International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers et al., and Attorney General of Ontario, Intervenor

[Indexed as: International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers]

86 O.R. (3d) 508

Ontario Superior Court of Justice, Divisional Court,

Lane, Swinton and M.G.J. Quigley JJ.

June 22, 2007

Employment -- Labour relations -- Labour Relations Board -- Consultation -- Local filing unfair labour practice complaint -- Board not exceeding its jurisdiction or breaching requirements of natural justice and procedural fairness by proceeding by way of consultation pursuant to Rule 41, by making findings of fact based on pleadings and oral argument and by not permitting local to call viva voce evidence and to conduct cross-examinations -- Rule 41 not being ultra vires -- Rule 41 not providing for improper delegation of authority by Board Chair and not being inconsistent with language and scheme of Labour Relations Act -- Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A.

One month before a construction Job was to be completed, the Union advised the Local that it was reassigning jurisdiction over the Job to another local on the basis of a history of complaints from electrical contractors about undertaking work within the Local's geographic area and also on the basis that the particular contractor involved in the Job had complained of problems. The Local brought an unfair labour practice complaint against the Union under s. 96 of the Labour Relations Act, claiming that the Union had improperly and unjustly assumed authority over the Job and reassigned its jurisdiction, contrary to ss. 147 and 149 of the Act. The Local asked that the complaint be expedited. Because of the urgency of the matter, the Labour Relations Board decided to proceed by way of a consultation conducted in accordance with Rule 41 rather than holding a full hearing. A substantial amount of material was placed before the Board and the parties made submissions. They were not permitted to call viva voce evidence or to cross- examine the other parties on their allegations. The Board found in favour of the Union. While the Board found that the Union had just cause to assume jurisdiction over the Job, the Board specifically provided that the Local's mobility provision continued to apply as if the Job were still being performed within its jurisdiction and that all union remittances would continue to be made to the Local. The Local brought an application for judicial review, submitting that the Board exceeded its jurisdiction and breached the requirements of natural justice and procedural fairness by proceeding by way of consultation, by making findings of fact without calling the parties to testify at a hearing and by providing inadequate reasons for the decision. The Local submitted that Rule 41 is ultra vires, either because it provides for an improper delegation of authority by the Board Chair or because it is inconsistent with the language and scheme of the Act.

Held, the application should be dismissed.

In establishing Rule 41 in accordance with the power granted under the Act, the Chair successfully embodied the principles that the Legislature intended should govern, permitting procedural flexibility, but only where the presiding Vice Chair determines that the expedited procedure complies with the criteria [page509] articulated in rule 41.3. The rule does not constitute impermissible sub-delegation of the Chair's rule- making authority. Rule 41 is consistent with the scheme of the Act. The Board operates in a complex, dynamic and highly fluid environment where expeditious rulings and informal and accessible procedures are often essential to maintaining the delicate balance between the parties' various interests.

The Board did not deny the Local natural justice in proceeding by way of a consultation process and by failing to hold a full hearing. Absent constitutional limitations, the exercise of powers by a board or tribunal in accordance with the express provisions of its governing statute cannot be attacked as a breach of natural justice. The Legislature specifically empowered the Board to expedite certain kinds of proceedings, and in doing so to limit the opportunity of parties to present evidence and make submissions. The Legislature expressly excluded the application of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Moreover, the right to be heard under principles of natural justice or procedural fairness does not necessarily entail a right to call evidence and to subject witnesses to cross-examination in every case. The fact that the Local was not accorded the right to call viva voce evidence or to cross-examine could not result in a violation of the audi alteram partem principle where the Board granted a full right of audience to the parties under a consultation process and against the background of the voluminous written materials they filed. The nature of the decision that confronted the Board required an expedited procedure. It related to an important labour dispute on a large project with the need for its timely completion. Holding a full formal hearing in the face of impending deadlines for completion would have rendered the Board's determination on the merits meaningless and moot. Moreover, the issue was the loss of a particular Job, not the transfer away from the Local of its entire jurisdiction in the whole geographic area that fell under its control. There was a lesser need for procedural safeguards to be provided to the Local, compared to the level of fairness that might have been required if loss of its entire jurisdiction were involved.

The Board did not exceed its jurisdiction by making findings of fact in the absence of any evidence. It is not the case that only viva voce testimony of witnesses can constitute evidence. There is no stipulation in s. 147 of the Act that a higher evidentiary standard must be met in the case of "just cause" determinations than in the case of other disputes under the construction industry provisions of the Act. The Board had extensive pleadings and other documents before it, and heard two days of oral submissions. At the end of the process, the Board concluded that it had sufficient material to allow it to reach a decision. The sufficiency and weight of the evidence were matters within the exclusive jurisdiction of the Board.

The Board did not deny the Local natural justice by failing to provide adequate reasons. The Board outlined the foundation for its decision, and intelligibly explained how and why it reached that decision. In doing so, it provided a sufficiently adequate explanation of the process it engaged in, the conclusions it reached, the foundation for those conclusions and the result of the conclusions. It did so with sufficient detail and clarity to more than adequately permit the reviewing court to assess whether the decision was patently unreasonable. Importantly, the Local did not ask for further reasons, even though the Board indicated in light of the brevity of its reasons that further reasons might follow, and did not ask the Board to reconsider its decision under s. 114(1) of the Act. The Local was not entitled to complain about the brevity of the Board's reasons when it had the opportunity to obtain further reasons or a reconsideration, and instead chose to commence a judicial review application. [page510]

It was not patently unreasonable for the Board to proceed by way of a consultation process rather than by a full hearing.

The Board's decision on the merits was not patently unreasonable. The "patently unreasonable" standard requires more than a failure by the Board to resolve the conflicting allegations and factual assertions between the parties. The Board was not required to make specific reference to all of the considerations set out in s. 147(2) of the Act. There was clearly a rational basis for the Board's decision.

APPLICATION for judicial review of a decision of the Ontario Labour Relations Board.

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No. 1145 (C.A.); R. v. Québec (Labour Relations Board), ex parte Komo Construction Inc., 1967 118 (CSC), [1968] S.C.R. 172, 1 D.L.R. (3d) 125; Raymond v. Canadian Union of Postal Workers, 2003 FCA 418, [2003] F.C.J. No. 1663, 318 N.R. 319 (C.A.); [page512] Royal Oak Mines Inc. v. Canada Labour Relations Board, 1996 220 (SCC), [1996] 1 S.C.R. 369, [1996] S.C.J. No. 14, 13 D.L.R. (4th) 129, 193 N.R. 81; Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 191 (SCC), [1975] 1 S.C.R. 382, [1973] S.C.J. No. 148, 41 D.L.R. (3d) 6; Sowemimo v. College of Physicians and Surgeons of Manitoba, [1996] M.J. No. 399 (Q.B.); Swan v. Canada, 1990 13085 (FC), [1990] F.C.J. No. 114, [1990] 2 F.C. 409 (T.D.); Teamsters Local Union No. 938 v. Patrolman Security Services Inc., [2005] O.L.R.D. No. 4053, [2005] O.L.R.B. Rep. September/October 818; TELUS Communications Inc. v. Telecommunications Workers Union, [2005] F.C.J. No. 1253, 2005 FCA 262, 257 D.L.R. (4th) 19 (C.A.); Thyssen Elevator Ltd. v. National Elevator and Escalator Assn., 2004 4778 (ON SCDC), [2004] O.J. No. 3157, [2004] O.L.R.B. Rep. 847, 188 O.A.C. 349, 132 A.C.W.S. (3d) 495 (Div. Ct.); Total Support Services Ltd., [2004] OLRB Rep. January/February 147; Webb v. Ontario Housing Corp. (1978), 1978 1490 (ON CA), 22 O.R. (2d) 257, [1978] O.J. No. 3378 (C.A.); Willette v. Royal Canadian Mounted Police Commr., [1984] F.C.J. No. 255, [1985] 1 F.C. 423 (C.A.) Statutes referred to Canada Labour Code, R.S.C. 1985, c. L-2 Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 2, 74, 96, 110(5), (16), (17) [as am.], (18) [as am.], (20), 111, 114, 116, 126-168 Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 Rules and regulations referred to Ontario Labour Relations Board, Rules of Procedure, rules 41, 41.1, 41.2, 41.3 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20 Authorities referred to Adams, G.W., Canadian Labour Law, 2nd ed. (Aurora, Ont.: Canada Law Book, 1993) Brown, Donald J. M. and John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998- ) McArthur, Stephen A., Jules B. Bloch and Robert E. Salisbury, Canadian Construction Labour and Employment Law, looseleaf (Markham, Ont.: Butterworths, 1996) Sack, Jeffrey, C. Michael Mitchell and Sandy Price, Ontario Labour Relations Board Law and Practice, looseleaf (Markham, Ont.: Butterworths, 1997) Willes, J.A., The Craft Bargaining Unit (Kingston, Ont.: Kingston Industrial Relations Centre, Queen's University, 1970) Winkler, W., A Study of Labour Relations Law in the Construction Industry in Ontario (LL.M. Thesis, Osgoode Hall Law School, 1964) [unpublished]

Lorne A. Richmond, for applicant. Douglas J. Wray, for respondent International Brotherhood of Electrical Workers. Scott G. Thompson, for respondent Guild Electric Limited. Chris G. Paliare, for respondent Ontario Labour Relations Board. Malliha Wilson, for intervenor Attorney General of Ontario. [page513]

The judgment of the court was delivered by

M.G.J. QUIGLEY J.: --

Overview

[1] The International Brotherhood of Electrical Workers, Local 1739 (the "Local" or "Local 1739"), seeks judicial review of the April 6, 2006 decision of the Ontario Labour Relations Board (the "Board") under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the "Act"). In its decision, the Board held that there was just cause for the International Brotherhood of Electrical Workers ("IBEW") to assume the jurisdiction of the Local over the Bank of Montréal computer centre construction project in Barrie, Ontario (the "Barrie Job"). The Board reached that decision after holding a "consultation" with the parties, as permitted under its Rules of Procedure ("Rules") in order to resolve labour disputes in an expeditious and informal manner.

[2] The Local had requested that its complaint be dealt with on an expedited basis, but complains that the Board made its decision based on unproven allegations in pleadings filed by the IBEW and the employer, Guild Electric Limited ("Guild"), and without holding a hearing. At issue is whether the Board exceeded its jurisdiction and breached the requirements of natural justice and procedural fairness in proceeding by way of consultation, by making findings of fact without calling the parties to testify at a hearing, and by providing inadequate reasons for its decision.

[3] The Local also maintains that the Board's decisions were patently unreasonable, both on the procedure it adopted and on the substantive merits of the Local's complaint. It requests an order in the nature of certiorari quashing the Board's decision and remitting the matter to a different panel of the Board for a hearing. It also seeks a declaration that rules 41.2 and 41.3 of the Board's Rules are ultra vires. At its essence, the Local complains that the Board may not use the consultation procedure when it results in a decision that flows from untested conflicting facts that raise issues of credibility.

