COURT FILE NO.: 481/06

DATE: 20070320

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J.S.C., Lane AND SMITH JJ.

B E T W E E N:

MAYSTAR GENERAL CONTRACTORS INC.

Applicant

• and -

THE INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, LOCAL UNION 1819 and THE ONTARIO LABOUR RELATIONS BOARD

Respondents

Martin Sclisizzi and Morton Mitchnick, for the Applicant

Ronald Lebi, for the Respondent, The International Union of Painters and Allied Trades, Local Union 1819

Leonard Marvy, for the Respondent, The Ontario Labour Relations Board

HEARD at Toronto: December 6, 2006

REASONS FOR JUDGMENT

CUNNINGHAM A.C.J.S.C.:

Overview

1The applicant, Maystar General Contractors Inc. (“Maystar”), seeks judicial review of the June 19, 2006 Certification Decision and September 6, 2006 Reconsideration Decision of the respondent Ontario Labour Relations Board (the “Board”). The Board ordered the respondent International Union of Painters and Allied Trades, Local Union 1819 (the “Union”) to be certified as the bargaining agent representing two “glaziers” allegedly employed by Maystar as of June 13, 2006 (the date of the certification application). The Board arrived at its decision without considering Maystar’s response to the certification application because the response was delivered after the statutory two-day time limit and the Board concluded it did not have jurisdiction to consider late-filed information.

2For the reasons that follow, Maystar’s application for judicial review is allowed.

Background

3On June 13, 2006, pursuant to s. 128.1 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the “LRA”), the Union sought certification for “all glaziers and glazier apprentices” employed by Maystar. Certification applications in the construction industry are card-based certifications. Where more than 55 percent of the employees in a proposed bargaining unit sign union membership cards, the Board may automatically certify the union without a representation vote (LRA, s. 128.1 (13)).

4The Union claimed that as of June 13, 2006, there were two employees in the proposed province-wide bargaining unit working at Maystar’s Harmony Road job-site in Oshawa. On June 15, 2006, Maystar served the Union with its response. Through the inadvertence of the attending lawyer’s assistant, Maystar did not fax the response to the Board.

5On June 19, 2006, the Board issued its Certification Decision, certifying the Union. Since Maystar’s response was not faxed to the Board, the Certification Decision was made without considering the information in the response. On June 26, 2006, Maystar filed a Request for Reconsideration with the Board, asking it to reconsider its Certification Decision and consider the information in Maystar’s response.

6In Maystar’s response, it alleged that it did not employ any glaziers or glazier apprentices on June 13, 2006. According to Maystar, the only two glaziers at the Harmony Road job-site were contractors and were not “employees” of Maystar for the purposes of the LRA. Maystar admitted that it did have two labourers at the Harmony Road job-site that day. If those labourers were found to be “glaziers” or “glazier apprentices”, Maystar submitted that it actually employed eight such employees over four job-sites on June 13, 2006. Therefore, it challenged the number of employees in the Union’s proposed bargaining unit.

7On September 6, 2006, the Board issued its Reconsideration Decision. The Board held it would not consider the information in Maystar’s response because it was filed after the two-day time limit prescribed by s. 128.1 (3) of the LRA. In coming to this conclusion, the Board adopted the analysis in Air Kool Ltd., [2005] OLRD No. 3390 at paras. 15-29 [Air Kool]. In Air Kool, the Board concluded that the two-day time limit in s. 128.1 (3) was mandatory and that the Board was required by s. 128.1 (4) to consider only the information in the certification application and timely information from the employer when determining the description of, and number of union members in, the proposed bargaining unit.

Legislative Provisions

8The provisions of the LRA relevant to this application for judicial review are as follows:

Application for certification without a vote

Election

128.1 (1) A trade union applying for certification as bargaining agent of the employees of an employer may elect to have its application dealt with under this section rather than under section 8.

Notice to Board and employer

(2) The trade union shall give written notice of the election,

(a) to the Board, on the date the trade union files the application; and

(b) to the employer, on the date the trade union delivers a copy of the application to the employer.

