United Steelworkers Local 1-2010 v White River Forest Products GP Inc.

ONTARIO LABOUR RELATIONS BOARD

OLRB Case No: 3526-17-R

United Steelworkers Local 1-2010, Applicant v White River Forest

Products Limited Partnership by its general partner White River

Forest Products GP Inc., and Nawiinginokiima Forest Management

Corporation, Responding Parties v Netmizaaggamig Nishnaabeg, and

Biigtigong Nishnaabeg, Intervenors

OLRB Case No: 3527-17-U

United Steelworkers Local 1-2010, Applicant v White River Forest

Products Limited Partnership by its general partner White River

Forest Products GP Inc., Responding Party

APPEARANCES: Jim Fyshe, Jacques Jean, Guy Veillaut, Joe Hanlon

and Bruce Frost for United Steelworkers Local 1-2010; Richard

Charney, Sadaf Samin, Nadine Robinson and Richard Groves for White

River Forest Products Limited Partnership by its general partner White

River Forest Products GP Inc; Mary Catherine Chambers and Carmelo

Notarbartolo for Nawiinginokiima Forest Management Corporation;

Julia Brown and Cathy Guirguis for Netmizaaggamig Nishnaabeg and

Biigtigong Nishanaabeg

BEFORE: Adam Beatty, Vice-Chair

DECISION OF THE BOARD: August 16, 2022

1.

Board File No. 3527-17-U is an unfair labour practice

complaint alleging a violation of section 17 of the Labour Relations Act,

1995, S.O. 1995, c.1, as amended, (the “Act”) (the “ULP”).

2.

Board File No. 3526-17-R is an application under the sale of

business provisions of the Act (the “successor application”).

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3.

At the outset of the hearing the parties agreed to file will say

statements for their respective witnesses. The parties also agreed to

file revised will say statements after having reviewed the will say

statements of other witnesses (only to addresses issues they had not

canvassed, and could not have reasonably expected to arise) in their

first will say statement. The parties agreed to limit their examinations

in chief.

The witnesses were cross-examined on their will say

statements.

4.

At its core, this decision addresses the implications of the

transfer of a Sustainable Forest License (the “SFL”) from White River

Forest Products Limited Partnership (“White River”) to Nawiinginokiima

Forest Management Corporation (“NFMC”). As will be set out in

further detail below, NFMC is a creature of statute, and a crown

corporation. The parties agreed this is the first (and only) time an SFL

has been transferred to a crown corporation.

5.

Put simply these applications raise two issues. First, did White

River violate the duty to bargain in good faith before or after the

transfer of the SFL? Second, does the transfer of the SFL constitute a

sale of a business under section 69 of the Act. Of course, as will be

set out in greater detail below, these questions raise a number of

subsidiary issues.

I. Introduction and Background

6.

The background to these applications is somewhat

complicated. I have attempted to set out it in summary fashion.

7.

The applicant’s predecessor, Local 1-2693, held bargaining

rights through two collective agreements with Domtar Inc. (“Domtar”)

in the White River Forest: the Woodlands Collective Agreement and

the Sawmill Collective Agreement.

The Woodlands Collective

Agreement applied to woodlands operations, and initially included a

garage and a yard on property contiguous with the sawmill. The

Sawmill Collective Agreement applied to the sawmill.

The Parties

8.

The applicant, the United Steelworkers Local 1-2010 (“Local 1-

2010” or the “Union”), inherited the bargaining rights at issue when

Local 1-2693 and United Steelworkers Local 1-2995 merged in June

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2010. The responding party, White River Forest Products Limited

Partnership (“White River”), is the successor employer to Domtar.

9.

In the successor application, the applicant alleges that the

responding party Nawiinginokiima Forest Management Corporation

(“NFMC”) is the successor employer of White River. NFMC is a crown

agent and local forest management corporation created under the

Ontario Forest Tenure Modernization Act, 2011 (“OFTMA”) on May 29,

2012.

10.

NFMC is a not-for-profit corporation. Its corporate objects are

established by section 5 of OFTMA and include managing Crown

forests in a manner necessary to provide for the sustainability of

Crown forests in accordance with the Crown Forest Sustainability Act,

1994, (the “CFSA”) to promote the sustainability of Crown forests and

to provide for economic development opportunities for aboriginal

peoples (amongst others). Mr. Notarbartolo has been the general

manager of NFMC since 2014.

11.

Netmizaaggamig

Nishnaabeg

(“NN”)

and

Biigtigong

Nishanaabeg (“BN”) (collectively the “First Nations”) are intervenors in

the successor application. The First Nations’ traditional lands include

the White River Forest. The First Nations are currently involved in land

claim litigation with respect to these traditional lands. As will be

detailed below, the First Nations have existing and claimed

constitutionally protected Aboriginal harvesting and title rights in the

White River Forest.

Forestry Operations in White River Forest

12.

The parties provided the Board with a detailed history of the

sawmill, timber harvesting operations, and collective bargaining

relationships in the White River Forest. For the present purposes, the

following summary (admittedly incomplete) is sufficient. The parties

agreed on the details set out below (if not their implications).

13.

The sawmill located in the White River Forest was sold to

In or around 1995, the Forest Management

Domtar in 1984.

Agreement that had been in place was converted (pursuant to the

CFSA) to the SFL.

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14.

In 2006, without the consent of Domtar, BN received an

“overlapping license” from the Province of Ontario to harvest up to

50,000 cubic meters of wood fibre on the White River Forest. When

the SFL was transferred from Domtar to White River, White River

committed to continue making the 50,000 cubic meters available to

BN. NFMC has also committed to continue making the same volume

available to BN.

15.

Domtar closed the sawmill in 2007. White River Products

Limited (WRL) purchased the sawmill in 2009. The parties agreed that

WRL was a successor employer to Domtar and was bound to the

Woodlands Collective Agreement.

16.

In 2010, the SFL was transferred from Domtar to WRL. When

the SFL was transferred from Domtar to WRL, WRL also committed

that 50% of the wood in the White River Forest would be harvested by

NN or an organization connected to that community. NFMC agreed to

continue this commitment.

17.

In 2012, WRL secured financing though the corporation

“Gestion Dottori Inc.” Gestion Dottori Inc. became a shareholder in

WRL. In November 2012, the Union entered into an agreement (the

“Dottori Agreement”) with WRL confirming the application of the

Woodlands Collective Agreement to the woodlands operations of WRL.

As part of that agreement, the Union agreed to suspend the

application of the Woodlands Collective Agreement until December 31,

2014. In August 2013, the Union agreed to WRL’s request to extend

the exemption period for bargaining the renewal of the Woodlands

Collective Agreement until September 30, 2017.

18.

In 2013 the sawmill reopened and in 2015 WRL was

restructured and replaced by White River. There is no dispute that

White River is a successor employer to WRL. Also in 2015, White River

Forest Products GP Inc. (the general partner for White River) acquired

the SFL on behalf of White River and with it the right to operate the

sawmill and harvest in the White River Forest.

19.

River a Notice to Bargain a renewal of the Woodlands Collective

Agreement. On September 27, 2017, Local 1-2010 applied for

By way of letter dated July 14, 2016, the Union gave White

conciliation to the Ontario Ministry of Labour with respect to the

Woodlands Collective Agreement.

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20.

On January 1, 2018, White River and NFMC entered into a

license transfer agreement. The following day, January 2, 2018, the

SFL was transferred from White River to NFMC.

21.

The parties agreed that the transfer of the SFL from White

River to NFMC was voluntary. As mentioned previously, NFMC is a

creature of statute. When it was created the Ministry of Natural

Resources and Forestry (the “Ministry”) envisioned that ultimately

NFMC would manage the White River Forest.

This led to the

negotiations that culminated in a license transfer agreement.

22.

As set out above, the Union held bargaining rights with

Domtar through the Woodlands Collective Agreement and the Sawmill

Collective Agreement. The Woodlands Collective Agreement applied to

woodlands operations, and initially included a garage and a yard on

property contiguous with the sawmill.

The Woodlands Collective

Agreement’s initial term expired on November 30, 2009 but has

continued to operate from year to year thereafter based on the

automatic renewal provision.

23.

As also set out above, the Woodlands Collective Agreement

was originally between Domtar and Local 1-2693 (for a period between

September 1, 2005 and November 30, 2009). As the successor to

Domtar, White River stepped into Domtar’s shoes with respect to the

Woodlands Collective Agreement.

24.

The other collective agreement relevant to the White River

Forest is the Sawmill Collective Agreement between White River and

Local 1-2010. For the purposes of these applications, it is important to

note that that during the suspension of the Woodlands Collective

Agreement, the yard was transferred to the Sawmill Collective

Agreement, the garage was demolished and the remaining employees

under the Woodlands Collective Agreement were provided employment

in the sawmill and worked under the Sawmill Collective Agreement.

Summary of ULP

25.

The Union alleges that White River it violated the duty to

bargain in good faith. According to Local 1-2010, White River violated

section 17 of the Act by failing to disclose the transfer of the SFL from

White River to NFMC.

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26.

The Union also alleges that White River violated the duty to

bargain in good faith by failing to disclose to the Union that, in its

opinion, the transfer of the SFL would have a significant impact on the

Union’s bargaining rights. Finally, the Union also claimed that White

River’s refusal to engage in collective bargaining at all following the

transfer of the SFL violated the duty to bargain in good faith.

27.

White River denies that it breached the Act. For a variety of

reasons that will be canvassed further below, White River submits that

it was not under any obligation to advise the Union about the transfer

of the SFL prior to the transfer taking place. In the alternative, if

there was an obligation to tell the Union about the possibility of

transferring the SFL to NFMC, White River submits that it complied

with these obligations on three different occasions.

28.

White River also submits that it did not breach the duty to

bargain in good faith following the transfer of the SFL to NFMC. As

explained below, according to White River, once the SFL had been

transferred it was no longer required to collectively bargain with the

Union. White River argues this conclusion is consistent with the

language in the Woodlands Collective Agreement and the

interpretation of that language.

Summary of Successor Employer Application

29.

Turning to the Successor Employer Application, Local 1-2010

maintains that the transfer of the SFL from White River to NFMC

constitutes a sale of a business under section 69 of the Act. NFMC

disagrees. It submits that White River did not transfer its harvesting

business when the SFL was transferred. For reasons that will be set

out below, NFMC argued that the transfer of the SFL did not change

any of White River’s harvesting activities in the White River Forest.

NFMC also argued that a sale has not occurred under section 69

because its business is distinct from that of White River. Finally, NFMC

argued that finding a sale of a business in these circumstances would

result in an expansion of the Union’s bargaining rights.

30.

The FN also made submissions regarding the Successor

Employer Application. The FN urged the Board to adopt a

“constitutional lens” to this application and urged the Board to ensure

that the commitments made to the FN are protected.

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31.

The parties’ respective positions, the evidence relied upon and

the conclusions they draw will be set out in greater detail below.

32. As discussed below, I am satisfied that White River did not

violate section 17 of the Act. I am further satisfied that the transfer of

the SFL from White River constitutes a sale of business within the

meaning of section 69 of the Act.

II.

The ULP prior to transfer of SFL

Period prior to transfer of SFL

33.

It is not disputed that the Union sent White River a notice to

bargain on July 14, 2016. At that time Mr. Richard Groves was the

contact person and lead negotiator for White River for the Woodlands

operations in the White River Forest. Mr. Groves has considerable

experience in the forest business. He is currently the President of

Forest Groves Consulting Ltd., a consulting firm that offers a number

of services with respect to the forest industry.

34.

In his will say statement, Mr. Groves indicated that he was

involved in negotiations with the Union (with Mr. Guy Bourgouin,

former president of the Union) with respect to another collective

agreement (unrelated to these applications). Mr. Groves stated that

the parties agreed that they would complete those negotiations prior

to commencing negotiations for the Woodlands Collective Agreement.

35.

According to Mr. Groves, once the other negotiations were

completed, he met with the Union on March 9, 2017 to discuss the

Woodlands operations. White River submitted that this meeting was

not a collective bargaining meeting.

36.

Relying on the will say statements provided by Mr. Jacques

Jean (a Union representative at the time, now Union president) and

Mr. Bourgouin, the Union submitted that the March 9, 2017 meeting

was a collective bargaining meeting. At a minimum the Union argued

that the March 9, 2017 meeting was for the purpose of reaching a

collective agreement and as such triggered the obligations under

section 17 of the Act.

37.

Mr. Bourgouin and Mr. Jean were present at the March 9, 2017

meeting on behalf of the Union. Mr. Groves stated that the purpose of

the meeting was to provide a “historical update” of the White River

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Forest prior to beginning collective bargaining for the Woodlands

Collective Agreement. This was consistent with the evidence of Mr.

Jean during cross-examination when he referred to the March 9, 2017

meeting as a “pre-negotiating meeting”. Later he agreed it was not a

collective bargaining meeting.

38.

Most importantly for our purposes, according to Mr. Groves he

also told the Union during the March 9, 2017 meeting that there was a

possibility that the SFL could be transferred to NFMC. Mr. Groves

stated that he told the Union that no timeline for the transfer of the

SFL had been set and that nothing had been set in stone. According to

Mr. Groves, the Union never asked for an update on the potential

transfer of the SFL or NFMC.

39.

point.

Mr. Bourgouin and Mr. Jean disagreed with Mr. Groves on this

Neither Mr. Bourgouin nor Mr. Jean recalled Mr. Groves

mentioning the transfer of the SFL to NFMC. They recalled only a

“general discussion” about issues related to collective bargaining.

40.

According to Mr. Jean, Mr. Groves only indicated there “were

activities around the SFL” but did not provide any more details. Mr.

Jean denied that Mr. Groves had provided enough information for the

Union to understand that there could be a transfer of the SFL. Mr.

Bourgouin stated that he recalled that Mr. Groves told them that

“changes were coming” to White River forest.

Mr. Bourgouin

indicated that he was not concerned by Mr. Groves’ statement because

the forestry industry has been subject to drastic changes over the

years.

41.

Mr. Jean acknowledged that he didn’t follow up with Mr.

Groves, either during the meeting or at a later date, to ask what he

meant. When asked why he didn’t follow up with Mr. Groves, Mr. Jean

stated that there “is always activity around the SFL”. He also indicated

that in his view, White River should have come to the Union and told

them that the SFL was going to be transferred.

42.

Mr. Bourgouin could not recall if he (or Mr. Jean) asked any

follow up questions regarding what those changes might be.

According to Mr. Bourgouin, Mr. Groves did not mention the possibility

of Local 1-2010 losing its bargaining rights as a result of the transfer

of the SFL. Specifically, Mr. Bourgouin indicated that during the

meeting, Mr. Groves never mentioned that the “changes” would impact

the Woodlands Collective Agreement at all. Mr. Bourgouin stated that

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if Mr. Groves been more explicit about the implications of the transfer

of the SFL, the Union would have been taken steps immediately to

protect its rights.

43.

According to the Union, during the March 9, 2017 meeting Mr.