Background

[4] IBEW is the parent union of the Local. Labour relations between electrical workers and employers in Ontario are governed by a province-wide collective agreement between the Electrical Contractors' Association of Ontario, IBEW, and the IBEW Construction Council of Ontario representing the 13 affiliated [page514] local unions of IBEW in Ontario, including Local 1739 (the "Collective Agreement"). Local 1739 has territorial jurisdiction over the County of Simcoe where the City of Barrie is located. It administers the Collective Agreement in that area. As local bargaining agent, its responsibilities include the determination of individual employee rights and the implementation of employee safety rights. These duties are discharged by a business manager and Local union stewards. When an employer that is a party to the Collective Agreement undertakes electrical work in the County of Simcoe, it must deal with Local 1739.

[5] Guild is a Toronto based electrical contractor and a party to the Collective Agreement. Guild normally employs electrical workers who are members of its home local, IBEW Local 353 ("Local 353"), for construction jobs within the Toronto area.

[6] Construction work began on the Barrie Job in April 2005. Guild was the electrical contractor and it employed 200 electricians for the job. The Collective Agreement, as it applied in the Barrie area, allowed Guild to hire up to 20 per cent of its workers from Local 353. An additional 160 electrical workers required for the Barrie Job were to be supplied by Local 1739. However, it brought in over 90 electricians (called "travelers") from other union locals to fill the required worker complement for this significant project, since it could provide only 64 of its own members.

[7] Under the terms of the Collective Agreement, certain benefits flowed to the Local from its jurisdiction over the Barrie Job. Local 1739 members had employment priority over other electricians once layoffs commenced as the project approached completion. Further, the Local was entitled to receive union dues and remittances for all workers employed at the Barrie Job, whether they were Local members or not.

[8] The Barrie Job was to be completed in April of 2006. However only a month before, on March 15, 2006, IBEW's International Vice President in Canada advised the Local that IBEW was reassigning jurisdiction over the Barrie Job to Local 353. IBEW justified its action by reference to two sources of complaint about Local 1739, one historical and one current.

[9] Since at least 1998, IBEW had received numerous complaints from unionized electrical contractors about undertaking work within the Local's geographic area. These included allegations of poor performance, poor work habits and the poor attitude of its members, overzealous stewards and health and safety representatives, and the Local's inability to meet manpower requirements. IBEW met with representatives of the Local on February 2, 2006 to discuss these persistent and continuing problems. The [page515] International Vice President then wrote to the Local on February 27, 2006, again outlining the alleged problems that had "been an ongoing issue for years", and referring to IBEW's "numerous, seemingly unsuccessful attempts to address these problems". IBEW warned the Local that unless it met certain objectives within six months, including "organizing, establishing friendly relations with employers, and protecting the jurisdiction of IBEW and the Local", IBEW would take action under the union constitution "to see that the interests of the members and IBEW are protected in the Local's jurisdiction". The senior management of the Local was summoned to a meeting on March 3, 2006.

[10] The second source of complaint related specifically to Local 1739 workers in the context of the Barrie Job, involving problems similar to those previously experienced by other contractors. Guild complained of a systemic problem of low job productivity due, in part, to inefficient work practices and the Local's apparent inability or unwillingness to rectify these problems. Guild claimed that it had difficulty in finding employees who would work overtime to get the job done. It complained that certain workers who had agreed to work overtime later refused to do so, with the Local's job steward insisting that he alone would decide overtime assignments. IBEW was also concerned that the Bank of Montréal had expressed reluctance to build further projects in Barrie owing to the history of problems with the Local.

[11] Faced with what it perceived to be pressing issues relating to the computer centre project, IBEW wrote to the Local on March 9, advising that with respect to the Barrie Job, IBEW had been informed that "there are circumstances creating unnecessary problems". It authorized two IBEW representatives to take whatever action was necessary to "correct the situation". Shortly thereafter, on March 15, 2006, the IBEW Vice President reassigned the jurisdiction of Local 1739 to Local 353, but only with respect to the Barrie Job, and not other jobs in Simcoe County. IBEW wrote to all members of the Local on that date advising them of its action.

[12] On March 21, 2006, the Local brought an unfair labour practice complaint against IBEW under s. 96 of the Act. It complained of violations of the Act that "are clear, compelling and blatant". It claimed that IBEW had improperly and unjustly assumed authority over the Barrie job and reassigned its jurisdiction, contrary to ss. 147 and 149 of the Act. Those provisions permit a parent trade union to alter the jurisdiction of a union local only if it has "just cause". The Local claimed that it had [page516] never been advised by Guild of any specific problems on the job site attributable to its members, nor had any of its members been disciplined for any reason. In response to the specific request of the Local, the Board agreed on March 23, 2006 to expedite its complaint.

Historical Context, Statutory Framework and Relevant Legislative Provisions

[13] To better understand the decision reached by the Board in this matter, it is useful to first outline the statutory framework within which that decision was reached, and to have a sense of the historical developments and context out of which that framework grew. The Act is the product of over 60 years of labour relations legislation in Ontario. It was stressed before us in argument that this case must be viewed in the light of the evolution of labour relations legislation in Ontario. In my view, that contextual analysis is necessary to an informed current perspective of legislative intent in Ontario as it relates to the resolution of labour disputes.

[14] The first important step in that evolution was the 1943 decision of the Legislature to remove primary responsibility for the adjudication of labour disputes in Ontario from the courts and to instead confide that responsibility to a specialized tribunal. At that time, however, there was still no differentiation made, as it related to the conduct of Labour Board hearings, between trades employees, such as those involved in the construction industry, and unionized workers in the manufacturing or industrial sectors. Specialized statutory provisions had not yet been developed to address the unique features of the construction industry. In the 1950s, because of the different nature of that sector, specialized provisions were enacted dealing with trades employees, or "craft" workers, as they were also known. In the 1970s, those provisions became even more specialized to deal with developments in the collective bargaining process in the construction industry. However, even with those further changes, the Board continued to determine disputes through the use of full hearings.

[15] As a result, in many cases jurisdictional disputes between unions representing different crafts within the construction industry were resolved only after weeks of Labour Board hearings, with the frequent result that the job that was the subject matter of the dispute was long gone before the hearings were completed. This caused resort to self-help remedies, with shutdowns often following. [page517]

[16] It was this reality that caused the Legislature to enact important procedural changes in 1993 to deal with jurisdictional disputes. It obtained balancing input from both labour and management on how to create a process and procedures that would permit labour disputes in the construction industry to be resolved with less than a full hearing being provided to the parties, and with decision-making power as to the appropriate procedure bestowed on Board members having particular expertise in the unique aspects of construction industry labour disputes. [See Note 1 below]

[17] Turning to look at the provisions of the legislation itself, it is instructive that specific legislative purposes are described in s. 2 of the Act. They include encouraging co- operative participation of employers and trade unions in resolving workplace issues and promoting the expeditious resolution of workplace disputes (ss. 2(6) and (7)).

[18] It is not surprising that labour-relations are widely recognized as a distinct sub-specialty in the construction sector. Construction employment is often episodic and of limited duration, with employees moving from project to project and employer to employer. Employees have a long-term, stable association with their union, but often only sporadic and project related associations with individual employers. In this context, the relationships between employees, local unions and parent unions are fundamentally different from those in other sectors. [See Note 2 below] The Act recognizes these differences between the construction sector and other sectors by devoting a specific Part of the Act (ss. 126 to 168) to construction labour relations. That Part includes specific procedural provisions applicable to that industry. It gives the Board the power, amongst other things, to regulate aspects of the internal [page518] affairs of construction unions and provides a complaint procedure to the Board for alleged improper action. The Board's power to oversee internal union affairs is unique to the construction sector and is set out in a detailed and carefully calibrated legislative scheme.

[19] In furtherance of the legislative scheme, the Act contains extensive provisions establishing the Board's administrative framework and granting it important substantive and procedural powers, as well as two privative clauses precluding judicial review in ss. 114 and 116. The need for specialized expertise in construction labour relations is further specifically recognized in s. 110(5). Under that provision a special division of the Board, the construction industry division, is designated to adjudicate on disputes in the construction industry and to exercise the powers of the Board in proceedings applicable to that industry under ss. 126 to 168.

[20] As well, special practice and procedural powers are vested in the Board under ss. 110(16), (17), (18) and (20). Those provisions are as follows:

Practice and procedure

110(16) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions.

Rules of practice

(17) The chair may make rules governing the Board's practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.

Same

(18) The chair may make rules to expedite proceedings to which the following provisions apply:

2. Section 99 (jurisdictional, etc., disputes).

3. Sections 126 to 168 (construction industry).

4. Such other provisions as the Lieutenant Governor in Council may by regulation designate.

Special provisions

(20) Rules made under subsection (18),

(a) may provide that the Board is not required to hold a hearing; [page519]

(b) may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence and to make their submissions; and

(c) may authorize the Board to make or cause to be made such examination of records and such other inquiries as it considers necessary in the circumstances.

[21] It is of note that in exercising these and the other powers conferred on it under the Act, the Board has many of the same powers as a court in civil cases, including the power to summon witnesses, to require the production of relevant documentation, and to accept such oral or written evidence as it considers proper in the exercise of its discretion, whether that evidence would be admissible in a court of law or not (see s. 111).

[22] Section 147 is the provision that is at the heart of this dispute, relating to the action taken by IBEW in transferring authority over the Barrie Job from Local 1739 to Local 353. It is that section that permits an international union to take over the jurisdiction of a local bargaining agent where "just cause" is shown to exist. It provides, in part, as follows:

Jurisdiction of the local trade union

147(1) A parent trade union shall not, without just cause, alter the jurisdiction of a local trade union as the jurisdiction existed on May 1, 1992, whether it was established under a constitution or otherwise.

Determination of just cause

(3) On an application relating to this section, the Board shall consider the following when deciding whether there is just cause for an alteration:

1. The trade union constitution.

2. The ability of the local trade union to carry out its duties under this Act.

3. The wishes of the members of the local trade union.

4. Whether the alteration would facilitate viable and stable collective bargaining without causing serious labour relations problems.

Same

(4) The Board is not bound by the trade union constitution when deciding whether there is just cause for an alteration.

Complaint

(5) If a local trade union makes a complaint to the Board concerning the alteration of its jurisdiction by a parent trade union, the alteration shall be deemed not to have been effective until the Board disposes of the matter. [page520]

[23] Finally, the Board has created procedural rules, including Rule 41, which establishes the framework for expedited proceedings to be conducted by way of consultation. Rule 41 was established by the Chair pursuant to the rule making power under ss. 110(17), (18) and (20) of the Act. It is this rule that the Local claims is ultra vires:

Rule 41 -- Expedited Proceedings

41.1 Rules 41.2 and 41.3 apply to the Ambulance Services Collective Bargaining Act, 2001, Public Sector Labour Relations Transition Act, 1997, Part X.1 of the Education Act, Part IV of the Crown Employees Collective Bargaining Act, 1993, section 61 of the Occupational Health and Safety Act, section 118(2) of the Employment Standards Act, 2000 and sections 8.1, 13, 98, 99, 114(2) and 126 to 168 of the Labour Relations Act, 1995.

