The Court held that a union's commencement of adverse action proceedings was not vexatious or without reasonable cause under s 570(2)(a) FW Act, notwithstanding that the claim failed on all grounds, because the legal question of whether prospective employees possess workplace rights under s 341(1)(c)(ii) involved divergent judicial views and the matter had novel features distinguishing it from existing authority. The Court further held that the union's rejection of two Calderbank offers was not an unreasonable act or omission under s 570(2)(b), reasoning that unions occupy a position akin to regulators in enforcing the FW Act and that rejection of 'all or nothing' settlement offers in civil penalty proceedings brought considerations of public responsibility that do not attend ordinary civil suits. Even if the s 570 threshold had been met, the Court indicated it would have exercised its residual discretion against awarding costs to avoid chilling legitimate union enforcement activity.
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