that there was no “throbbing heart” of the  
predecessor business transferred, rather it was a facility that had changed its purpose  
through a considerable investment of time and money. The plant was converted from a  
hog processing facility to a poultry facility over a fifteen-month process.  
[233] Relying heavily on the Metropolitan Parking case, the Board concluded that the purported  
successor acquired land and buildings, but no equipment, no customer lists, and no  
goodwill. They did not hire any employees from the predecessor and spent between $30  
and $40 million on renovations. There was a fifteen-month hiatus and a change in  
purpose. All these factors combined to remove the “dynamic quality which distinguishes  
an idea collection of surplus assets from an actual, severable and coherent part of a going  
machine.”  
[234] Pavao Meats had the opposite result. In that 2016 case, Pavao purchased much of the  
business operations of the predecessor company, European Quality Meats. The transfer  
involved an intermediary, a trustee in bankruptcy. Pavao purchased locations, inventory,  
“famous recipes,” frozen already produced packaged meats, packaging and materials.  
[235] While not quite all the assets, the Board concluded that, “it is difficult not to conclude  
that Pavao bought a business. It bought almost everything that was at the Jutland location  
that had been used to make and sell meat less than two months before the sale.”  
[236] The interesting point of comparison between Pavao Meats and the instant case is that  
Pavao argued that it was buying assets to expand its business rather than buying the  
business through a share purchase agreement. The alternative to an asset purchase is  
what business lawyers would call a “tuck in” business, one that is a going concern but that  
gets “tucked in” to the existing business to make the combined business more  
competitive. The question for the Board in Pavao was whether they bought idle assets or  
whether those assets “constituted a business”. The Board in Pavao concluded that they  
bought a business. There were several reasons, including the extent of the assets  
purchased and the subsequent use by the purchasers of trademark language and styling  
of signage.  
[237] This Board, based on the facts before us in this case, concludes otherwise. CME was  
expanding its ability to compete by leasing property on Pictou Harbour that had a working  
marine slip. CME did not buy Aecon’s working business as Aecon had decided to leave  
that business well before CME took an interest in the site. Aecon had nothing to sell.  
[238] What was transferred in the instant case lacked the “dynamic quality which distinguishes  
an idle collection of surplus assets from an active, several and coherent part of a going  
concern” (see Metropolitan Parking at paragraph 33).  
e) The Nova Scotia Authorities  
[239] The Atlantic Meatpackers case is a Nova Scotia authority, but one of the leading cases in  
the Province is Precision Flooring (United Brotherhood of Carpenters & Joiners of America,  
Local 2004 v. Precision Floor and Roof Truss Limited, 1998 28794 (NS LRB)). In that  
case, Vice-Chair Ashley considered the factors and recognized that there were certain  
factors prevalent in the case that led to the conclusion of successorship. In Precision  
Flooring there was transfer of work-in-progress, inventory, equipment, continuation of  
supplier accounts and phone numbers and use of both business names on the CEO’s  
calling card. On those facts it would be hard not to find successorship.  
2. Factors Relevant to Successorship:  
[240] We now review the relevant factors to successorship from the cases.  
[241] The Union relied on the Precision Floor case in referencing the principles Boards should  
consider in their analysis of successorship.  
[242] First and foremost, a Board must keep in mind that the critical question is “whether there  
is a transfer of a business or a definable part of the economic functions formerly  
performed by the predecessor [Employer] (emphasis added)” — or as it was referenced  
in Accomodex at paragraph 66, a “coherent and severable ‘part’ of its economic  
organization.”  
[243] In the instant case, Aecon, the purported predecessor, is a very large, Toronto Stock  
Exchange listed company with many divisions and revenues in the billions of dollars. The  
Pictou Shipyard was but one small part of Aecon’s economic activity, but nevertheless  
could form a “definable part” of Aecon’s economic activity. In the right circumstances,  
the shipyard activity could form a “business” capable of transfer.  