41.2 In order to expedite proceedings, the Board or Registrar may, on such terms as either considers advisable, consult with the parties, conduct a pre hearing conference, issue any practice direction, shorten or lengthen any time period, change any filing or delivery requirement, schedule a hearing, if any, on short notice, or cancel such hearing, or make or cause to be made such examination of records or other inquiries as either considers necessary in the circumstances.

41.3 Where the Board is satisfied that a case can be decided on the basis of the material before it, and having regard to the need for expedition in labour relations matters, the Board may decide an application by limiting the parties' opportunities to present their evidence or to make their submissions, or without a hearing.

The Board's Decision

[24] Rather than holding a full hearing to inquire into the Local's complaint, the Board decided to proceed by way of a "consultation" conducted in accordance with Rule 41. The Local objected to the complaint being resolved by consultation on the basis that the Board's consultative procedure was contrary to natural justice.

[25] Nevertheless, the consultation did proceed. It was held over a two-day period on April 3 and April 5, 2006. A substantial amount of material was placed before the Board. This included the Local's complaint contained in seven pages of pleadings along with the three recent letters between the Local and IBEW regarding the Barrie Job. The Local alleged that it had not been made aware of any major problems regarding its members' performance at the Barrie Job.

[26] Also before the Board were IBEW's and Guild's responses to the complaint. IBEW's response, filed with the Board on March 30, 2006, was 153 pages in length and included 23 pages of pleadings with extensive supporting exhibits documenting previous and current complaints against the Local. Guild's response to the [page521] complaint was contained in nine pages of pleadings with 22 pages of supporting exhibits documenting its problems with the Local, both historically going back to 1998, and specifically with respect to the Barrie Job.

[27] Finally, the Local also filed a 12-page reply with the Board in response to both IBEW's and Guild's submissions, and Guild filed a further response to the Local's reply. It is of note that in para. 1 of its reply, the Local categorically denied all of the allegations made against it by IBEW and Guild, except for one paragraph. It stated that it "puts [IBEW] and Guild to the strict proof of every single allegation and alleged fact".

[28] The Local claimed that the allegations in the pleadings relating to earlier construction projects were not particularized, related to events long past and had nothing to do with the computer centre site. It pleaded that it could only adequately respond to these allegations if it was permitted to present viva voce and documentary evidence, and to cross- examine the other parties on their allegations. Nevertheless, the Local confirmed that it had attempted to respond to those and the more current allegations in its reply pleading.

[29] The Board provided an oral decision on April 5, 2006 following the two-day consultation involving the parties and their counsel. It found in favour of IBEW. It concluded that IBEW had "just cause" under s. 147(1) to reassign the jurisdiction of Local 1739 to Local 353 with respect to the Barrie Job. The Board provided written reasons for its decision on April 6, 2006. Those reasons are brief, comprising just over three pages.

[30] In its reasons, the Board explained that the urgency of the matter had made it impractical to hold a full hearing and that it had instead determined to conduct a consultation. The Vice Chair noted the Local's objection to the matter proceeding as a consultation, but concluded "the concerns of all parties dictated that the matter should be dealt with quickly". In the Local's view, however, as recounted by the Vice Chair, the Board "did not have authority to deal with the matter by way of consultation". The Local claimed the "procedure was contrary to the principles of natural justice". The Vice Chair responded that he had determined to "allow each party to make full submissions on the preliminary matters and on the merits at the same time" during the consultation. He would then be "in a better position to determine whether [he] could make a final determination based on the pleadings and the submissions or whether evidence would be required".

[31] The Board concluded that the circumstances of the Barrie Job precluded the conduct of a full hearing since s. 147(5) of the [page522] Act operated to stay the assumption of the Local's jurisdiction over the Barrie Job by IBEW and its reassignment to Local 353. The Board was concerned that the result would be inconsequential and moot if a full hearing were held, for the simple reason that work at the Barrie Job would have been completed before the final disposition. The Board concluded that this reality called for a speedy resolution of the case, a result that could best be assured through the use of the consultation procedure for which provision was made in its Rules. The Board said this regarding that choice of procedure:

First -- this matter is decided as a result of the consultation process just completed. Section 110(18) and (20) of the Act do provide the Board with the authority to make rules to hold such consultations with or without evidence and the rules have been established for such consultations. (See Rule 41.) A consultation may not always be the most thorough or perfect process for deciding difficult cases. But the Board is given the authority to balance the need for full- blown natural justice on the one hand against expedition on the other. That is an extremely important balancing act in the field of labour relations in which it is often said that "labour relations delayed is labour relations denied."

[32] While acknowledging that many facts were contested, the Board determined that there was sufficient uncontested material to permit it to reach an appropriate decision. On the merits, the Board accepted that Guild had experienced problems on the Barrie Job relating to productivity, the administration of work practices such as those respecting overtime, "and other such problems as outlined in the pleadings". The Board acknowledged that some attempts had been made by the Local to deal with those problems. Nevertheless, it determined that IBEW was justified in concluding that Guild and the Local could not work together satisfactorily to complete the Barrie Job in the manner required by Guild and its client, the Bank of Montréal. In the critical paragraph of the Board's reasons, the Vice Chair said:

I do accept that the contractor experienced peculiar problems on this job -- problems in terms of productivity, in the administration of work practices such as those respecting overtime and other such problems as outlined in the pleadings. I also find that although the pleadings outline an effort by the applicant's business manager to deal with some of those problems a point was reached in which the IU reached the justifiable conclusion that the contractor and the Local could not work together satisfactorily to complete the job in the manner required by the contractor. At some point it was justified to conclude that neither the stewards not [sic] the local leadership could administer or adopt [sic] their practices to allow the contractor to manage the job in the way it was entitled to. I therefore find that the IU had just cause to assume authority to look after the job and to delegate that authority as it deemed appropriate. [page523]

[33] The manner in which the Board disposed of the matter is of particular interest. Although it concluded that IBEW had "just cause" to assume jurisdiction over the Barrie Job, it held that IBEW was not justified in a wholesale transfer of the job into Local 353, since that made the members of the Local "travelers" under the Collective Agreement. Therefore, the Board placed conditions and restrictions on IBEW's transfer of jurisdiction over the Barrie Job from Local 1739 to Local 353, requiring that Local 1739's mobility provisions continue to apply as if the job were still being performed within its jurisdiction. As a practical matter, this meant that the Local members were not considered "travelers" and retained their priority protection against lay-offs. Further, the Board declared that all union remittances would continue to be made to Local 1739's offices. Finally, given the brevity of its written reasons, the Board stated that further reasons might follow, and the presiding Vice Chair noted that he "remained seized to deal with any difficulties in implementing this award".

Issues

[34] The Local applies for judicial review on a number of grounds, relating both to the validity of the consultation procedure adopted by the Board, and to the outcome of that procedure and the decision rendered by the Board on the merits of the complaint. The Local asks this court to quash the Board's decision and order that the matter be remitted to a different panel of the Board for a hearing. However, since the Local challenges the entire validity of the expedited procedural framework established by the Board, this court should first determine whether there is merit to that position. If Rule 41 of the Board is found to be ultra vires, it would dispose of the remaining issues, since a valid decision, either to adopt the consultation procedure in this case or on the merits of the complaint, could not flow from a fatally flawed procedure. Accordingly, I will first address this issue. Thereafter, after setting out the applicable standard of review, my analysis and determinations are provided to the remaining questions in issue:

(1) Did the Board deny the Local natural justice in proceeding by way of a consultation process and by failing to hold a full hearing?

(2) Did the Board exceed its jurisdiction by making findings of fact in the absence of any evidence? [page524]

(3) Did the Board deny the Local natural justice by failing to provide adequate reasons?

(4) Was it patently unreasonable for the Board to proceed by way of a consultation process rather than by a full hearing?

(5) Was it patently unreasonable for the Board to conclude that IBEW had just cause under s. 147(1) of the Act to remove jurisdiction from the Local over the Barrie Job?

Is Rule 41 Ultra Vires?

[35] The Local claims that Rule 41 is ultra vires either because there has been an improper delegation of authority by the Board Chair or because Rule 41 is inconsistent with the language and scheme of the Act.

Improper delegation

[36] The Local submits that in exercising his power under s. 110 of the Act, the Chair did not establish a rule that sets standards and/or gave parties or Vice Chairs of the Board guidance as to when and how the discretion to deny a hearing or to deny the right to present evidence and make submissions might be exercised. Instead, it claims that the Chair simply embodied the language of ss. 110(20)(a) and (b) in rule 41.3. In doing so, it says that the Chair improperly sub-delegated the power to make rules to Board Vice-Chairs on an ad hoc basis, and thereby bestowed untrammelled discretion on them. The Local asserts that rule 41.3 is ultra vires the authority granted to the Chair under s. 110(18) as a result of that alleged improper delegation of rule-making discretion.

[37] IBEW, Guild and the Attorney General of Ontario reject the Local's contention that Rule 41 results in an improper delegation of power. Both the Board and the Attorney General argued that the Chair had authority to adopt Rule 41 and that it cannot be viewed as an improper delegation of the Chair's authority under s. 110(18) of the Act.

[38] The Local argues that Rule 41 breaches the fundamental administrative law principle that a person to whom a power is delegated may not in turn delegate that power to another: see Brant Dairy Co. v. Ontario (Milk Commission), 1972 11 (SCC), [1973] S.C.R. 131, [1973] S.C.J. No. 82; Swan v. Canada, 1990 13085 (FC), [1990] F.C.J. No. 114, 2 F.C. 409 (T.D.). However, it is against the background of the legislation outlined earlier in these reasons that this proposition must be tested. Moreover, it must be remembered that the delegatus non potest delegare maxim is only a principle of [page525] statutory construction. Consideration must be given to the whole of the enactment, its purposes and its objects, using a pragmatic and functional analysis to determine whether the legislation impliedly authorizes delegation: Peralta v. Ontario (1985), 1985 3125 (ON CA), 49 O.R. (2d) 705, 16 D.L.R. (4th) 259 (C.A.), affd 1988 28 (SCC), [1988] 2 S.C.R. 1045, [1988] S.C.J. No. 92; see also Brown, Donald J. M. and John M. Evans, Judicial Review of Administrative Action in Canada, looseleaf (Toronto: Canvasback Publishing, 1998- ), para. 13:2221; British Columbia (Milk Marketing Board) v. Aquilini, 1998 6518 (BC CA), [1998] B.C.J. No. 2061, 165 D.L.R. (4th) 626 (C.A.), at para. 29.

[39] Taking these principles into account, I reject the contention that the Chair has improperly delegated his rule- making power. Rule 41 is not simply a recitation of the Act. It requires Board members to give consideration to particular issues in the course of determining the most appropriate procedure, but it also sets the standard that must be met in making such determinations. Significantly, it permits the Board to decide a matter even where a party's opportunity to present evidence or make submissions is limited, but only where the presiding member is first satisfied that the case can be decided on the basis of the limited material before it, and having regard to the need for expedition. That does not constitute sub-delegation of the rule making authority, but instead the establishment by the Chair of a standard or guideline to be adhered to by the Board Vice Chairs in making determinations in each case whether the consultative process will be appropriate and adequate. It sets the standard against which Vice Chairs may determine what conditions or limitations ought to be imposed, or whether another procedure is required. In establishing this rule, the Chair has simply recognized the need for discretion to be exercised in the circumstances of each case, creating a rule, as authorized by statute, which establishes a procedural framework capable of flexibly meeting a variety of labour relations circumstances.

[40] Applying a pragmatic and functional analysis, it is difficult, if not impossible, to set out hard-and-fast rules respecting what form of expedited procedure will fit the circumstances of each individual case. Specifically, the need for both expedition and flexibility that the Legislature mandated through the empowering provisions of the Act supports the provision of a flexible process capable of meeting the varying demands of each dispute. The Legislature intended to create a practical goal-oriented framework within which the most appropriate procedure could be adopted, given the needs of each case. It did not [page526] intend to create a rigid structure. In establishing Rule 41 in accordance with the power granted under the Act, the Chair successfully embodied the principles that the Legislature intended would govern, permitting procedural flexibility, but only where the presiding Vice Chair determines that the expedited procedure complies with the criteria articulated in rule 41.3. The rule does not constitute impermissible sub-delegation of the Chair's rule- making authority.

Consistency of Rule 41 with the Scheme of the Act

[41] The Local accepts the need for expedition in labour relations and acknowledges that even short delays may result in rights being lost, but it argues that expediency is not the only relevant labour relations value, nor necessarily the most important one. It says Rule 41 makes expediency the sole or primary value, potentially causing unfairness or the loss of a meaningful opportunity for parties to present their case. As such, the Local claims it is inconsistent with the nature and scheme of the Act.

[42] The Local relies on s. 110(6) of the Act, which permits the Board to determine its own practice and procedure but requires that it give full opportunity to the parties to any proceedings to present their evidence and to make their submissions. To achieve the objective of parties having a full opportunity to present evidence and make submissions, the Local argues that the Board's procedural rules must demand that it ask itself whether expedition is truly necessary in the circumstances. If the Board concludes that expedition is required, then it must determine whether other procedures might better balance expedition against procedural fairness, and it must choose the process which least impairs procedural fairness. The Local claims such an approach is not only consistent with the language of the Act, but also with the general assumption that the Legislature intends a tribunal's process to comport with the principles of natural justice, that unequivocal language is necessary to abrogate the common law right to procedural fairness, and that such language is to be read narrowly: see Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105, [1980] S.C.J. No. 32, 110 D.L.R. (3d) 311, at p. 1113 S.C.R., p. 322 D.L.R.; Joplin v. Vancouver (City) Police Department, 1982 698 (BC SC), [1982] B.C.J. No. 840, 144 D.L.R. (3d) 285 (S.C.), at pp. 291-92 D.L.R., affd 1985 405 (BC CA), [1985] B.C.J. No. 2311, 20 D.L.R. (4th) 314 (C.A.); and Canadian Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, [2003] S.C.J. No. 28, 226 D.L.R. (4th) 193, at para. 117. [page527]

[43] The Local argued that Rule 41 is inconsistent with the language and scheme of the Act, because it does not expressly require the Board to "choose the process which least impairs procedural fairness". The problem with this submission is that the Local puts forward an entirely subjective view of what process would meet the demands of procedural fairness. Further, it is difficult to reconcile its argument with the express terms of the Act, which not only require the Board to consider the statutory purpose of promoting the expeditious resolution of workplace disputes, but also expressly empower the Chair to make rules that may provide that the Board is not required to hold a hearing. Those provisions also expressly permit the Board to make rules that may limit its obligation to give full opportunity to a party to present evidence and make submissions, despite anything in the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"). The Local's suggested interpretive requirement would effectively read these provisions out of the Act, removing the discretion expressly given to the Chair by the Legislature.

[44] The Local sought to analogize the situation to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which sets out the requirements that must be met and the procedure that is to be followed on a summary judgment motion. However, the comparison made by the Local ignores that summary judgment motions arise in entirely different circumstances. Labour relations disputes are not the same as civil litigation, and the Board is an administrative tribunal, not a court. It operates in a complex, dynamic, and highly fluid environment where expeditious rulings and informal and accessible procedures are often essential to maintaining the delicate balance between the parties' various interests. The Board exists distinct from the courts, precisely because "court procedure" was inadequate, as history shows, to respond to the needs and pace of labour relations and labour dispute matters. The history of the Board's creation and evolution makes this dichotomy plain.

[45] The Local cannot succeed in this submission having regard to the historical development of labour relations legislation in Ontario, the statutory framework that the Legislature saw fit to create in the Act, the specific rule- making authority that was given to the Chair, and the manner in which that rule-making authority was exercised. That context makes clear that Rule 41 is neither ultra vires, nor that the manner in which the Chair exercised that authority gave rise to impermissible sub-delegation. Against the Legislature's clear statutory expression [page528] of intent, and the consistency of Rule 41 with that intention, the Local's position is unsupportable.

Standard of Review

[46] The standard of review applicable to the Board is to be determined by examining four factors: the presence or absence of a privative clause in the Board's enabling legislation, the relative expertise of the Board, the purpose of the Act and the particular provisions in issue, and the nature of the problem before the tribunal: Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, at paras. 29-38; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17; Thyssen Elevator Ltd. v. National Elevator and Escalator Assn., 2004 4778 (ON SCDC), [2004] O.J. No. 3157, [2004] O.L.R.B. Rep. 847 (Div. Ct.), at paras. 24-25.

[47] Here, decisions of the Board are protected by two strong privative clauses that signal the Legislature's intent that the courts should defer to the Board in all but the most exceptional of cases. As well, having regard to the accepted expertise of the Board in the "dynamic, complex and sensitive field" of labour relations, it is clear that the Board's decisions attract the highest standard of judicial deference and are only reversible if they are patently unreasonable: Ajax (Town) v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Local 222 (1998), 1998 7179 (ON CA), 41 O.R. (3d) 426, [1998] O.J. No. 3915, 166 D.L.R. (4th) 516 (C.A.), affd 2000 SCC 23, [2000] 1 S.C.R. 538, [2000] S.C.J. No. 23, 185 D.L.R. (4th) 618; Ontario (Attorney General) v. Ontario Public Service Employees Union (2000), 2000 17008 (ON CA), 52 O.R. (3d) 77, [2000] O.J. No. 4602 (C.A.), at para. 34; Royal Oak Mines Inc. v. Canada Labour Relations Board, 1996 220 (SCC), [1996] 1 S.C.R. 369, [1996] S.C.J. No. 14, at paras. 32-36, 57-58; Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 385 (SCC), [1996] S.C.J. No. 116, [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1, at para. 50. In the present case not only was the Board acting in its area of general expertise, but it was also acting in a doubly specialized capacity relating to the construction sector, an area of responsibility it was entrusted to regulate in accordance with industry-specific legislative rules.

[48] The third and fourth of the Pushpanathan factors are the purpose of the legislation and the nature of the problem before the tribunal. The Act has a number of enumerated purposes, but the most important against the background of this dispute must be those of promoting the expeditious resolution of workplace disputes and encouraging co-operative participation of [page529] employers and trade unions in resolving workplace issues. Finally, the nature of the dispute is clear. It is a jurisdictional dispute between a local affiliated bargaining agent, Local 1739, and its parent union, IBEW, that falls squarely within the specialized legislative provisions applicable to the construction industry.

[49] It becomes evident when these factors are combined that the standard of review applicable to the merits of the Board's decisions is that of patent unreasonableness. The Local, IBEW, Guild and the Board all accept that the standard of review of the Board's decision on the merits is one of patent unreasonableness.

[50] The Local also raised a number of issues of procedural fairness and the denial of natural justice. It asserts that an assessment of the standard of review is unnecessary where natural justice is an issue or where findings of fact are made in the absence of evidence. In its submission, those constitute errors that necessarily cause the Board to exceed its jurisdiction, thus pre-empting a consideration of whether the decisions pass muster under any standard of review.

[51] In Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 169 O.A.C. 62 (Div. Ct.), at para. 16, this court held that it is not necessary for the court to engage in an assessment of the standard of review where a tribunal's decision is attacked on the basis of a denial of natural justice. The duty of procedural fairness was raised as well in London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859, 167 O.A.C. 120 (C.A.), at para. 10, where the applicant claimed that it was denied natural justice by the Ontario Municipal Board. The Court of Appeal addressed the standard of review that was applicable to the tribunal's decisions and confirmed that:

When considering an allegation of a denial of natural justice, a court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly. See Moreau-Bérubé, supra, at paras. 74-75.

(My emphasis)

[52] Courts have recognized that the duty of fairness is flexible and may vary based on all of the circumstances. In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, the Supreme Court identified five factors that should be considered in determining the required [page530] content of the duty of fairness. These include the nature of the decision, the nature of the underlying legislative scheme, the importance of the decision to the person affected, the legitimate expectations of the person challenging the statute, and the decision-maker's choice of procedure. More recently, in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, [2004] S.C.J. No. 45, 241 D.L.R. (4th) 83 ("St. Jérôme") at para. 5, Chief Justice McLachlin reformulated the last factor, focusing not on the procedural choice made by the tribunal, but instead on "the nature of the deference accorded to the body". The dissenting members of the court in St. Jérôme reasserted the "choice of procedure" factor described by L'Heureux-Dubé J. in Baker, but they expressed no disagreement with the Chief Justice's focus on deference.

Did the Board Deny the Local Natural Justice in Proceeding By Way of a Consultation Process and By Failing to Hold a Full Hearing?

[53] The Local says the Board violated the principles of natural justice by failing to hold a hearing. It says that the factors set out in the St. Jérôme case evidence a requirement that there be greater protection of procedural rights in a case such as this. First, it asserts that the rights-oriented nature of the Board's decisions and the powers granted to it under the Act suggest that greater procedural protections are warranted, given the Board's status as a quasi-judicial body that adjudicates the rights of parties and makes final decisions with no right of appeal.

[54] Second, the Local claims the construction industry provisions in the Act demonstrate that parent union interference with a union local is a serious matter. It claims that the absence of an internal appeal being permitted and the inclination of the courts to review decisions of the Board on matters within its jurisdiction on only the most deferential standard also weigh in favour of greater procedural protections. Moreover, to the extent that the Board's determination respecting the presence of "just cause" may impact the Local's financial position and its right to represent its members and protect their job security, the decision is one of great importance. The Local claims as well to have had a legitimate expectation that the Board would not exercise its discretion under the Rules in a way that would "render it unable to defend itself" against serious allegations and attacks on its members, or to carry out its obligations. [page531]

[55] If the Local is correct that all of these factors point in the direction of greater procedural protections, then it argues that the court should show little deference to the Board's procedural choices. It claims the Board cannot be permitted to rely on its Rules to justify the procedural choices it made in this case, because the audi alteram partem rule -- let the other side be heard -- requires that parties be given "a meaningful opportunity to present their case fully and fairly" in an oral hearing. Local 1739 argues that this is particularly so in a case such as this where it claims that evidence on material issues conflicts, and issues of credibility must be resolved to permit the matter to be decided: Khan v. University of Ottawa (1997), 1997 941 (ON CA), 34 O.R. (3d) 535, [1997] O.J. No. 2650 (C.A.), at p. 543 O.R.; Masciangelo v. Spensieri, [1990] O.J. No. 1429, 1 C.P.C. (3d) 124 (H.C.J.), at p. 7 (QL); Cadillac Investments Ltd. v. Northwest Territories (Labour Standards Board), 1993 16534 (NWT SC), [1993] N.W.T.J. No. 126, 24 Admin. L.R. (2d) 81 (S.C.), at paras. 9-12; and Willette v. Royal Canadian Mounted Police Commr., [1984] F.C.J. No. 255, [1985] 1 F.C. 423 (C.A.). However, I note that most of these decisions arose outside of a labour relations context, and in the one that did involve labour relations (Cadillac Investments), a decision under the Alberta Labour Standards Act, Wachowich A.C.J. specifically acknowledged that the decision whether or not to allow the parties an oral hearing unquestionably lay within the discretion of the Board.

[56] Notwithstanding, the Local claims that it was a breach of natural justice for the Board to deny the parties a hearing. It acknowledges that the duty of fairness may be satisfied by less extensive procedural rights, but claims that a party must still be given the opportunity to present evidence and submissions relevant to its case, and be given a fair opportunity for correcting or contradicting prejudicial evidence and submissions. Instead, the Local asserts that IBEW was allowed to rely exclusively on disputed allegations contained in its pleadings and those of Guild Electric. It claims that a refusal to allow a party to present evidence on disputed material issues and then to rely on one unsubstantiated version of those disputed issues in finding against a party, may be a denial of natural justice: Eastern Provincial Airways Ltd. v. Canada (Labour Relations Board), 1983 2951 (FCA), [1983] F.C.J. No. 907, 2 D.L.R. (4th) 597 (C.A.), at p. 611 D.L.R.; Baltimore Aircoil Interamerican Corp. v. Ontario (Labour Relations Board), [1981] O.J. No. 175 (Div. Ct.), at paras. 25-26, affd [1981] O.J. No. 2026 (C.A.); Sowemimo v. College of Physicians and Surgeons of Manitoba, [1996] M.J. No. 399 (Q.B.), at para. 35; and Cheung v. Minister of Employment and Immigration, 1981 4713 (FCA), [1981] F.C.J. No. 43, [1981] 2 F.C. 764 (C.A.), at paras. 10 and 26. [page532]

[57] It is well-accepted law that the duty does not necessitate a formal hearing with viva voce evidence and the right to cross-examine witnesses: Québec (Labour Relations Board) v. Canadian Ingersoll-Rand Co. Ltd., 1968 795 (CSC), [1968] S.C.R. 695; NAV Canada v. International Brotherhood of Electrical Workers, Local 2228, [2001] F.C.J. No. 257, 2001 FCA 30; Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, 1978 24 (SCC), [1979] 1 S.C.R. 311, [1979] S.C.J. No. 88. In Nav Canada, supra, at paras. 9 through 11, Sexton J.A. noted that provisions of the Canada Labour Code, R.S.C. 1985, c. L-2, similar to those at issue here, permitted the Canadian Industrial Relations Board to reach a decision in a matter in dispute under that statute without holding a hearing:

. . . The audi alteram partem rule does not require an oral hearing. (Québec (Labour Relations Board) v. Canadian Ingersoll Rand Co., 1968 795 (CSC), [1968] S.C.R. 695).

Further, section 16(1) of the Canada Labour Code and section 19(2) of the Regulations provide that the Board may decide any matter before it without holding an oral hearing. Thus, even if the Applicant had requested a hearing the Board was at liberty to decide the matter without granting an oral hearing.

The scheme of the legislation and Regulations indicates that the Board will decide on the basis of the material filed unless it decides to hold an oral hearing or specifically requests additional evidence. No authority was provided to the Court for the proposition that the Board cannot do so, or that in order to treat the material filed as evidence, the Board must give notice to the parties of this intention.

[58] It is useful to look first at the Board's enabling legislation, the second of the five factors enumerated in Baker and St. Jérôme, in evaluating whether the Board denied the Local natural justice or procedural fairness in this case. That factor is of heightened importance here, as it was in NAV Canada, because the Supreme Court of Canada has confirmed that absent constitutional limitations, the exercise of powers by a board or tribunal in accordance with the express provisions of its governing statute cannot be attacked as a breach of natural justice: Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781, [2001] S.C.J. No. 17, at para. 22.

[59] The Legislature specifically empowered the Board to expedite certain kinds of proceedings, including those used in the very kind of dispute in issue here, and in doing so to limit the opportunity of parties to present evidence and make submissions. Moreover, the Legislature expressly excluded the application of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA"). Enacted in 1971 following the recommendations of the [page533] McRuer Commission, the SPPA was intended to codify the principles of natural justice so that they could be applied to a range of administrative tribunals that hold evidentiary hearings. Where issues of natural justice arise under the Labour Relations Act, however, it is evident the Legislature concluded that the SPPA rules should be tempered by other considerations specific to labour relations. Against this background, it is also evident that the clearly expressed will of the Legislature would be frustrated were this court to second-guess the Board's application of these provisions on the basis of common law principles of natural justice or procedural fairness, at least in the absence of a patently unreasonable procedural decision being reached by the Board.

[60] Moreover, even though it may not have been obliged to do so, I reject the accusation that the Board did not grant a "hearing" to the Local in this case. I agree with counsel for the Board that we should regard this terminology with some care as we focus on the Local's contention it was "denied a hearing". It is true that the Board conducted a "consultation" process rather than a "hearing", but it must be acknowledged that a consultation of the type provided for under the Board's Rules does provide the parties with "the right to be heard" as this term is used in the administrative law sense, just as a "hearing" provides that opportunity. A particular choice of forum or procedure is not inherent in the centuries old audi alteram partem maxim. The core value embraced by that principle, at its simplest, is the obligation of a decision- maker to listen to both sides before making a determination. Here, all of the parties were given an opportunity to make both written and oral submissions on the basis of a voluminous documentary record. The only procedures denied to the Local were the rights to call viva voce evidence and to cross-examine witnesses. As found by the Board at p. 3 of its reasons, however, hearing viva voce evidence and permitting cross- examinations would likely have made the result moot.

[61] I reject the Local's assertion that the right to be heard under principles of natural justice or procedural fairness necessarily entails a right to call evidence and to subject witnesses to cross-examination in every case. While such rights are provided for explicitly in the SPPA, here the Legislature has clearly indicated that the SPPA provisions do not apply. The fact that the Local was not accorded the right to call evidence or to cross-examine as would have been the case in court proceedings cannot result in a violation of the right to be heard principle where the Board granted a full right of audience to the parties under a [page534] consultation process and against the background of the voluminous written materials they filed: Baker v. Canada (Minister of Citizenship and Immigration), supra, at para. 33; R. v. Québec (Labour Relations Board), ex parte Komo Construction Inc., 1967 118 (CSC), [1968] S.C.R. 172, 1 D.L.R. (3d) 125; Webb v. Ontario Housing Corp. (1978), 1978 1490 (ON CA), 22 O.R. (2d) 257, [1978] O.J. No. 3378 (C.A.).

[62] Returning to the first factor in Baker, there can be no doubt that the nature of the decision that confronted the Board in this case required an expedited procedure. It related to an important labour dispute on a large project with the need for its timely completion. Holding the kind of formal hearing proposed by the Local in the face of impending deadlines for completion would have rendered the Board's determination on the merits meaningless and moot, given the time necessary to proceed in such a fashion. Had the Board permitted full, or even abbreviated hearings with examination and cross- examination instead of adopting the expedited consultation process, the project would long since have been completed. Delay in this case would have been highly prejudicial to the bigger picture, a fact noted by the Board in making the procedural determination it did.

[63] The third of the Baker factors is the importance of the decision to the parties affected. In determining the appropriate standard of fairness that the Board was required to provide to the Local, we must look at the competing interests that the Board faced going into the process. On the one hand, from the Local's perspective there was the loss of the Barrie Job for the Local and the undermining of layoff rights and payment of funds that would result from the removal of its jurisdiction over that project. No doubt these are serious issues, but on the other hand, looked at from the perspective of the other parties, this was a one-site transfer of jurisdiction taking place only one month before the expected completion of the job. In determining the appropriate standard of fairness to be applied in this case, the subject matter of the Board's decision cannot and should not be equated with a transfer away from Local 1739 of its entire jurisdiction in the whole geographic area that fell under its control. Looked at from this perspective, it appears to me that there was a lesser need for procedural safeguards to be provided to the Local, compared to the level of fairness that might have been required if the competing interest of the Local involved a loss of its entire jurisdiction.

[64] On the fourth issue of legitimate expectations, there were neither factual nor legal elements present here that could reasonably engage that doctrine. The Local made no allegation that it was misled by the conduct of the Board. Indeed, the use of the [page535] consultation procedure by the Board is well known in the labour relations community. It is the subject of information bulletins and reported decisions of the Board. [See Note 3 below] It can have come as no surprise to the Local, ten years after its introduction, that the Board might choose to adopt the consultation process in this dispute. Moreover, the parties were given the opportunity to make submissions on the procedure to be used before the Board made its decision to proceed by way of consultation. These factors all feed into a reasonable conclusion that there is no cogent foundation in the present case for an allegation by the Local that its legitimate expectations were thwarted.

[65] Finally, on these factors, there is the nature and extent of the deference that is properly to be accorded to the Board. The privative clauses that the Legislature saw fit to include in the Act protecting decisions of the Board from judicial review make it clear that the Legislature intended that decisions of the Board would be afforded substantial deference, including choices of procedure. More importantly, the control of procedure and express power granted to the Board not to hold a hearing are key. Applying these various factors, the conclusion is unavoidable that the Board did not deny procedural fairness by proceeding as it did: see also Ottawa- Carleton Public Employees Union, Local 503, CUPE v. The Ottawa Transportation Board, [2004] O.L.R.B. Rep. March/April 468 (Div. Ct.), at p. 470. [page536] The Board found in this case that the nature of the decision required an expedited process. It reached that conclusion on the grounds that if it had proceeded by way of a hearing in the ordinary course, the Local would likely have succeeded by default regardless of the merits of its case. Given the nature of labour relations, the Board is frequently in a position where it must use expedited procedures to achieve practical results. This court ought to show proper deference to the Board's decision on the appropriate procedure, having regard to that specialized perspective, as was contemplated by the Legislature.