Employer to provide information

(3) Within two days (excluding Saturdays, Sundays and holidays) after receiving notice under subsection (2), the employer shall provide the Board with,

(a) the names of the employees in the bargaining unit proposed in the application, as of the date the application is filed; and

(b) if the employer gives the Board a written description of the bargaining unit that the employer proposes, in accordance with subsection 7 (14), the names of the employees in that proposed bargaining unit, as of the date the application is filed.

Matters to be determined

(4) On receiving an application for certification from a trade union that has elected to have its application dealt with under this section, the Board shall determine, as of the date the application is filed and on the basis of the information provided in or with the application and under subsection (3),

(a) the bargaining unit; and

(b) the percentage of employees in the bargaining unit who are members of the trade union.

Exception: allegation of contravention, etc.

(5) Nothing in subsection (4) prevents the Board from considering evidence and submissions relating to any allegation that section 70, 72 or 76 has been contravened or that there has been fraud or misrepresentation, if the Board considers it appropriate to consider the evidence and submissions in making a decision under this section.

Board may certify or may direct representation vote

(13) If the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union on the date the application is filed, it may,

(a) certify the trade union as the bargaining agent of the employees in the bargaining unit; or

(b) direct that a representation vote be taken.

Legal Issues

9The following issues are relevant to this application for judicial review:

1. What is the appropriate standard of review?

2. Did the Board err in concluding that the word “shall” in s. 128.1 (3) of the LRA is mandatory and that the Board is therefore precluded from considering employer information that is submitted after the two-day time limit?

Standard of Review

10To determine the appropriate standard of review, the court must engage in the pragmatic and functional approach (Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982 at paras. 29-38 [Pushpanathan] and Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at 238).

11The pragmatic and functional approach requires consideration of four contextual factors: the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and the nature of the question - law, fact or mixed law and fact.

12Maystar submits that the appropriate standard of review of the Board’s decision is correctness. Maystar concedes that the Board’s decisions are protected by broad privative clauses (ss. 114 and 116 of the LRA), but argues that other factors suggest less deference is owed to this particular decision of the Board. Maystar submits that the nature of the question before the Board is a question that concerns the limits of the Board’s jurisdiction – namely, is the Board precluded from considering information provided to it beyond a time limit prescribed by the LRA? Maystar asserts that this question does not fall squarely within the Board’s expertise to regulate and resolve particular labour disputes, but rather concerns the boundaries of its jurisdiction, which is a general question of law. Maystar also points out that the Board’s ruling on this question is of precedential value.

13The Union submits that the appropriate standard of review is patent unreasonableness. It notes that the Board’s decisions are protected by strong privative clauses and are not subject to appeal, and that the Board is recognized as an expert tribunal, particularly regarding certification applications. The Union says the LRA is intended to resolve and balance competing policy objectives or the interests of various constituencies. Finally, the Union submits that the nature of the question before the Board called for an informed interpretation by an expert tribunal of its home statute. Taken together, the Union submits that these factors suggest that the Board is entitled to the highest degree of deference.

14The Board also submits that the appropriate standard of review is patent unreasonableness. In addition to being protected by two strong privative clauses, the Board points out that the courts have acknowledged the Board’s expertise on questions of interpretation of labour relations legislation. The purposes of the LRA are set out in s. 2, and include facilitating collective bargaining, recognizing the importance of workplace parties adapting to change, promoting flexibility, productivity and employee involvement in the workplace, encouraging co-operative resolution of workplace issues, and promoting the expeditious resolution of workplace disputes. The purpose of s. 128.1 of the LRA is to provide an expeditious alternative regime for the certification of unions in the construction industry. The Board submits that it must balance these sometimes-competing purposes and objectives when interpreting the LRA, which suggests that it is entitled to deference. While the Board admits that interpretation of s. 128.1 is a question of law, it submits that this question goes to the heart of the Board’s expertise, which also points toward deference. Taken together, the Board submits that all of these factors indicate that the Board should receive the highest degree of deference.