[244] The factors applied in analyzing if there has been a transfer of a business include:  
-Goodwill  
-Logo or Trademarks  
-Customer Lists  
-Accounts Receivable, Existing Contracts, Inventory  
-Covenant to maintain good name, or not to compete  
-Same work and Same employees  
-Hiatus in production  
-Services (or lack thereof) to former customers  
-Contact between Vendor and Purchaser  
-Arm’s length between Vendor and Purchaser  
[245] This Board considered each of these factors:  
1. Goodwill Any goodwill associated with Aecon’s shipbuilding interests would  
have been associated with the physical location of the shipyard. In this instance  
we do not conclude there was any goodwill transferred, as CME had its own pre-  
existing successful business and was simply interested in the shipyard’s purpose-  
built assets, the marine rail and fabrication buildings.  
2. Logo or Trademarks there is no evidence of any transfer, directly or through  
an intermediary of any intellectual property in trademarks, logos, or systems.  
3. Customer Lists customer lists are a strong indicator of successorship. When  
one company leaves and another comes in and relies on transferred existing  
customers of the predecessor, especially in the presence of non-compete  
provisions, successorship is almost axiomatic.  
In this case, there was no transfer of customer lists, work-on-order, or work-in-  
progress. CME came in on June 1, 2021 and started to build its work. There was  
no evidence they relied on any work won by or partly completed by Aecon.  
4. Accounts Receivable, Existing Contracts, Inventory there was no evidence of  
transfer of any Accounts Receivable, nor of any existing contracts. There was  
evidence of inventory left behind by Aecon, particularly “consumables” which we  
understand to be welding gasses and similar items. However, this is not a strong  
factor directing towards successorship.  
5. Covenant to maintain good name, or not to compete no such covenants were  
in evidence. We have no evidence of any covenants not to compete, nor of any  
other nature, between Aecon and CMC.  
6. Same work and same employees this factor must be examined with great  
care. As noted above, some of the Aecon employees were hired by CME. None  
were “transferred,meaning without a break in employment. To be clear, the  
evidence is that all employees that ultimately worked for both companies were  
first terminated by Aecon on or before May 31, 2021, and then went through the  
CME hiring process.  
The Board heard that the pool of skilled employees in Pictou County would  
certainly impact the number of overlapping employees. Thus, the Board was not  
surprised to hear evidence of some overlap between the skilled labour employed  
formerly with Aecon and latterly with CME.  
7. Hiatus in production often this is an important factor for consideration; the  
longer the hiatus the less likely it is that a business transfer took place. In this case,  
CME came in the day after Aecon left. However, that is deceiving. CME came on  
site, but with no work. Their real hiatus was as long as it took them to obtain  
orders and commence the work or to transfer work from their other locations.  
Clearly, there was little hiatus in the timing of the occupation of the lands but  
there was some hiatus in production. The evidence we heard was that the first  
jobs on CME’s site were to clean up and ready the facility for orders yet to be  
received.  
8. Services (or lack thereof) to former customers we have no evidence of any  
services to former customers because they were former customers of Aecon. While  
there may be ‘overlap’ in the customers of the two companies, the Board  
considers that to be as a result of the relatively small pool of customers in the  
marine industry. When one provides a fairly specialized service, the extent of the  
customer base is likewise limited.  
9. Contact between Vendor and Purchaser the evidence leads us to conclude  
that shortly before Aecon left the site and CME came on-site, senior leadership  
from CME was on-site and was “shown around” by Aecon. Although there appears  
to have been brief discussions, there were no agreements between the two  
companies, nor is there any evidence that the intermediary acted as a go-  
between, surreptitious or otherwise.  
In short, this does not appear to be a situation where there was collusion between  
the vacating party and the new occupier, rather it appears that Aecon decided to  
get out of the business, and that created the opportunity for CME to take control  
of a desirable site.  