[66] In summary, I conclude that the Board did not deny the Local an opportunity to be heard, and it complied with its duty of procedural fairness. It provided a hearing opportunity through the use of the consultation process in which the Local was able to present its position, respond to the other parties and to make its position known over the course of the two-day period in which the Board heard the submissions and argument of the parties. The Board acknowledged in Total Support Services, supra, that this is not a perfect form of litigation. It necessarily represents a trade-off between speed and efficiency on the one hand and a detailed fact-finding process on the other. Nevertheless, given the Board's authority to proceed as it did and the actual "hearing" opportunity it provided to the parties, in my opinion there is no merit to the Local's claim that the Board violated its duty of procedural fairness in deciding not to grant a full hearing in the context of this matter.

Did the Board Exceed its Jurisdiction by Making Findings of Fact in the Absence of any Evidence?

[67] The Local says the Board made its decision in the absence of any "evidence". It says the Board acknowledged that many facts were contested, but stated its conclusions without outlining the "uncontested facts" that supported those conclusions. Although the Board did not either hold a full "hearing" or permit the parties to present any formal "evidence", or to cross-examine witnesses, that does not lead to a conclusion that the Board's decision must have been based entirely on the disputed and unsubstantiated allegations in the pleadings.

[68] The Board had a different perspective on the record that was before it. It stated that there was "sufficient uncontested material" in the pleadings to conclude:

(a) that the Local could not staff the computer centre site entirely with its own members and that this was a problem; [page537]

(b) that Guild Electric experienced "peculiar problems" on the computer centre job in terms of productivity, in the administration of work practices such as those respecting overtime and "other such problems as outlined in the pleadings";

(c) that the contractor and the Local could not work together satisfactorily to complete the job in the manner required by the contractor; and

(d) that the union could not administer or adapt its practices to allow the contractor to manage the job "in the way it was entitled to".

[69] The Local argues, however, that the Board simply stated its conclusions and did not identify the "uncontested facts" that supported those conclusions. The courts have consistently held that administrative tribunals who adjudicate the rights of parties must base their decisions on evidence that is reliable and has cogency in law: see R. v. Barber, Ex parte Warehousemen and Miscellaneous Drivers' Union Local 419, 1968 446 (ON CA), [1968] 2 O.R. 245, [1968] O.J. No. 1145 (C.A.), at pp. 255-56 O.R.; Re Girvin and Consumers' Gas Co. (1973), 1973 706 (ON SCDC), 1 O.R. (2d) 421, [1973] O.J. No. 2323 (Div. Ct.), at p. 424 O.R.; Bond v. New Brunswick (Board of Management), 1992 6376 (NB QB), [1992] N.B.J. No. 115, 122 N.B.R. (2d) 351 (Q.B.), at p. 3 (QL), varg 1992 2434 (NB CA), [1992] N.B.J. No. 567, 95 D.L.R. (4th) 733 (C.A.), leave to appeal refused [1992] S.C.C.A. No. 516.

[70] In Girvin, supra, this court acknowledged that the statute permits the Board to accept oral or written evidence which it considers should properly be received in the exercise of its discretion and whether or not admissible in a court. The court noted that a hearing does not meet the standards of procedural fairness where a board bases its decision exclusively on hearsay and the affected party has no real opportunity to cross-examine on what was presented. However, there are three points that differentiate that case from ours. First, the context was a hearing about the discharge of an employee, a different situation from our own and one in which the highest standard of fairness is required. Second, the legislative regime was quite different from ours. Post-1993, in a legislative world where no hearing at all may be required in the construction industry's special circumstances, the strictures against basing the decision on hearsay lose their bite. If hearsay is admissible, why cannot the decision be based on it, subject to some opportunity to challenge? Finally, effective challenges to evidence are not confined to cross- examination; contrary evidence and oral submissions can also be effective and where there is no hearing, must be [page538] accepted as a substitute for cross-examination. This is the necessary corollary to the lack of a formal hearing.

[71] The Local asserts in this case that the Board not only based its decision on evidence that was not cogent, but that it failed to base its decision on any evidence at all. Accordingly it says the decision cannot stand: Re Keeprite Workers' Independent Union and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513, [1980] O.J. No. 3691 (C.A.), at p. 519 O.R. If material facts are undisputed, the Local acknowledges that the Board is entitled to reach a decision by applying appropriate legal principles to undisputed facts in the pleadings. However, where the facts are contested as they are here, it says that the Board cannot simply guess as to which pleadings, or which parts of which pleadings, are accurate or truthful or simply select one version of the allegations over another without hearing evidence. In such a case, it says the Board must give the parties a means by which to call or submit evidence, and to test each other's evidence.

[72] Not surprisingly, IBEW and Guild have a very different perspective on the adequacy of the evidence before the Board. In their submissions the Board had ample evidence to support its decision. It had the extensive pleadings and other supporting documentation put before it, as well as the full oral submissions made by the parties over a period of two days at the consultation proceeding. Moreover, they challenge the Local's claim that merely because it purported to dispute each and every allegation and fact pleaded by them, that this contrarian position necessarily meant that the Board had "no evidence" upon which it could base its decision.

[73] It is plain that the Local's entire argument is based on a premise that only viva voce testimony of witnesses can or does constitute "evidence". However, Local 1739 cannot succeed in this line of argument. In the context of a construction industry labour dispute, with the flexibility and avoidance of strict court-like rules that the statutory provisions make clear was the Legislature's intention, this bald assertion is neither supported by the facts relating to this dispute nor by the legal framework intended to apply in its resolution. Contrary to the Local's assertions, there is no stipulation in s. 147 that would support the proposition that a higher "evidentiary" standard must be met in the case of "just cause" determinations than in the case of other disputes under the construction industry provisions of the Act, disputes that may also be dealt with through the use of expedited proceedings, nor is there any indication on the face of the statute of such a legislative intent. Rule 41.3 clearly permits the Board to proceed using the consultation process if the Board is of the view that the [page539] matter can be decided on the basis of the material before it, and taking account of the need for expedition in labour relations matters. In determining to proceed consultatively on the basis of the materials that were before it, the Board addressed both of these considerations.

[74] The Board had extensive pleadings of the parties and other documents before it. The Board as well heard two days of oral submissions of the parties. At the end of that process, the Board concluded that it had sufficient material to allow it to reach a decision. Moreover, submissions on the adequacy of the evidence before the Board on this consultation alone cannot ignore that there was a six-year history to this dispute, not relating to the particular project, but relating to a whole series of documented complaints relating to other projects involving Local 1739. The Board had information on all of these matters present as well, as it commenced its consultation with the parties and its consideration of an appropriate disposition to the complaint through a process in which the Board takes an active role, and that has as many inquisitorial features to it as adversarial.

[75] The sufficiency and weight of all of that "evidence" are matters within the exclusive jurisdiction of the Board. As Guild and IBEW argued, this was not a case where there was no evidence. Evidence was placed before the Board, and a party to an expedited proceeding cannot frustrate the process by merely stating that it disputes all allegations of the other side and requires them to be strictly proven. The Legislature intended, where circumstances require, that the Board be empowered to deal with disputes expeditiously on the basis of the material before it. It intended to avoid the need for further evidence to be introduced in such cases to permit a speedy determination to be reached. Were we to accept this line of argument from the Local, it is evident that the Legislature's intent would be frustrated. In my view, there was evidence before the Board that permitted it to make a determination following the consultation process. Consequently the Board did not exceed its jurisdiction by proceeding on the basis of the material that was before it. It was granted the specific jurisdiction to do so. Accordingly, this ground of review by the Local also fails.

Did the Board Deny the Local Natural Justice by Failing to Provide Adequate Reasons?

[76] The Board gave an oral decision at the conclusion of the consultation on the basis that there was enough uncontested [page540] material in the pleadings to permit it to reach a decision. Written reasons followed the next day. However, the Local complains that the Board's reasons simply list conclusions without explaining how those conclusions were reached, what material "uncontested" facts the Board relied on, and which of those uncontested facts supported a finding that IBEW had just cause to alter the Local's jurisdiction.

[77] The Local argues that even where they are not required by statute, reasons for a decision must be given by an administrative tribunal where there are substantial issues to be resolved and the decision is important for the affected parties, as it claims is the case here. It says a failure to provide meaningful reasons to support the decision is also a breach of the principles of natural justice that will warrant quashing the tribunal's decision: Baker, supra, at para. 43; Lee v. College of Physicians and Surgeons (2003), 2003 41662 (ON SCDC), 66 O.R. (3d) 592, [2003] O.J. No. 3382 (Div. Ct.), at paras. 20-22; Future Inns Canada Inc. v. Nova Scotia (Labour Relations Board), 1997 NSCA 29, [1997] N.S.J. No. 103, 160 N.S.R. (2d) 241 (C.A.), at para. 54, application for leave to appeal dismissed [1997] S.C.C.A. No. 265; Kalin v. Ontario College of Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523, [2005] O.J. No. 2097 (Div. Ct.), at para. 60. The Local accepts that the Board has some discretion to determine how extensive its reasons need to be in a particular case, but stresses that it has an obligation to do more than state conclusions, particularly where there are factual disputes.

[78] It is true that there is no requirement under the Act that the Board issue any reasons for its decision. In this respect, the obligation of the Board to provide reasons is clearly different from the obligation of a court. The most obvious example of this is the Supreme Court's recognition of the significant differences between criminal courts and administrative tribunals, and that those differences, and the consequences to the persons affected may carry different levels of obligation to adequately explain the reasons for a result: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 210 D.L.R. (4th) 608, at para. 19. Nevertheless, even in the absence of a statutory requirement, in certain circumstances, such as where the decision has important significance for the individual, where there is a statutory right of appeal or in other such circumstances, the duty of procedural fairness will require the provision of at least some form of written explanation for a decision: Baker, supra, para. 43.

[79] In Baker, the court held that there was a need for reasons, but showed that adequacy does not require court like reasons. There, the letter sent by a senior immigration officer to Mrs. Baker to advise her that she was to be deported contained [page541] no reasons. However, the notes of a junior immigration officer, which were provided to Mrs. Baker's counsel, were accepted by the court as adequate reasons for the decision made by the senior immigration officer: Baker, supra, para. 44.

[80] IBEW and Guild asserted that the Board did provide sufficient and adequate reasons, and referred us to McEachran v. Ontario (Labour Relations Board), [2005] O.J. No. 465, [2005] O.L.R.B. Rep. January/February 182 (Div. Ct.) and Allan v. Ontario (Attorney General) (2005), 2005 25770 (ON SCDC), 76 O.R. (3d) 616, [2005] O.J. No. 3083 (Div. Ct.). They also submitted that the Local should not be able to challenge the adequacy of the Board's reasons when it could have requested that the Board provide further or more detailed reasons, but failed to do so.

