Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353, et al. [Indexed as: Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353]
91 O.R. (3d) 20
Ontario Superior Court of Justice, Divisional Court, Cumming, Swinton and Smith JJ. June 4, 2008
Employment -- Labour relations -- Construction industry -- Labour Relations Board upholding union grievance and finding that fire restoration work at particular site was "construction work" as defined in Labour Relations Act and that provincial agreement applied rather than General Presidents' Maintenance Agreement ("GPMA") -- Board considering evidence that union had performed fire restoration work at same site in past pursuant to GPMA -- Board's conclusion that doctrine of estoppel did not apply being reasonable.
Employment -- Labour relations -- Labour Relations Board -- Reasons for decision -- Board issuing brief and inadequate reasons for decision upholding grievance -- Union asking Board to provide fuller reasons -- Board doing so -- Board having jurisdiction to issue supplemental reasons -- Reasons adequate.
The employer was in the business of plant maintenance. The employer and the union were bound by two collective agreements: the principal agreement (a provincial agreement as defined in s. 151(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A) [page21 ]and the General Presidents' Maintenance Agreement ("GPMA"). When a fire caused extensive damage at a Petro-Canada site, Petro-Canada asked the employer to perform the restoration work. The employer took the position that the fire restoration work was governed by the GPMA, and in particular by Article 6.703, dealing with localized fire damage. The union filed a grievance claiming that the employer should have applied the principal agreement to the work in question, as the work was construction work under the Act. There was evidence before the Labour Relations Board that in the past, fire restoration work at the Petro-Canada site was performed by union members pursuant to the GPMA. The Board issued a brief decision upholding the grievance, stating that the work in question was within the definition of construction work in the Act and that the doctrine of estoppel did not apply. The union asked the Board to provide fuller reasons. The Board complied. The employer brought an application for judicial review of the Board's decision.
Held, the application should be dismissed.
Per Swinton J. (Cumming J. concurring): The standard of review of the Board's decision was that of reasonableness.
The Board's first set of reasons were inadequate. However, s. 114(1) of the Act permits the Board to issue supplemental reasons. The provision is framed broadly, so as to ensure that the Board is not functus once it has issued a decision. The Board had jurisdiction to issue the supplemental reasons, which were adequate, as they permitted the court to engage in its judicial review function on a standard of reasonableness.
The Board did not exceed its jurisdiction by incorrectly defining the issues before it. It first considered whether the fire damage work was "construction industry" work under the Act, as it was required to do, given the terms of the statute mandating that construction work is governed by the provincial agreement and that any other agreement or arrangement is by operation of law null and void. The Board concluded that the work was repair and partially demolition, not maintenance, and that it was therefore "construction work" within s. 1(1) of the Act. That decision was reasonable. The Board did not err by failing to address Article 6.703 of the GPMA, given that the work was "construction work" within the meaning of the Act.
The Board failed to address the employer's main argument on estoppel, which rested on past practice. Nevertheless, the Board's decision was not unreasonable, because of its finding with respect to reliance -- that is, its finding that the filing of the grievance negated any prior reliance of the employer on past practice with respect to the GPMA. The Board's finding that the estoppel ended with the filing of the grievance was entitled to deference.
Per Smith J. (dissenting): The Board failed to provide adequate reasons for its decision. Moreover, the Board's finding that the filing of the grievance terminated any estoppel immediately, without requiring reasonable notice to be given, was unreasonable, as was its finding that a specific agreement between the parties was required in order to establish estoppel. The latter finding ignored the possibility that estoppel may be created by a representation by the parties' conduct.
APPLICATION by an employer for a judicial review of a decision of the Ontario Labour Relations Board, [2006] O.L.R. D. no. 4198.
Cases referred to 1086891 Ontario Inc. v. Barber, 2007 18734 (ON SCDC), [2007] O.J. No. 2046, 284 D.L.R. (4th) 568, 225 O.A.C. 54, 58 R.P.R. (4th) 204, 158 A.C.W.S. (3d) 998 (Div. Ct.); Better Beef Ltd. v. MacLean (2006), 2006 17930 (ON SCDC), 80 O.R. (3d) 689, [2006] O.J. No. 2146, 212 O.A.C. 332, 48 Admin. L.R. (4th) 72, 21 B.L.R. (4th) 93, [2006] CLLC Â 230-034, 148 A.C.W.S. (3d) 511 (S.C.J.); [page22 ]Bucyrus Blades of Canada Ltd. v. McKinley, 2005 1491 (ON SCDC), [2005] O.J. No. 231, 250 D.L.R. (4th) 316, 194 O.A.C. 160, 27 Admin. L.R. (4th) 192, 136 A.C.W.S. (3d) 667 (Div. Ct.); Canac Shock Absorbers Ltd. and International Union, United Automobile, Aerospace & Agricultural Workers of America (U.A.W.), Local 984 (Re) (1974), 1974 585 (ON SC), 5 O.R. (2d) 648, [1974] O.J. No. 2108, 51 D.L.R. (3d) 208 (Div. Ct.); Creative Design and Improvement Inc., [2004] OLRB Rep. July 684; Culliton Brothers Ltd., [1982] OLRB Rep. March 357; Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, 291 D.L.R. (4th) 577, 164 A.C.W.S. (3d) 727, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â 220-020, 372 N.R. 1, 69 Imm. L.R. (3d) 1; Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364, [2002] O.J. No. 1531, 212 D.L.R. (4th) 353, 158 O.A.C. 244, 44 Admin. L.R. (3d) 88, 113 A.C.W.S. (3d) 355 (C.A.); Inscan Contractors (Ontario) Inc., [1986] OLRB Rep. May 640; International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers (2007), 2007 65617 (ON SCDC), 86 O.R. (3d) 508, [2007] O.J. No. 2460, 225 O.A.C. 341, [2008] CLLC Â 220-007, 158 A.C.W.S. (3d) 860 (Div. Ct.) [Leave to appeal to C.A. denied November 28, 2007]; Jacobs Catalytic Industrial Services Ltd., 2007 52376 (O.L.R.B.); Losereit Sales & Services Ltd., [1983] OLRB Rep. April 569; Maracle v. Travellers Indemnity Co. of Canada, 1991 58 (SCC), [1991] 2 S.C.R. 50, [1991] S.C.J. No. 43, 80 D.L.R. (4th) 652, 125 N.R. 294, J.E. 91-959, 47 O.A.C. 333, 3 C.C.L.I. (2d) 186, 50 C.P.C. (2d) 213, [1991] I.L.R. Â1-2728 at 1284, 27 A.C.W.S. (3d) 70; Master Insulators Assn. of Ontario Inc., [1980] OLRB Rep. October 1477; Ontario Power Generation Inc., [2001] O.L.R.D. No. 1943 (L.R.B.); Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46, 160 D.L.R. (4th) 193, 226 N.R. 201, J.E. 98-1298, 11 Admin. L.R. (3d) 1, 43 Imm. L.R. (2d) 117, 79 A.C.W.S. (3d) 998, 38 W.C.B. (2d) 423; R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, 2002 SCC 26, 210 D.L.R. (4th) 608, 284 N.R. 342, J.E. 2002-582, 211 Nfld. & P.E.I.R. 50, 162 C.C.C. (3d) 298, 50 C.R. (5th) 68, 52 W.C.B. (2d) 360; Ted Stothers, [1990] OLRB Rep. March 347; Toronto Dominion Bank, [1995] O.L.R.D. No. 1769, [1995] OLRB Rep. May 686 Statutes referred to Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 1 [as am.], 110, 114(1), 116, 126-148, 133 [as am.], 151(1) [as am.], 162(1), (2) [as am.] Pay Equity Act, R.S.O. 1990, c. P.7, s. 7(2) Authorities referred to Dyzenhaus, David"The Politics of Deference: Judicial Review and Democracy" in M. Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997)