10. Arm’s length between Vendor and Purchaser the two parties, alleged  
predecessor and purported successor, were competitors in the marine service  
industry. They may no longer be so, but that is because Aecon left the industry. In  
effect, Aecon abandoned their experiment in the marine industry. The  
competitive relationship between Aecon and CME is a strong indicator of arm’s  
length or a lack of common control as found in the Gordons Market cases  
(C.F.A.W. and Retail Clerks’ Union).  
f) Conclusion on Issue 1  
[246] While there are many factors that appear to point the Union towards a conclusion of  
successorship, we are not persuaded that in fact there was a transfer of a business within  
the meaning of s. 31 of the Act.  
[247] For these reasons, the application for a declaration of successorship is denied.  
B. ISSUE 2 Did the Employer refuse to continue to employ or otherwise discriminate against  
Mr. Harroun due to his membership in a trade union contrary to s. 53 of the Act and thereby  
commit an unfair labour practice?  
[248] The Union claimed that CME had committed an unfair labour practice in that it failed to  
continue to employ Mr. Harroun because he was involved in the Union.  
[249] Section 53 of the Trade Union Act provides:  
53(1) No employer and no person acting on behalf of an employer  
shall  
(a) participate in or interfere with the formation or administration  
of a trade union or the representation of employees by a trade union; or  
(b) contribute financial or other support to a trade union.  
53(3) No employer and no person acting on behalf of an employer shall  
(a) refuse to employ or to continue to employ any person or otherwise  
discriminate against any person in regard to employment or any term or  
condition of employment, because the person  
(i) is or was a member of a trade union,  
(ii) has been expelled or suspended from membership in a trade  
union for a reason other than a failure to pay the periodic dues,  
assessments and initiation fees uniformly required to be paid by all  
members of the trade union as a condition of acquiring or retaining  
membership in the trade union,  
(iii) has testified or otherwise participated or may testify or  
otherwise participate in a proceeding under this Act,  
(iv) has made or is about to make a disclosure that he may be  
required to make in a proceeding under this Act,  
(v) has made an application or filed a complaint under this Act,  
(vi) has participated in a strike that is not prohibited by this Act or  
exercised any right under this Act;  
56(3) Where the complainant establishes that it is reasonable to believe that there  
may have been failure by an employer or any person acting on behalf of an employer  
to comply with clause (a) of subsection (3) of Section 53, the burden of proving there  
is no failure shall be upon the employer or the person acting on behalf of the  
employer.  
(emphasis added)  
[250] The Act provides for a reverse onus in the event a complainant “establishes that it is  
reasonable to believe” there has been a violation of the complaints protections under s.  
53(3)(a) of the Act.  
a) Analysis  
[251] The Union argued that the Employer failed to honour the prescription not to dismiss an  
employee due to union membership or participation in a proceeding under the Act.  
Particularly, they claim the Employer dismissed Mr. Harroun due to his membership in UA  
56 or due to his participation in the matters before this Board relating to Successor Rights  
and Certification.  
[252] The Employer argued that they are permitted to dismiss Mr. Harroun for cause. They  
claimed the cause was his lying to the Employer about the Union cell phone, using the  
phone contrary to policy, and also that he was a poor employee, in that he had a poor  
work ethic.  
[253] The Trade Union Act provides that employers are not permitted to fire or refuse to hire  
or otherwise discriminate based on membership in a trade union or participation in a  
proceeding under the Act. Furthermore, where it is demonstrated that “it is reasonable  
to believe” the employer failed to comply with these prohibitions, the employer bears the  
burden, on the balance of probabilities, to demonstrate that there was no such failure.  
[254] Employers are likewise prohibited from seeking by threat or intimidation to compel a  
person from joining or continuing as a member of a trade union.  
Zinck’s Bus  
[255] Both Employer Counsel and Union Counsel referenced extensively the guiding case in  
Nova Scotia on ULPs, Zinck’s Bus.  
[256] In Zinck’s Bus, Professor Peter Darby confirmed that the Board in that case was taking the  
opportunity to spell out its interpretation of inter alia s. 53(1)(a), s. 53(3)(a) and (e), and  
s. 56(3).  
[257] There is no argument that Zinck’s Bus is not still ‘good law’ as described in the Union’s  
brief. We agree.  
[258] The case stands for a number of propositions, namely:  
1. That under s. 53(3)(a), the Complainant has a light initial burden to satisfy the trier of  
fact that it is reasonable to believe there was a failure by the employer to follow s.  
53(3)(a).  
2. That if the Complainant satisfies the initial burden, the onus shifts to the Employer to  
demonstrate that, on the balance of probabilities, the Complainant’s union membership  
was not a “significant” factor in the treatment, to refuse to continue to employ Mr.  
Harroun in this case.  
3. The reverse onus does not apply to complaints under s. 53(3)(e) and in such cases the  
Complainant is bound to demonstrate on the balance of probabilities that there was  
intimidation or threat to compel a person to refrain from or cease to be a member of a  
trade union. If the burden is not met, the complaint fails.  
4. Cases are fact specific. In Zinck’s Bus, one employee was successful while the other was  
not.  
5. The Employer is not prohibited from exercising their rights as an employer from  
carrying on the business in the normal course. A union member is not immune from  
discipline, provided there is merit to the discipline, and it is either normal day-to-day  
business of the employer or if not, it is in the expectations of the employee. In other  
words, a termination is allowed during a union campaign, but it must be for proper cause.  
[259] The argument made by the Union is that the “light onus” on the Union to demonstrate a  
dismissal was in violation of s. 53(3)(a) has been met. The Union claimed to have  
demonstrated the disingenuous, stated rationale for Mr. Harroun’s dismissal.  
[260] The Union noted that as according to the testimony of Mr. Mitchell, the phone itself did  
not matter to the Employer; so long as Mr. Harroun was not using it at work, he was not  
in violation of the Company rules. This view, expressed by the Employer’s witnesses, is  
just not true according to the Union.  
[261] The Union said the Employer cared about the phone because it was a union phone. That  
is why Mr. Harroun was told to get rid of it, and when he lied about having it to Mr.  
MacNeill it was a matter requiring dismissal.  
[262] To the Union, this false concern about the phone and the “lie” about giving it back, is  
augmented by the Employer’s assertion that Mr. Harroun was not a good, conscientious  
employee and was dismissed due to his poor work ethic. The Union said there is no  
evidence of anything relating to Mr. Harroun’s work ethic or skill. They say this is  
manufactured by the Employer to support a false claim for cause, covering the true reason  
for the termination, anti-union animus.  
[263] The manner of Mr. Harroun’s hiring is in dispute, however that is of little consequence.  
The reasons Mr. Harroun was dismissed are more important to this analysis as they  
related directly to the motive of the management and bear directly on the ULP issue.  
[264] As noted, Mr. Harroun says the reasons given for his dismissal were due to his ties to the  
Union. This may or may not be true. It may be that the discussion at the termination  
meeting was just as stated by the Employer witnesses, Mr. MacNeill and Mr. Nicholson.  
[265] The Employer says there are three reasons for the termination: the lie about having the  
phone, the use of it contrary to Company policy, and poor work ethic. The Employer says  
the Board cannot trust Mr. Harroun’s evidence on the termination reasons because he  
lied about his post-CME work.  
[266] In assessing the events of the dismissal meeting, the Board recognizes it is Mr. Harroun's  
word against the two managers. The Board also acknowledges that it is not an analysis of  
the amount of evidence, but rather the quality of the evidencea consideration of its  
reliability and credibility. Reliability is the assessment of the witness’s ability to observe  
and then to recall and communicate those observations. Credibility relates to the  
truthfulness of the witness, an evaluation of the honesty and trustworthiness of a witness.  
