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  
honestlywhen 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  
- 15 -  
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  
Fallsin 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 Riverengaged in woods operations on itslimits  
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. (4th) 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 itsposition 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 Rivers 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 limitsin 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.  
- 58 -  
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  
- 59 -  
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  
- 60 -  
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