Roy C. Filion, Q.C., and Laura Karabulut, for applicant. Ron Lebi, for respondent Union. Chris Paliare and Donald Eady, for General Presidents' Maintenance Committee. Scott Thompson and Daniel Fogel, for Electrical Trade Bargaining Agency. Leonard Marvy for Ontario Labour Relations Board. [page23 ]
SWINTON J. (CUMMING J. concurring): -- Overview
Overview
1Jacobs Catalytic Ltd. (the "employer" or "Jacobs") has brought an application for judicial review of a decision of the Ontario Labour Relations Board (the "Board") dated November 15, 2006 [[2006] O.L.R.D. No. 4198 (L.R.B.)]. The Board determined that fire restoration work performed by unionized electricians was properly regulated under the ICI Construction Industry Principal Agreement (the "principal agreement") because it was "repair" rather than "maintenance" work.
2The issue in the application is whether the Board erred in determining that this work was covered by the principal agreement, given the existence of the General Presidents' Maintenance Agreement ("GPMA") and the past practice of the employer and the International Brotherhood of Electrical Workers, Local 353 (the "union") respecting fire restoration work. Background
3The employer is a company engaged in the business of plant maintenance. Among its clients is Petro-Canada Products Ltd. ("Petro-Canada"). Petro-Canada has a refinery in Mississauga, Ontario (the "Petro-Canada site").
4On January 7, 2006, a fire occurred in the Hydrotreater Unit ("HTU") at the White Oils Plant at the Petro-Canada site. The fire damage included electrical wiring, conduit, cable trays, electrical cables, instrument cables and instrumentation boxes. It covered approximately 56,000 square feet, although this was only a small part of the site, which comprises approximately 173 hectares or 18,621,565 square feet. Because the HTU is an integral part of the White Oils Plant, the plant was inoperable until the damaged components were removed and replaced.
5Petro-Canada requested that the employer perform the fire restoration work. The employer and the union are bound by two collective agreements: a Project Agreement for Maintenance By Contract in Canada for Petro-Canada Products Ltd., Mississauga Refinery (the GPMA) and the principal agreement.
6The GPMA in question is between the employer and the General Presidents' Maintenance Committee for Canada (the "GPMC") on behalf of 13 international building trades unions of the AFL-CIO, including the International Brotherhood of Electrical Workers (the "IBEW"). It is applicable to maintenance, repair [page24 ]and renovation work for the Petro- Canada Products Ltd. Mississauga Refinery and has been in place at the Petro-Canada site since the 1960s.
7The principal agreement is a "provincial agreement" as defined in s. 151(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the "Act") between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario (the "ETBA") and the IBEW and the IBEW Construction Council of Ontario. This agreement pertains to those electricians employed in the industrial, commercial and institutional sector of the construction industry ("ICI") throughout the Province of Ontario.
8The employer took the position that the fire restoration work was governed by Article 6.700 of the GPMA and, in particular, Article 6.703 dealing with localized fire damage. The article provides:
6.700 Fire restoration work will be administered as follows: 6.701 The restoration of a plant completely destroyed by fire is considered construction work. 6.702 The restoration of a major part of a plant including several sections which have been destroyed or damaged by fire, shall be governed by the following criteria: (a) The removal of damaged equipment and the preparation of the damaged area to make it suitable for new equipment will be Maintenance. (b) The installation and erection of new equipment will be Construction. 6.703 When the fire damage is localized to a given operating unit, such as a heater, distillation tower, compressor, pumphouse equipment and the like, then the restoration of same is to be considered Maintenance.
9Pursuant to Article 6.800 of the GPMA, it is the responsibility of the GPMC to deal with the administration and interpretation of Article 6.700.
10The union filed a grievance dated January 16, 2006, claiming that the employer should have applied the principal agreement to the work in question, asserting that the work is construction work under the Act. The grievance was referred to the Board for arbitration pursuant to s. 133 of the Act. The GPMC and the ETBA were granted intervenor status by the Board. The Statutory Context
The Statutory Context
11While the Act applies to a wide range of public and private sector employees, it contains special provisions relating to [page25 ]the construction industry because of the particular characteristics of that industry (see ss. 126-168). Section 110 of the Act also establishes a distinctive "construction industry division" of the Board.
12Section 1(1) defines the construction industry to mean
the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site. The construction industry operates within different sectors, the most important of which is the ICI sector.
13Since 1977, the Act has provided for a scheme of multi- employer, single trade collective bargaining on a province- wide basis in the ICI sector. Once bargaining rights are obtained by certification in respect of the trade employees of an employer, the employer, its trade employees and the union are bound to the Provincial Agreement in the ICI sector of the construction industry by operation of law. Under this scheme, single employee and employer bargaining agencies in each of the building trades bargain a single collective agreement for each trade that applies across the province (s. 162(1)). These provincial agreements must be for a three-year period, and they expire on April 30. Subsection 162(2) provides that any other agreement or other arrangement is "null and void". It states:
Subject to sections 153, 161, 163.1 and 163.3, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.
14Since 1975, the Board has been the permanent forum for resolving disputes concerning the interpretation, application, administration or alleged violation of construction industry collective agreements. Access to the Board is available despite the grievance and arbitration provisions of a collective agreement (s. 133(1)). Once there has been a referral to the Board and the Board accepts it, the Board acquires exclusive jurisdiction to hear and determine the matter (ss. 133(4), (5) and (9)). The Decision of the Board
The Decision of the Board
15The vice chair of the Board heard nine witnesses over six days of hearing. He received both oral and written submissions. [page26 ]
16The evidence related to the extent of the fire damage and the work performed by the union members. In addition, there was evidence concerning the past practice at Petro-Canada and the history of Article 6.703 of the GPMA.