[267] Each of the three witnesses testifying about the termination meeting had an equal  
opportunity to observe. All three were in attendance. Each testified in a straight-forward  
manner. There was no “objective evidence” to evaluate against what was said, meaning  
there was no letter of dismissal to compare against the testimony.  
[268] There were no significant internal inconsistencies in any of the witnesses’ evidence.  
Nevertheless, Mr. Harroun had been proven to be untruthful in relation to his work at  
another employer in Pictou, post-CME. An important consideration but in relation to an  
unrelated issue.  
[269] The Board observes that each side might have had an incentive to be untruthful. Mr.  
Harroun to bolster his claim under the ULP, to promote the likelihood of the Union’s  
campaign, and to get his job back. The Employer witnesses’ motives might be to support  
the Employer’s decision to terminate Mr. Harroun, to defend the ULP claim, or to keep  
the Union out of their workplace.  
[270] In order to come to a conclusion on the ULP complaint, the assessment of credibility is  
not necessary. This is so because the Union has demonstrated it is reasonable to believe  
the Employer did not adhere to the requirements of s. 53(3(a) and the Employer’s own  
evidence is insufficient to meet the burden imposed by s. 56(3).  
[271] To be clear, the Union has satisfied the Board that “it is reasonable to believe there may  
have been a failure by [the] employer… to comply with clause (a) of subsection (3) of  
section 53…” and therefore the Board finds that the burden shifts to the Employer to  
prove “there is no failure.”  
[272] The evidence supporting this conclusion is that Mr. Harroun was told early in June not to  
use the phone during work hours. This was said to be a warning by management. It was  
not documented, but management claims it was a verbal warning.  
[273] There is no evidence that after the warning Mr. Harroun used the phone during working  
hours. There is only evidence that he answered it on July 1, 2021, a public and CME  
holiday. He was not working at that time.  
[274] Other than the ‘discipline’ for the first incident, which the Employer witnesses  
acknowledged was not repeated and was meted out and accepted by Mr. Harroun, there  
is no legitimate claim of breach of rules.  
[275] The Employer can’t penalize Mr. Harroun twice for the same incident. They can’t punish  
him for answering a phone, while off duty. That is not ‘off-duty’ conduct punishable by an  
employer. Put differently, Mr. Harroun is entitled to do what he wants on his own time,  
subject to the limited cases where off-duty conduct reflects on the employer such that it  
repudiates the employment contract. Answering a cell phone regardless of who owns it  
is not such a case.  
[276] There was no other evidence of breach of company rules.  
[277] The second reason given for the termination was that Mr. Harroun had a “very poor work  
ethic.The Board heard no evidence to substantiate this, except perhaps that he was on  
one occasion showing his phone pictures to other workers, for which, according to the  
Employer, he was given a warning. The Employer cannot use that activity almost a month  
later, with no intervening act by Mr. Harroun, to substantiate a poor work ethic. To allow  
them to do so would permit a type of double jeopardy.  
[278] Furthermore, the evidence was that Mr. Harroun was asked to carry out some sort of  
cutting work immediately before he was dismissed. He was sufficiently skilled to do that  
work, immediately before his termination.  
[279] Additionally, there is no evidence of any sort of discussion between Mr. Harroun and his  
managers that his work performance was ‘sub-par’.  
[280] Lastly, the timing of the termination is troubling, coming very shortly after Mr. Harroun  
answering the phone on July 1, 2021. The Employer’s witnesses did not testify that Mr.  
Harroun’s performance was discussed on the call between Mr. Mitchell and Mr. MacNeill  
and Mr. Nicholson on July 5, 2021, the date of the termination.  
[281] The third reason for the dismissal was that Mr. Harroun lied about giving the phone back  
to the Union. Even if this is true, it is woefully inadequate to meet the test posited by  
Employer counsel in their brief. At paragraph 62 and 63, the Employer writes:  
62. Reiterating the point made by Professor Darby, “the presence of a union, engaged  
in an effort to represent employees, is not and ought not to be an excuse for conduct  
by employees that, absent such a campaign, would entitle the employer to terminate  
their employment”.  
