Court File and Parties
Court File No. 06-DV-1234
Released: 20061206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Re: C.M.G. Innovations Co. Ltd. v. Ontario (Labour Relations Board), Ontario Pipe Trades Council, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States of America and Canada, Local 819, Cornwall & District Contracting Ltd., and City & District Steeplejacks Limited 52
Before: Platana, Stong and Swinton JJ.
Counsel: Stephen Bird and Leslie Sanderson for the Applicant Craig Flood for the Respondent Unions Leonard Marvy for the Respondent Ontario Labour Relations Board
Heard at Ottawa: November 22, 2006
ENDORSEMENT
Endorsement
1The standard for judicial review of this decision of the Ontario Labour Relations Board is patent unreasonableness for the following reasons. The Board, in determining whether there was a “sale of a business”, applied the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1 (“OLRA”) and made a decision squarely within its jurisdiction. The decision was largely factual in nature, and it required the Board to exercise its specialized expertise in the area of labour relations and, in particular, construction labour relations. Moreover, there are two strong privative clauses in the OLRA in ss. 114(1) and 116, as well as a further privative clause in s. 69(12) stating that the Board’s decision on a sale of a business is final and binding.
2In applying s. 69 of the OLRA, the Board applied its established jurisprudence respecting the sale of a business in a bid-oriented section of the construction industry. The applicant takes issue with a number of the factual findings of the Board and has submitted an affidavit from Courtney Wheeler disputing the evidentiary basis for the Board’s findings. Affidavit evidence is not admissible on an application for judicial review except to show a complete absence of evidence on an essential point or to show a denial of natural justice (Re Keeprite Workers’ Independent Union et al. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.) at p. 521).
3There was evidence before the Board to support its findings that Courtney Wheeler was a “key man” at both City and CMG, and that his departure to CMG constituted a sale of a business. The Board was entitled to draw the conclusions that it did from the evidence as to the role of Courtney in each of the companies, as well as the substantial disruption to City’s business after he left.
4The Board made no error with respect to the application of s. 126(5)2, having made a factual finding that there was a substantial disruption to or loss of City’s business and having taken that into account in determining whether there was a sale of a business.
5The Board’s decision was not patently unreasonable. In the context of the evidence presented to it, the Board was entitled to find a sale of a business, given Courtney’s departure from one company which performed general contracting, including mechanical work, to another general contracting company, which also performed mechanical work, and where Courtney performed the same range and nature of essential duties in both companies.
Disposition and Costs
6Therefore, the application for judicial review is dismissed. As agreed by the parties, costs to the respondent Unions are fixed at $7,500.00. No costs are sought by or awarded against the Ontario Labour Relations Board.
Platana J.
Stong J.
Swinton J.
Released: December 6th, 2006