[81] In McEachran, Speyer J. observed that even though the Board's decision did reflect a careful analysis of the issue it was required to adjudicate, it was not required in its reasons to deal with every piece of evidence that was before it. In Allan, this court again stressed that as the requirements of procedural fairness depend on the nature and functions of the decision-maker, the adequacy of the Minister's reasons in that case had to be considered in context. There, the Minister had before her the extensive and comprehensive material that had been submitted both by the applicants and the responding materials of the milk marketing board. This court acknowledged that the Minister's reasons were brief, but noted that they did explain her decision. Read in context, those reasons were adequate in the circumstances in which they were given, did set out the basis of the Minister's decision and met the standard of procedural fairness. They were sufficient reasons within the requirements of the applicable statutory regime. They were adequate because they permitted meaningful review to be undertaken.

[82] In Doucette v. Canada (Minister of Human Resources Development), 2004 FCA 292, [2004] F.C.J. No. 1493, 245 D.L.R. (4th) 63 (C.A.), Nadon J.A. succinctly recognizes at paras. 11 and 12 that it is the functional approach reflected in the decision of Binnie J. in Sheppard that must be the principal guide followed by this court in assessing the adequacy of the Board's reasons:

It is obvious that the Board could have explained its reasoning more fully, but one can nonetheless discern the Board's reasoning from the language it has used. Consequently, as I am satisfied that the Board's reasons allow us to exercise our review function, I have no difficulty concluding that they are adequate.

To conclude on this point, I would add that our Court, like other courts of appeal, must be mindful of Binnie J.'s remarks in Sheppard, supra, that we [page542] should not intervene because we are of the opinion that the courts below failed to express themselves in a way acceptable to us. The reasons under review should be fairly considered and in performing that exercise, we should, as Binnie J. suggests, examine the record on which the decision under review is based. We must guard ourselves from being too eager to conclude that reasons do not pass muster.

See also Law Society of Upper Canada v. Neinstein (2007), 85 O.R. (3d) 446, [2007] O.J. No. 958, 2007 8001 (Div. Ct.), per Swinton J. at paras. 85-93.

[83] Since one of the principal functions that underlies the need for adequate reasons is to permit meaningful appellate review, Sheppard establishes that we are to engage in a consideration of the Board's reasons, in light of the record, to determine whether the reasons permit meaningful judicial review. In conducting that analysis, even if the Board could have explained its reasoning more fully, we must first discern whether the Board's reasoning is evident from the language it used. In evaluating the sufficiency of those reasons, this court must also consider the institutional context in which the Board operates. We must remember that in the interests of achieving its labour relations objectives, it is frequently required to give "bottom line" decisions and to release reasons quickly after expedited proceedings. As well, where one of the parties is unsatisfied with either the result or the reasoning, it has a legislated right to ask for reconsideration as expressly contemplated in s. 114(1) of the Act.

[84] In rendering its decision, it is evident to me that the Board had in mind the obvious difficulty inherent in a situation of largely contested facts. It was with that in mind that it focused on whether there was sufficient uncontested material to allow it to reach a decision that was appropriate. In accepting that the contractor experienced peculiar problems on the Barrie Job -- problems of productivity, administration of work practices and other problems as outlined in the pleadings -- the Board did not make findings of fault, or determine which version of events it would accept. It simply found that the problems existed. Without attributing blame, it is evident that there was material before the Board that showed that those problems did exist. The diametrically opposed versions of facts and events put forward by the parties make that plain.

[85] As contractor, Guild was entitled to manage the installation of the electrical components of the job. The extent of the disagreements between the parties did indicate to the Board that the parties were incapable of working together to get the balance of the Barrie Job completed in a timely fashion. The Board was [page543] clear in making that finding. There was a basis for the Board to reach that conclusion. That basis was the pleadings of the parties. A review of those pleadings shows, without any finding of fault or responsibility of any of the three principal parties, that there had been a breakdown of any goodwill that may at one time have existed between Guild and Local 1739. Further, the extensive material filed by IBEW showed that serious disputes between IBEW and Local 1739 concerning other Barrie area projects had been left unresolved for years.

[86] Against that background of simple factual determinations reached following a consultation process, the Board found that IBEW had just cause "to assume authority to look after the job" and to delegate that authority as it deemed appropriate.

[87] Moreover, in reaching the findings that it did, and determining that IBEW had just cause to alter Local 1739's jurisdiction, the Board declined to permit any negative consequences of any material nature to be visited on the Local 1739 membership. It simply permitted Local 353 to assume authority over the job, but required that Local 1739 mobility provisions remain in effect as if the job continued to be performed under Local 1739's jurisdiction, and of equal importance, insisted that all union remittances would continue to be made to Local 1739 on the same basis.

[88] At its essence the Board's reasons will comply with requirements of legal adequacy in this judicial review proceeding if they provide the basis for meaningful judicial review, in this case on a standard of patent unreasonableness. Stated briefly, in my view the Board did outline the foundation for its decision. The Board did intelligibly explain how and why it was reaching the decision it did. In doing so, it did provide a sufficiently adequate explanation of the process it engaged in, the conclusions it reached, on what it founded those conclusions, and the result of its conclusions. It did so with sufficient detail and clarity to more than adequately permit this court to assess on this judicial review proceeding whether its decision was patently unreasonable.

[89] Finally, and in any event, the Local did not ask for further reasons, even though the Board indicated in light of the brevity of its reasons that further written reasons might follow. Neither did the Local ask the Board to reconsider its decision under s. 114(1) of the Act. Instead, the Local brought this application for judicial review before the Board had an opportunity to provide further reasons. The failure of the Local to avail itself of that potential remedy before commencing judicial review of all aspects of the matter is a factor this court should consider when [page544] deciding whether to exercise its discretion to grant judicial review. In these circumstances, while it is not of any material weight in my decision on the adequacy of the Board's reasons, I accept the IBEW's submission that Local 1739 should not be entitled to complain about the brevity of the Board's reasons in an expedited proceeding when it had the opportunity to obtain further reasons or a reconsideration of the Board's decision, and chose instead to commence this proceeding.

Was it Patently Unreasonable for the Board To Proceed by Way of a Consultation Process Rather Than by a Full Hearing?

[90] It was the position of the Local that it was patently unreasonable for the Board to proceed by way of a consultation procedure on the limited basis of the pleadings of the parties and other documentary material without holding a hearing or permitting viva voce evidence or cross-examination. It asserts that rule 41.3 must be read to permit the Board to choose not to hold a hearing only if the Board is satisfied that the case can be decided on the basis of the material before it. In this case it says that test cannot be satisfied. Apart from the Local's assertion of breaches of natural justice, where the pleadings reveal facts in dispute as in this case, it says the Board could never legally "be satisfied" that the case can be decided on the basis of the material before it. In its view, it is patently unreasonable to conclude otherwise.

[91] Moreover, the Local argued that the Board's procedural decision was patently unreasonable because it did not "balance" the need for expedition with natural justice. It says the Board could only properly "balance" expediency and the need for natural justice if it chose a process that provides the greatest possible measure of procedural fairness and that least impairs natural justice. It contends alternative procedures that would have better balanced expediency with natural justice could have included expedited hearings, allowing the submission of cross-examined affidavit evidence and written submissions on an expedited time frame, and other alternative evidence-taking processes, used alone or in combination. In not adopting one or more of those or other similar procedures and instead proceeding as it did by consultation and on the basis of the filed pleadings, the Local says the Board's procedural decisions were patently unreasonable.

[92] In contrast, IBEW and Guild argue that the legislation makes it clear that the Board had jurisdiction to proceed by way of consultation. Guild stressed that it was well understood by the [page545] parties in this case that the matter needed to be resolved quickly. As such they ask how it could have been patently unreasonable for the Board to decide to proceed by consultation, particularly when that consultation process is specifically contemplated by the Act.

[93] The Local's disagreement with the type of hearing process that the Board determined was appropriate is central to its complaint. However, the Supreme Court has held that a tribunal's choice of procedure is entitled to deference: Prassad v. Canada (Minister of Employment and Immigration), 1989 131 (SCC), [1989] 1 S.C.R. 560, [1989] S.C.J. No. 25, at pp. 568-69 S.C.R. Generally, in matters of procedure, the Board must be regarded as "the master of its own house", and "the greatest level of deference should be afforded to it on procedural matters": Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183, 1971 341 (ON CA), [1971] 3 O.R. 832, [1971] O.J. No. 1719, 22 D.L.R. (3d) 40 (C.A.), at p. 841 O.R., p. 49 D.L.R.; Québec Téléphone v. Syndicat des agents de maitrise de Québec-Téléphone, [1997] F.C.J. No. 1221, 221 N.R. 312 (C.A.), at para. 8; TELUS Communications Inc. v. Telecommunications Workers Union, 2005 FCA 262, [2005] F.C.J. No. 1253, 257 D.L.R. (4th) 19 (C.A.), at paras. 59-60.

[94] Further, in an analogous case under federal jurisdiction, the Federal Court of Appeal concluded in Raymond v. Canadian Union of Postal Workers, 2003 FCA 418, [2003] F.C.J. No. 1663, 318 N.R. 319 (C.A.), at para. 4 that where a legislative provision under the Canada Labour Code expressly permitted the Canada Industrial Relations Board to dispose of any matter before it without holding an oral hearing, the Board's choice of procedure was a matter of internal policy that was beyond the scope of judicial review barring exceptional circumstances.

[95] The record demonstrates that the Board considered the procedural options that were available to it and consciously chose, having considered those alternatives and the circumstances of this particular labour dispute, to proceed as it did by way of a consultation in reliance on the limited pleadings based "evidence" that was before it. While the Local seems to have been intent on requiring that full blown, and likely protracted, adversarial proceedings take place to permit it to contest IBEW's reassignment of jurisdiction over the Barrie Job to Local 353, the Board chose to adopt the more expeditious consultation procedure in the circumstances of this dispute. Its Rules made clear that the Board was entitled to do so, even though it explicitly recognized that a consultation might not always be the most thorough or perfect process for deciding difficult cases, and even though this might result in it reaching a decision without [page546] permitting the introduction of evidence beyond the assertions of the parties as set out in their pleadings.

[96] The Board is given the authority to balance the need for full-blown natural justice on the one hand against expedition on the other. The Vice Chair acknowledged that is an extremely important balancing act in the field of labour relations in which a delay in achieving a resolution of the dispute could have serious impact, not only on the parties, but also on the need to bring the Barrie Job to completion. The standard of review applicable to this procedural determination of the Board is patent unreasonableness. There is no foundation in the matter before us for a finding that the Board's determination violates that standard of review. It was not patently unreasonable for the Board to proceed in this instance by way of consultation rather than by way of a full hearing.

Was the Board's Decision on the Merits Patently Unreasonable?