Groves also raised the historical relationship between the First Nations

and the Union and some of the difficulties with respect to that

relationship. The Union inferred that this was an issue that would

need to be overcome in order to reach a collective agreement. In

other words, the Union understood that collective bargaining for a

renewal agreement would occur as expected, but that the historical

relationship between the Union and the First Nations would have to be

addressed as part of that process.

44.

Mr. Groves indicated that he provided a historical review of the

establishment of NFMC during this meeting. Mr. Groves also testified

that he recalled providing the Union with the identity of the contractors

operating in the White River Forest and the approximate volume of

wood those contractors were harvesting. He stated that he provided

an overview of the operations in the forest, the contractors that were

harvesting and the appropriate volumes for harvesting.

45.

Mr. Jean testified that he had no recollection of Mr. Groves

providing a historical overview of the establishment of NFMC during

this meeting. He did recall Mr. Groves discussing the concept of a

crown agency and the Province wanting to modernize the tenure

system. Mr. Bourgouin also indicated that he could not recall if Mr.

Groves presented this historical review. He also noted that he could

not recall Mr. Groves saying anything about NFMC.

46.

According to Mr. Bourgouin and Mr. Jean, Mr. Groves told

them during March 9, 2017 meeting that he would provide details with

respect to the contractors harvesting for White River in the White River

Forest. Mr. Jean stated that no such details were ever provided.

Initially in cross-examination, Mr. Jean stated that he asked for a

number of details including how many employees were working, how

many contractors were engaged, and what wages and benefits were

they earning, but that none of that information was provided by White

River. Later he stated that Mr. Groves provided the names of some of

the contractors working in the White River Forest and agreed that the

Union was provided with some basic information. He maintained that

he was looking for additional information.

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47.

Initially, Mr. Bourgouin also stated that he didn’t think Mr.

Groves ever provided that information. Later, he indicated that Mr.

Groves provided the names of a couple contractors but that the Union

expected him to provide additional information. Mr. Bourguoin could

not recall the specific number of contractors Mr. Groves told them

about.

48.

The Union pointed to correspondence from the Ministry of

Natural Resources dated November 24, 2016, indicating that a draft

transfer agreement between White River and NFMC had been reached

by as early as May 31, 2016 (subject to the consent of the

Government). According to the Union there is no evidence to suggest

that White River told the Union about this draft agreement.

49.

The Union also relied on a “Harvester Agreement” between

NFMC and White Lake Limited Partnership (“White Lake”) in May 2017.

Pursuant to this agreement, White Lake was appointed as a harvester

in the White River Forest despite the fact that the SFL had not been

transferred at that time. The Union submits that White River failed to

disclose the existence of this agreement.

50.

As set out above, on September 27, 2017, the Union

requested the appointment of a conciliator. The conciliation meeting

was scheduled for January 31, 2018. According to Mr. Groves, he

called the Union some time prior to that meeting and told Mr.

Bourgoiun that the SFL had been transferred on January 2, 2018. Mr.

Groves stated that during that conversation with Mr. Bourgouin, he

asked if the Union still wanted to meet because, from White River’s

perspective, there was no obligation to renegotiate the collective

agreement since the SFL had been transferred.

51.

Mr. Bourgouin indicate that he could not recall any such call.

He testified that he did not think it occurred.

52.

Mr. Jean indicated in cross-examination that he was not aware

if anyone from the Union contacted White River between March 9,

2017 and January 2, 2018 (the date of the transfer of the SFL). Mr.

Jean also stated that he was not aware that Mr. Groves had asked

Mr.Bourgouin if Local 1-2010 still wanted to attend the conciliation

meeting because White River’s position was that, following the transfer

of the SFL, White River no longer need to negotiate.

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53.

The conciliation meeting took place as scheduled. Mr. Groves

and Ms. Nadine Robinson attended on behalf of White River. Mr.

Bourgouin and Mr. Jean attended on behalf of Local 1-2010.

A

conciliation officer was also present. Mr. Groves stated that White

River’s objective during that meeting was to advise the Union that

because the SFL had been transferred to NFMC, the bargaining rights

previously attached to White River no longer applied. According to Mr.

Groves, not only did he tell the Union about the transfer of the SFL, he

also told them about the Wood Supply Agreement and the Forest

Operations Agreement signed with NFMC. Mr. Groves indicated this

was the third time White River had told the Union that the SFL was

being transferred (or had been transferred).

54.

According to Mr. Groves, the Union responded by indicating

that it wanted to take some time to think about the implications of the

transfer of the SFL for the Union. However, Mr. Groves stated that the

Union did not contact White River again until it filed the two

applications at issue.

55.

Mr. Bourgouin testified that the first time he was told about

the transfer of the SFL was during the conciliation meeting. He

indicated that White River told the Union that they no longer held the

SFL and that as such there was nothing to bargain over.

Mr.

Bourgouin also stated that the first time he heard about NFMC may

have been during the January 31, 2018 meeting. However, he also

acknowledged that he couldn’t be sure and that it was possible he had

heard about NFMC some time prior to that meeting.

56.

The Union filed these applications shortly after the January 31,

2018 meeting.

White River’s position on ULP prior to transfer of SFL

As set out above, White River argued that it did not violate

57.

section 17 of the Act. According to White River, the parties were not

engaged in any collective bargaining in the period before the transfer

of the SFL (i.e. prior to January 2, 2018), and that as such there was

no requirement to advise the Union of the possible transfer of the SFL.

That being said, White River took the position that even though it was

not required to tell White River about the possible transfer of the SFL it

did so anyways, on at least three occasions.

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58.

White River also argued that the transfer of the SFL was not a

“crystallized plan”. Finally, White River submitted that there were no

employees in the bargaining unit during this period of time (having

been transferred to the sawmill and therefore falling under the scope

of the Sawmill Collective Agreement). As such, the transfer of the SFL

would not have a “major impact” that would give rise to a duty to

disclose in the circumstances.

59.

White River relies on the following decisions in support of its

position that it was not under a duty to bargain prior to the transfer of

the SFL: UE, Local 504 v Westinghouse Canada Ltd., [1980] OLRB

Rep. 577 (“Westinghouse”); OPSEU v Ontario (Management Board of

Cabinet), [1998] OLRB Rep 923 (“OPSEU”); Re Nanaimo Daily News

and CEP, Local 2000, [2013] BCWLD 5024 (Carwana) (British

Columbia Labour Relations Board) (“Nanaimo”); Essar Steel Algoma

Inc. v USW, Local 2251, (2011) 108 CLAS 125 (Stout) (Ont Arb)

(“Essar Steel”).

60.

White River argued that in the circumstances of this case,

where the decision to transfer the SFL had not been made, and the

parties were not involved in active collective bargaining, there was no

duty to disclosure. In Westinghouse, the Board commented on what

was then section 14 (what is now section 17). The Board held that the

duty to bargain in good faith requires an employer to “respond

honestly” when asked in bargaining if it is considering decisions that

have a real likelihood of significantly impacting on the bargaining unit.

The Board also held that employers are required to disclose, on their

own initiative, decisions that have already been made that could have

a major impact on the bargaining unit.

61.

As set out above, White River argued that the transfer of the

SFL was not a “crystallized plan”. Mr. Groves indicated that White

River did not know for sure if the transfer would take place. There

were no commitments or timelines. White River submits that as a

result there was no requirement to disclose the possible transfer of the

SFL to NFMC to the Union. In Westinghouse, the Board noted that the

duty to bargain in good faith did not require an employer to reveal, on

its own, plans that had not become “at least de facto decisions”.

62.

White River relied on the facts in Westinghouse and submitted

they were analogous to the current matter. In Westinghouse, the

employer did not decide to relocate a part of its business until

approximately two months after the parties negotiated a memorandum

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of agreement leading to a collective agreement. The Board concluded

that the employer had not made a “hard decision” to relocate during

bargaining. As such, the Board concluded that the duty to bargain in

good faith had not been breached. White River argued that the same

conclusion should apply in the current circumstances.

63.

White River did not make a “hard decision” to transfer the SFL.

It needed Ministry approval and that had not been guaranteed. As

such, there was no duty to disclose the information to the Union.

64.

White River noted that on the Union’s own evidence, White

River received correspondence from the Ministry of Natural Resources

indicating that the transfer of the SFL was being taken under

advisement. At the time of that correspondence (November 24, 2016)

the transfer of the SFL therefore was, at best, a possibility. As such,

there was no obligation to disclose the possible transfer to the Union.

65.

White River also argued that there was no evidence that it was

aware of the Harvester Agreement at the time it was entered into.

White River noted that it is not a party to that agreement.

66.

White River relied on the Board’s decision in OPSEU for the

proposition that it is only during collective bargaining that the parties

are required to disclose information that could have a significant

impact on bargaining unit employees. White River noted that there is

no dispute that the parties were not engaged in collective bargaining

when White River received the notice of intent to bargain on July 14,

2016. Mr. Bourgouin and Mr. Groves agreed to hold off on collective

bargaining for the Woodlands Collective Agreement until after they

completed negotiations for an unrelated collective agreement.

67.

According to White River, the parties were also not engaged in

collective bargaining during the March 9, 2017 meeting. White River

argued that Mr. Jean and Mr. Bourgouin’s evidence in cross-

examination indicated that they both agreed that this was not a

collective bargaining meeting.

68.

White River also argued that, because the collective

agreement had been suspended since 2012, there was no significant

impact on the employees in the bargaining unit when the SFL was

transferred. The lack of a significant impact means, according to

White River, that there was no breach of the duty to bargain in good

faith.

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69.

White River relied on the decision of the British Columbia

Labour Relations Board (the “BCLRB”) in Nanaimo in support of its

position. In Nanaimo, the BCLRB stated that the Board in

Westinghouse discussed the duty to bargain in good faith in terms

“decisions already made which may have a major impact on the

bargaining unit” or plans which “would have a significant impact on the

economic lives of bargaining unit employees.” White River also relied

on the following passage from Nanaimo, where the BCLRB stated as

follows:

Thus, the case law indicates that the duty of unsolicited

disclosure arises when the information affects “a large

number of employees”, or when the matter is “of such

significant importance” or of “a major impact” in respect of

“the bargaining unit” that there is a positive duty to

disclose it during bargaining.

70.

White River notes that there were no employees in the

bargaining unit covered by the Woodlands Collective Agreement.

Those employees had already been transferred to the Sawmill

Collective Agreement. As set out in Mr. Groves will say, the only

remaining staff member of White River’s Woodlands operation was a

supervisor. As such the decision could not have a “major impact”

giving rise to a duty to disclose. White River argued that the lack of a

major impact distinguished the current matter from the decision of

Arbitrator Surdykowski in Canadian Pacific Forest Products, [1989]

O.L.R.B. Rep. 569 (“Canadian Pacific”) relied upon by the Union.

71.

White River also submitted that the fact that the SFL was

going to be transferred to NFMC, a Crown corporation, was significant.

White River noted that because a SFL had never been transferred to a

Crown Corporation it was unclear what the impact on the Union would

be. White River noted that in Essar Steel, the Arbitrator held that

where it is not clear what impact a decision will have on a union’s

members, the employer is not under a duty to raise the issue with that

union in bargaining.

72.

White River argued that the transfer of the SFL was a public

process, and the Union should have known that it was taking place. If

they were not aware they have no one to blame but themselves.

White River also challenged the Union’s claim that Mr. Groves said he

made a mistake in not telling the Union that the transfer of the SFL

could impact the Union’s bargaining rights earlier. White River argued

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that the evidence indicated that Mr. Groves simply stated that there

could have been more communication. He did not say he made a

mistake.

73.

White River also argued that contrary to the Union’s assertion

(set out below), section 34 of the CFSA does not apply in the

circumstances. It submitted that under the Regulations to the CFSA

(Ont. Reg. 167/95) the transfer of a SFL does not constitute an

amendment to a Forest Resource License and as such section 34 does

not apply.

74.

Finally, even if there was a duty to disclose the possible

transfer of the SFL to White River (a position White River rejects),

White River submits that it complied with this duty on three separate

occasions. As such there can be no violation of the Act.

75.

To the extent that the Union’s evidence (from Mr. Jean and

Mr. Bourgouin) contradicted Mr. Groves’ evidence, White River

submitted that Mr. Groves’ evidence should be preferred. White River

argued that Mr. Jean and Mr. Bourgouin were unable to recall a

number of the details from the March 9, 2017 meeting. White River

also argued that Mr. Jean’s and Mr. Bourguoin’s recollection of what

was said during that meeting differed in at least one important regard.

Mr. Jean testified that Mr. Groves said that there would be “activity”

with respect to the SFL. Mr. Bourgouin testified that Mr. Groves said

that there were “changes coming” to the SFL. In the circumstances,

White River argued that it was more likely than not that Mr. Groves

advised the Union of the transfer of the SFL during the March 9, 2017

meeting.

76.

Finally, in addition to advising the Union of the transfer of the

SFL, White River also noted that the transfer was public knowledge

and that the Union ought to have been aware of it. Mr. Notarbartolo,

the general manager of NFMC, was asked a series of questions in

cross-examination about the process leading to the transfer of the SFL

from White River to the NFMC. He indicated that the transfer process

was public knowledge. It was posted on the provincial government’s

website. Mr. Notarbartolo believed the posting was up for 45 or 60

days. He confirmed that anytime an SFL is transferred (or issued)

there is a public review process. Mr. Jean agreed that the transfer of

the SFL was a public process.

- 16 -

77.

Outside of that process, Mr. Notarbartolo confirmed that NFMC

held meetings with the one of the local First Nation communities.

They also held a meeting with the local citizenship committee. Mr.

Notarbartolo indicated that the local citizenship committee is a group

of local residents with an interest in the White River Forest. There are

approximately 12 members on that committee. Mr. Notarbartolo

stated that those meetings were public.

78.

Mr. Notarbartolo indicated that the meetings with the First

Nations were particularly important. He advised that the transfer of

the SFL could not occur without their support. He stated that anything

related to forestry requires consultation with the First Nations and that

the transfer of the SFL was no different.

79.

Mr. Notarbartolo also stated that NFMC met with the mayor

and council in White River during a public council meeting. According

to Mr. Notarbartolo, that meeting took place in mid-2017. During the

meeting, the parties discussed the negotiations and likely transfer of

SFL from White River to NFMC.

Union’s Position on ULP prior to transfer of SFL

80.

The Union submitted, based on the evidence of Mr. Bourgouin

and Mr. Jean, that White River did not tell them that the SFL was being

transferred to NFMC at any time prior to the conciliation meeting on

January 31, 2018. At that point the transfer of the SFL had already

been approved. Telling the Union after the fact does not satisfy the

duty to bargain in good faith according to the Union.

81.

Nor, according to the Union, did White River tell the Union that

they thought the transfer of the SFL would impact the Union’s

bargaining rights. In re-direct, Mr. Jean stated that during the March

9, 2017 meeting, Mr. Groves never indicated that the “activities”

around the SFL would affect Local 1-2010’s jurisdiction. Nor did he

indicate that there were any discussions with NFMC about transferring

the SFL. Mr. Jean also confirmed that the Union was never invited to

participate in any of the meetings where the transfer of the SFL was

discussed.

82.

