Court File and Parties
COURT FILE NO.: 522/06
DATE: 20071122
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
gans, swinton and nordheimer jj.
B E T W E E N:
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS, LOCAL 736
Applicant
- and -
COMSTOCK CANADA LTD., UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 527, ONTARIO LABOUR RELATIONS BOARD, BRUCE POWER LP
Respondents
Counsel:
Alan J. Lenczner, Q.C. and Paola Calce, for the Applicant
Richard J. Charney and Jordan D. Winch, for the Respondent Comstock Canada Ltd.
Stephen B. D. Wahl, for the Respondent United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527
Voy T. Stelmaszynski, for the Respondent Ontario Labour Relations Board
David Cowling for Bruce Power
HEARD at Toronto: November 22, 2007
Oral Reasons for Judgment
swinton J.: (Orally)
[1] The International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 736 (the “Iron Workers”) seeks judicial review of two decisions of the Ontario Labour Relations Board: the decision made on August 4, 2006 upholding an assignment of work to the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527 (“UA”) and the decision made on September 14, 2006, refusing to reconsider the earlier decision.
[2] The Iron Workers brought a complaint to the Board pursuant to s.99 of the Labour Relations Act, 1995, S.O. 1995, c.1, after the respondent Comstock Canada Ltd. assigned the installation of certain I-beams to the UA. After a consultation, the Board held that the disputed work was properly assigned by Comstock to the UA.
[3] Central to the applicant’s position in this application for judicial review is the argument that the Board violated the rules of natural justice or procedural fairness by failing to consider some twenty drawings that were sent to it along with the applicant’s reply submissions in April, 2005.
[4] In paragraph 32 of its reasons, the Board appears to address the drawings included with the reply submissions, although we note there was no discussion about those drawings in those submissions. Paragraph 32 reads:
Thus I am not able in this dispute, as I was with other area practice, to assess whether the work depicted in a drawing (which I assume are all civil drawings) is similar to the work in dispute. Many of them may have been constructed, for example, in the early days of construction at the Bruce, or may have included supports for other trades other than the UA. I cannot determine, as I have with the material filed, what weight, if any, ought to be given to these assignments.
We are satisfied that the Board considered the drawings, and it appears that the Vice Chair did not find them helpful to the resolution of the issue before him.
[5] Even if we were to accept that the Vice Chair did not consider these drawings, the argument based on procedural fairness fails because of the applicant’s failure to avert to these drawings in its reply submissions or in its submissions in its request for reconsideration in September, 2005. The significance of the failure to address these drawings specifically is underscored by the fact that one of the central thrusts of the reconsideration submissions was the Board’s failure to consider and appreciate relevant evidence (see page 9899 of the Record of Proceedings). This failure tends to belie the argument now made that these drawings were of material significance.
[6] The standard of review of a decision of the Board interpreting and applying s.99 of the Act is patent unreasonableness. The Vice Chair gave thorough and clear reasons for his decision, applying the factors that the Board normally considers in jurisdictional disputes and finding that the particular work in dispute did not serve a structural function. His decision was eminently reasonable and demonstrates the labour relations expertise to which deference must be given by this Court.
[7] Therefore, the application for judicial review is dismissed.
GANS J.
[8] I have endorsed the Record accordingly, “For oral reasons read this day by Swinton J., the application is dismissed. Costs are agreed at $7,500, for each of the Respondent UA and Comstock, inclusive of GST and disbursements, payable within 30 days. None of the remaining Respondents seeking indemnification as to costs.”
SWINTON J.
GANS J.
NORDHEIMER J.
Date of Reasons for Judgment: November 22, 2007
Date of Release: November 30, 2007
COURT FILE NO.: 522/06
DATE: 20071122
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
gans, swinton and nordheimer jj.
B E T W E E N:
INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS, LOCAL 736
Applicant
- and -
COMSTOCK CANADA LTD., UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 527, ONTARIO LABOUR RELATIONS BOARD, BRUCE POWER LP
Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: November 22, 2007
Date of Release: November 30, 2007