Canada: Community Of Interest Considerations Are Important In A Construction Industry Certification

Last Updated: April 1 2015
Article by Rick Dunlop and Michelle Black

The Nova Scotia Labour Board's ("Board") long-standing approach to construction industry unionization was called into question by the Supreme Court of Nova Scotia in a decision dated March 26, 2015 – CanMar Contracting Limited v. LIUNA, Local 615 (2015 NSSC 89).

Snapshot Approach does not Override Community of Interest

The long-standing approach that was called into question is the one which provides that employees who are absent from work on the date a union certification application ("Date of Application") is made, regardless of the reason (e.g. sickness, vacation), are excluded from the bargaining unit. This is called the Snapshot Approach.

In CanMar, pursuant to this long-standing approach, the Board excluded two CanMar employees, Messrs. Panteleios and Lopez, from the bargaining unit because they were absent from work on the Date of Application on an approved "one-day leave".

CanMar, represented by Rick Dunlop and Michelle Black of the Stewart McKelvey Labour and Employment Group, argued on the basis of s. 25(14) of the Trade Union Act that Messrs. Panteleios and Lopez did not lose their community of interest because they were absent on the Date of Application and therefore should be included in the bargaining unit. Section 25(14) requires:

The Board in determining the appropriate unit shall have regard to the community of interest among the employees in the proposed unit in such matters as work location, hours of work, working conditions and methods of remuneration.

Justice Wood of the Supreme Court of Nova Scotia described the Board's response to CanMar's argument as follows (at para. 41):

  • "In para. 28 of its decision the Board notes there was no dispute that Messrs. Panteleios and Lopez shared a community of interest with the other employees who were included in the bargaining unit. The Board then says this did not make any difference since they were not at work on the date of application.
  • In para. 29 the Board refers to the provisions of s. 25(14) and says it indicates community of interest is a factor relevant to defining the bargaining unit "per se". The Board then states that whether an employee is in the bargaining unit for determining certification is a "different question".
  • It is clear from these passages that the Board did not consider the question of community of interest to be relevant to the issue before it. They do not explain how that could be so in light of the mandatory wording of s. 25(14)."

Justice Wood recognized that "[p]olicies and guidelines can be beneficial" but that the Board "has an obligation to decide each case before it on its particular circumstances" (para. 45).

He also commented on the Board's reasoning, which he said appeared to be "quite simple":

The "snapshot" approach to certification has been used for many years and has the advantage of expediency and predictability for members of the industry. It mandates that any employee not at work on the date of application be excluded from the unit without any consideration of individual circumstances. In this case the Board decided to apply that approach without variation and concluded that the community of interest of Messrs. Lopez and Panteleios was irrelevant or at least trumped by the policy considerations underlying the "snapshot" approach (at para. 48).

Justice Wood went on to say (at paras. 49-51) that the difficulties with the Board's analysis were that:

  • " appears to avoid the express legislative requirement in s. 25(14) to consider employee community of interest.
  • Concerns with respect to lack of predictability and complex hearings are not borne out on the facts of this case since the status of Messrs. Lopez and Panteleios was not in dispute.
  • A decision to consider employees on a one-day leave of absence for possible inclusion if they share a community of interest with others in the bargaining unit would not undermine the objectives of predictability or efficiency."

Justice Wood granted CanMar's application for judicial review on this ground.

Standing Regarding the Purchase of Alcohol Allegations Should have been Granted

A further issue Justice Wood was asked to consider was whether the Board was reasonable in denying CanMar and an employee intervenor ("McSween") standing to call evidence or present arguments relating to the initial signing of the membership cards.

The allegation was that LIUNA had "purchased alcohol for employees during an organizational meeting and that this resulted in some employees being intoxicated at the time membership cards were signed" (para. 12). CanMar and McSween were concerned that the cards did not reflect the true wishes of the employees.

Justice Wood disagreed with the Board's decision to deny standing on the basis that the employees (other than McSween, who revoked his membership card) did not intervene:

To elevate employee intervention to the point where it becomes a mandatory precondition to an employers' ability to allege union misbehaviour is both unreasonable and procedurally unfair (para. 21).

Justice Wood granted CanMar's application for judicial review on this ground as well.


Having granted CanMar's application for judicial review on these two grounds, Justice Wood ordered the matter to be sent back to the Board. He asked the parties to try to reach an agreement as to whether it should be the same, or a differently constituted, panel that hears these matters anew.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Rick Dunlop
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.