63. Mr. Harroun’s union membership and former status as a shop steward do not  
make him immune to discipline or termination for cause simply because the  
employer’s actions occurred during a union’s effort to represent employees.  
[282] The Board agrees with these statements, however, none of the conduct that the Employer  
asserts as cause for dismissal in the Board’s view meets the test for such a severe penalty.  
The use of the phone merited a verbal warning. The poor work ethic, based on the  
evidence before the Board, did not merit even a discussion with Mr. Harroun prior to the  
termination. And the “dishonesty" about the return of the phone, certainly does not  
merit the penalty of termination, particularly a termination without any investigation”  
by the Employer or opportunity for Mr. Harroun to explain.  
[283] As noted above, the question of credibility is clouded by the Employer’s proof that Mr.  
Harroun was not truthful in his evidence before the Board relating to his work. Mr.  
Harroun was asked by Employer Counsel if he had worked since the termination. He said  
“No.” The Employer was able to prove that he had worked for another Pictou based  
company for several weeks after the termination. The Union conceded the point and  
offered no explanation of the reason for the testimony. The Employer encouraged the  
Board to consider this testimony to be an outright lie, demanding that no-one could forget  
several weeks of work in such a short timeframe.  
[284] The Board is satisfied that Mr. Harroun was not being honest in that testimony. As noted,  
this clouds his testimony.  
[285] The competing concern for the Board is that the Employer’s reasons for the termination,  
the use of the cell phone and the lie about having given it up, contrasted with Mr.  
Mitchell’s evidence that “he didn’t care about the use of the cell phone so long as it was  
not used on company time” are at odds.  
[286] The concern is exacerbated by the Employer’s undocumented and unsubstantiated claim  
of “poor work ethic” and the disobedience relating to the phone being with Mr. Harroun  
during work hours. The Employer brought no evidence of poor skills or work ethic but for  
the incident of showing photos on his phone to colleagues, who presumably, by looking  
at the photos, had an equally poor work ethic.  
[287] The Employer has some obligation to coach an errant employee and use progressive  
discipline before termination. The claim that Mr. Harroun was a “probationary employee”  
only comes out in the record of employment. The Board is not aware of any evidence that  
a probationary period was imposed at the time of his hiring. Mr. Harroun was given the  
Employee Handbook, a document which sets out the Employer’s obligations to  
progressive discipline.  
[288] The Union argued that the timing of the termination in relation to the filing of the  
Successorship Application is evidence of their animus. They claim, “a clear temporal  
connection between Mr. Harroun’s termination and the filing of the successor employer  
application.” (See Union Brief at paragraph 32)  
[289] The Application was filed on Wednesday, June 30, and Mr. Harroun was terminated on  
Monday, July 5. Thursday, July 1 was a holiday, so Friday, July 2 was the only regular  
workday in between the application filing and the dismissal.  
[290] Additionally, the Board heard evidence that another employee, Brendon Fitzpatrick, was  
also dismissed summarily on the afternoon of the day he started, at the outset of June.  
[291] The evidence was that Mr. Fitzpatrick was known to be on the Zoom call on May 31 with  
Mr. MacNeill and Mr. Harroun. Mr. MacNeill knew from that meeting that Mr. Fitzpatrick  
had promised the Union he would report who was hired by CME. The very next day he  
was told that his “services would no longer be needed.”  
[292] Lastly, there was a strong tone from the Employer that they prefer not to have a Union in  
the Pictou Shipyard. That tone was set most strongly by Mr. Mitchell. Under cross-  
examination, Mr. Mitchell was asked, “[CME] is adamantly non-Union? True?” Mr.  
Mitchell replied, “Yes.” Counsel for the Union then asked, “you would do whatever to  
remain non-union in your power?” Mr. Mitchell replied, “No.”  