The Union submits that White River was required to disclose

the transfer of the SFL. The Union argued that parties to collective

bargaining have a duty to communicate with each other and that by

- 17 -

withholding what it referred to as “vital information” White River

violated the duty to bargain in good faith.

83.

As set out above, the Union served a Notice to Bargain on

White River on July 14, 2016. Under section 17 of the Act, the duty to

bargain in good faith came into effect 15 days later. The Union took

the position that the obligations in section 17 start when the Notice to

Bargain is given, not, as argued by White River, when bargaining

begins.

84.

The Union noted that in this case, the parties agreed upon an

extension to the 15 day period and agreed to meet on March 9, 2017.

At a minimum, the duty to bargain in good faith started that day.

85.

The Union also argued that it is not required to ask for this

It argued that White River was under an

type of information.

obligation to proactively disclose information, and decisions it has

made, that will have a major impact on the bargaining unit. This

obligation applies, according to the Union, to decisions that have not

been finalized if, when finalized, will have a major impact on the

bargaining unit.

86.

As set out above, according to the Union the decision to

transfer the SFL had been made by no later than November 2016.

Relying on the correspondence from the Ministry of Natural Resources

and Forestry, the Union argued that as early as May 31, 2016 White

River and NFMC had a settled intention to transfer the SFL to NFMC

and that by November 24, 2016 draft agreements between White

River and NFMC, subject only to the approval of the Minister of Natural

Resources and Forestry, had been reached.

87.

The Union submits that the evidence indicates that they were

not told about the possible transfer of the SFL to NFMC. However, if

the evidence of White River is to be preferred, at best it establishes

that Mr. Groves indicated that the SFL might be transferred.

88.

As also referred to above, NFMC had entered into a Harvester

Agreement with White Lake in May 2017. The Union argued that this

further supports the conclusion that the parties were confident that the

SFL would be transferred to NFMC well before January 1, 2018.

- 18 -

89.

The Union argued that Mr. Groves acknowledged in cross-

examination that he made a mistake by failing to tell the Union that he

had concluded that the transfer of the SFL would have an impact on

the Union’s bargaining rights in the fall of 2017 and waiting until the

January 31, 2018 meeting to do so.

90.

The Union submits that if it had been advised of the

negotiations leading up to the transfer of the SFL in a more timely

manner it would have become involved at that time. At a minimum,

the Union argued that it would have approached NFMC and the

Government, to discuss the implications of the transfer. As noted by

the Union, White River never told NFMC it was a party to a collective

agreement with the Union covering the woodlands.

91.

Similarly, the Union submits there was no evidence that the

Minister of Natural Resources was aware of the Woodlands Collective

Agreement. The Union argued that if it knew the Minister’s approval

for the transfer of the SFL was being sought it would have taken steps

to try to protect its bargaining rights. The Union argued that section

34 of the CFSA requires the Minister to consider the impact of a licence

transfer on “any collective agreement to which the licensee is a party

and which affects the harvesting of the forest resources in the

management unit to which the license relates”.

92.

The Union also argued that I should reject White River’s

argument that the transfer of the SFL would not have a significant

impact on the bargaining unit because there were no employees in the

bargaining unit. The Union submitted that a careful reading of the

cases shows that they speak of the impact on “the bargaining unit”

and “bargaining unit members”.

93.

The Union relied on the following decisions in support of its

position: Crown in Right of Ontario (as represented by the Ministry of

Government Services), [2012] O.L.R.B. 90 (“Ministry of Government

Services”); Canadian Pacific and Union Carbide Canada Ltd., [1992]

O.L.R.B. Rep. 645.

94.

In Ministry of Government Services, the Board provided a

detailed history of the origins and evolution of the duty to bargain in

good faith. The Board emphasized that the duty is intended to “foster

rational, informed discussion”.

The Board also held that the

requirement of rational discussion requires the parties to communicate

with each other. Conduct that undermines the decision-making ability

- 19 -

of one of the parties (by lack of communication for example) is

contrary to the duty to bargain in good faith.

Similarly,

misrepresentations also destroy the decision-making ability required in

collective bargaining. In summary, the Board held that the duty to

bargain in good faith “requires parties to engage in full and honest

discussion and censures parties for withholding information that the

party opposite requires in order to intelligently appraise a proposal.”

95.

In Canadian Pacific, the Board held that, generally, an

employer is required to disclose information that is necessary for a

union to reach “informed decisions and perform its statutory duties”.

According to the Board in Canadian Pacific, the information that must

be disclosed “includes any decision made by the employer to the

extent that the decision has an impact on the bargaining unit

employees or their trade union”. The Board found a violation of the

duty to bargain in good faith in Canadian Pacific noting that the

employer had made a de facto decision to shut down a turbine and

knew, or ought to have known, that the decision would have an impact

on the bargaining unit. The Board also noted that a number of

bargaining unit employees suffered losses as a result of the employer’s

decision (and its failure to advise the union of that decision).

96.

In Union Carbide Canada the Board also noted that employers

are under an obligation to reveal to a union, on its own initiative,

decisions already made that may have a major impact on the

bargaining unit. The Board noted this obligation applied to decisions

already made and de facto decisions. Including de facto decisions is

important, according to the Board, to counteract the possibility for

manipulation, whereby employers could wait to announce a major

decision until after the conclusion of collective bargaining.

97.

The Board also distinguished the obligation on an employer

with respect to “unsolicited disclosure” (as set out in the preceding

paragraph) from the obligation on an employer when it is asked during

bargaining if any such initiatives (that are likely to have a significant

impact on the bargaining unit) are being contemplated. In these

circumstances there is no dispute that an employer must answer

honestly. Put somewhat differently, the Board noted that “the specific

asking of the question by the Union “sharpens” the obligation to

disclose”.

- 20 -

Analysis of whether White River engaged in ULP prior to

transfer of SFL

98.

As set out above, I am satisfied that White River did not

violate the duty to bargain in good faith prior to the transfer of the

SFL. I have reached this conclusion for the following reasons.

99.

First, based on the evidence before me I am satisfied that

White River, and specifically Mr. Groves, told the Union that there was

a possibility that the SFL would be transferred. I am satisfied that this

was consistent with what White River knew at that time.

100.

The evidence with respect to what happened during the March

9, 2017 meeting was, relatively speaking, sparse. It effectively came

down to the testimony of the three individuals who were present at the

meeting: Mr. Groves, Mr. Jean and Mr. Bourgouin.

101.

Mr. Groves’ evidence was consistent throughout. Conversely,

the evidence of Mr. Jean and Bourgouin was less definitive. They

regularly indicated they could not recall whether something happened

or not. In addition, as set out below, on at least one key point their

evidence differed in a meaningful way. Mr. Bourgouin stated that Mr.

Groves said that there were “changes coming” to the SFL. Conversely,

Mr. Jean said that Mr. Groves indicated there was “activity” with

respect to the SFL. Taken as a whole, I am therefore satisfied that the

evidence supports the conclusion that Mr. Groves raised the possibility

of the SFL being transferred to NFMC.

102.

Mr. Groves maintained that he told the Union during the

meeting that there was a possibility the SFL would be transferred to

NFMC. He indicated that he did not have a timetable and that the

transfer was not set in stone. He also indicated that he called Mr.

Bourgouin sometime prior to the January 31, 2018 meeting and told

him during that call as well that the SFL was being transferred.

103.

The Union’s evidence, from Mr. Jean and Mr. Bourgouin was

that they did not recall Mr. Groves saying the SFL could be transferred.

They both indicated that they had no recollection of Mr. Groves raising

the SFL at all.

104.

Mr. Jean testified that he recalled Mr. Groves stated that there

were “activities” around the SFL. Mr. Bourgouin indicated that Mr.

- 21 -

Groves said that “changes” were coming to the SFL. While not a

significant difference in terms of the meaning of what Mr. Groves said,

the lack of consistency between Mr. Jean and Mr. Bourgouin (as well

as their acknowledgement that they could not recall various aspects of

the meeting) undermined the definitiveness of their evidence when

compared to that of Mr. Groves. Mr. Bourgouin also indicated that he

could not recall the call from Mr. Groves when Mr. Groves states that

he told him for a second time that the SFL was going to be transferred.

105.

There were a number of other examples where Mr. Jean and

Mr. Bourgouin appeared indecisive in their evidence. For example,

both indicated initially that Mr. Groves did not provide any information

with respect to contractors working on the White River forest at that

time. Over the course of being cross-examined, their evidence shifted

and they acknowledged that Mr. Groves had in fact provided them with

some of the information they had requested.

106.

To be clear, I am satisfied that all of the witnesses were doing

their best to answer the questions put to them honestly and

accurately. It simply appeared to me in reviewing the evidence that

Mr. Groves had a clearer, more definitive, and more accurate

recollection of what was said during the March 9, 2017 meeting.

107.

As mentioned at the outset, the evidence with respect to that

meeting was relatively sparse. None of the parties took notes. There

was no follow up correspondence. As such, the only evidence before

the Board with respect to the March 9, 2017 meeting came from the

individuals present at the meeting.

108.

That being said, Mr. Groves’ evidence was corroborated by

some of the other evidence before the Board. In particular, his

evidence that the transfer of the SFL was a possibility but that there

was no timeline and nothing was set in stone is consistent with the

correspondence from the Ministry of Natural Resources and Forestry

from November 2016 that indicated that the transfer of the SFL was

subject to the Ministry’s approval (and remained outstanding).

109.

In the alternative, if I am wrong about what was said at the

March 9, 2017 meeting, and Mr. Groves did not raise the possibility

that the SFL could be transferred I would nonetheless be satisfied that

White River did not breach the duty to bargain in good faith.

- 22 -

110.

As set out above, at the time of the March 9, 2017, the

transfer of the SFL remained very much in flux and was far from a

sure thing. Nor were the parties engaged in collective bargaining at

the time. Despite the Union’s efforts to characterize their evidence

differently, in cross-examination both Mr. Jean and Mr. Bourgouin

agreed that the March 9, 2017 meeting did not involve collective

bargaining.

The witness all described the meeting somewhat

differently however the consistent theme was that the March 9, 2017

meeting was a preliminary meeting or a pre-cursor to actual collective

bargaining. Here too, Mr. Groves’ evidence was more precise and

definitive than that of Mr. Jean or Mr. Bourgouin both of whom

indicated they could not recall portions of that meeting.

111.

There was no evidence that the Union made specific inquiries

about the status of the SFL. To the contrary, to the extent that there

was any evidence on this issue, Mr. Groves testified that after he told

the Union about the possible transfer of the SFL neither Mr. Jean nor

Mr. Bourgouin followed up. Mr. Jean and Mr. Bourgouin did not

disagree with Mr. Groves on this point. They both stated that they

could not recall if the Union followed up with White River. However,

they also stated that they would not be surprised if they did not follow

up because “things were always happening” with the SFL.

112.

As set out in the cases referred to above (and as will be

discussed further below), whether the parties were actively engaged in

collective bargaining (they were not) and whether the Union made

specific requests for information (they did not) are important factors

the Board considers when determining what information an employer

is required to disclose.

113.

In OPSEU the Board had the following to say about an

employer’s obligation to disclose information in collective bargaining:

… a party is not under an obligation to reveal everything to

its collective bargaining “partner”. It need not show all of

its cards. What must be revealed, whether in response to

a direct enquiry or otherwise, will depend, partly on the

circumstances, but more importantly on the objective

significance of the collective bargaining issue affected.

114.

In Westinghouse, the Board turned its attention to the issue of

whether there is a duty on an employer to reveal, of its own initiative,

plans that are not finalized during bargaining but that, if finalized and

implemented during the life of the collective agreement, would have a

- 23 -

“significant impact on the economic lives of the bargaining unit

employees”. In answering that question the Board held as follows:

… Given the requirement upon the company to respond

honestly at the bargaining table to union inquiries with

respect to company plans which may have a significant

impact on the bargaining unit, the effect of requiring the

employer to initiate discussion on matters which are not

yet decided within his organization would be of marginal

benefit to the trade union and could serve to distort the

bargaining process and create the potential for additional

litigation between the parties.

The section 14 duty,

therefore, does not require an employer to reveal on his

onw [sic] initiative plans which have not become at least

de facto decisions.

115.

The Board’s determination in Westinghouse is a complete

answer to Local 1-2010’s assertion that White River breached the duty

to bargain in good faith for failing to disclose the possible transfer of

the SFL to NFMC. No decision regarding the transfer of the SFL had

been made at the time of the March 9, 2017 meeting. The Union did

not ask any questions about the transfer of the SFL during that

meeting. Accordingly, White River was not under any obligation to

disclose the possibility that it might be transferred (although as set out

above I am satisfied that they did in fact do so)

116.

The case before me is also clearly distinguishable on the facts

from the circumstances in the Ministry of Government Services. In

that decision the Board held that the Employer engaged in a

“deliberate misrepresentation”.

Going further, the Board held as

follows:

Lest this decision be read as standing for a broader

conclusion than what it has in fact reached, the Board

wishes to be clear that, in this case, the Employer

deliberately created a construct whereby AMAPCEO, and

others, would come into possession of incorrect information

as to the terms of the OPSEU unified settlement in order

that the OPSEU settlement would be perceived as being

less costly than it in fact was with the intent of causing

AMAPCEO to lower its expectations and demands at the

bargaining table. This is not a case where the Employer

simply maintained the confidentiality of, or declined to

provide AMAPCEO with, information as to the terms on

which OPSEU settled. That would have been an entirely

different case in respect of which I make no comment.

- 24 -

117.

category.

Suffice to say that the case before me falls into the latter

There was no allegation that White River created a

“construct” designed to impact the Union’s bargaining stances. At

most, it was alleged that White River failed to tell the Union that the

SFL was going to be transferred. However, as set out above, I have

concluded that the Union was told that the SFL was being transferred.

Accordingly, this decision is not particularly helpful in this matter.

III

ULP following transfer of SFL

Period following transfer of SFL

118.

White River also took the position that it did not violate the

duty to bargain in good faith after the transfer of the SFL. White River

argued that the bargaining rights at issue attach to the SFL itself.

Once the SFL was transferred to NFMC, White River was no longer

bound to the Union and had no obligation to bargain collectively with

the Union. As such it did not violate the duty to bargain in good faith

after the transfer of the SFL on January 2, 2018.

119.

White River argued the position of the Union is inconsistent

with the language in Article 3.01. According to White River, the

Union’s interpretation ignores the intention of the parties as

determined by the words chosen when they agreed to the language in

Article 3.01. White River submitted that the Union’s argument (set out

below) that bargaining rights apply to White River’s current operations

in the White River Forest ignores the words “of the Company” in Article

3.01(a) and seeks an overly expansive interpretation of the bargaining

unit.

120.

The Union disagreed with White River’s position that the

bargaining rights attach to the SFL and that when the SFL was

transferred the bargaining rights ceased to apply to White River. The

Union argued that White River’s refusal to bargain at all following the

transfer of the SFL was therefore also a violation of the duty to bargain

in good faith.

121.

According to the Union, the SFL is the mechanism used by the

Government of Ontario to assign the right to harvest under the CFSA.

The SFL includes a number of obligations on the holder of the licence.

It does not speak to issues of collective bargaining.

- 25 -

122.