17In 1999, there had been two consecutive and overlapping fires at the Petro-Canada site. All of the work relating to the removal and replacement of electrical components was performed by union members pursuant to the GPMA.
18In 2003, there was another fire caused by an explosion in the HTU compressor building. The work to remove and replace damaged electrical components was also performed by union members pursuant to the GPMA. When the union inquired whether the work was being properly done under that agreement, the International Representative of the IBEW investigated on behalf of the GPMC and concluded that the work was maintenance pursuant to the GPMA.
19The Board also heard evidence of a planning meeting of the GPMC on March 3, 2005, prior to the commencement of negotiations for the renewal of the GPMA in 2005. Representatives of the IBEW and Local 353 attended, but made no recommendations for changes to the agreement.
20On November 15, 2006, the Board released a two-page decision upholding the grievance. The vice chair identified two issues: first, whether the work in question is maintenance or construction within the meaning of the Act; and second, if the work is construction, whether the doctrine of estoppel should apply, given the facts relating to the 2003 fire.
21After quoting the definition of "construction industry" in s. 1 of the Act, the vice chair stated"The Board having reviewed the evidence as to the nature of the work performed is of the opinion that the work is within the definition of construction work under the Act." Earlier in the reasons, he had noted that the fire damage was over 56,000 square feet, and the project's cost was $56 million. He stated that the work and objective of the project was "to get the White Oils plant up and running . . ." and that the replacement of components was, in fact"in kind replacement".
22With respect to estoppel, he stated that the position of the parties was "primarily" based on the "agreement" of the parties in the 2003 fire. He went on to say,
The Board finds that beyond the specific agreement of the parties, the doctrine of estoppel cannot apply to interfere with the binding application of the Provincial Agreement under the Act within the ICI sector.
23He concluded that the employer had violated the principal agreement and was liable for damages. [page27 ] The Second Reasons
The Second Reasons
24On December 1, 2006, counsel for the union wrote to the Registrar of the Board, requesting "that the Board provide fuller reasons for its decision". Counsel for the employer objected on the ground that the Board had no jurisdiction to redraft its reasons.
25On February 1, 2007, the Board provided further reasons ("second reasons") that covered two and one-half pages. In para. 1, the Board stated that it has the power to expand upon its reasons, without citing any authority.
26The second reasons provided more detailed reference to the evidence about the fire, the extent of the work and the kind of work done. In particular, the vice chair mentioned that the work consisted of replacing equipment, piping and systems, as well as considerable demolition work.
27When discussing the nature of the work, as maintenance or construction, the vice chair made reference to an earlier Board decision, The Master Insulators Assn. of Ontario Inc., [1980] OLRB Rep. October 1477. At para. 10, he concluded:
The Board deals first with the "change of addition or subtraction . . . to an existing system or part of a system". The evidence is clear that a critical part of the site's "existing system" had ceased to exist. Around the clock seven days a week labour, and 25 million dollars were not calculated to preserving or maintaining the non-existent. Rather, the work was ". . . necessary to restore a system, or part of a system, or part of a system which ceased to function . . .", and is repaired. The Board concurs with the reasoning in the Master Insulators case. The work was not maintenance, it was repair and partially demolition and thus construction work within the meaning of the Act.
28With respect to the doctrine of estoppel, the vice chair again stated that the employer and the GPMC relied on the facts of the 2003 fire to invoke the doctrine. He said that it was "very clear" that the GPMA had applied on the specific agreement of all parties.
29He then quoted from Creative Design and Improvement Inc., [2004] OLRB Rep. July 684 (at 691) to set out the three elements of estoppel:
(a) a promise or representation about a contractual or other legal relationship between the parties that (b) was intended to alter the terms of that legal relationship and was intended to be relied on and (c) action taken in reliance on the promise or representation. He stated that in 2003 two of the elements of the test were met, without saying which two of the three elements. [page28 ]
30The vice chair went on to say (at para. 13):
However, in the instant case, the applicant filed a grievance on January 16, 2006. The applicant was relying on its legal rights as provided by the Provincial Agreement as stated in Culliton Bottlers [sic -- Brothers] Limited, [1982] OLRB Rep. March 351 [sic -- 357 at 368]:
"The argument that the applicant is estopped by its conduct from asserting that the province-wide collective agreement should apply to the respondent raises the issue of whether estoppel may be raised by a party to prevent the operation of a public statute. The applicant [sic -- application] and coverage of the present province-wide collective agreement and the extent to which previous collective agreements, which have been binding on the respondent since 1976, have come into operation as a result of the operation of a public statute -- the Labour Relations Act. It is well established that the doctrine of estoppel cannot be evoked to prevent the operation of a public statute ... The Board is not prepared to find that the applicant is estopped by its conduct from asserting that the province-wide collective agreement applies to the respondent". (Emphasis added)
31The vice chair concluded (at para. 14):
If the responding party relied on the facts of the 2003 fire, it was on notice that it did so at its own potential detriment. Thus, the argument of estoppel fails on two of the three elements set out in Creative Design, supra, and is dismissed. The Issues
The Issues
32This application raises the following issues: (1) What is the appropriate standard of review? (2) Did the Board err in failing to provide adequate reasons for its decision? (3) Did the Board have the jurisdiction to issue supplemental reasons? (4) Did the Board exceed its jurisdiction by incorrectly defining the issues before it? (5) Did the Board err in applying the doctrine of estoppel? Issue #1: What is the appropriate standard of review?
Issue #1: What is the appropriate standard of review?
33At the hearing of this application, all parties agreed that the standard of review was patent unreasonableness with respect to the Board's interpretation and application of the Act, as well as the interpretation and enforceability of the GPMA and the principal agreement. However, the employer and the [page29 ]GPMC submitted that the standard of review was correctness with respect to the application of the common law principles of the doctrine of estoppel.
34While the decision in this matter was under reserve, the Supreme Court of Canada released its decision in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9, which abolished the standard of patent unreasonableness. Henceforth, there are only two standards of judicial review with respect to the decisions of administrative tribunals: reasonableness and correctness (at para. 45).
35As a result of this decision, the parties were invited to make written submissions with respect to the impact of Dunsmuir, and further submissions were made.