[293] The tone was further established by the fact that Mr. MacNeill had told Mr. Harroun at  
the time of warning him about having the Union cell phone, that “[CME] had no interest  
in the Union.”  
[294] It is clear that CME preferred and prefers to be non-unionized. The Employer provided no  
explanation as to why Mr. Fitzpatrick’s services were suddenly, the day after the Union  
Zoom meeting, no longer needed. While not necessary to be decided by this Board, the  
timing is suspicious and has similar qualities to Mr. Harroun’s dismissal. It appears nothing  
changed in relation to Mr. Fitzpatrick between the morning when he started work and  
the afternoon when he was told he “wasn’t needed”, but for the Employer receiving  
information about Mr. Fitzpatrick’s commitment to keep the Union abreast of who CME  
hired made in the presence of Mr. MacNeill the evening before.  
b) Conclusion to Issue 2  
[295] The Board finds that the reasons for Mr. Harroun’s termination were based on his Union  
activity.  
[296] Were we to find Mr. Harroun was not truthful in his evidence about what he was told in  
the termination meeting, the evidence of the Employer nevertheless fails to satisfy the  
Board on the reverse onus under s. 56(3).  
[297] The Employer expressly stated, through Mr. Mitchell and Mr. Nicholson, that the reasons  
for the termination were due to the use of the Union cell phone and lying about having  
given it back. Furthermore, Mr. Mitchell testified that he wasn’t concerned about the  
Union cell phone except if it was used on company time. The “use” incident giving rise to  
the termination was on a holiday, July 1, 2021, when Mr. Harroun was not working. It  
could not have been that ‘use’ that triggered the termination, if it was as Mr. Nicholson  
said, for the use of and lying about the Union cell phone. Nor was there any evidence that  
Mr. Harroun disobeyed the Employer by bringing the phone with him, while on the job,  
or disobeyed the CME cell-phone use policy.  
[298] Mr. Harroun was terminated due to the fact that he “is or was a member of a trade union”.  
Mr. Harroun was, in the view of the Board, terminated due to his "participation in the  
[formation or] administration of a trade union.”  
[299] The essence of the cause asserted and that which remains after the evidence of the  
Employer is subjected to proper scrutiny is that at worst Mr. Harroun was untruthful to  
his employer about the ownership of a cellphone. In the evaluation of this Board that  
comes a far cry short of cause for termination. As a consequence, the conclusion of the  
Board is that the Employer has not met the burden of establishing that it did not fail to  
comply with s. 53(3)(a). Mr. Harroun’s dismissal was a violation of the Unfair Labour  
Practice section 53(3)(a).  
[300] The Board upholds the Union’s complaint of an Unfair Labour Practice, and pursuant to  
the advice of Employer Counsel orders the reinstatement of Mr. Harroun with full redress.  
The Board reserves jurisdiction in the event the parties are unable to settle the question  
of full redress, which in the view of the Board must include pay for time lost and the  
concomitant benefits.  
VII. CONCLUSIONS  
[301] 1.The Board is not satisfied that CME is a successor to Aecon and therefore dismisses the  
Union’s successor rights application;  
2.The Board is satisfied that CME has failed to comply with s. 53(3)(a) of the Trade Union  
Act and thereby committed an Unfair Labour Practice;  
3. The Board orders the reinstatement of Mr. Harroun with full redress; and  
4. The Board retains jurisdiction with respect to the implementation of the reinstatement  
of and redress for Mr. Harroun.  
[302] For the reasons set out above, the application for Successorship is dismissed and the  
Union’s Complaint of an Unfair Labour Practice is upheld. The Unfair Labour Complaint  
filed by the Employer is dismissed.  
MADE BY THE LABOUR BOARD AT HALIFAX, NOVA SCOTIA ON THE THIRTIETH (30TH) DAY OF JUNE,  
2022 AND SIGNED ON ITS BEHALF BY THE VICE-CHAIR.  
FRANK DEMONT, Q.C.  
VICE-CHAIR  


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