COURT FILE NO.: 711/02

DATE: 20030505

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BENOTTO S.J., SOMERS AND BEAULIEU JJ.

B E T W E E N:

ONTARIO COUNCIL OF THE INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES

Applicant

• and -

BLASTCO CORPORATION

ONTARIO LABOUR RELATIONS BOARD

Respondents

Stephen Wahl, for the Applicant

Carl W. Peterson, for the Respondent, Blastco Corporation

Leonard Marvy, for the Respondent, Ontario Labour Relations Board

HEARD: May 5, 2003

benotto s. J.: (Orally)

1This is an appeal for judicial review brought by the Ontario Council of the International Union of Painters and Allied Trades against Blastco Corporation in respect of the decision of the Ontario Labour Relations Board, dated November 7, 2002.

2At issue is the interpretation of the words "construction industry" in the Labour Relations Act and the application of that definition to the painting trade. The Union is bound by a province-wide collective agreement which, among other things, provides that only union members do certain work.

3In July 2002, the union issued a grievance that Blastco had violated the collective agreement by failing to employ members of the union to perform work on a project involving a water tower at the Six Nations Reserve. The employer argued that the work was not covered by the collective agreement because it was not work in the construction industry, but rather maintenance work.

4At the hearing the Board refused to hear evidence that work done by Blastco on another water tower in Markham was considered work in the construction industry. That case was in the context of a certification application, not a grievance. The Board did not hear this evidence because the issue of whether the work was construction or maintenance was not before the Board. As stated by the Board: "The issue of whether that project was construction or maintenance was never litigated."

5The applicant argues that the wrong definition of construction industry was used by the Board. We note, however, that the Board issued an amended decision correcting the definition used and indicating that a "clerical error" had led to the wrong section being referred to.

6The Board issued detailed reasons referring at length to the work done on the project. In its decision the Board specifically noted that the interior and exterior of the water tank were completely repainted, that the interior of the tank was sandblasted, that all of the old interior coating of the tank was removed prior to repainting the interior, that prior to repainting the interior of the water tank had to be repaired as a result of corrosion to the tank and six metal plates had to be welded over the corroded areas, that the exterior coating was worn, that the coating had almost completely failed, that prior to repainting the lettering of the word "Oshweken" on the exterior of the tank had faded, that the lettering of the exterior tank had been completely repainted, that prior to repainting the tank was power washed and that damaged or corroded parts required sanding and that the repainting extended the life of the tank by fifteen years.

7The Board considered this evidence and found that it was necessary to look at the purpose of the work, not the skills used in making the determination. The Board concluded that the work was maintenance and not covered by the collective agreement.

8We are of the view that the decision of the Board is not patently unreasonable. The Board carefully analyzed the issue and made a finding of fact. Even if this Court were to disagree with the decision of the Board (and we do not say that we do) it should not substitute its own decision unless the Board's decision cannot be rationally supported and we refer in this matter to the case of CAIMAW Local 14 v. Paccar Canada Ltd. (1989), 62 D.L.R. (4th) 437 at 453 wherein it is stated:

"Mere disagreement with the result arrived at by the tribunal does not make that result "patently unreasonable". The courts must be careful to focus their inquiry on the existence of a rational basis for the decision of the tribunal, and not on their agreement with it. The emphasis should not be so much on what result the tribunal has arrived at, but on how the tribunal arrived at that result."

9We cannot say that the decision of the Board was patently unreasonable. The Court carefully considered the evidence, applied the facts and made a determination as to those facts.

10The applicant argues that in refusing to hear the evidence with respect to the Markham water tower that the Board denied natural justice. We agree with the finding of the Board that the evidence was not relevant and thus a denial of natural justice did not exist. As stated by the then Chief Justice Lamer in the Universite du Quebec a Trois Rivieres v. Larocque, [1993] 1 S.C.R. 471:

"The arbitrator is in a privileged position to assess the relevance of evidence presented to him and it is not desirable for the court, in the guise of protecting the rights of the parties to be heard, to substitute their own assessment of that evidence for that of the arbitrator. An arbitrator commits an excess of jurisdiction however if his erroneous decision to reject relevant evidence has such an impact on the fairness of the proceeding that it can only be concluded that there has been a breach of the rules of natural justice."

We find no such breach.

11For these reasons, the application is dismissed.

12Having heard submissions as to costs, we are of the view that the applicant shall pay the respondent Blastco costs fixed in the amount of $4,000.

Date of Reasons for Judgment: May 5, 2003

Date of Release: May 20, 2003

COURT FILE NO.: 711/02

DATE: 20030505

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT