COURT FILE NO.: 11/05

DATE: 200510/14

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, EPSTEIN, AND LAX J.J.

B E T W E E N:

WABCO STANDARD TRANE CO.

Applicant

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UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA

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UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 787

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ONTARIO LABOUR RELATIONS BOARD

Respondents

Allan Wells and Michelle Dobranowski, for the Applicant, Wabco Standard Trane Co.

Ronald Lebi, for the Respondents,

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada

and

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 787

Leonard Marvy, for the Respondent, Ontario Labour Relations Board

HEARD: October 7, 2005

EPSTEIN J.

1Wabco Standard Trane Co. applies for judicial review of two decisions of the Ontario Labour Relations Board. At issue in these decisions is the scope of a collective agreement entered into between Wabco and the respondent, the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada.

2Wabco is a national company in the business of installing and servicing heating, ventilation and air conditioning equipment in Canada. Its various district offices in Toronto, Ottawa and elsewhere in Canada operate in a decentralized manner.

3"Trane" is a registered trademark that applies to the products Wabco sells and services.

4Before 1994 the Toronto district office was operated through a franchise agreement between Wabco's predecessor, Wabco Standard Trane Service Agency (Toronto) D'Arcy Sweeney Limited. In 1984 Sweeney became a party to a national collective agreement known as the MASCA agreement. In 1994 Wabco purchased the Toronto franchise business and it became the Wabco Toronto district office. This Toronto office continued to be bound by the MASCA agreement from 1994 until December of 1998. At that time the union told the Wabco Toronto district office representative that he could not sign the new MASCA agreement as it was a national agreement and the Ottawa district office, that had begun operations in 1997, was not covered by the agreement.

5In the fall of 2001, MASCA's president, Mr. Honsberger, entered into discussions with Mr. Kowalishin, the district manager of the Toronto office, about returning to the MASCA agreement. With respect to the problem that the Wabco Ottawa district office might potentially pose, Mr. Honsberger told Mr. Kowalishin that "Ottawa would not be a problem" and if it were, they or Mr. Kowalishin would deal with it.

6In November of 2002 Mr. Kowalishin signed the MASCA agreement. Above the signature line it said "Trane Company" and indicated the address of the Toronto district office.

7On March 24, 2003 the Union filed a grievance under the MASCA agreement claiming that Wabco was violating the agreement with respect to employees at the Wabco Ottawa district office. Wabco responded by saying that the Ottawa office was not a party to the agreement.

8On August 20, 2004 the Board, acting in its capacity as arbitrator under the construction industry provisions of the Labour Relations Act, 1995, declared that Wabco is bound to the MASCA agreement amended as of March 7, 2002 and specifically that Wabco is "not bound only in respect of the employees working out of the Toronto District office." On November 25, 2004 the Board denied the company's request for reconsideration made pursuant to section 114(1) of the Act.

9Wabco submits that the Board:

(a) erred in law regarding agency and particularly the rules applying to ostensible authority in determining that Mr. Kowalishin had the authority to bind all of the company's operations.

(b) erred in concluding, on the evidence before the Board, that Trane Company represented the entire operations of Wabco.

10With respect to the standard of review, the company argues that through the application of the principles set out by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Employment and Immigration), [1998] 1 S.C.R. 982, a different standard of review applies to each of these issues. First, the Board, in holding that Mr. Kowalishin had ostensible authority to bind Wabco on a national basis was required to engage in an analysis of common law principles of agency, an analysis where the Court has greater expertise than the Board. As such, the standard of review of this issue is one of correctness. Secondly, Wabco submits that the Board's determination of whether the reference to Trane Company in the MASCA agreement meant all of Wabco's district offices and not just the Toronto District office was one of mixed fact and law and the standard of review is therefore patent unreasonableness.

11Against this background Wabco argues that the Board misapplied or misunderstood the common law of agency in finding that Mr. Kowalishin had ostensible authority to bind all of Wabco's operations. Accordingly, Wabco submits that this finding was incorrect. Secondly, the Board exceeded its jurisdiction in determining that the reference to Trane Company included the operations of Wabco outside of the Toronto district office as this conclusion was not supported by the evidence. As such, Wabco says this finding was patently unreasonable.

12We disagree.

13First, in terms of the appropriate standard of review, this case concerns a labour law problem. Against the backdrop of the labour relations landscape the Board was called upon to exercise its labour relations judgment in determining whether collective bargaining rights had been established through voluntary recognition and the making of a collective agreement. It was also required to interpret the geographic scope of the collective agreement and its binding force in a particular factual setting. The Ontario Court of Appeal in Teamsters Union Local 938 v. Lakeport Beverages, [2005] O.J. No. 3488 has recently re-affirmed that the patently unreasonable standard continues to apply to labour arbitrators when engaged in the task of interpreting and applying the terms of a collective agreement.

14On the first issue, the Board was satisfied that Mr. Kowalishin presented as a person in a position of authority who could create collective bargaining obligations for Wabco. Having regard to all of the evidence, the Board found and accepted that Mr. Kowalishin signed a national collective agreement on behalf of the company and that the agreement, properly interpreted, applied to all of the company's various operations, including Ottawa. In coming to this conclusion the Board had regard not only to evidence such as that Mr. Kowalishin was one of Wabco's most senior officials in Canada but also to important labour relations policy considerations. The Board has consistently observed that the labour relations process is best served when parties are strictly held to the agreements they sign.

15In coming to its conclusion, the Board did make reference to the doctrine of ostensible authority. It is not necessary for every element of the tribunal's reasoning to pass the reasonableness test. The question is whether the reasons as a whole support the decision. See: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247.

16Similarly, with respect to the second issue, the Board was entitled to draw the inference that the reference to Trane Company was the national corporate entity. The record before the Board contained ample evidence to support this finding such as the fact that the original corporate entity was, for more than 50 years, the Trane Company of Canada Limited and later, Trane Canada. Furthermore, customers and company officials and employees referred to the company as Trane or Trane Company. The Board was entitled to conclude that the reference to Trane Company included (and certainly did not exclude) operations of the corporate employer beyond Toronto, including the Ottawa operation.

17In the circumstances we do not find the Board's decision to be patently unreasonable. The application is dismissed.

18The Board has not asked for costs. If Wabco and the union are not able to come to an agreement with respect to costs, written submissions may be made to the court through the Divisional Court office, within 20 days of the release of this decision.

Epstein J.

Then J.

Lax J.