As will be set out in further detail below, the Union (and

NFMC) also argued that in effect nothing changed for White River

following the transfer of the SFL. According to the Union, White River

carried out its harvesting operations in the same way after the transfer

of the SFL as it did prior to the transfer taking place. Pursuant to the

licence transfer agreement between White River and NFMC, the parties

were required to have entered into a Wood Supply Agreement prior to

the transfer of the SFL to NFMC.

The Wood Supply Agreement

between NFMC and White River, required NFMC to supply all of the

available spruce, fir and pine to White River for its sawmill. The Wood

Supply Agreement remains effective until March 26, 2036 (with the

parties agreeing to meet and negotiate an extension prior to its

expiry).

123.

In addition to the Wood Supply Agreement, the parties also

entered into a Forest Operations Agreement. The Forest Operations

Agreement became effective on April 1, 2018. Pursuant to the Forest

Operation Agreement, White River was authorized to harvest the

timber referred to in the Wood Supply Agreement.

124.

The Union also notes that White River did not tell them it was

negotiating either of these agreements with NFMC or that the transfer

of the SFL was conditional on White River being given a Forest

Operations Agreement by NFMC.

Limits and work sites

125.

White River relies on Article 3.01 of the Woodlands Collective

Agreement in support of its argument that the bargaining rights

attached to the SFL itself. Article 3.01 states as follows:

(a) The Company recognizes the Union as the sole

collective bargaining agency for all of its employees who

are engaged in woods operations on the limits, and on the

work sites, of the Company. For purposes of this Article,

Company employees shall be all those employed in the job

classifications set out in the wage schedule attached to and

forming a part of this Agreement, including those who are

employed on job classifications which may be established

and become part of the attached wage schedule during the

term of this Agreement.

(b) The employees of contractors engaged by the

Company on the limits and work sites of the Company shall

be considered employees within the terms of this

- 26 -

agreement; save and except the employees of contractors

and/or the contractors who are engaged to perform

occasional special services not commonly performed by

employees covered by the terms of this Agreement,

employees of contractors where such contractors are

engaged for the purpose of erecting structures and where

such a contractor is bound by an Agreement with a Union

or Unions affiliated with a central labour body covering

such work.

(c) The Company and the Union agree that an operator

who enters into a third party agreement with the Company

and Ministry of Natural Resources, and produces forest

products for the Company or any of the negotiating

companies, shall have an agreement with the Union

covering such operations.

(d) See Letter of Understanding attached.

White River’s Interpretation

126.

According to White River, “limits” and “work sites of the

Company” defines the scope of the Union’s bargaining rights. White

River submits that “limits” refers to the area a company has been

licensed by the Ministry to harvest wood. It argued that limits is a

term of art in the forest industry and that it is used interchangeably

with “license”.

Mr. Willick (currently President of M.L. Willick &

Associates Ltd, a forestry consulting firm; formerly Assistant Director,

Regional Director, District Manager and Assistant Deputy Minister at

the Ministry of Natural Resources; and a designated Registered

Professional Forester since 1975) testified that in forestry, the term

limits mean the licensed area. He then went on to say that “these

days limits means an SFL”. As will be set out below, work sites refer

to areas outside of the harvesting area controlled, to a certain degree,

by the employer used to perform duties related to harvesting

operations.

127.

White River relies on the decision of Arbitrator Gray in

Kimberly-Clark Forest Products Inc. v IWA-Canada, Local 2693, [2002]

OLAA No. 874 (Gray) (Ont Arb) (“Kimberly-Clark”). According to

White River, in that decision, the arbitrator interpreted the same

recognition clause as Article 3.01(a) of the Woodlands Collective

Agreement and held that the terms “limits” and “work sites” defined

the geographic scope of the union’s bargaining rights.

In that

decision, Arbitrator Gray stated that an employee not engaged on the

- 27 -

“limits” or “work sites” would not be covered by the collective

agreement.

128.

White River also relied on the decision of Arbitrator Foisy in

Domtar Inc. and I.W.A. – Canada, Local 2693, (1996) 43 CLAS 192

(Foisy) (Ont Arb) (“I.W.A. Canada, Local 2693”) and the decision of

Arbitrator Gray in Spruce Falls Inc. and United Steelworkers of

America, Local 1-2995, (2005) 82 CLAS (Gray) (Ont Arb) (“Spruce

Falls” in support of its position.

In I.W.A. Canada, Local 2693,

Arbitrator Foisy noted that the limits were granted by the Ministry of

Natural Resources. In Spruce Falls, Arbitrator Gray defined limits as a

term regularly used in woodlands agreements “to describe the

geographic area within which the provincial government has given the

employer the right to harvest wood from Crown lands.”

129.

Similarly, in Resolute Forest Products Ltd. and USW, Local 1-

2010 (05-USW-2017), 2019 CarswellOnt 9219 (Nyman) (Ont Arb)

(“Resolute Forest”) the Arbitrator referred to the area covered by the

sustainable forest license at issue in that matter as the “limits”.

According to White River, the terms “limits” and “licenses” are also

used interchangeably in I.W.A. Canada, Local 2693 and Kimberly-

Clark.

130.

According to White River, this jurisprudence supports the

conclusion that the “limits” is the “license” granted by the provincial

government. The limits provide the recipient the right to harvest

timber in a designated area. White River argued that following the

transfer of the SFL it no longer held any limits. The work White River

is currently engaged in in the White River Forest is undertaken

pursuant to the Wood Supply Agreement and the Forest Operations

Agreement. However, because White River does not hold the SFL or a

“limit”, bargaining rights do not apply.

131.

Relying on the Supreme Court’s decision in Creston Moly Corp

v. Sattva Capital Corp., [2014] 2 SCR 633 (“Sattva”), White River

argued that its interpretation is consistent with the surrounding

background facts and context. In particular, and in addition to the

relevant jurisprudence, White River relied on historical forestry

literature, statutes and the evidence of its witnesses. According to

White River, all of these sources confirm that limits and license

referred to the same concept: the right to cut wood on a defined piece

of land.

- 28 -

132.

White River argued that the term “limit” is unique to Ontario

Forestry. White River relied on the definition of limit found in the 1947

Report of the Ontario Royal Commission on Forestry (the “1947

Report”). The 1947 Report defined a limit as “a tract of land owned by

a “limit owner” or leased by a “limit holder” from the Crown for the

purpose of conducting a forest industry”. White River also pointed to

other aspects of the 1947 Report in support of its interpretation of

“limits” as being a reference to geographic areas covered by various

instruments that allowed for the harvesting of timber.

133.

White River also argued that its interpretation was consistent

with the definition of “limits” in the 1937 Crown Timber Act, RSO

1937, c. 36. According to White River, section 5 of the 1937 Crown

Timber Act “describes a timber limit as conferring the right to cut and

remove” various types of trees and timber. White River also relied on

the federal bulletin for the Income Tax Act dated November 27, 1981

(the “bulletin”). The bulletin equates a timber limit with a right to cut

or remove timber from a piece of land. Again, White River submits

this is consistent with its interpretation that limits mean a right to cut

wood and a right to cut wood pursuant to a license. White River

acknowledged that the term limits is not used in the CFSA.

134.

White River submitted that its interpretation of “limits” was

also consistent with the evidence of the witnesses. According to White

River, the evidence of Mr. Groves, Mr. Wilick and Mr. Frost (Union

representative and First VP who has worked in the forest industry

since 1973 and started as a union steward in 1976) was consistent and

indicated that “limits” refers to the licensed area a company is allowed

to harvest. Mr. Groves stated that limits are the maximum area a

company is licensed to cut.

135.

White River argued that “work sites” refer to locations owned

by a company to perform duties related to harvesting woods.

According to Mr. Groves, they are normally located outside the harvest

area covered by the collective agreement and are usually used to help

carry out harvesting operations. Mr. Groves cited a garage, a further

processing yard or an additional yard to store wood as possible

examples. As set out above, White River states that it no longer

possesses any work sites. The garage has been demolished and the

yard has been transferred to the Sawmill Collective Agreement.

136.

White River relied on the decision of Arbitrator Brent in

Domtar Inc. and USW, Local 1-2693, 2006 CarswellOnt 5707 (Brent)

- 29 -

(Ont Arb) (“USW, Local 1-2693”) in support of its position. Arbitrator

Brent noted that the term “work sites of the Company” suggested

“locations of a more permanent nature pertaining to harvesting

operations on the employer’s limits”. Later she defined work sites as a

“place where the Company conducts its business in that it has control

over the physical site where its work is performed”. The Arbitrator

also noted that the mere fact that employee happens to do work at a

particular location was insufficient to conclude that that location was a

work site by virtue of that reason only. In other words, Arbitrator

Brent rejected the interpretation that anywhere an employee of the

employer does work is a work site simply because the employee is

working for the employer at that location.

137.

White River also noted that in this decision Arbitrator Brent

held that the onus is on the union to establish what constitutes a work

site.

138.

White River submitted that in order to constitute a work site a

location must be of a “more permanent nature pertaining to harvesting

operations on the company’s limits”. Further, it argued that the work

site is owned by the company, is a place where employees perform

work of the company under the company’s direction and is a place

where the company has control over the site, the employees working

there, and the work being performed. Based on the foregoing, White

River submitted that there were no locations that could be considered

work sites under the Woodlands Collective Agreement.

139.

White River submits that it no longer owns any work sites in

the White River. Nor, following the transfer of the SFL, does it possess

any licensed areas (or any “limits”). As such, according to White

River, the bargaining rights contained in the Woodlands Collective

Agreement no longer apply to White River.

140.

White River also argued that the bargaining rights were further

restricted insofar as they only attached to those individuals who were

“employees of White River” engaged in woods operations on “its” limits

and work sites.

- 30 -

141.

White River relied on the decision of Arbitrator Surdykowski in

Domtar Inc. and USWA, Local 2693, (2007) 89 CLAS 233

(Surdykowski) (Ont Arb) (“Domtar and USWA”), where the Arbitrator

commented on a recognition clause identical to Article 3.01 of the

Woodlands Collective Agreement.

Arbitrator Surdykowski held that

the Union’s bargaining rights attached only to individuals employed by

the employer and engaged in woods operations on that employer’s

limits or work sites. Because White River no longer has any limits or

work sites, any contractors engaged by White River in the White River

Forest are working on NFMC’s limits (and the sites do not constitute

work sites). The work therefore does not fall within the Woodlands

Collective Agreement recognition clause.

142.

White River also argued that “limits” is not the same as a

management unit. According to White River, a management unit is a

geographic area used for planning purposes. It is an area of land the

Province of Ontario wants a forest management plan to be written for.

According to Mr. Groves, an SFL can be issued for all, or part, of a

management unit. Mr. Groves indicated that not all management

units have an SFL attached to it.

143.

As set out below, the Union argued in favour of a more

expansive interpretation of “limits” and “work sites”. White River

argued there was no authority that supported the Union’s

interpretation.

White River further argued that the Union’s

interpretation effectively read those terms out of the collective

agreement.

NFMC’s Interpretation

144.

Although not a party to the ULP application, NFMC indicated

that it did not agree with White River’s position that the term limit was

interchangeable with a license. NFMC argued that the phrase “woods

operations” in Article 3.01 (a) of the Woodlands Collective Agreement

referred to harvesting operations and that the “limits” are the

boundaries of the White River Forest. NFMC relied on the decision of

Arbitrator Palmer in Domtar Inc. v USW, Local 1-2693, [2001] OLAA

No. 780 (Palmer) (Ont. Arb) (“Domtar – Palmer decision”) in support

of this position.

- 31 -

145.

NFMC also argued that the “Wage Schedule White River Woods

Division” supported its conclusion. Similarly, NFMC submitted that

reference to “harvesting operations in the White River Forest” in Article

2 of the Dottori Agreement also supported the conclusion that the

Collective Agreement applies to all of the White River Forest.

146.

NFMC challenged the relevance of some of the jurisprudence

relied on by White River. For example, in Spruce Falls the issue before

Arbitrator Gray concerned whether certain individuals were caught by

a recognition clause. The decision did not, according to NFMC, involve

an interpretation of Article 3 or an interpretation of “the limits”.

147.

NFMC raised a similar argument with respect to Arbitrator

Nyman’s decision in Resolute Forest. There too the decision did not

involve an interpretation of Article 3 or of “the limits”. NFMC argued

that the decision in Kimberly-Clark also does not address the meaning

of “the limits”. Finally, NFMC argued that the decision in I.W.A.

Canada, Local 2693 also did not support White River’s argument that

limits and licenses were inter-changeable. NFMC submitted that this

decision was an example of a situation where the holder of the right to

harvest was not the signatory to the collective agreement.

148.

NFMC submitted that the Board should not put any weight on

White River’s submissions with respect to the 1947 Report. NFMC

argued that interpreting the Woodlands Collective Agreement should

not be done through the lens of a 75 year old document. Forestry

practices have changed to such an extent over that period of time as

to be practically unrecognizable.

149.

NFMC argued that the Board should not rely on the 1937

Crown Timber Act or the Income Tax Act in interpreting the relevant

language. The Crown Timber Act relied upon is from 1937 and is not

relevant to the issues in dispute. The Income Tax Act is a Federal

statute that has a completely different purpose than the CFSA or the

Act.

150.

Finally, NFMC argued that White River’s interpretation of

Article 3.01 changed over the course of the proceedings. According to

NFMC, initially White River took the position that a party had to be the

primary licensee for bargaining rights to attach. NFMC argued that

over the course of the hearing White River’s position changed to

- 32 -

include employers who had a direct or indirect ownership over a

company that is a primary licensee.

Interpretation of the Union

151.

The Union disagreed with White River’s interpretation of “limits

and work sites of the Company”. According to the Union, Article 3.01

refers to the areas where White River actually performed woods

operations, regardless of whether the operations were performed in

areas specifically assigned to it for harvesting (limits) or areas in which

it otherwise conducted woods operations (work sites).

152.

The Union also argued that the “limits” could be created in any

number of ways including for example a SFL, an overlapping

agreement, or a wood supply agreement. In his will say statement,

Mr. Jean took the position that the language in Article 3.01 was meant

to cover all of White River’s forestry operations regardless of how they

are authorized.

interpretation.

In cross-examination, Mr. Jean confirmed this

153.

The Union argued that its interpretation of Article 3.01 is

consistent with the principles of interpretation relied upon by

arbitrators when interpreting collective agreements (as set out by

Arbitrator Johnson in Tembec Inc. FPG-Cochrane Sawmill and United

Steelworkers, Local 1-2010, unreported decision of May 14, 2018)

“Tembec Inc.”). The Union submits that ultimately an arbitrator must

decide the interpretation that makes the most sense in all of the

circumstances.

154.

Applying those principles to Article 3.01 of the Collective

Agreement leads to the inescapable conclusion, according to the

Union, that the Collective Agreement applies to all of the forestry

operations of White River – “the defined areas in which it harvests

(limits) or any location in which it performed harvesting operations

(work sites)”.

155.

The Union submits that White River’s interpretation leads to an

unreasonable result. Under White River’s interpretation, the Union

would have to be concerned about how the employer acquired the

right to harvest. The Union submits that it is only concerned with the

working conditions of employees working in the woodlands. It doesn’t

care how the right to harvest was acquired.

The Union also

emphasized, and Mr. Groves agreed, that Mr. Groves had no firsthand

- 33 -

knowledge of how the phrase “limits and worksites of the Company”

was included in the Domtar Collective Agreement (the predecessor to

the collective agreement at issue in these applications).

156.

The Union also submits that White River’s interpretation

requires terms to be read into the Collective Agreement. Not only

does reading terms into the collective agreement violate a basic rule of

interpretation, it is specifically prohibited by article 8.09 of the

collective agreement. Article 8.09 specifically enjoins arbitrators from

altering, adding or amending the agreement. The Union points out

that terms such as “sustainable forest licence”, “forest management

company”, “direct or indirect ownership”, “forest resource licence” or

“company owned location” cannot be found in Article 3.01. The Union

argues that in order to give Article 3.01 the meaning White River

seeks to give it would require the addition of these words to the

recognition clause.

157.

The Union also argued despite White River’s efforts to define it

as such, the term “limits” is not a legal term. The CFSA does not use

the term in relation to geographic scope. Rather it uses the term

management units.

Had the parties to the Domtar Collective

Agreement wanted to tie jurisdiction to the grant in the license, the

Union argues they would have used the term management unit.

Alternatively, the Crown Timber Act (1990) makes reference to a

licensed area. Again, if the parties had intended to tie the language to

the legislation, the Union argued it would expect to see that language

used, not the term “limits”.

158.

Similarly, to the extent that White River tried to establish an

industry practice or understanding related to the term “limits and work

sites” the Union disagreed. Mr. Joe Hanlon, former President of Local

2693 (one of the predecessor Unions prior to the merger leading to

Local 1-2010) with a history going back over 40 years in the forestry

industry, was emphatic that there was no such practice or

understanding. He noted that in all of his experience negotiating

collective agreements, no company had ever taken the position that a

union’s collective bargaining rights were tied to a sustainable forest

licence or an overlapping licence.

159.

Mr. Hanlon acknowledged that he never canvassed the

opinions of companies on the meaning of “work sites and limits” when

bargaining. However, he stated that he discussed the meaning of

those terms with a number of employers working in forestry who had

- 34 -

similar (or identical) language in their collective agreements as part of

broader conversations with respect to Article 3 of the collective

agreements. No one claimed that “work sites and limits” was tied to

collective bargaining rights.

160.

Similarly, Mr. Frost testified that at no time during his 21

years as a union representative had the term “limits and work sites”

been interpreted to refer exclusively to work performed under a

sustainable forest licence, a forest resource licence, or by a company

with a stake in a forest management company. According to the

Union, Mr. Frost identified 15 forestry companies that have collective

agreements with the Union that contain the same recognition clause.

According to Mr. Frost, none of these companies fall under the

interpretation provided by White River.

161.

Mr. Jean was asked what he thought “limits” meant. He said

that it was his understanding (and the understanding of the Union

more generally) that it meant “blocs or license” you have to operate in

an area. In cross-examination, Mr. Jean stated that work site meant

anywhere White River engaged in forestry operations. When asked

why the term “limits” was included in Article 3.01 if “work site” meant

everywhere White River engaged in forestry operations, Mr. Jean

stated that he did not know. He also indicated that he thought an area

was a work site if fell outside of the limits.

162.

Mr. Bourgouin put forward a similar interpretation of the terms

“limits” and “work sites”. He also noted that these terms appear in

almost every collective agreement between the Union and an employer

with woodlands operations and that no one had ever taken the position

that the terms referred to harvesting operations governed by an SFL

or an overlapping license.

163.

Mr. Bourgouin acknowledged that he was not present when

that language was first inserted into relevant collective agreements.

He also agreed when it was put to him that the meaning of the terms

was never the subject of collective bargaining. In cross-examination,

Mr. Frost agreed that the meaning of the terms had never come up in

collective bargaining. Mr. Frost also agreed that the inclusion “limits”

and “work sites” preceded his involvement in collective bargaining.

164.

The Union also argued that even if an industry practice has

been sufficiently established (the Union submits that it has not been),

that would not in and of itself determine the meaning of the provision

- 35 -

at issue.

Rather, in order to establish the accuracy of its

interpretation, White River would need to establish that the parties

shared a mutual intent for that interpretation to apply. The practice

relied upon must also be clear and unequivocal. The Union submits

that White River failed to satisfy any of these thresholds. The Union

submitted that the evidence of Mr. Hanlon, Mr. Frost, Mr. Jean and Mr.

Bourgouin revealed a different understanding of the term “limits” than

the understanding suggested by Mr. Groves or Mr. Willick. The Union

relied on the decisions in Livent Inc., 1996 CarswellOnt 6520 (“Livent”)

and Uniroyal Goodrich Tire Manufacturing v. U.S.W.A., Local 677,

(2000), 92 L.A.C. (4^th) 366.

165.

The Union noted that the language at issue was first included

in the Collective Agreement between Domtar and USW Local 2693.

According to Mr. Hanlon, no forestry company (including Domtar) had

ever advanced the interpretation put forward by White River. Rather,

according to Mr. Hanlon, both the Union and Domtar understood that

the collective agreement would apply to the employees in the

company’s woods operations generally.

166.

The Union noted that neither Mr. Groves nor Mr. Willick had

any first hand involvement in the bargaining between Domtar and the

Union. Nor could either of those witnesses give any evidence about

the mutual understanding with respect to the language (in contrast to

Mr. Hanlon).

167.

Similarly, NFMC argued that the Board should not give any

weight to the evidence of Mr. Groves and Mr. Willick. NFMC submitted

that neither had any collective bargaining experience.

168.

Turning specifically to the term “work site of the Company”,

and relying on the decision of Arbitrator Brent USW, Local 1-2693, the

Union argued that the Forest Operations Agreement provides White

River with the necessary control over the physical site (the harvest

blocs) to constitute a work site. The Union notes that the Forest

Operations Agreement stipulates that woods operations can be

conducted in allocated harvest blocks in the White River Forest. Those

allocated blocs are determined by the Annual Work Schedule. The

Union also notes that the term “limits” does not appear in the CFSA as

a reference to harvesting areas.

- 36 -

Articles 3.01 (b) and (c) do not help

169.

White River also argued that neither Article 3.01(b) nor (c)

could be relied upon to establish that the Union maintained bargaining

rights with respect to White River. According to White River, Article

3.01(b) and (c) address subcontracting restrictions. The primary

recognition clause is Article 3.01(a), and because there are no longer

any bargaining rights under 3.01(a), the subcontracting restrictions in

3.01 (b) and (c) do not apply. White River argues that 3.01(c) speaks

specifically to situations involving overlapping licenses. There are no

such licenses at issue in the current matter and therefore 3.01(c)

cannot apply.

170.

Granting the Union bargaining rights that go beyond the limits

and work sites would result in an improper expansion of the Union’s

bargaining rights. White River relied on the decision of Arbitrator

Misra in Domtar Inc. and Unifor, Local 324 (Overlapping Licence

Dispute), 2016 CarswellOnt 11004 (Ont Arb) (Misra) and the Domtar –

Palmer decision.

ULP serves no labour relations purpose

171.

White River noted that the Board had the discretion not to

inquire into a complaint under section 96(4) of the Act. White River

took the position it would be inappropriate for it to bargain the renewal

of the Woodlands Collective Agreement because it no longer holds the

SFL and bargaining rights attach to the SFL. The SFL is held by NFMC.

According to White River, the Board has been clear that, in the

circumstances, it should not be required to bargain with the Union. As

such, White River argued that the Board should exercise its discretion

and refuse to inquire into the complaint or grant any remedies because

doing so would not serve any labour relations purpose.

Other Collective Agreements/Bargaining Rights

172.

As set out above, the Union argued that the term “limits” does

not refer to licenses. Rather it refers to geographic areas. It noted

that it has entered into a number of collective agreements, with the

same recognition clause as that set out above, with companies that do

not have sustainable forest licenses. According to the will say of Mr.

Jean, those companies operate under a number of different authorities

(such as Third Party Agreements or private arrangements with the

- 37 -

holder of an SFL to harvest specific areas with the SFL holder’s

authorized area). White River’s argument that the limits means the

SFL, and that the bargaining rights attach to the SFL therefore cannot

hold. During his cross-examination by NFMC, Mr. Jean reiterated that

whether or not an employer held a SFL was irrelevant, from his

perspective, to collective bargaining rights.

173.

In response, White River argued that all of the employers at

issue in the collective agreements relied upon by the Union have either

a direct or indirect ownership interest in a company that holds an SFL

for the forest they operate in and normally operate under a forest

resource (or overlapping) license. White River contrasts that with its

own situation where it has no license at all with respect to the White

River Forest (including obviously no SFL and no forest resource license

or overlapping license). As such, White River submits that the Union’s

argument has no merit.

174.

White River also submits that it would be inappropriate for the

Board to consider the practice of other employers when interpreting

the recognition clause of the Woodlands Collective Agreement. It

relies on the decision of Arbitrator Surdykowski in Independent

Electricity System Operator and Society of Energy Professionals,

(2009), 99 CLAS 144 (Ont Arb) (Surdykowski) and the decision of

Arbitrator Luborsky in Allmix Concrete Inc and TC, Local 230, (2021),

149 CLAS 167 (Ont Arb) (Luborsky).

175.

The Union submits that the position of White River (as set out

in the preceding paragraphs and echoing the position of NFMC) is

different from the position it took in response to the application.

According to the Union, White River’s initial position was that the term

“limits” referred to the right to harvest in an area under an SFL. The

Union argued that after reviewing Mr. Jean’s will say (containing his

interpretation of the relevant language) White River is taking the

position that while the language at issue still refers to the right to

harvest in an area, the right can now be exercised by either the holder

of the SFL or by a company with a direct or indirect ownership stake in

a company that holds an SFL. Finally, the Union argued that White

River also changed its position on the meaning of the recognition

clause by including the right to harvest under an overlapping Forest

Resource License.

- 38 -

Evidence of Mr. Groves and Mr. Willick

176.

In response to the Union’s objection to the evidence of Mr.

Groves and Mr. Willick (in particular with respect to the meaning of

“limits and work sites”), White River argued that the Board has the

discretion under section 111(2)(e) of the Act to accept evidence

regardless of whether it would be admissible in a court of law. As

such, even if Mr. Groves and Mr. Wiliick’s evidence constitutes opinion

evidence (as alleged by the Union), the Board should admit it.

177.

White River relied on the decision of Arbitrator Lanyon in

Thacker and IAMAW, District Lodge 140, [2017] BCWLD 7202 (BC Arb)

(Lanyon) in support of its argument that the evidence could and

should be admitted. It argues that Mr. Groves and Mr. Willick are

experienced professional foresters who both have over 40 years

forestry experience. Their evidence was subjected to “rigorous cross-

examination”. The term “limits” has a “forestry specific” meaning that

is not readily apparent to those outside of the forestry industry.

Finally, the evidence at issue is highly relevant and necessary for the

Board to understand in order to properly interpret the recognition

clause of the Woodlands Collective Agreement. The evidence should

therefore be admitted.

178.

Conversely, the Union argued that they had no knowledge of

the facts regarding any industry understanding as that pertained to

collective bargaining. In short, the Union submitted that neither Mr.

Groves nor Mr. Willick had any experience in collective bargaining. At

a minimum, their lack of any evidence with respect to the meaning of

Article 3.1 of the Collective Agreement should go to the weight given

to their evidence.

White River’s rights in the White River Forest post transfer of

the SFL – position of White River

179.

The parties spent considerable time reviewing the implications

(if any) of the transfer of the SFL from White River to NFMC. As will

be set out in greater detail below, White River took the position that

the transfer of the SFL signalled a number of significant changes with

respect to White River’s rights in the White River Forest. NFMC and

the Union downplayed impact of the transfer of the SFL.

- 39 -

180.

White River called this evidence mainly in support of its

argument that the bargaining rights in the Woodlands Collective

Agreement were tied to the limits. White River argued that it was no

longer the ultimate beneficiary of the SFL. The transfer of the SFL

brought about significant changes to White River’s ability to harvest

and consume wood in the White River Forest. Conversely, NFMC and

the Union argued that the transfer of the SFL had no meaningful

impact on the situation on the forest floor and in particular had no

impact on the Union’s collective bargaining rights.

181.

However, in addition to the purposes set out above, the

evidence with respect to the changes (or lack thereof) brought about

by the transfer of the SFL also speak to Successor Employer

application. In particular, this evidence (and the parties’ related

arguments) speaks to the issue of whether “the essence” of White

River’s business changed hands when the SFL was transferred.

Harvesting Rights

182.

White River argued that the transfer of the SFL to NFMC

resulted in real change to its’ position in the White River Forest. It is

no longer the ultimate beneficiary of the SFL. It no longer has an

“unfettered right” to harvest and consume wood in the White River

Forest. White River is subject to a number of contractual restrictions

(pursuant to the Wood Supply Agreement and Forest Operations

Agreement) that did not exist prior to the transfer of the SFL.

183.

White River indicated that the extent of NFMC’s commitments

to White River are set out in Schedule A of the Wood Supply

Agreement and that there is no obligation on NFMC to go beyond those

commitments. NFMC on the other hand can harvest all species of

wood in the White River Forest.

184.

White River noted that Mr. Notarbartolo agreed with this

position. According to White River, Mr. Notarbartolo acknowledged

that under the Wood Supply Agreement, NFMC is only required to

make available to White River those species identified in Schedule A to

the agreement. If White River is interested in harvesting any species

not specifically identified in Schedule A, it can only do so provided that

NFMC has not already granted that right to another party and it is able

to negotiate the right to do so with NFMC.

- 40 -

185.

Mr. Notarbartolo also agreed that the Wood Supply Agreement

would be immediately terminated if the sawmill closed or was not

operating. Mr. Notarbartolo agreed that White River would not have

lost the right to harvest in similar circumstances if it still held the SFL.

186.

White River also relied on the fact that the Wood Supply

Agreement can be automatically terminated and that NFMC has the

right to reduce the volume of wood made available to White River if

White River does not cut all of the allotted wood in a given year.

187.

NFMC stated that it did not have the discretion to reduce

White River’s annual allotment in any given year. However, if White

River fails to harvest all the wood from the harvest blocs it is granted

then NFMC has the discretion to determine if it will allow White River

to continue to access those older harvesting blocs. According to

NFMC, it has never reduced White River’s right to harvest from

previous harvesting blocs.

188.

Mr. Groves stated that as such, NFMC can (and may) choose

to reduce the volume of spruce, pine and fir it makes available to

White River. If the volume of wood made available to White River is

not consumed, NFMC can make that wood available to other

contractors. According to Mr. Groves, if White River does not maintain

the harvest (also referred to as the volume target) agreed to with

NFMC, NFMC can make that wood available to someone else. Mr.

Groves indicated that that right took effect three years after the

agreement took effect. Mr. Groves indicated that White River has

harvested well below the volume target in the Wood Supply

Agreement. In cross-examination, Mr. Notarbartolo agreed with this

conclusion.

