COURT FILE NO.: 588/02

DATE: 20031031

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MEEHAN, JENNINGS AND C. CAMPBELL JJ.

B E T W E E N:

TEAMSTERS INTERNATIONAL UNION, LOCAL 847

Applicant

• and -

DIRECTORS GUILD OF CANADA, ONTARIO (“GUILD”) and THE CANADIAN FILM AND TELEVISION PRODUCTION ASSOCIATION (“CFTPA”) and R. O. MACDOWELL

Respondents

Michael C. P. McCreary, for the Applicant

George J. A. Vassos and Monty Verlint, for the Respondent, Directors Guild of Canada Ontario

James G. Knight and Kristin R. Taylor, for the Respondent, The Canadian Film and Television Production Association

HEARD: October 31, 2003

MEEHAN J.: (Orally)

1This is an application by the Teamsters International Union, Local 847 for judicial review of the September 2002 decision of arbitrator MacDowell, when he determined that he had jurisdiction pursuant to ss. 48 and 50 of the Labour Relations Act to determine whether the Director’s Guild of Canada (Ontario) (DGCO) was a trade union and, whether the standard agreement between them and the Canadian Film and Television Production Association (CFTPA) was a collective agreement. Secondly, that the standard agreement prohibited contracting out.

2The applicant seeks an order quashing and setting aside the decision of arbitrator MacDowell and dismissing the grievance on the grounds that arbitrator MacDowell exceeded his jurisdiction, breached natural justice and erred in law in making that decision.

3In regard to background, the applicant union was attempting to unionize security guards and watchmen employed in the film and television production industry and DGCO’s assertion that the applicant union would interfere with its work jurisdiction. The respondent DGCO filed a grievance concerning a dispute with the other respondent concerning the duties of the production assistants under the standard agreement between those parties, and, also the issue of contracting out these duties mainly to individuals employed by security companies of the type the applicant union was attempting to organize.

4The grievance was referred to arbitration and heard on September 27th. The arbitrator found the agreement was a collective agreement. He also found that the work performed by the security company employees with some exceptions fell under production assistant under the standard agreement. Thus, at least some of the work done by security firms was now found to be contracting out contrary to the agreement.

5On September 26, 2002, one day before the arbitration hearing, Local 847 was informed that there was to be a third party determination of policy disagreements. A copy of the arbitration award was sent also as well to Local 847 on September 30th, 2002. The Local wrote on October 1, 2002 to the arbitrator requesting a day of hearing to hear its submissions on his jurisdiction and to grant the Local status. The arbitrator replied to counsel for Local 847 on October 12th indicating in the face of the commencement of this application for judicial review, there was nothing else for him to do.

6As well, in October before this application for judicial review, Local 847 filed various proceedings before the Ontario Labour Relations Board including the question of unfair labour practice. A preliminary decision was issued by the Ontario Labour Relations Board on July 17th, 2003.

7The Board found it had jurisdiction to consider an application under s.96 of the Act claiming a violation of ss. 48, 50 and 53. It also found in a preliminary proceeding that there was not a prima facie violation of either s. 68 or 50 of the Act. There were as well other findings made dealing with parties not involved with this judicial review. The board refused to adjourn to await the decision in this judicial review. It dealt with the preliminary matters as outlined and other motions and referred the final hearing in all of these matters to the registrar for a scheduling date.

8There are two preliminary issues with which we deal. Whether the applicant union was entitled to actual notice of the arbitration and secondly whether it was entitled to judicial review. The Supreme Court of Canada has held a party is entitled to notice is one who is significantly affected or directly and necessarily affected by the decision. See C.U.P.E. v. C.B.C. (1990) O.J.; affirmed S.C.C. 1992 108 (SCC), [1992] 2 S.C.R. 7 at p. 9, and Telecom. Workers Union v. Canada (C.R.T.C.), 1995 102 (SCC), [1995] 2 S.C.R. 781, at p. 797, para. 32. There is no relationship which would entitle the union to notice as one who is affected directly or necessarily. Here the union is interested only in an indirect or contingent fashion when the decision affects that party only either in intermediate conduit i.e. here the contract between the production company and the Canadian Film and Television Production Association was a collective agreement. Secondarily that contract prohibited contracting out. A party is interested in an indirect or contingent fashion when the decision affects that party only through an intermediate conduit, i.e. here a contract between the production company and the third party security company. The employees who were being organized by the teamsters were employees of the third party security companies.

9At the time of the arbitration hearing, Local 847 had not applied to the O.L.R.B. for certification to obtain bargaining rights to any company connected to the film and television industry in relation to the two groups who are the respondents in this hearing. It as well does not appear to have any legal or representational right to any of the work provided by the C.F.T.P.A. or its members.

10It appears in the cases cited in its favour by the applicant, the party entitled to notice was either bound by the collective agreement or there was a common employer or further a trade union interested in an issue which might effect them in another labour arbitration proceeding with the same employer.

11The Local as well has chosen to seek recourse from another tribunal, the Ontario Labour Relations Board which has apparently ruled on some of the questions in issue here but a full hearing apparently is still in the future. It does not appear that the applicant was entitled to actual notice of the arbitration hearing.

12We have the benefit of the O.L.R.B. hearings which the arbitrator did not have. We feel as did the O.L.R.B. in Trades Council v. Local 2 and Napev, September 17, 1979 O.L.R.B. and more particularly para. 5, where they found that dealing with even another valid collective agreement, parties might be incidentally or commercially affected by a determination as to the merits of the grievance but even in that case there was not a sufficient basis to afford them status. As well, we feel it inappropriate to have parallel hearings before the O.L.R.B. and the Superior Court. The ultimate findings of the O.L.R.B. would be open to scrutiny by this Court in any event.

13We find that there was no status in the applicant to take part in the arbitration and as well, it would be inappropriate in any case for us to deal with the matter of judicial review while the proceedings are still pending before the Ontario Labour Relations Board. The application is dismissed.

14The application record will read as follows: “Application dismissed for oral reasons dictated. Each of the respondents should receive $7,500 including disbursements and GST for costs.”

MEEHAN J.

JENNINGS J.

C. CAMPBELL J.

Date of Reasons for Judgment: October 31, 2003

Date of Release: December 4, 2003

COURT FILE NO.: 588/02

DATE: 20031031

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MEEHAN, JENNINGS AND C. CAMPBELL JJ.

B E T W E E N:

TEAMSTERS INTERNATIONAL UNION, LOCAL 847

Applicant

• and -

DIRECTORS GUILD OF CANADA, ONTARIO (GUILD) and THE CANADIAN FILM AND TELEVISION PRODUCTION ASSOCIATION (“CFTPA”) and R. O. MACDOWELL

Respondents