36The Supreme Court has replaced the pragmatic and functional approach from Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46 with a standard of review analysis (at paras. 51-64). According to that analysis, reasonableness applies to the review of questions where the legal and factual issues are intertwined and cannot be easily separated (at para. 53). The Supreme Court also noted that deference must be granted where an administrative tribunal has special expertise in the application of common law principles, stating that "[a] djudication in labour law remains a good example of the relevance of this approach" (at para. 54).
37In my view, reasonableness is the appropriate standard of review, both with respect to the Board's interpretation and application of the Act and the relevant agreements and with respect to the application of the doctrine of estoppel.
38The Board's decisions are protected by two strong privative clauses in ss. 114(1) and 116 of the Act. In determining the grievance, the Board acts as an arbitrator of a workplace dispute in the construction sector, and thus it applies its specialized expertise in construction industry labour relations to the interpretation of its constituent legislation and the agreements. Therefore, its decision is entitled to significant deference.
39The employer submitted that the Board has no greater expertise than this court in applying the common law principles of estoppel. While the application of the doctrine of estoppel is partly a legal question, its application here raises issues of mixed law and fact. Moreover, the Board and labour arbitrators have a long history of applying this doctrine when adjudicating grievances (see, for example, Losereit Sales & Services Ltd., [1983] OLRB Rep. April 569; Inscan Contractors (Ontario) Inc., [1986] OLRB Rep. May 640 at para. 24). Therefore, the [page30 ]Board is entitled to deference in the application of this doctrine, and the standard of reasonableness applies to the estoppel issue as well as the interpretation and application of the Act and the agreements.
40In applying that standard, the Supreme Court has made it clear that the single reasonableness standard does "not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism" (at para. 48). The reasonableness standard was explained in the following terms (at para. 47):
Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
41The Supreme Court described deference as "respect for the decision-making process of adjudicative bodies with regard to both the facts and the law" (at para. 48). It also expressed agreement with Professor David Dyzenhaus, who stated that "deference as respect" requires of the courts "not submission but a respectful attention to the reasons offered or which could be offered in support of a decision" (at para. 48, citing David Dyzenhaus"The Politics of Deference: Judicial Review and Democracy" in M. Taggart, ed., The Province of Administrative Law (Oxford: that Publishing, 1997) 279 at p. 286). Issues #2 and 3: Did the Board err in failing to provide adequate reasons for its decision? Did the Board have the power to issue supplemental reasons?
Issues #2 and 3: Did the Board err in failing to provide adequate reasons for its decision? Did the Board have the power to issue supplemental reasons?
42The employer and the GPMC submitted that the Board had no jurisdiction to issue supplemental reasons. Therefore, this court should consider only the first set of reasons, which, they submitted, were inadequate.
43The duty to provide adequate reasons is an aspect of the duty to act fairly. The Supreme Court of Canada has adopted a functional approach when determining whether reasons are adequate, asking if the reasons, in light of the record, provide a basis for meaningful judicial review (R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30, at para. 25).
44Therefore, the question for this court is whether the reasons, in light of the record, provide the basis for meaningful [page31 ]judicial review on the standard of reasonableness (International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers (2007), 2007 65617 (ON SCDC), 86 O.R. (3d) 508, [2007] O.J. No. 2460 (Div. Ct.), at para. 88, leave to appeal to C.A. denied November 28, 2007 ("IBEW")).
45Were this court to consider only the first set of reasons, I would agree with the employer's and GPMC's submissions that they are inadequate. There is no explanation as to why the Board reached its conclusion on the issue whether the work is construction industry work. There is simply a conclusion, and the reasons do not set out the evidence on which the conclusion was based. As well, with respect to estoppel, there is no analysis of the doctrine and no examination of the employer's arguments based on past practice.
46However, the Board issued the second reasons when asked to do so by the union. Section 114(1) of the Act permits the Board to vary or revoke any decision. It reads:
The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order direction, declaration or ruling.
47The employer submitted that this provision does not apply, as the Board did not vary or revoke a decision, but simply amplified the reasons given for the decision. Therefore, the employer argued, the Board acted without jurisdiction in issuing the second reasons.
48In my view, s. 114(1) permits the Board to issue supplemental reasons. The provision is framed broadly, so as to ensure that the Board is not functus once it has issued a decision.
49This court affirmed the Board's power to vary or clarify a decision in Re Canac Shock Absorbers Ltd. and International Union, United Automobile, Aerospace & Agricultural Workers of America (U.A.W.), Local 984 (1974), 1974 585 (ON SC), 5 O.R. (2d) 648, [1974] O.J. No. 2108 (Div. Ct.), at para. 12. More recently, this court was critical of an applicant in a judicial review application who attacked the adequacy of the Board's reasons without first asking the Board for further reasons or asking for a reconsideration pursuant to s. 114(1) of the Act (IBEW, supra, at para. 83). It should be noted, however, that the Board in that case specifically reserved the power to issue further reasons.
50From a policy perspective, it makes sense to permit the Board to issue supplemental reasons in a case like this, as the [page32 ]provision of such reasons may be sufficient to avoid the costs and delay associated with an application for judicial review. Here, the application for judicial review had not yet been launched at the time the second reasons were issued, and there is no apparent prejudice to the unsuccessful party because of the issuance of these reasons.
51Therefore, given that the Board had the jurisdiction to issue the second reasons, the issue becomes their adequacy. While fuller than the first set, they are far from the thorough and careful reasons that are generally issued by members of this Board. Nevertheless, as Binnie J. said in Sheppard, supra, an "appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself" (at para. 26).
52In my view, the reasons are adequate, as they permit this court to engage in its judicial review function on a standard of reasonableness. In the second reasons, the Board made reference to its past jurisprudence respecting the determination of construction industry work, and it made some references to the evidence to support its conclusion that the disputed work was construction industry work.
53With respect to the issue of estoppel, the Board made reference to the jurisprudence of the Board, including the elements of estoppel, and applied it to the facts of this case. While the reasons are brief and, indeed, are poorly tailored, they are nevertheless adequate for this court to carry out its judicial review function. Issue #4: Did the Board exceed its jurisdiction by incorrectly defining the issues before it?
Issue #4: Did the Board exceed its jurisdiction by incorrectly defining the issues before it?
54The applicant submitted that the Board erred in defining the issues, since it failed to deal adequately with the GPMA. In particular, it failed to address Article 6.703 of the GPMA, which defined the contested work as maintenance work.
55In my view, the Board asked itself the correct questions. The Board was acting as an arbitrator determining a grievance under the principal agreement that claimed the employer failed to apply that agreement to construction work. Therefore, the Board first considered whether the fire damage work was "construction industry" work under the Act, as it was required to do, given the terms of the statute mandating that construction work is governed by the Provincial Agreement (here, the principal agreement), and any other agreement or arrangement is by operation of law "null and void" (s. 162(2) of the Act). [page33 ]
56The approach adopted by the vice chair was the same approach used in other similar cases that have come before the Board. The Board has a settled jurisprudence that distinguishes between "repair" (which is, by definition"construction work") and "maintenance".
57For example, in Inscan Contractors, supra, the Board was required to determine whether work performed fell within the construction agreement or the maintenance agreement governing insulators. As in the current case, the work involved repair of fire damage at this refinery site. The Board there framed the first issue before it as whether the work performed was work in the construction industry within the meaning of then s. 1(1)(f) of the Act. It referred to earlier cases in which the Board had held that repair work, within the definition of construction in the Act, includes work necessary to restore a system or part of a system which has ceased to function (paras. 19-21). Having determined that the repair work there was necessary to restore the normal function of a damaged hydrotreater, the Board held that the Provincial Agreement applied.
58The Board in the present case used the same approach, asking itself whether the fire restoration work was necessary to restore a system or part of a system (at para. 10, second reasons). In doing so, it referred to another decision of the Board, Master Insulators Assn. of Ontario Inc., supra, at para. 29, quoting the following passage: "Where the work is necessary to restore a system or part of a system which has ceased to function or function economically, such work is repair work."
59The Board concluded that the work was repair and partially demolition, not maintenance, and therefore, it was construction work within s. 1(1) of the Act. As a consequence, the Board determined that the principal agreement applied. That decision was reasonable, given the evidence before the Board.
60The Board did not err by failing to address Article 6.703 of the GPMA when determining whether the work was construction work within the meaning of the Act. By operation of law, agreements or arrangements inconsistent with a provincial agreement like the principal agreement are null and void (see. s. 162(2)). Indeed, the GPMA itself recognizes the potential conflict between its provisions and provincial law, as it provides that such provisions shall be suspended in operation without affecting the operation of other provisions of the GPMA. Therefore, the Board did not err in disregarding the classification of the work in the GPMA, given the finding that the work was "construction work" within the meaning of the Act. [page34 ] Issue #5: Did the Board err in applying the doctrine of estoppel?
Issue #5: Did the Board err in applying the doctrine of estoppel?
61The employer and the GPMC submitted that the Board erred in failing to consider the full extent of the past practice when it considered the doctrine of estoppel. The Board articulated the estoppel issue in these terms in the second reasons: "If a determination is made that the work is construction work, should the doctrine of estoppel be applied based on the facts of the 2003 fire."
62This articulation of the second issue misstated the employer's position, as the employer based its estoppel argument on much more than the facts of the 2003 fire. The employer submitted that the past practice on which it relied included the longstanding language of Article 6.703 of the GPMA, which defines localized fire damage work as maintenance work. In addition to the 2003 fire, it included the practice after the two fires in 1999, when all work relating to the removal and replacement of electrical components was performed by the union under the GPMA. Finally, it relied on the fact that the union raised no issue about the definition of work in Article 6.703 of the GPMA prior to commencement of negotiations for the renewal of the GPMA in 2005.
63In addition to the Board's error in describing the estoppel argument, it erred in stating that the terms of the GPMA applied in 2003 on the specific agreement of all parties. In fact, the GPMA applied because the international representative for the IBEW, acting on behalf of the GPMC, concluded that the work fell under Article 6.703 of the GPMA.
64For a decision to be unreasonable, it must fall outside the range of "possible, acceptable outcomes which are defensible in respect of the facts and the law" (Dunsmuir, supra, at para. 47). Despite the errors made by the Board, its decision with respect to estoppel was reasonable in the circumstances of this case.
65The Board properly identified the three elements necessary for estoppel to apply, as set out in Creative Design, supra: (a) a promise or representation about a contractual or other legal relationship between the parties that (b) was intended to alter the terms of that legal relationship and was intended to be relied upon and (c) action taken in reliance on the promise or representation.
66Quoting from the earlier decision in Culliton Brothers Ltd., [1982] OLRB Rep. March 357 (at para. 30 of that decision), the Board then took the view that estoppel can not be invoked against the operation of a provincial agreement -- in this case, [page35 ]the principal agreement -- which is a statutory collective agreement. Culliton Brothers held that the doctrine of estoppel can not be invoked to prevent the operation of a provincial statute. The Board expressed this view as well in Ontario Power Generation Inc., [2001] O.L.R.D. No. 1943 (L.R.B.), at paras. 12-13; Ted Stothers, [1990] OLRB Rep. March 347, at para. 39. Therefore, the Board's conclusion that estoppel can not prevent the operation of a statute is reasonable, especially in light of the concluding words of s. 162(2) of the Act (see also 1086891 Ontario Inc. v. Barber, 2007 18734 (ON SCDC), [2007] O.J. No. 2046, 284 D.L.R. (4th) 568 (Div. Ct.), at para. 19).
67The employer and the GPMC submit that the Board erred in holding that the doctrine of estoppel can not apply in relation to a statute. Reliance was placed on two decisions of the Divisional Court: Better Beef Ltd. v. MacLean (2006), 2006 17930 (ON SCDC), 80 O.R. (3d) 689, [2006] O.J. No. 2146 (S.C.J.) and Bucyrus Blades of Canada Ltd. v. McKinley, 2005 1491 (ON SCDC), [2005] O.J. No. 231, 250 D.L.R. (4th) 316 (Div. Ct.).
68In both those cases, at issue was the legal effect on a pay equity complaint of the settlement of litigation between an employer and employee. In Better Beef, for example, an employee, on termination of her employment, entered into a settlement and signed a release of all claims against the employer. Although s. 7(2) of the Pay Equity Act, R.S.O. 1990, c. P.7 prevents an employer or bargaining agent from bargaining for or agreeing to compensation practices that would contravene that Act, the court held that the release was binding on the employee. In both Better Beef and Bucyrus, the court distinguished the settlement of claims arising out of an employment dispute from the situation where an employee bargains away rights as a term of employment (Better Beef, para. 37).
69In the present case, in contrast, there has been no release signed by the union waiving the employer's obligation to comply with the principal agreement. In any event, s. 162(2) of the Act makes it clear that any agreement or arrangement that is inconsistent with a provincial agreement is null and void. Therefore, the Board did not err in holding that estoppel would not prevent the operation of the statute. Once the Board held that the fire damage work was construction work within the meaning of the Act, the principal agreement applied to it. By operation of s. 162(2), any other agreement or arrangement relating to work governed by the principal agreement is null and void.
70While the Board has held that estoppel can not prevent the operation of a statute, a number of cases have also held [page36 ]that the doctrine of estoppel can be applied to preclude a trade union from enforcing its strict legal rights under a provincial agreement (Creative Designs, supra, at para. 29; Toronto Dominion Bank, [1995] O.L.R.D. No. 1769, [1995] OLRB Rep. May 686; Jacobs Catalytic Industrial Services Ltd., 2007 52376 (O.L.R.B.) ("Jacobs (2007)"). Indeed, another panel of the Board observed in Jacobs (2007) that estoppel can apply to the enforcement of rights under a provincial agreement, despite s. 162 of the Act. At para. 93 of that decision, the Board explained:
We do not suggest by this that an estoppel can apply generally against the validity of a provincial agreement. We say that, in specific circumstances, based on equity, it might be unconscionable for a particular beneficiary of rights under the provincial agreement to enforce those rights. We do not suggest that the right itself is limited or overruled by estoppel; it is the enforcement thereof which, in particular circumstances, may be estopped.
71In the case under review here, the Board does not appear to have considered the application of the doctrine of estoppel to the enforcement of rights under the principal agreement. In doing so, the Board failed to address the main argument of the employer with respect to estoppel, which rested on past practice. Nevertheless, the Board's decision is not unreasonable because of its finding with respect to reliance -- that is, the filing of the grievance negated any prior reliance of the employer on past practice with respect to the GPMA.
72Even where an estoppel has arisen with respect to the enforcement of collective agreement rights because of a representation by a party, the estoppel may be terminated, provided there is sufficient notice that the party is reverting to its strict legal rights (Toronto Dominion Bank, supra, at para. 86). As the Board stated in Creative Design, supra, estoppel is based on notions of fairness: "A person should not be allowed to insist upon his strict legal rights when he has behaved in a manner that would make it unjust for him to do so" (at para. 33).
73In the present case, the Board found that the elements of estoppel were not made out because the union made it clear, in filing the grievance on January 16, 2006, that it was not willing to have the GPMA apply to the work in dispute. If there had been any representation about the union's reliance on its strict rights under the principal agreement after the 2003 fire, the Board found that the representation ceased with the filing of the grievance, and therefore, the doctrine of estoppel did not apply.
74In my view, the same conclusion would follow even if the assertion of estoppel rested on events after the 1999 fires or even [page37 ]the negotiations for the 2005 GPMA. The grievance indicated that the union was insisting on its strict legal rights under the principal agreement with respect to the 2006 fire. The Board found that the employer could not reasonably assume that the GPMA would apply from that point on.
75The employer submits that the Board erred in finding that the estoppel ended with the filing of the grievance. The employer submitted that it was unfair for the Union to resile from the GPMA without appropriate notice, which would appropriately be in the next round of bargaining, given the failure to object to the terms of the GPMA prior to the 2005 negotiations. Alternatively, the employer submits that the estoppel should end with the Board's decision, as in Toronto Dominion Bank, supra.
76The Board's determination as to when the estoppel ended turned on the evidence before it and its conclusion about the equities in this case. The Board's finding that the estoppel ended with the filing of the grievance is entitled to deference, as it is a question of mixed fact and law. It can not be said that the conclusion reached by the Board on this issue was unreasonable, given the evidence before it.
77The employer also relied on the Jacobs (2007) case to support its argument with respect to the application of the doctrine of estoppel. While that case involved the same parties, it arose from a different fact situation. The Board found that a union representative consented to treating certain work as maintenance, and that Jacobs had conveyed this to Petro-Canada. Therefore, there was a representation by the union that the work would be maintenance under the GPMA, and reliance by Jacobs on that representation. For several months, there were requests for electricians to do maintenance work under the GPMA, and the assignment of electricians by the union and their hiring by Jacobs was done on this basis. Some months later a grievance was filed. Although the work was construction work under the Act, the Board concluded that the elements of estoppel had been proved, and the union could not rely upon its rights under the principal agreement to seek damages for the portion of work that was construction and not maintenance.
78The present decision of the Board is not unreasonable simply because it reaches a different result in the application of the doctrine of estoppel from the decision of another panel of the Board. There is a material difference in the facts of the two cases. In the present case, the union filed a grievance on January 16, 2006 with respect to work caused by a fire on January 7, 2006. [page38 ]The refusal of the Board to apply the doctrine of estoppel in the present case led to a result that was within the range of reasonable outcomes, given the facts before it. Conclusion
Conclusion
79The application for judicial review is dismissed.
80The Board does not seek costs, and none are awarded. Costs to the union are fixed at $8,000 and to the ETBA fixed at $8,000 payable jointly and severally by the employer and the GPMC.
SMITH J. (dissenting): -- Overview
Overview
81I agree with the reasons of my colleagues that the standard of review is one of reasonableness and also that the Board had jurisdiction to issue supplemental reasons pursuant to s. 114(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the "Act").
82However, in my view the Board Member has not provided adequate reasons for his decision. I also find that the following conclusions are not reasonable and not entitled to deference: (a) that only two of the three elements required to establish estoppel were made out, based on the conduct of the parties following the 2003 fire, (b) that the filing of the grievance terminated any estoppel immediately without requiring reasonable notice to be given and (c) that a specific agreement between the parties was required in order to establish estoppel, which ignores the possibility that estoppel may be created by a representation by the parties' conduct. Analysis Were the Board Member's reasons adequate?
Analysis Were the Board Member's reasons adequate?
83The employer submitted that the reasons were inadequate. The IBEW did not strongly support the adequacy of the reasons. In fact, it was the IBEW (the successful party) [that] had requested more fulsome reasons from the Member, which must imply that it believed the initial reasons were inadequate. The IBEW in essence submits that the decision is one that "could have been made by the Member" and therefore is entitled to deference, notwithstanding the lack of detailed reasons.
84In the case of Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364, [2002] O.J. No. 1531 (C.A.), [page39 ]former Chief Justice McMurtry set out the requirements for adequate reasons by administrative tribunals as follows and adopted those of the Federal Court of Appeal and stated [at para. 22]:
The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principle evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.
85I find that the Board Member failed to provide adequate reasons in order to allow for meaningful judicial review because: (i) he failed to specify which of the three elements required to establish estoppel was not made out, based on the parties' conduct following the 2003 fire; (ii) he failed to address whether reasonable notice was required to be given to terminate the estoppel following the 2006 fire, if an estoppel had been established by the prior conduct of the IBEW following the three previous fires in 1999 and 2003; (iii) he failed to address the issue of whether, by agreeing to the terms of the GMPA (the "maintenance agreement"), the IBEW was estopped from asserting its rights under the principal agreement; and (iv) he failed to consider the employer's argument that the estoppel was also based on the conduct of the parties by entering into maintenance agreements over many years, as well as performing the restoration work under the maintenance agreement following the two fires in 1999 as well as in 2003.
86The reasons fail to address the above issues, which were major points in issue, in any meaningful way. The reasons should also reflect the reasoning process followed by the Member in order to allow for meaningful judicial review. Was the Member's finding that only two of three elements required to establish estoppel based on the parties' conduct following the 2003 fire and the two fires in 1999 reasonable and entitled to deference?
87The Member, in his initial brief reasons of a page and one half, dated November 15, 2006, found that the employer's estoppel [page40 ]argument was based on a specific agreement of the parties following the 2003 fire to follow the maintenance agreement. The Member found that beyond the specific agreement of the parties, the doctrine of estoppel could not be applied to interfere with the binding application of the principal agreement. This is an incorrect statement as he ignored the possibility of establishing estoppel by words or conduct.
88In the case of Maracle v. Travellers Indemnity Co. of Canada, 1991 58 (SCC), [1991] 2 S.C.R. 50, [1991] S.C.J. No. 43, at p. 57 S.C.R., Justice Sopinka set out the test for promissory estoppel as follows:
The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position.
89In actual fact, there was no specific agreement between Jacobs and the IBEW that the restoration work following the 2003 fire would be performed under the maintenance agreement. Instead, there was a decision of a committee created under the maintenance agreement which decided that the restoration work was maintenance work. In his supplementary reasons dated February 1, 2007, the Member states that "It is very clear that the terms of the G.P.M.A. applied on the specific agreement of all parts (parties)."
90Notwithstanding his finding that there was a specific agreement between the parties to follow the maintenance agreement following the 2003 fire, the Member still found that one of these elements to establish estoppel was not met.
91The Member recited the three elements required to establish estoppel, based on the decision of Creative Design and Improvement Inc., [2004] OLRB Rep. July 684 which is an acceptable definition, if the conduct of the parties can create a representation. He then simply concludes that only two of the three elements required for estoppel were met in 2003 without stating which element was not met, or why it was not met. First Element Was there a promise or representation in 2003?
First Element Was there a promise or representation in 2003?
92In 2003, the Member inaccurately found that following the 2003 fire the IBEW and Jacobs specifically agreed to have the restoration work performed under the maintenance agreement. If he had been correct in his finding that there was such a [page41 ]specific agreement, it must have constituted a promise or representation which was intended to affect their legal relationship. In actual fact, a decision was made by a committee appointed pursuant to the maintenance agreement, which held that the restoration work after the 2003 fire was to be performed under the maintenance agreement.
93The IBEW accepted this decision and proceeded to perform the work under the maintenance agreement, which if not a specific promise was a representation by its conduct that the maintenance agreement applied to restoration work following a fire in 2003. The same conduct occurred following the two fires at the same refinery in 1999 where the fire restoration work was performed by the IBEW under the maintenance agreement.
94In addition, the IBEW agreed to the terms of the maintenance agreement, which stated in s. 6.7 that restoration of a major part of a plant, where several sections have been destroyed or damaged by fire, shall be governed by the following criteria: (a) The removal of damaged equipment and the preparation of the damaged area to make it suitable for new equipment will be maintenance. (b) The installation and erection of new equipment will be construction.
95By agreeing to the terms of the maintenance agreement, the IBEW was making a promise or a representation that the terms of the maintenance agreement would be followed if a major part of the plant was destroyed by fire as set out in s. 6.7 and that the principal agreement would not be applicable in this circumstance.
96The Board Member does not address the issue of whether by entering the maintenance agreement the IBEW could be estopped from relying on its rights under the principal agreement to the extent there is any conflict in the definition of restoration work following a fire.
97The Member quotes the case of Culliton Brothers Ltd., [1982] OLRB Rep. March 357 when discussing the effect of whether the grievance notice, given by the IBEW nine days after the 2006 fire, and by implication concludes that the employer could no longer rely on the maintenance agreement after notice of the grievance was given to the employer. The Member does not address whether reasonable notice was required to be given in order to terminate the estoppel if one [page42 ]had been created either by the conduct of the IBEW after the three previous fires in 1999 and 2003, or by specifically agreeing to the terms of the maintenance agreement.
98If the Member found that the first element had not been met, it would not be reasonable to have concluded that no promise or representation was made by the IBEW following the 2003 fire that restoration work would be governed by the maintenance agreement, based on its entering the maintenance agreement and its conduct in completing the restoration work under the maintenance agreement following the two 1999 fires and the 2003 fire at the same refinery. Second Element Was the promise or representation intended to alter the terms of the legal relationship?
Second Element Was the promise or representation intended to alter the terms of the legal relationship?
99The IBEW was a party to two collective bargaining agreements. The first being the principal agreement which dealt with construction throughout the Province of Ontario, and the second was the maintenance agreement between Jacobs and the IBEW and other unions for the maintenance, repair and renovation work at the Petro-Canada refinery located in Mississauga. The Member did not address the public policy considerations or values involved in applying or refusing to apply the equitable doctrine of estoppel as against the principal agreement.
100The IBEW's conduct in performing the restoration work under the maintenance agreement after the two fires in 1999, the fire in 2003, and agreeing to the maintenance agreement and by making no objection when the maintenance agreement was renegotiated and agreed upon in April of 2005, the IBEW and the employer could only have intended to alter the terms of the legal relationship under the principal agreement's definition of construction work. If this was the element that the Member found to not have been met in 2003, then this finding would not be reasonable. Third Element Was action taken on the promise or representation after the fire in 2003?
Third Element Was action taken on the promise or representation after the fire in 2003?
101On two occasions after the fires in 1999 and after the fire of 2003, the IBEW performed work to restore the parts of the refinery that were destroyed by fire in accordance with the terms of the maintenance agreement. So on three prior occasions, the [page43 ]employer had the restoration work completed by the IBEW based on the maintenance agreement. Immediately following the 2006 fire, Jacobs proceeded to have the fire restoration work performed under the maintenance agreement and did so without notice until the grievance was filed nine days following the fire. The employer did take action by proceeding with the restoration work under the maintenance agreement following the 2003 fire, and therefore if the Member concluded that action was not taken then it would not be reasonable as one that is within the range of possible outcomes.
102When assessing the reasonableness of a decision, the court must consider whether the Member's reasons for concluding that an estoppel was not created by the conduct of the parties following the 2003 fire, was within the range of possible outcomes which are defensible in respect to the facts and the law. Because the Member does not state why there was no estoppel based on the conduct of the parties following the 2003 fire, it is impossible to determine if his decision is within the range of possible outcomes.