189.

also has the right to sell a portion of any unused wood to other

entities. White River submitted this was consistent with NFMC’s

White River argued that Mr. Notarbartolo confirmed that NFMC

mandate under Article 5.5 of the Wood Supply Agreement to maximize

the Crown resources. Mr. Groves also indicated that if they wanted to

“carry over” more than 20 percent of the volume from one year to the

next White River needed to get approval. That was not the case under

the SFL.

190.

In cross-examination, Mr. Jean was also taken to the Wood

Supply Agreement. Mr. Jean agreed that prior to the transfer of the

SFL, White River had an unlimited right to harvest wood in the White

- 41 -

River forest. He also agreed that under the Wood Supply Agreement,

NFMC had agreed to make available a specific volume of timber and

that NFMC did not need to make available any amount beyond the

volume specified in that agreement. Mr. Jean agreed that the Wood

Supply Agreement also stipulated that if White River wanted to harvest

species of wood other than those listed in the Wood Supply Agreement

it would have to negotiate the right to do so with NFMC.

191.

Mr. Jean was also taken to Article 11 of the Wood Supply

Agreement. Mr. Jean agreed that if the circumstances laid out in that

Article occurred, White River would lose the right to harvest and

consume in the White River forest. Mr. Jean stated that he was not

aware of any circumstances where that could happen if White River

still held the SFL.

192.

That being said, in cross-examination, Mr. Groves

acknowledged that both the SFL transfer agreement and the Wood

Supply Agreement included provisions designed to give White River a

level of control over the supply of wood to the sawmill. He also noted,

however, that White River did not have control (or complete control)

over who would harvest the wood to make it available to White River.

193.

In cross-examination, Mr. Groves was taken to the preamble

of the Wood Supply Agreement. Paragraph two of the preamble

indicates that that agreement is designed to “formalize” the

relationship between NFMC and White River “related to the flow of

wood fibre” from the White River Forest to the sawmill.

194.

Mr. Groves noted that under the SFL the volume of wood

White River consumed would be reviewed every 5 – 10 years.

Conversely, under the Wood Supply Agreement, that review would

take place annually. In re-direct, Mr. Groves noted that when you

operate under the SFL (or another license) you are directly

accountable to the Crown. However, when you operate under a Forest

Operations Agreement, the license holder (in this case NFMC) will set

the terms.

195.

It was also put to Mr. Groves in cross-examination by the

Union that White River maintained control over the harvest of wood

supply by virtue of the Forest Operations Agreement. Mr. Groves

indicated that it had control only over the area identified in the Forest

Operations Agreement and that there were other forest operation

agreements in the White River Forest. For example, Columbia Forest

- 42 -

Products had a forest operations agreement for harvesting birch and

poplar for a plywood mill.

196.

Mr. Groves also indicated, in cross-examination by the Union,

that a wood supply agreement does not give a party a right to harvest

wood. It is only a commitment of a certain volume of wood. The right

to harvest requires an additional “instrument” (an SFL, a forest

resource licence, or under section 25 of CFSA).

197.

Ultimately Mr. Groves suggested that prior to the transfer of

the SFL to NFMC, White River had the right to harvest and consume all

of the wood in the White River Forest. Now that NFMC is the holder of

the SFL it has a mandate the make wood available to entities other

than White River.

White River’s rights in the White River Forest post transfer of

the SFL – position of the Union

198.

The Union argued that nothing changed following the transfer

of the SFL. Both and before after the transfer of the SFL, 100% of the

spruce, pine and fir in the White River Forest was available to White

River. According to Mr. Jean, following the transfer of the SFL, White

River’s harvesting operations did not change. Rather according to Mr.

Jean, it had merely transferred the right to harvest all of the spruce,

pine and fir under the SFL in exchange for the right to do under the

Wood Supply Agreement and the Forest Operations Agreement.

Nothing else change.

However, in cross-examination, Mr. Jean

acknowledged that he had never reviewed either of those agreements

[i.e., the wood supply agreement or the forest operations agreement].

199.

The Union also argued that White River’s claim that prior to

the transfer of the SFL it had an unlimited right to harvest wood was

not borne out by the facts. The SFL contemplated situations where

White River could be required to share. It also contemplated that the

Minister could grant an Overlapping License.

Finally, the SFL

contemplated that it might not be renewed. The Union argued that all

of these provisions in the SFL undermine White River’s claim that it

had an unlimited right to harvest wood in the White River Forest when

it held the SFL.

200.

Mr. Notarbartolo agreed that White River’s right to harvest and

consume wood in the White River Forest changed after the transfer of

the SFL and that post transfer those rights were limited by the Wood

- 43 -

Supply Agreement and the Forest Operations Agreement. However,

Mr. Notarbartolo indicated that he believed the transfer of the SFL had

no impact on White River’s wood supply or harvesting activities. For

example, in cross-examination by the Union, Mr. Notarbartolo

indicated that under the SFL, White River would identify harvesting

blocs in the annual work schedule that they intended to harvest.

According to Mr. Notarbartolo that is what they do now.

201.

Mr. Notarbartolo also noted that the Wood Supply Agreement

had a term of 18 years and was set to expire in 2026. After that,

there is a renewal clause that will, in the words of Mr. Notarbartolo,

make it easy to renew the agreement on similar terms.

Mr.

Notarbartolo indicated this was in the best interests of both White

River and NFMC. However, he also agreed that once the Wood Supply

Agreement expires, NFMC would have the right to harvest the wood

directly (although he also noted such an outcome was unlikely).

White River’s rights in the White River Forest post transfer of

the SFL – position of NFMC

202.

NFMC took the position that the transfer of the SFL was largely

a formality. White River maintained its right to all of the spruce, pine

and fir in the White River Forest. White River has never consumed any

wood other than spruce, pine and fir. As such, to the extent that it is

now limited to consuming only those species there is no appreciable

change.

203.

In cross-examination, Mr. Notarbartolo agreed that following

the transfer of the SFL, ultimate responsibility for harvesting now

belongs to NFMC. However, he indicated that NFMC relinquished those

harvesting rights back to White River through the Wood Supply

Agreement.

204.

Mr. Notarbartolo acknowledged that the Wood Supply

Agreement was agreed to as part of the negotiations leading to the

transfer of the SFL to NFMC. Mr. Notarbartolo noted that article 5.2

was included in order to ensure that White River would retain harvest

rights in the White River Forest. In response to Mr. Groves’ evidence

that White River was at risk of not being offered 100% of the spruce,

pine and fir from the White River Forest, Mr. Notarbartolo indicated

that the forest management plan set out a 10-year plan for a volume

of wood to be harvested and then divides the amount into 10 annual

amounts. If White River does not harvest its full allotment, Mr.

- 44 -

Notarbartolo stated that NFMC can make the amounts that were not

harvested in the prior year available on the open market. However,

Mr. Notarbartolo also indicated that while NFMC can put un-harvested

amounts on the open market it cannot reduce the annual amount due.

Mr. Notarbartolo also noted that it has not adjusted the volume it

makes admissible under the Wood Supply Agreement despite White

River not meeting its targets.

205.

Mr. Notarbartolo agreed in cross-examination that in exchange

for agreeing to Article 5.2 of the Wood Supply Agreement, NFMC

insisted on a provision that would allow it to take unused wood back

and offer it to third parties. Article 5.5 gave NFMC that right. As an

example, Mr. Notarbartolo noted in a recent year, White River under-

harvested by approximately 200,000 cubic meters. Article 5.5 of the

Wood Supply Agreement allows NFMC to take 100,000 of those cubic

meters and auction them on the open market.

206.

He also agreed that if White River decided not to harvest wood

(or turned down the opportunity to do so), NFMC would then be

required to ensure that the wood was made available because as the

holder of the SFL, NFMC is required to ensure that harvesting takes

place.

Harvesting Areas

Position of White River

207.

White River submits that it is limited to harvesting in

designated areas and it can only harvest the volume identified within

the “harvest blocs”. Harvest blocs are set annually by NFMC as part of

the Annual Work Schedule. Mr. Groves testified that under the Forest

Operations Agreement those areas where they can harvest therefore

can change every year. While acknowledging that White River has

significant influence over the Annual Work Schedule, Mr. Groves

testified that ultimately NFMC has control over it.

208.

In support of its position, White River pointed to Article 7 of

the Wood Supply Agreement. According to Mr. Groves, Article 7

grants NFMC the discretion to determine the operating areas from

which White River will be offered harvesting opportunities. While

Article 7 provides that NFMC will consider the recommendations of an

Operations Committee for the White River Forest (consisting of White

River and Columbia Forest Products), White River argued that the

- 45 -

evidence established that NFMC retained ultimate discretion in this

regard. The evidence also revealed, according to White River, that this

constituted a change in practice from when it held the SFL.

Position of NFMC and the Union

209.

Here too both NFMC and the Union argued that being confined

to harvesting within designated harvesting blocs is not a change for

White River. Prior to the transfer of the SFL White River was required

to create a harvesting schedule and designate harvesting blocks to be

harvested.

210.

According to Mr. Notarbartolo an annual work schedule

annualizes a 10-year forest management plan and breaks it down

annually for approval. The annual work plan touches on issues such as

the yearly harvest plan, as well as plans for road construction and

maintenance.

The annual work plan is then submitted to the

government on an annual basis for approval.

211.

According to NFMC, White River had “huge input” into the

development of the annual work schedule and that it regularly chose

the specific harvesting blocks it would harvest. The Union emphasized

this point as well. Mr. Notarbartolo testified that White River and

Columbia Forest Products would meet on their own to discuss what

they areas they wanted to include on their multiyear plan. After they

agreed on the blocs they would respectively work on they would then

meet with NFMC and request that those blocs be included in the

annual work schedule. As part of this meeting, White River and

Columbia Forest Products wold also give a list of the roads that would

be constructed. Mr. Notarbartolo also indicated that NFMC had never

turned down a harvest bloc request by White River. Mr. Notarbartolo

indicated that White River had the expertise with respect to these

types of decisions.

212.

Mr. Notarbartolo testified that it did not choose the forest

blocs White River would harvest. According to Mr. Notarbartolo, NFMC

did not have the expertise on staff to make those decisions. Nor did

any harvesters work directly for NFMC.

213.

However, during his cross-examination, Mr. Notarbartolo

agreed not only that NFMC retained discretion to determine the

operating areas that would be offered to White River but also agreed

that prior to the transfer of the SFL White River was not subject to any

- 46 -

operating area restrictions. He also indicated that NFMC, White River

(and Columbia Forest Products) were partners in the Annual Work

Schedule. He stated that NFMC was not a “puppet” in setting this

schedule. He also agreed that NFMC is the “ultimate author” of the

Annual Work Schedule.

214.

Mr. Notarbartolo also largely agreed with Mr. Groves to the

extent that the Forest Operations Agreement sets out the 10-year

forest management plan and that the annual work schedule sets out

the geographic areas White River has access to in a particular year.

However, Mr. Notarbartolo also indicated, in cross-examination by the

Union, that White River would only be able to harvest within the

parameters of the forest management plan regardless of who held the

SFL.

Transfer of SFL

215.

Mr. Groves acknowledged in cross-examination that the

transfer of the SFL was voluntary. However, he suggested that White

River was aware that the provincial government could transfer the SFL

to NFMC without White River’s consent or approval (under section 41

of the CFSA). As such, White River concluded it was better to

negotiate the transfer of the SFL than have it imposed.

216.

It was put to Mr. Groves that effectively, White River agreed

to give NFMC the SFL in exchange for the Wood Supply Agreement and

the commitment that NFMC would make available all the spruce, pine

and fir for the White River Forest. Mr. Groves agreed although he

noted that the wood only needed to be made available as long as

White River consumed it.

217.

Mr. Notarbartolo’s evidence was consistent with Mr. Groves on

this point. He indicated that in the negotiations leading to the transfer

of the SFL, White River indicated they needed the right to harvest

spruce, pine and fir, in order to consider transferring the SFL.

According to Mr. Notarbartolo the “deal” that was reached effectively

gave White River access to all the spruce, pine and fir in the White

River Forest and control over harvesting that wood in exchange for the

SFL.

218.

In cross-examination by the Union, Mr. Notarbartolo agreed

with the proposition that what “really happened” with the transfer of

the SFL was that White River retained all the rights it had with respect

- 47 -

to the harvesting operations and NFMC took over the “management

and related activities”.

How to Harvest

219.

Mr. Groves testified in cross-examination that White River did

not have control over how to harvest in the White River Forest.

According to Mr. Groves, the Forest Operations Agreement dictates

how White River will harvest. Mr. Groves stated that ultimately White

River is authorized to harvest under the Forest Operations Agreement

with NFMC and as such is accountable to NFMC. NFMC is, in turn,

accountable to the Ministry. Mr. Groves did acknowledge that White

River chooses the equipment it uses to harvest the wood.

220.

Mr. Notarbartolo indicated that NFMC did not have harvesters

working directly for them. Instead, NFMC entered into forest operation

agreements with sawmills (White River and Levesque Plywood) and

those sawmills provide their own harvesters (whether as employees or

contractors of the sawmill). Mr. Notarbartolo stated that if NFMC had

not entered into these agreements they would auction the wood in an

open auction format. Mr. Notarbartolo also stated that because NFMC

held the harvesting rights, if it had the capability to harvest it could

have done so. Regardless of the means, Mr. Notarbartolo agreed that

as the holder of the SFL, it is required to ensure that timber is

harvested and distributed.

Other Responsibilities

221.

Mr. Notarbartolo spoke about new opportunities to harvest

wood in the White River Forest. In particular, he noted that NFMC

would welcome a third party that wanted to open a hardwood mill. He

agreed that from NFMC’s perspective, opening a hardwood mill in the

White River Forest was part of its mandate. He also agreed that NFMC

could consider any third party that was interested in this type of

project and that at this point it was not likely that White River would

be involved.

222.

In cross-examination, Mr. Notarbartolo agreed that NFMC has

a number of forest management responsibilities. For example, since

the transfer of the SFL, NFMC is required to inspect infrastructure in

the White River Forest, such as bridges. Prior to the transfer of the

SFL, White River was responsible for this type of work. Similarly, if

roads were not properly maintained, the Ministry would now look to

- 48 -

NFMC not White River. If harvesting was not done properly (or

sufficiently) the Ministry would contact NFMC not White River. If the

White River Forest was not properly maintained the Ministry would

contact NFMC not White River. Mr. Notarbartolo also indicated that

NFMC received payments for every cubic meter harvested on the

White River Forest and that previously White River received these

payments. Finally, he also agreed that NFMC is required to ensure

that health and safety requirements are being satisfied.

223.

In cross-examination by the Union, Mr. Notarbartolo agreed

with the proposition that what “really happened” with the transfer of

the SFL was that White River retained all the rights it had with respect

to the harvesting operations and NFMC took over the “management

and related activities”.

Analysis

224.

Board had the authority to interpret Article 3.01 of the Collective

Agreement. In doing so, the Board will apply the principles of

The parties agreed that in order to determine the ULP the

interpretation regularly relied upon by arbitrators. Arbitrator Johnson

provides a helpful summary of some of those principles in the Tembec

Inc. In that decision Arbitrator Johnson notes that in interpreting a

collective agreement, an arbitrator is required to provide an

interpretation that is based on the actual words used by the parties in

the collective agreement. In short an arbitrator “must give effect to

the collective agreement and the language that the parties chose.”

The parties are assumed to have meant what they said. The language

should be given its “plain and ordinary” meaning. Provisions in a

collective agreement should be interpreted in context (both in terms of

the collective agreement as a whole and the wider context known to

the parties at the time the collective agreement was agreed to). I

would add, that arbitrators have also held that when interpreting a

collective agreement every word must be given a meaning and

different words are given different meanings.

225.

As set out in detail above, the parties disagree over the

meaning to be given to the terms “limits” and “work sites of the

Company”. In short, White River submits that the term “limits” means

the area it has been licensed to harvest and that “work sites” requires

a degree of control by the employer over the site that goes beyond

simply doing work on a location. Conversely, the Union submits that

“limits” refers to the areas where harvesting takes place and work

- 49 -

sites refers to any location where harvesting operations takes place.

Obviously, the Union’s interpretation is significantly broader than

White River’s.

226.

In attempting to interpret the terms at issue and to give them

their plain and ordinary meaning it is important to note that these

terms are used in a specific context. They appear in the recognition

clause of the Woodlands Collective Agreement. As such, their plain

and ordinary meaning should be interpreted in the context of

woodlands operations. And in so doing, reference should be made to

relevant jurisprudence that has also grappled with the meaning of

these terms (even if in slightly different contexts).

227.

In interpreting this provision, my first observation is that there

is no case law directly on point. I was not provided with any decision

interpreting Article 3.01 in the context of the scope of bargaining

rights for the purpose of a unfair labour practice application (or a

successor rights application). That being said, the jurisprudence I was

provided does provide some insight into the plain and ordinary

meaning of the “limits” and “work sites of the Company” as used in

woodlands operations.

228.

In Kimberly-Clark, Arbitrator Gray held that in order to be

covered by the same recognition clause, an employee would have to

be working on the limits or worksites of the employer. In I.W.A.

Canada, Local 2693, Arbitrator Foisy indicated that the “limits” were

granted by the Ministry of Natural Resources. Arbitrator Gray came to

a similar conclusion in Spruce Falls. There Arbitrator Gray held that

“limits” described the area given to an employer to harvest wood from

crown lands.

229.

Similarly, in USW, Local 1-2693 Arbitrator Brent indicated

“work sites of the Company” required a degree of control by the

employer over the site. In that decision, she effectively rejected the

interpretation now being put forward by the Union that anywhere an

employee is involved in woodlands operations constitutes a work site.

230.

Finally, in Kimberly-Clark and I.W.A. Canada, Local 2693

Arbitrators Gray and Foisy used the terms “limits” and “license”

interchangeably. Arbitrator Nyman did effectively the same thing in

Resolute Forest where he referred to the area covered by the SFL as

“the limits”.

Arbitrator Gray used the term “limits” and “license”

interchangeably.

- 50 -

231.

While none of the authorities cited above engaged in a

thorough interpretation of “limits” and “work sites of the Company”,

these decisions all favour White River’s interpretation as they link,

implicitly or explicitly, the term “limits” with a license to harvest

granted by the Provincial Government. As a starting point it therefore

provides a more limited understanding of that term than that

suggested by the Union or NFMC. These decisions speak not just to

where the harvesting takes place but also include the grounds or basis

for the right to harvest. In other words, in all of these decisions, the

interpretation of the “limits” is not limited to a geographic dimension

(where the harvesting takes place”). It also includes an element of

how White River gained the right to harvest in those geographic areas

(i.e. through a license).

232.

As set out above, these decisions are not determinative of the

issue. However, they are clearly a factor to be considered when

interpreting these terms. In that context two additional points are

significant. First, neither the Union nor NFMC provided the Board with

any decisions that supported their more expansive interpretations of

the “limits” and “work sites of the Company”. Second, the lack of

jurisprudence supporting their interpretations is significant in light of

the holding of Arbitrator Brent in USW, Local 1-2693 that the onus was

on the employer to establish the meaning of “work site”.

233.

White River’s interpretation is also consistent with the principle

of interpretation that establishes that every word must be given

meaning and that different words should be given different meanings.

As set out above, the Union provides a very broad interpretation of the

term “work site”.

In fact, as pointed out by White River, the

interpretation of the Union on work site is so broad as to effectively

render the term “limits” meaningless. If, as suggested by the Union,

“work site” refers to anywhere anyone working for White River is doing

work, there is no need for the word “limits”.

234.

The Union’s interpretation also calls into question why either

“limits” or “work sites” are necessary since it effectively results in a

bargaining unit covering any employees engaged in woods operations

anywhere. Had that been the intention of the parties, there would be

no need to include “limits” or “work sites” as restrictions on the scope

of the bargaining rights. Conversely, White River’s interpretation gives

each word a distinct meaning. It clearly establishes a difference

between “limits” and “work sites”.

- 51 -

235.

The evidence of the witnesses was not particularly helpful in

interpreting this language. In this regard, I agree with the Union the

evidence did not establish a mutually understood industrial practice

with respect to the meaning of Article 3.01. No witnesses were called

that were present at the time this language was first agreed to and

first inserted into the collective agreement. No one spoke to the

bargaining history with respect to Article 3.01.

Nor could any

witnesses provide any evidence speaking to a mutual understanding.

Mr. Groves and Mr. Willick indicated that in their experience “limits”

meant licenses. Mr. Willick went further and said that the SFL has

come to be known as the “limits”.

236.

Conversely, the Union’s evidence was that White River’s

interpretation was novel and was one they had never encountered

despite their decades of experience in woodlands operations and more

specifically with this specific language. However, the significance of

that evidence was attenuated by the fact that none of the Union’s

witnesses could recall engaging in specific conversations (or

bargaining) with respect to the meaning of “limits” and “work sites”.

As such, the most that could be taken from their evidence was that it

was not an interpretation that had been previously encountered.

237.

The Union also argued that White River’s interpretation

requires the Board to read terms into the collective agreement and

leads to an absurd result. I do not agree: as set out above, White

River has provided the Board with a number of decisions where “limits”

is equated with “license” (in one form or another). If “limits” is

interpreted in this broader context to include an element of how the

right to harvest was obtained (as is endorsed in this decision) there is

no need to read any additional words into the collective agreement.

238.

I do not agree with the position of the Union that the Forest

Operations Agreement provided White River with sufficient control over

the work sites that it can be concluded that it maintained work sites in

the White River Forest following the transfer of the SFL. For the

reasons set out below, I am satisfied that ultimate control over

woodlands operations rested with NFMC following the transfer of the

SFL. This holds true notwithstanding the Forest Operations Agreement.

- 52 -

239.

There is nothing unreasonable about this result. The Union

submits that White River’s interpretation is unreasonable because it

assumes a level of sophistication on the part of the Union with respect

to understanding the basis for the harvesting rights relied upon to

carry out the woodlands operations. I disagree. As demonstrated by

the evidence given, the Union has significant institutional knowledge

with respect to harvesting rights in the White River Forest. It has

strong opinions on the basis of those rights. It is those very opinions

that lead the Union to conclude that White River was wrong when it

took the position that the transfer of the SFL also resulted in the

transfer of the bargaining rights. I fail to see how the Union can on

the one hand argue that White River’s interpretation of Article 3.01 is

wrong (in part) because it does not comply with the parties’ practices

(historical and contemporary) while at the same time suggesting that

it would be unreasonable for the Union to have the very knowledge it

would need to have to make that argument in the first place.

240.

One final note on this aspect of Union’s argument. The parties

provided the Board with a detailed history of the history of bargaining

rights as they applied to woodlands operations in the White River

Forest. Every time the license to harvest has been transferred the

bargaining rights have also transferred. This is a theme that will be

returned to below when discussing the Successor Rights Application. I

raise it here simply to point out that I fail to see why an interpretation

of “limits” and “work sites of the Company” that links bargaining rights

to possession of the license required to harvest (or to “possession” of a

work site required to carry out related tasks) is unreasonable when

every time the license has been transferred the bargaining rights have

gone with it.

241.

As noted above, White River argued that its interpretation was

also supported by the broader surrounding context. It pointed to

certain historical literature as well as the 1937 Timber Act and the

1947 Report. While I agree that the 1937 Timber Act and the 1947

Report could support White River’s interpretation, I am not inclined to

give this evidence very much weight. First, as noted by the Union, the

1990 Crown Timber Act does not use the term “limits” in the same

way. Secondly, give the age of the sources relied on, I have difficulty

accepting that they constitute “surrounding context” as that term was

used by the Supreme Court in Sattva.

- 53 -

242.

As referred to above, the parties spent a considerable amount

of time, and called a considerable amount of evidence going to the

changes (or lack of thereof) that accompanied the transfer of the SFL.

The evidence revealed that the transfer of the SFL had a significant

impact on woodlands operations in the White River Forest.

In

particular it had a significant impact on White River’s harvesting rights

and its ability to consume wood in the White River Forest. That

evidence is set out in considerable detail above and need not be

repeated in detail here. It is sufficient to note that following the

transfer of the SFL, White River’s ability to harvest was limited by the

Wood Supply Agreement (in particular Schedule A). With the transfer

of the SFL, NFMC had the right to terminate that agreement in certain

circumstances. Similarly, it could reduce the volume of wood made

available to White River (again in certain circumstances). NFMC could

also sell unused wood to third parties.

243.

White River also lost some ability to choose where it would

harvest following the transfer of the SLF. While stating that White

River still had considerable influence, NFMC indicated it was not a

“puppet” in the process, and that it retained the final word on the

allocation of harvest blocs. Previously White River had the last word

on the allocation of the harvest blocs.

244.

There is no dispute that the transfer of the SFL was voluntary

or that White River effectively traded the right to harvest and consume

wood in the White River Forest under the SFL for the right to do so

under the Wood Supply Agreement and the Forest Operations

Agreement. However, based on the evidence above, I have concluded

that that “trade” nonetheless resulted in a significant change to White

River (and NFMC’s) position in the White River Forest.

245.

NFMC agreed that following the transfer of the SFL it was

responsible for ensuring that timber is harvested and distributed. It is

also responsible for seeking out new opportunities for harvesting (such

as harvesting hardwood for a possible hardwood mil). It has taken on

a number of forest management responsibilities it was not previously

required to take on. Finally, NFMC agreed that it is now accountable

directly to the Ministry.

246.

The transfer of the SFL had a significant impact on White

River’s position in the White River Forest. As stated by Mr. Groves,

following the transfer of the SFL White River no longer maintained the

same level of control it had enjoyed under the SFL. According to

- 54 -

White River, these changes had a similar impact on the Woodlands

Collective Agreement. Mr. Groves indicated, and I agree, that White

River’s status post-transfer of the SFL was more akin to a third-party

organization under the collective agreement (albeit one with

considerable bargaining power) rather than a party to the agreement.

Ultimate control resided with NFMC.

247.

As such, and on the basis of all of the foregoing, I agree with

the position of White River that the transfer of the SFL resulted in

substantial and significant changes with respect to its rights in the

White River Forest and that it was no longer the ultimate beneficiary of

the SFL. I also agree that with the transfer of the SFL, it no longer

held any “limits” or “work sites” and that as such was no longer bound

to the Woodlands Collective Agreement. In light of this conclusion, I

am also satisfied that White River did not engage in an unfair labour

practice by refusing to bargain with the Union following the transfer of

the SFL.

Successor Employer Application

248.

There is no dispute that following the transfer of the SFL,

NFMC held the harvesting rights in the White River Forest. Whether

that constitutes a sale of a business is clearly in dispute. As set out

above, the parties made extensive submissions on what, if anything,

changed following the transfer of the SFL. That evidence was set out

in considerable detail above and (again) need not be repeated here.

However, much of that evidence is relevant to this issue in so far as it

may shed light on what was transferred and the implications that flow

as a result.

Position of NFMC

249.

NFMC submits that it is not a successor employer to White

River. NFMC argues that White River’s core business was harvesting

wood for the purpose of supplying its mill. That business was not

transferred to NFMC. NFMC maintains that it does not harvest wood.

Rather, it contracts with other organizations to harvest wood. Put

somewhat differently, White River has continued to harvest in the

White River Forest in a manner that is essentially unchanged. NFMC

argued that transfer of the SFL has effectively not had an impact on

White River’s harvesting activities.

NFMC argued that the real

business of White River, according to NFMC, is to produce lumber.

- 55 -

White River used to get its wood supply through the SFL. Now it gets

it through the Wood Supply Agreement.

250.

NFMC noted that it did not take on any former White River

employees or White River customers as part of the transfer of the SFL.

While it did hire one former Jack Fish employee, that individual never

worked on the White River forest.

251.

NFMC argued that to the extent that any responsibilities were

transferred (such as silviculture or reforestation) they were peripheral

to White River’s principal business. In addition, those responsibilities

are not part of a business that relates to employment covered by the

Woodlands Collective Agreement.

252.

In cross-examination by the Union, Mr. Notarbartolo agreed

that NFMC did receive “some significant assets” as part of the SFL

transfer agreement. The SFL was one such asset. The existing Forest

Management Plan was another. The right to obtain stumpage fees was

yet another. NFMC also received maps, diagrams, photos, files etc.

dealing with the White River Forest from White River.

253.

NFMC submits that the maps, diagrams, photos etc. are

incidental to the transfer of the SFL. NFMC further noted, and Mr.

Groves agreed, that White River retained access to all of the records

transferred to NFMC.

254.

Mr. Notarbartolo also noted that under the Wood Supply

Agreement, NFMC agreed to provide White River with data and

information related to forest operations and wood planning on request.

Mr. Notarbartolo indicated that this provision of the Wood Supply

Agreement was included at White River’s request.

255.

As set out in detail above, according to NFMC, the transfer of

the SFL did not have an impact on White River’s wood supply or its

harvesting activities. Although acknowledging that no case is “on all

fours” with the current circumstances, NFMC argued that the Board’s

decision in Unifor, Local 324 v Domtar Inc. and Resolute FP Canada

Inc., [2017] OLRB Rep 27 (“Domtar and Resolute”) was instructive. At

issue in Domtar and Resolute was whether there was an sale of a

business from Domtar to Resolute when they reached an agreement

that allowed Resolute to harvest and transport fibre on and from

Domtar’s SFL. Pursuant to that agreement, the Ministry issued an

overlapping license to Resolute. The Board concluded that a sale of a

- 56 -

business had not taken place because no part of Domtar’s business

was transferred to Resolute. NFMC submitted that by executing the

Wood Supply Agreement as a condition of transferring the SFL, White

River ensured it maintained its rights in the White River forest, albeit

by different means.

256.

NFMC also argued that if the Board found a sale of a business

did occur, the character of the business operated by NFMC is

substantially different from anything transferred by White River. Mr.

Notarbartolo testified about NFMC’s mandate as compared to that of

other SFL holders. He noted that NFMC was created under the CFSA

to manage forests for subsequent generations while also providing

economic development opportunities to local first nation communities

and investing in local residents. He also noted that NFMC is a not for

profit business and all revenues are invested back into local

communities.