[97] The final issue on this judicial review is the merits of the Board's decision that IBEW had just cause under s. 147(1) of the Act to assume jurisdiction from the Local over the Barrie Job. The Local concedes that the patently unreasonable standard applies, but claims that the Board rendered a patently unreasonable decision on the merits. It says that the Board's failure to provide adequate reasons for its decision not only results in a denial of natural justice, but also makes the decision patently unreasonable. As a result of my decision that the Board's reasons were not inadequate the only question that remains is whether the Board's decision was patently unreasonable.

[98] In this case, Local 1739 argued that the Board failed to set out any factual basis for its decision, with the result that this court cannot know how or on what basis the Board reached its conclusions. For the reasons outlined in the preceding sections of these reasons, however, in my view the Board did adequately explain its reasons and did outline the factual basis that permitted it to reach the decision it did, founded on the uncontested facts in the matter. Contrary to the Local's position, I have traced the Board's line of analysis from the "evidence" that was before the Board to the conclusions in its reasons, and have outlined a tenable explanation for those conclusions: Law Society of New Brunswick v. Ryan, supra, at para. 55.

[99] In addition, however, the Act requires the Board to consider certain factors when considering a complaint under s. 147, including the trade union constitution, the ability of the local trade union to carry out its duties under the Act, the wishes of [page547] the members of the local trade union, and whether the alteration would facilitate viable and stable collective bargaining without causing serious labour relations problems. The Local says that the words "shall consider" are imperative. The Board may give each of these factors great weight, little weight or no weight, but it cannot ignore them. Here, it says the Board made no reference in its decision to its findings on any of these factors or even to the factors themselves. As such, it claims to be unable to discern whether the Board addressed the statutory factors it was required to consider in determining whether IBEW had "just cause" within the meaning of s. 147(1) to assume and reassign the Local's jurisdiction over the Barrie Job to Local 353.

[100] A tribunal is not required to refer to every factor it considers in the course of making a decision, but the thoroughness and adequacy of its reasons may be taken into account in considering whether it complied with a statutory precondition that it consider particular factors.

[101] It is evident that the Board did not specifically enumerate the "just cause" factors, or reiterate them in its reasons, or indicate specifically that it had considered each of those factors. The Local asserts that this can lead to no other conclusion but that the Board did not consider those factors. The Local says this gives rise to jurisdictional error for which the Board's decision must be quashed: Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 191 (SCC), [1975] 1 S.C.R. 382, [1973] S.C.J. No. 148, 41 D.L.R. (3d) 6, at pp. 388-89 S.C.R., pp. 11-12 D.L.R.; Re 538414 Ontario Ltd. v. London & District Service Workers Union, Local 220 (1987), 1987 4373 (ON SC), 58 O.R. (2d) 361, [1987] O.J. No. 26 (Div. Ct.), at p. 367 O.R.

[102] In my view, this is not only an incorrect but also an overly broad proposition. It not only fails to recognize the factors that the Board evidently did consider in reaching its conclusion, and the purposes that underlie the requirement that those factors should be considered, but also the circumstances in which the Legislature likely anticipated that such considerations would arise.

[103] The stipulation that the Board shall consider the trade union's constitution seems focused on whether it lay within the legal power of the parent union to make or stipulate such a change. Interestingly, while the Board is required to consider the trade union constitution, s. 147(4) explicitly relieves the Board from being bound by the trade union constitution in deciding whether there is just cause for an alteration. Here, there was no claim by the Local that it was beyond the power of [page548] the parent trade union under the constitution to alter the Local's jurisdiction over the Barrie Job in the manner that it did. Moreover, the fact that the provision stipulates that the Board is not bound by the trade union constitution suggests that a decision made by the Board that just cause existed for an alteration of a local trade union's jurisdiction, even in the face of contrary provisions in the trade union constitution, could not be a foundation for a conclusion by a court that the Board's decision was patently unreasonable.

[104] Contrary to the Local's assertion, it seems evident on the face of the Board's decision that it did give consideration to the factor of "the ability of the local trade union to carry out its duties under this Act". In the Board's reasons, the Vice Chair stated that:

A point was reached in which the IU reached the justifiable conclusion that the contractor and the Local could not work together satisfactorily to complete the job in the manner required by the contractor. At some point it was justified to conclude that neither the stewards not [sic] the local leadership could administer or adopt [sic] their practices to allow the contractor to manage the job in the way it was entitled to.

[105] To my mind, this finding by the Board clearly expresses the Board's conclusion, at least with respect to the Barrie Job, that the Local was no longer able to carry out its duties under the Collective Agreement. Certainly the February 2006 correspondence from IBEW to the Local makes clear that the parent union had reached this conclusion. It was the fact that it reached this conclusion that caused it to assign the Local's jurisdiction over the completion of the Barrie Job to Local 353.

[106] The Board also appears to have considered the factor of whether the alteration would facilitate viable and stable collective bargaining without causing serious labour relations problems and the requirement that it give consideration to the wishes of the members of the Local when it tailored its order to take into consideration the interests of the Local's members. It is evident that the Board did give considerable thought to the interests of the local members in its disposition of the matter even if it did not specifically consult them on their wishes. Here, the result of the Board's determination was a reassignment of union management of the Barrie Job that actually left the Local members in a better position than they were in before that limited jurisdiction was reassigned. Not only did the Board preserve the priority of Local 1739 members to be the last to lose their jobs as the project wound down, but it also ensured that the economic health of the Local would not be affected by requiring that union dues continue to be paid to Local 1739 in spite of the change in jurisdiction. In [page549] fact, the local members were marginally better off economically because the alteration of jurisdiction resulted in them being considered to be "travelers" in their home jurisdiction, with the entitlement to travel related dues that accompanied that altered status.

[107] Moving on to the substantive elements of the Board's decision, the Local submits that it is patently unreasonable because it failed to recognize or deal with the conflicting allegations in the parties' pleadings. The respondents argue, however, that the Local appears to apply a much lower standard, complaining that the Board failed to resolve conflicts in the evidence or deal with conflicting allegations in the pleadings -- matters that the respondents argue were not consequential to the decision.

[108] In my view, there was no need to resolve or deal with those conflicting facts in the limited context of the limited decision that the Board issued. It may be true that a failure to recognize and resolve conflicting evidence in regard to material facts will render a tribunal's decision patently unreasonable, but of necessity that can only be the case where the decision reached by the tribunal or decision-maker was grounded in those unresolved conflicting facts. There may well be many findings of fact that the Board could not have made in the course of deciding this case without resolving some or all of the contested facts between the parties, but the Board carefully avoided making findings that would have required it to choose between those contested positions. Rather, the decision of the Board here was not grounded in those unresolved conflicting facts. It was founded on the evident inability of the parties to cooperate, for whatever multiplicity of present or past-accumulated reasons, to get the Barrie Job completed on schedule.

[109] The "patently unreasonable" standard requires more than a failure by the Board to resolve the conflicting allegations and factual assertions between the parties. It requires more than the bald assertion that the Board must not have considered the s. 147(2) factors. It requires that the Local demonstrate that the decision is "clearly irrational", or suffers from a defect that is "immediately apparent, or so obvious that it demands intervention by the court on review", that "once identified, can be explained simply and easily": Canada (Attorney General) v. Public Service Alliance of Canada, 1993 125 (SCC), [1993] 1 S.C.R. 941, [1993] S.C.J. No. 35, at pp. 963-64 S.C.R.; Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710, [2004] S.C.J. No. 87, at para. 6.

[110] In assessing the Board's decision against the standard of patent unreasonability, I accept as well, that the decision reached [page550] by the Board imposed the least invasive result that it could have to ensure the completion of the project in the face of a disintegrating working relationship between the parties, while at the same time protecting the economic interests of both the Local and its members by imposing the restrictions it did on the alteration of Local 1739's jurisdiction. In terms of result, any fair assessment of the consequences of the Board's decision would admit that it protected the monetary and job security concerns of the Local's members, but at the same time addressed the legitimate labour relations concerns between the IBEW and Guild and the Local.

[111] In this case the Board did set out the factual basis for its decision. It did not need to resolve the conflicting allegations of material fact in the parties' pleadings. It did not need to make specific reference to all of the considerations described in s. 147(2). There was clearly a rational basis for the decision reached by the Board. The decision is not patently unreasonable. It was a sound and sensible decision reached by the Board in circumstances of acrimony that permitted the appropriate labour relations objective to be achieved, with the least intrusion on the rights of the Local's members. There is no basis for us to disturb that result.

Conclusion

[112] The application for judicial review is dismissed. The Ontario Labour Relations Board and the Attorney General do not seek costs and none are awarded. If the remaining parties are unable to agree on costs, they may make written submissions within 30 days of the release of this decision.

Application dismissed.

Notes

Note 1: This brief summary of the historical developments of current labour relations legislation in Ontario is drawn from several sources: Sack, Jeffrey, C. Michael Mitchell and Sandy Price, Ontario Labour Relations Board Law and Practice, looseleaf (Markham, Ont.: Butterworths, 1997); McArthur, Stephen A., Jules B. Bloch and Robert E. Salisbury, Canadian Construction Labour and Employment Law, looseleaf (Markham, Ont.: Butterworths, 1996); and see also the summary of developments in the hearing practices of the Board in Total Support Services Ltd., [2004] OLRB Rep. January/February 147 at paras. 18-24.

Note 2: G.W. Adams, Canadian Labour Law, 2nd ed. (Aurora, Ont.: Canada Law Book, 1993), paras. 15.30-15.40, citing J.A. Willes, The Craft Bargaining Unit (Kingston, Ont.: Kingston Industrial Relations Centre, Queen's University, 1970) and W. Winkler, A Study of Labour Relations Law in the Construction Industry in Ontario (LL.M. Thesis, Osgoode Hall Law School, 1964) [unpublished].

Note 3: In Teamsters Local Union No. 938 v. Patrolman Security Services Inc., [2005] O.L.R.D. No. 4053, [2005] O.L.R.B. Rep. September/October 818, at paras. 9 and 10, the Board stated:

In the application of these Rules, the Board has over the last decade developed a process described as a "consultation" which is employed in certain types of applications. The Board distinguishes the "consultation" process from the "hearing" process...

The Board's Information Bulletin No. 11 describes the consultation process used by the Board to adjudicate duty of fair representation complaints filed pursuant to s. 74 of the Act. While the Information Bulletin is directed to litigants involved in applications under s. 74 of the Act, the description of the consultation process is generic and applies to the process used generally under other statutory provisions and pursuant to Rules 76 and 77. In a consultation, the parties are not provided with an oral hearing - which would consist of the opportunity to verbally put forward relevant evidence and argument. Rather, the parties are being "consulted" by the Board for the purpose of filling in the informational gaps that exist in the Board's understanding of the dispute, after having reviewed the detailed material and submissions filed in support of their positions. While the parties have less control over the process and the adjudicator exercises more procedural discretion, the consultation process is far more expeditious and practical than a traditional oral hearing. Such a balancing of procedural entitlements as against expedition and practical focus is not unusual in labour relations litigation.