15While the Supreme Court has said in Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 at para. 68, that a correctness standard of review will rarely be applied in the context of labour adjudications, I find that the appropriate standard of review for this particular decision of the Board is correctness. I acknowledge that curial deference is suggested both by the presence of two privative clauses protecting the Board’s decisions and by the fact that the Board must balance competing labour relations objectives when interpreting the LRA. Nevertheless, the pragmatic and functional approach is not meant to be rigid and formulaic in its application. As stated by Laskin J.A. in Ontario Public Service Employees Union v. Seneca College of Applied Arts & Technology (2006), 2006 14236 (ON CA), 80 O.R. (3d) 1 at para. 32 (C.A.): “The purpose of the pragmatic and functional analysis -- of considering the four contextual factors -- is to ascertain the legislature's intent. See Dr. Q, supra, at para. 26. Did the legislature intend that a reviewing court give deference to the Board's decision, and if so, what level of deference?” While certain contextual factors may suggest curial deference is owed to a tribunal, other factors may, in the context, overwhelmingly indicate that the Legislature intended there be little or no deference given to the tribunal’s decision.

16As will be outlined below, the foundation of the Board’s analysis rests on its conclusion that the word “shall” in s. 128.1 (3) is mandatory and not directory. This is a question of law of precedential value, which suggests less deference is owed (Pushpanathan, supra at para. 43). Since relative expertise is the “most important factor” in the pragmatic and functional analysis, the key question for determining the appropriate standard of review in this particular case is whether the Board has greater relative expertise than the courts in interpreting the legal effect of the word “shall” in s. 128.1 (3) (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 758 at para. 50; Pushpanathan, supra at para. 32-33). In my opinion, the Board’s labour relations expertise does not give it a comparative advantage over the courts on this narrow legal question. Therefore, the Board’s interpretation is not entitled to deference and will be reviewed on a standard of correctness.

Analysis

17In deciding to refuse to consider the employer’s late-filed information, the Board relied extensively on the analysis in Air Kool, reproducing all of paras. 15-29 of that decision in its own reasons. This necessitates a detailed examination of the analysis contained in those paragraphs.

18In Air Kool, supra at paras. 15-29, the Board outlined its interpretive approach to s. 128.1 (3). Subsection 128.1 (3) states that the employer “shall” provide certain information to the Board within two days. The Board noted that the Interpretation Act, R.S.O. 1990, c. I.11 requires the word “shall” to be construed as imperative. While “shall” is always imperative, the context will determine whether the imperative is “mandatory” or “directory”. The Board cited Ruth Sullivan, Sullivan & Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at 60, for the test used to determine whether “shall” is mandatory or directory: “…if breaching an obligation or requirement imposed by ‘shall’ entails a nullity, the provision is said to be mandatory; if the breach can be fixed or disregarded, the provision is said to be directory.”

19The Board concluded that the word “shall” in s. 128.1 (3) is mandatory because there are statutory consequences for failing to do what s. 128.1 (3) says the employer “shall” do which the Board cannot fix or disregard.

20The first consequence identified by the Board was that s. 128.1 (4) requires the Board to only consider the information provided in the union’s certification application if the employer fails to submit its information within the two-day time limit in s. 128.1 (3). The Board came to this conclusion by noting that s. 128.1 (4) says the Board “shall” determine the union’s level of support based on the information provided by the union in the certification application and “the information provided…under subsection (3)”. To be “information provided…under subsection (3)”, the employer must deliver the information within the two-day time limit. Since the Board has no statutory authority to extend a time limit in the LRA, the consequence of an employer failing to provide information within the two-day time limit is that the Board may not consider it.

21The second consequence identified by the Board was that a failure of the employer to provide information under s. 128.1 (3) may result in the Board finding that the union has more than 55 percent employee support and deciding that the union may be certified without a representation vote pursuant to s. 128.1 (13).

22The Board said that its interpretation was supported by s. 128.1 (5), which expressly allows the Board, in assessing the union’s level of support under s. 128.1 (4), to consider allegations of unfair labour practices, fraud or misrepresentation. The Board noted that there is no express prohibition preventing the Board from considering such allegations, yet the Legislature felt it necessary to expressly permit the Board to consider such matters, which suggests that the Legislature intended s. 128.1 (4) to give the Board very little discretion to act.