257.

NFMC took the position that finding a sale of a business would

result in an expansion of the Union’s bargaining rights.

258.

Finally, according to NFMC there is no labour relations purpose

to find NFMC a successor employer. In support of this latter position,

NFMC relies on the decision in Turkiewicz v. Ontario Labour Relations

Board, 2021 ONSC 1259 () where the Divisional Court quashed

a decision of the Board finding the applicant to be a successor

employer because the Board was said to have failed to consider the

issue of whether a related employer declaration would serve a labour

relations purpose.

Position of White River

259.

Despite not taking a position on whether NFMC is the

successor employer to White River, White River filed submissions

addressing the issue. White River noted that section 69 can be

triggered when part of a business is transferred. The issue for the

Board to determine is whether the essence of the business has been

transferred. As set out above, I have already concluded that the

transfer of the SFL resulted in a significant change in the position of

both White River and NFMC. White River noted that when the SFL

transferred from White River to NFMC, a “dynamic set of rights and

obligations were transferred from White River to NFMC”.

- 57 -

260.

White River also noted that a number of assets were

transferred from White River to NFMC including all of the appropriate

records, files, photos, and maps associated with the management of

the White River Forest. Finally, along with the transfer of the SFL,

NFMC agreed to retain Jackfish River Management Ltd. as the forest

manager (and other roles) for a period of one year. Jackfish River

managed the White River Forest for White River prior to the transfer.

261.

White River distinguished the current situation from that

before the Board in Domtar and Resolute on two grounds. First, the

right to harvest was completely transferred from White River to NFMC

as a result of the transfer of the SFL. Second, there was no pre-

existing commitment to NFMC with respect to the White River Forest

that continued after the transfer. As stated by the Board in Domtar

and Resolute, the transfer of the overlapping license “allowed Resolute

to obtain, albeit with different means, what it already had a right to.”

NFMC had no such pre-existing right. As such, the outcome in Domtar

and Resolute is distinguishable.

262.

White River also noted that in Domtar and Resolute, the Board

held that a “coherent and severable part of the economic organization”

must be transferred so that the “successor is performing a definable

part of the economic functions formerly performed by the

predecessor.” White River submits that the “unencumbered right to

harvest wood in the White River Forest and the ability to establish

wood supply agreements with different entities” was an economic

function performed by White River that is now performed by NFMC.

263.

White River also relied on the Board’s decision in IWA Canada

Local 2995 v Hearst Forest Management Inc. et al., [2002] OLRD No

4065. In that decision the Board concluded that the applicants had

not made out a prima facie case with respect to applications filed

under section 1(4) and 69 of the Act. In reaching this conclusion the

Board noted, repeatedly, that in the matter before them the evidence

did not establish that a license had been transferred from one

employer to another. White River submits that it can be inferred from

the Board’s decision that if a license and forest management

responsibilities had been transferred, the Board might have decided

things differently.

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264.

White River also noted that the Board has previously held that

a sale of a business can be found to have occurred even where the

successor employer does not have employees. White River relied on

the decision of the Board in Society of Energy Professionals v. CFJ

Nuclear Contractors Ltd., 2013 CarswellOnt 17706 in support of that

position.

265.

Finally, White River provided the Board with a number of

decisions from other sectors where the Board has held that the

transfer of a license constitutes a sale of a business under the Act. For

example, in SEIU, Local 183 and Daynes Health Care Ltd., [1983]

OLRB Rep 1564, the Board concluded that the transfer of a nursing

home license (and a piece of land the purchaser intended to use to

build a new facility on) constituted a sale of a business. In reaching

that decision, the Board concluded that the license was “the essence of

the business”. The Board reached a similar conclusion in SEIU, Local

268 v Thunder Bay Ambulance Service Inc., [1978] OLRB Rep 467.

There the Board concluded that the transfer of an ambulance service

license constituted a sale of a business.

266.

Applying the principles from the decisions cited above, White

River submits that here the SFL is, for all intents and purposes, the

business. The Union also notes that when the SFL was transferred

from Domtar to WRL in 2010 the Union’s bargaining rights followed.

Similarly, when the SFL was transferred to White River in 2015 the

Union’s bargaining rights followed.

Position of the Union

267.

While maintaining that White River remains bound to the

Woodlands Collective Agreement, the Union also argued that the

transfer of the SFL from White River to NFMC constitutes a sale of a

business under section 69 of the Act. The Union argued that the

transfer of the SFL represented a transfer of a significant part of White

River’s woods operations in the White River Forest.

268.

The Union took this position for two reasons: first, in response

to White River’s position that the SFL is, for all intents and purposes,

the business and second, because if the transfer of SFL gives NFMC

the ability, down the road, to conduct the forest operations on its own

behalf or to contract them out to another company that is not bound

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to the Union, then the Union’s bargaining rights could be in jeopardy.

The Union noted that this point was conceded by Mr. Notarbartolo.

269.

The Union relied on a number of Board decisions where the

transfer of “an essential right to carry on a business” has been found

to constitute a sale of a business. The first case relied on by the Union

is the decision of the Board in P.A.T., Local 1590 v. 715329 Ontario

Ltd., c.o.b. Gallant Painting and 615823 Ontario Inc. c.o.b. as Lindsay

Maintenance Services Painting Division, [1991] O.L.R.B. Rep. 1051

(“Gallant Painting”).

270.

Although factually distinguishable, in Gallant Painting the

Board noted that in a sale of a business application the focus is on “the

business entity – the employer’s total economic organization – not

simply the work which the employees perform.” The Board must

determine whether there has been a disposition of the essential

elements of a particular business from one employer to another.

271.

The Union also relied on the Board’s decisions in OPSEU v.

Ontario (Ministry of Children & Youth Services), [2010] O.L.R.B. Rep.

471 (“York Detention Centre”) Limited, Ontario Clean Water Agency v.

OPSEU, [2013] O.L.R.B. Rep. 920 (“Clean Water Agency”) and

S.E.I.U., Local 183 v. Daynes Heath Care Ltd., [1983] O.L.R.B. Rep.

1564 (“Riverview Manor”).

272.

In York Detention Centre, the Board found that the transfer of

the license required to operate a facility for young offenders

constituted a sale of business. No other assets were transferred.

273.

In response to NFMC’s argument that the case was

distinguishable because the clients of the old facility were absorbed by

the Crown, the Union argued that the cases were not in fact so

different. The Union argued that the trees and the right to harvest

trees are the critical components under the SFL. Similarly, the clients

and the license required to operate the facility were the key

components in York Detention Centre. Riverview Manor was a similar

decision insofar as the transfer of a license necessary to operate a

nursing home was found to constitute a sale of a business.

274.

Responding to NFMC’s argument that the character of its

business was distinct from that of White River, the Union noted that

two of NFMC’s corporate objects are to “market, sell and enable access

to a predictable and competitively priced supply of Crown Forest

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Resources” and “to manage its affairs to become a self-sustaining

business entity and to optimize the value from the Crown Forest

resources while recognizing the importance of local economic

development”.

275.

Mr. Notarbotolo agreed that NFMC’s mandate is to harvest

wood. Mr. Notarbotolo testified that in certain circumstances NFMC

could harvest the timber in the White River Forest with its own

employees or through a forest operations agreement with a different

contractor (like for example the harvester agreement NFMC entered

into in May 2017). He also agreed that that NFMC’s mandate is

consistent with its corporate objects – including to enable, sell and

provide access to a predictable and competitively priced supply of

crown forest resources.

276.

However, Mr. Notarbartolo also noted that NFMC is not driven

NFMC is unique amongst forest management

only by revenue.

companies because it was not required to pay a “stumpage fee” to the

Provincial Government. NFMC invests that revenue back into the local

community.

277.

The Union also argued that a finding by the Board that a sale

of a business had occurred would not result in an expansion of

bargaining rights. The Union noted that it was not seeking rights in

any forest NFMC has rights to under the SFL.

278.

The Union also disagreed with NFMC’s contention that there

was no labour relations purpose for making an award that binds them

to the Woodlands Collective Agreement. The Union submitted that the

basis for NFMC’s argument was likely because currently there are no

employees in the bargaining unit. The Union noted that the reason

there were no employees in the bargaining was because the Union had

agreed to give a holiday from the application of the Collective

Agreement.

Position of FN

279.

The FN did not take a position on the merits of the Successor

Employer Application. As referred to above, the FN’s concern was

ensuring that the Board applied a constitutional lens to the issues in

dispute and that any outcome respect the not only any commitments

made to the FN but also any inherent rights held by the FN in the

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White River Forest. Specifically, the FN note the following

commitments were made to them:

 NN’s right to harvest up to 50% of the annual

softwood harvest in the White River Forest; and

 BN’s right to harvest up to 50,000 cubic meters on

an annual basis from the White River Forest.

280.

The FN take the position (that was not contested) that the

commitments made to the FN arose out of the constitutional duty to

consult and accommodate. They also facilitate the FN’s “meaningful

participation in any harvesting that takes place within their traditional

territories”.

Analysis

281.

In light of my findings above with respect to the implications

of the transfer of the SFL, it should not come as a surprise that I have

concluded that a sale of business occurred when the SFL was

transferred from White River to NFMC. In a sale of a business, the

focus is on whether there has been a disposition of the “essential

elements of a particular business” from one employer to another. The

Board looks at the “employer’s total economic organization”. The

focus is not simply on the work performed.

282.

As stated by the Board in Domtar and Resolute, determining

whether there has been a sale of part of a business “context is

critical”. Here the context is the forestry industry. As stated by White

River, it previously held an “unencumbered right to harvest wood in

the White River Forest and the ability to establish wood supply

agreements with different entities”. That right flowed directly from the

SFL. The SFL was therefore at the very core of White River’s “total

economic organization”.

283.

The Board has held, in a number of cases (in other contexts),

that the transfer of a license required to carry out a business can

constitute a sale of a business. Or, as stated in Gallant Painting, the

transfer of “an essential right to carry on a business” can constitute a

sale of business.

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284.

While the Board found that a sale of business did not occur in

Domtar and Resolute I am satisfied that that decision is distinguishable

because the successor employer had a pre-existing right to harvest.

That is not the case here. Notably in Domtar and Resolute the Board

did indicate that the transfer of a right to harvest could be enough to

satisfy the elements of section 69 of the Act.

285.

I agree with the characterization provided by White River that

a “dynamic set of rights and obligations” were transferred from White

River to NFMC. I have provided a thorough review of the implications,

both for White River and NFMC, of the transfer of the SFL. In short, I

agree with White River that the unfettered right to harvest timber in

the White River Forest, previously held by White River was transferred

to NFMC, as was the ultimate right to sell that timber to third parties.

While it is true that some of those rights were returned to White River

(pursuant to the Wood Supply Agreement and the Forest Operations

Agreement) as already stated NFMC retained ultimate responsibility for

harvesting and making timber from the White River Forest available.

That ultimate responsibility had previously been held by White River

and constitutes a “coherent and severable part” of White River’s

“economic organization”.

286.

In this context I also note that I do not agree with NFMC’s

contention that the business of White River was to harvest wood for

the mill and that it continues carry out that business. The Board has

long held that there is a distinction between what a business does and

what a business is. As stated in H.E.R.E., Local 75 v. Accomodex

Franchise Management Inc., [1993] O.L.R.B. Rep. 281 (Ont. L.R.B.):

A “business” is a commercial vehicle which has been

rationally constructed to produce certain goods or services

for a defined market; and, over the year, the Board has

come to what might be described as an “operational” or

“instrumental” interpretation of that term. In St. Leonard’s

Society of Metropolitan Toronto, [1993] OLRB Rep. Jan 56,

the Board put it this way:

The Board’s conception of the “business” under the

Labour Relations Act is an operational or instrumental

one. The business is not its legal envelope, nor the

employees, nor some incidental or unrelated grouping

of assets, nor the body of work in which employees

may be engaged from time to time. It is a delivery

systems, an economic vehicle, an organizational means

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of getting something done. It is to this vehicle that

bargaining rights attach and in which they continue if

the undertaking or a coherent part of it is transferred

to a new owner.

287.

As noted above, this finding is also consistent with previous

transfers of the SFL (or its predecessor). When the license to harvest

has been transferred, the parties have agreed that the bargaining

rights also transfer. I fail to see why the Wood Supply Agreement or

Forest Operations Agreement would alter that conclusion.

288.

I am also satisfied that the character of the business is not so

different following the transfer of the SFL as to vitiate the finding that

a sale has occurred. NFMC is in the business of ensuring the wood on

the White River Forest is harvested and made available at a

competitive price. NFMC may have goals beyond this mandate but

they all flow from this central object. And that object is no different

than White River’s when it held the SFL.

289.

I agree with the Union that finding a sale of a business does

not result in an expansion of its bargaining rights. As set out above,

the bargaining rights that are being transferred are limited to the

White River Forest. They are exactly the same rights that previously

applied to White River. Specifically, they apply to those engaged in

“woods operations on the limits, and on the work sites, of the

Company” as those terms have been interpreted above. For clarity,

sake, the limits are defined by Appendix A in the SFL and therefore

limited to the White River Forest.

290.

I also disagree that finding a sale of a business has no labour

relations purpose. The purpose, quite clearly, is to protect the Union’s

bargaining rights that would otherwise be extinguished in light of the

transfer of the SFL. While it may be the case that currently there are

no employees in the bargaining unit as suggested by the Union that is

the result of the Union agreeing to suspend the operation of the

Woodlands Collective Agreement for a period of time. The Union

submits, and I agree, that it does not lie in the mouth of NFMC to now

argue that the lack of employees in the bargaining unit means there is

no labour relations purpose for declaring a sale of a business.

291.

Finally, nothing in this decision should be interpreted as

affecting the First Nations rights (constitutional or otherwise) on the

White River Forest. The First Nations have inherent rights harvesting

rights on the White River Forest (and elsewhere).

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292.

As part of the Crown’s ongoing duty to consult and

accommodate, commitments have been made to the First Nations

regarding harvesting quotas for the First Nations. Those commitments

have been affirmed with each transfer of the SFL. Nothing in this

decision affects any of those commitments.

293.

To be clear, the Union has never had bargaining rights with

respect to either of the First Nations involved in this application.

Nothing in this decision should be interpreted as changing that. In its

closing submissions, the Union made the same point. They

acknowledged that they do not have bargaining rights with respect to

the First Nations and that they have never held any such rights.

Reading this decision in a way that impacts on the First Nations

inherent rights to harvest in the White River Forest (and provided for

Union representational rights) would amount to an expansion of the

Union’s bargaining rights. That is not permitted under a sale of a

business application.

294.

In light of my determination that a sale of a business has

occurred, the Board declares as follows:

 a sale of a business from White River to NFMC has

occurred;

 as of January 2, 2018, NFMC became bound by the

terms of the Woodlands Collective Agreement and

the bargaining rights held by the Union (as

interpreted by this Board above); and

 NFMC and the Union are directed to meet and

bargain towards the renewal of the White River

Woodlands Agreement.

“Adam Beatty”

for the Board