103The qualities of the decision that will be considered when determining reasonableness, according to Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008 SCC 9 ("Dunsmuir"), include justification, transparency and intelligibility within the decision making process. Because the member does not state which of the three elements required to establish estoppel were not found following the 2003 fires or for that matter the two 1999 fires, and because the Member did not state why one of the three elements was not present, the decision lacks justification, transparency and intelligibility.
104The fact that there is a privative clause and the matter is a labour relations matter would lead the court to grant a high degree of deference to a Labour Board decision of a Member provided the decision meets the reasonableness test. The level of expertise displayed by the Member applying estoppel, by requiring a specific agreement between the parties to establish estoppel and the lack of intelligible reasons, reduce the amount deference that should be accorded in these circumstances.
105In Dunsmuir, the Supreme Court of Canada held that the deference owed by a reviewing court would also be especially high where the decision was one of fact, discretion or policy or where the legal issue was intertwined with and could not be readily separated from the factual issues.
106In this case, the material facts were not in dispute. It was not disputed that the IBEW was bound by two collective [page44 ]bargaining agreements, the principal agreement and the maintenance agreement. The fact that maintenance agreements have been entered into by the IBEW for many years at the refinery site, the fact that two fires occurred at the refinery in 1999, one in 2003 which destroyed parts of the refinery and all restoration work was completed pursuant to the maintenance agreement and not under the principal agreement was also not disputed. The extent of the damage of the fire, the cost to complete restoration and the buildings and equipment which were destroyed were not in dispute and therefore the facts were not so intertwined with the legal issues to make separation difficult.
107The legal issue of whether an estoppel had been created as against the principal agreement by the IBEW entering into the maintenance agreement, and by its prior conduct of performing the fire restoration work under the maintenance agreement following two fires in 1999 and one in 2003, and also the question of whether reasonable notice was required to be given to terminate the estoppel, are distinct legal issues which are not unduly intertwined with the facts.
108In Jacobs Catalytic Industrial Services Ltd., 2007 52376 (O.L.R.B.), Board Member Albertyn, in addressing the issue of whether an estoppel can be created as against the principal Agreement by agreeing to a maintenance agreement, stated as follows in para. 89:
Culliton Brothers Limited, above, and Ontario Power Generation Inc. 2001 6593 (ON L.R.B.), at Â13, state that the doctrine of estoppel cannot be invoked to prevent the operation of a public statute. In Culliton Brothers Limited, at Â21, the Board treated an estoppel against the application of a provincial agreement as being the same as an estoppel against the application of a public statute. In our view, however, there is a distinction between these notions. We accept that generally the doctrine of estoppel cannot apply against the application of the Act itself, particularly, as counsel for the GPMC argues, when public values, public policy considerations are at stake. One cannot waive fundamental rights one has under the Act, e.g. to organize a trade union, to apply for certification, etc. But the principle that estoppel does not apply to the operation of a public statute, where a public value is at stake, does not necessarily entail that estoppel cannot apply to an agreement concluded pursuant to the Act, including a collective agreement and a provincial agreement. This distinction was not addressed by the Member. Policy Issue
Policy Issue
109The main policy issue is the Board Member's application of the legal doctrine of estoppel to the situation where the IBEW had entered into two Collective Agreements and has [page45 ]acted to complete restoration work following a fire under the maintenance agreement on three prior occasions. In order to decide this issue, a major policy issue is involved, namely whether the IBEW and an employer can enter into a maintenance agreement to define part of the restoration work following a fire at the refinery as maintenance work, and whether this is against public policy or can create an estoppel as against the rights agreed upon in the principal agreement, or whether this would be impermissible contracting out of rights guaranteed in a statute under s. 162(1) of the Act. In the Jacobs (2007), supra, decision, the Board considered the social policy and the issue of whether an estoppel can be established, not as against a statutory right, which was held not to be possible, but as against rights agreed to under the principal agreement and held that an estoppel could be created. The Member in this case did not address these policy issues.
110By failing to address this important issue raised both by the IBEW and by Jacobs, the reviewing court cannot meaningfully review the decision, and decide whether or not deference should be accorded and whether the ultimate conclusion is reasonable. I also find that in these circumstances the failure to address both the legal aspect of estoppel and the social and labour policy issues and values of allowing parties to enter into maintenance agreements, which are common in many construction trades across the Province of Ontario, is an important labour policy which should be clearly addressed in the decision and should be decided by the Labour Board. Lack of reasonable notice to terminate estoppel
Lack of reasonable notice to terminate estoppel
111If the Member's decision that an estoppel was not created based either on the IBEW's conduct following the 1999 and 2003 fires or its entering the maintenance agreement is unreasonable, and that an estoppel was created, then reasonable notice was required to be given to terminate the estoppel.
112In the decision of Toronto Dominion Bank, [1995] O.L.R.D. No. 1769, [1995] OLRB Rep. May 686, at para. 87 the Labour Board held reasonable notice was required to be given to terminate an estoppel and that "The estoppel or the suspension of the enforcement of bargaining rights is thus ended upon the giving of reasonable notice . . .". At para. 95 the Board held that the estoppel was only ended by the decision of the Board in that case. While the date of the decision may not be the appropriate amount of reasonable notice in this case, the doctrine of estoppel is an equitable concept and should be [page46 ]used to fashion a fair and appropriate remedy in the circumstances, and the Member should have addressed what amount of time would have been reasonable notice in the circumstances of this case.
113In this case, the Board Member decided that immediately upon filing the grievance notice, Jacobs could no longer rely on any existing estoppel, and as a result I infer that he found that the third element of reliance would no longer be made out. Effectively, by failing to address this issue, he finds that reasonable notice is not required to be given to terminate the estoppel. This is not a reasonable result.
114The Member does not address the issue of what amount of reasonable notice was required to be given to terminate the estoppel, because he had previously concluded that only two of the three elements were made out based on conduct of the IBEW following the 2003 fire, and his finding that no estoppel had been created. The reasonableness of the Member's conclusion that there was no estoppel created based on the conduct following the 1999 and 2003 fires must be considered carefully as it affects the second issue of whether reasonable notice had to be given. The failure of the Board Member to address whether reasonable notice was required to be given is procedurally unfair, if his conclusion that an estoppel had been created either by the parties' conduct following previous fires or by entering into the maintenance agreement. The Member would have had to consider what reasonable notice was required. Disposition
Disposition
115The issue of whether an estoppel can be created by the IBEW entering into a maintenance agreement with an employer involves public values and public policy issues as found in Jacobs (2007) which, in my view, should properly be determined by the Labour Board. As a result, I order that the matter be remitted to a new member or panel of the Labour Board to address the issues identified as I find that the Board Member has provided inadequate reasons for his decision and his decision not reasonable or entitled to deference for the reasons given above.
Application dismissed.