23Finally, the Board said that its interpretation was also consistent with the statutory context, since the Legislature has drafted the provisions in the LRA dealing with the establishment of collective bargaining rights in a strongly prescriptive manner (i.e. the Legislature has chosen to “closely manage” the manner in which the Board conducts a certification application).

24It is also instructive to recite the Board’s own comments on the analysis set out in the Air Kool decision. At para. 8, the Board said,

In Air Kool…the Board has determined that the time limits in section 128.1(3) are mandatory and that the Board is obliged in section 128.1(4) to make its determination about [the union’s level of support]…on the basis of only the information in the application and timely information from the responding party… [emphasis added]

25At para. 9, the Board rejected Maystar’s submission that the time limits in s. 128.1 (3) are directory, saying,

The responding party asserts that the time limits in section 128.1(3) are directory, largely because there are no direct consequences for non-compliance. The Board specifically addressed that argument in Air Kool. The Board concluded that section 128.1(4) sets out the consequences for failing to meet the time limits, that is, the Board will certify the application, a significant consequence. Further, section 128.1(5) bolsters the analysis that the time limits are mandatory by carving out the circumstances in which the Board may consider otherwise untimely information, that is, where there is fraud, misrepresentation, coercion, etc. that strikes at the heart of the reliability of the membership evidence provided by an applicant. [emphasis added]

26With respect, the Board has made two fundamental errors in concluding that the word “shall” in s. 128.1 (3) is mandatory. First, s. 128.1 (4) does not describe the consequences of failing to file information within the two-day time limit. Subsection 128.1 (4) simply directs the Board to determine the union’s level of support as of the certification date, and instructs the Board as to the information upon which it is to make that determination. Subsection 128.1 (4) does not direct the Board to not consider late-filed information. This conclusion is consistent with the highly prescriptive nature of the certification provisions in the LRA as noted by the Board and emphasized by the Union in this application. Given that the Legislature’s clear intent is to “closely manage the establishment of bargaining rights by certification”, if the Legislature intended the Board to always refuse to consider late-filed information, it would have expressly said so.

27In addition, contrary to the Board’s assertion at para. 9 of its decision, s. 128.1 (4) does not require the Board to certify the union if the employer does not file its information within the two-day time limit. The decision to certify the union without a representation vote is discretionary and requires evidence that more than 55 percent of employees in the proposed bargaining unit support the union (see s. 128.1 (13)).

28Second, the Board erred in stating, at para. 9 of its decision, that s. 128.1 (5) sets out the “circumstances in which the Board may consider otherwise untimely information.” This provision does not in any way address the timeliness of information placed before the Board. It simply provides the Board with the discretion to consider allegations of unfair labour practices, fraud or misrepresentation when determining the union’s level of support at the date of the certification application. As indicated in Air Kool, supra at para. 26, s. 128.1 (5) is demonstrative of the Legislature’s intent to “closely manage” certification applications by clarifying that the Board has discretion to consider certain evidence (like evidence of fraud). But it does not necessarily follow that this provision demonstrates the Legislature’s intent to prohibit the Board from considering late-filed information. Again, if the Legislature intended such a consequence, it would have expressly said so.

29In my view, the word “shall” in s. 128.1 (3) is directory. If an employer fails to deliver its information within the two-day time limit, the Board may remedy the breach in accordance with its Rules of Procedure (see Easton’s Group of Hotels Inc., [2006] O.L.R.D. No. 2940 at paras. 11-20).

Disposition

30For the reasons outlined above, the application for judicial review is allowed and the Board’s September 6, 2006 Reconsideration Decision is set aside. The matter is remitted to the Board for reconsideration in light of these reasons for judgment.

31Any party wishing to make submissions as to costs may do so by way of brief written submissions to the Court within 30 days of the release of these reasons for judgment.

CUNNINGHAM A.C.J.S.C.

LANE J.

SMITH J.

Date of Release: March __, 2007

COURT FILE NO.: 481/06

DATE: 20070320

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT