COURT FILE NO.: 537/08

DATE: 20090515

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN, karakatsanis and TullOch JJ.

B E T W E E N:

SCHUIT PLASTERING & STUCCO INC. and/or GERALD SCHUIT PLASTERING & STUCCO INC.

Applicants

• and -

ONTARIO LABOUR RELATIONS BOARD and UNIVERSAL WORKERS UNION, LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA LOCAL 183

Respondents

Norman A. Keith and John P. Illingworth, for the Applicants

Leonard Marvy, for the Ontario Labour Relations Board

Ronald N. Lebi, for the Universal Workers Union

HEARD at Toronto: April 14, 2009

REASONS FOR JUDGMENT

KARAKATSANIS J.:

Overview

1This is an application for judicial review under ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 of two decisions by the Ontario Labour Relations Board (OLRB or the Board) dated April 29, 2008 and May 28, 2008, in which the Board certified the applicant Schuit Plastering & Stucco Inc. (Schuit) as the employer of the members of the respondent Union and dismissed Schuit’s request for reconsideration.

2The applicant seeks an order quashing both decisions and an order requiring the OLRB to hear evidence on the question of whether Schuit is the proper employer to be certified in this case.

Background

3On April 16, 2008 the Union applied to the OLRB for a certificate pursuant to s. 128.1 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (LRA), naming Schuit as the responding party in the application. On the date of the application three workers were employed on the building site.

4Section 128.1 of the LRA governs a process for card-based certification of a trade union in the construction industry. The Legislature has set out an expeditious, highly prescriptive certification provisions to closely manage the certification process.

5Section 128.1(1) requires that the trade union give written notice to the Board and to the employer on the date the trade union delivers a copy of the application to the employer. Section 128.1(3) requires the employer, upon receipt of notice of an application for certification, to provide the Board with the names of the employees to be included in the bargaining unit within two days. Further to s. 128.1(4), the Board shall determine the bargaining unit and the percentage of employees in the bargaining unit who are members of the trade union, based upon the information provided in the application and from the employer pursuant to s.128.1 (3). The Board may hold a hearing if it considers it necessary in order to make a decision under this section or may require a vote (s.128.1(6)).

6Rule 2.3 of the Ontario Labour Relations Board Rules of Procedure provides that if a party receiving notice of an application does not file a response as required by the Rules, he or she may be deemed to have accepted all of the facts stated in the application, and the OLRB may decide the case upon the material before it without further notice. In addition, the notice to the employer in the certification application form provides that failure to respond is deemed to be acceptance of the information in the application.

7The Board also takes the position that it may allow late filing of a response at its discretion. Rule 25.5 deals specifically with the procedural requirements of applications for certification in the construction industry and provides that a “responding party” in receipt of an application pursuant to s. 128.1 must file a response with the Board within two days. Rule 1.5(n) defines a “responding party” as “anyone named in the application or who responds to it and includes an intervenor.” Rule 40. 7 provides that the Board may relieve against the strict application of these Rules where it considers it advisable.

8Schuit received notice from the Union on April 17, 2008 of its application and that notice included an OLRB document, entitled “Notice to Employer for Certification, Construction Industry”. It identified Schuit as the responding party, provided notice “to the responding party” and reads in part as follows:

An application for certification is a legal proceedings and may affect your legal rights and obligations. You may wish to seek legal advice immediately.

Your Response to the application, including schedule A (List of Employees), must be filed with the Board no later than two (2) days after the application for certification was delivered to you.

9Schuit also received directly from the Registrar of the OLRB later that same day a Confirmation of filing of Application for Certification, Construction Industry which included a reminder to respond not later than two days after the Application was delivered.

10Schuit did not respond to the application. The applicant’s position is that the workers were the employees of an independent sub sub-contractor, Europia Stucco Co., and that no Schuit employees were on site.

11On April 29, 2008, the OLRB issued a certificate to the Union pursuant to s. 128.1 of the Act, certifying Schuit as the employer of the three employees.

12On May 20, 2008, Schuit filed a request for reconsideration through counsel, asking that the OLRB exercise its discretion, and hear evidence from Schuit supporting its contention that it was not in fact the employer. Schuit stated in the application for re-consideration that the principal of Schuit did not respond to the application because Schuit was not the employer; he assumed it had been sent in error; he had not appreciated the nature and effect of the application or the requirement to respond. The principal of Schuit advised that he was not sophisticated in labour relations matters and did not have legal counsel.

13On May 28, 2008, the OLRB dismissed the request for reconsideration, concluding that Schuit had not provided a compelling rationale that would cause it to reconsider its decision. The OLRB noted that it was not necessary to consider whether it would have exercised its discretion under Rule 40.7 to extend the time in which a responding party claiming it is not the employer could file information under s.128.1(3) that there were no employees in the bargaining unit because it did not find there were sufficient grounds for the OLRB to exercise its discretion under s. 114(1) of the LRA to reconsider the decision and revoke the certificate.

14The OLRB considered the explanation given by Schuit and found that Schuit had received notice but chose to ignore or disregard the material sent by both the applicant and the Registrar despite the clear statement advising that legal rights and obligations may be affected.

Standard of Review

15The applicant characterizes the question on appeal as one of ‘true’ jurisdiction, and therefore, in accordance with Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 58-59 it must be correct. Schuit argues that the question in issue is the proper interpretation of Rule 25.5 relating to the “responding party”, in accordance with s. 128.1 of the LRA that applies only to certification of an “employer”. The applicant submits that this is not a question of statutory interpretation, but a true question of jurisdiction requiring the OLRB to determine the extent of its statutory powers.

16Although the applicant has characterized the legal issue as relating to jurisdiction - that the OLRB has jurisdiction under s. 128.1 to certify only in the context of an employer - I do not accept that characterization of the question in this appeal.

17The Supreme Court of Canada cautioned in Dunsmuir at para. 59, that reviewing judges must not brand as jurisdictional issues that are doubtfully so. Jurisdiction is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. These questions will be narrow. In my view, the OLRB is mandated under s. 128.1 of the LRA to determine the merits of the application for certification on the information provided in the application and was entitled to exercise its discretion under s. 114(1) of the LRA on whether to re-consider its determination. The legal issue in this appeal does not relate to the jurisdiction of the OLRB as contemplated in Dunsmuir.

18As noted in Dunsmuir (at paras. 54, 55 and 60), the standard of review for questions of law may depend upon the nature of the question of law. Where the question at issue is one of general law that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, a standard of correctness will apply. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function.

19In our view, the applicable standard of review is reasonableness, given that the OLRB is an expert tribunal with a strong mandate to supervise the province’s statutory industrial relations regime. The OLRB’s decisions are protected by two strong privative clauses, ss. 114 and 116 of the LRA. The issues raised in the application concern the OLRB’s exercise of statutory and discretionary powers under the LRA in relation to matters within its exclusive jurisdiction. As a result, the Dunsmuir analysis dictates that the OLRB`s decisions on these issues are entitled to deference.

20Moreover, since Dunsmuir, this Court has found the standard of review of the Board’s decisions is one of reasonableness (See for example Abdoulrab v. Ontario (Labour Relations Board), [2007] O.J. No. 3155 (Div. Ct.); Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353, et al. (2008), 2008 26686 (ON SCDC), 91 O.R. (3d) 20 (Div. Ct.); Khan v. Ontario (Labour Relations Board), [2009] O.J. No. 393 (Div. Ct.)).

Analysis

Is the OLRB deprived of jurisdiction to certify a party that is not the employer?

21Schuit argues that s. 128.1 of the LRA applies only to certification of an employer, and not to any other party. It submits that the legislature specifically limited the scope of s. 128.1(3) to employers and does not impose an obligation to respond within the time limit on a non-employer. Schuit, a “responding party” that was not the employer of the employees seeking certification of a trade union, was not obligated to respond within the time limit set out in the legislation. Schuit submits that once it asserted that it was not the employer, the Board should have set aside the previous decision and exercised its discretion under the Rules to extend the two day limit imposed on a “responding party” in Rule 25.5 to permit late filing of a response to the application for certification. Schuit submits that the Board’s refusal was unreasonable, given that the purpose of the LRA is to facilitate collective bargaining between employers and trade unions representing their employees, and that ensuring employers are properly identified in certification applications is a cornerstone of this process. I do not agree.

22For the reasons given above, the assertion by a party that it is not the employer does not deprive the OLRB of jurisdiction to certify under s.128.1 of the LRA. The OLRB is mandated to determine a number of threshold issues before certification, including the bargaining unit and the employer in the construction industry context. The OLRB had the evidence before it in the application. The Act requires the expeditious response by the employer upon whom the application is served to provide information about employees in the bargaining unit. Rule 2.3 of the Ontario Labour Relations Board Rules of Procedure provides that if a party receiving notice of an application does not file a response as required by the Rules, he or she may be deemed to have accepted all of the facts stated in the application, and the OLRB may decide the case upon the material before it without further notice. In the absence of the employer’s response, the Board may certify a union based upon the information in the application. The Board`s position that failure to respond upon proper notice should not be permitted to automatically thwart the speedy process is reasonable in these circumstances.

23The OLRB is frequently called upon to determine whether a responding party is an employer, among other threshold issues. This enquiry is within the statutory mandate of the OLRB and within its expertise. Its position that a responding party who is not an employer must respond that there are no employees within the two days is reasonable. The decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir para. 47). The mere assertion by a responding party that it is not the employer cannot invalidate the certification decision of the OLRB.

Reasonableness of exercise of discretion

24Schuit submitted that the exercise of discretion could not be reasonable given that certification for a non-employer did not meet the objectives of the LRA, not only in relation to Schuit, but also to Schuit’s employees and the employees of Europia Stucco Co.. In essence, the submission is that it was not reasonable for the Board to refuse to put aside the certification and enquire into who the employer was given the importance of the issue.

25While the OLRB did not set out all the factors relevant to its exercise of its discretion of whether to reconsider the earlier decision, I cannot conclude that the result was unreasonable. The OLRB noted the circumstances, including Schuit`s position that it was not the employer and that there was no bad faith involved. It noted the dates that indicated a period of time before the request for reconsideration was brought. It fully considered Schuit’s submissions and determined that Schuit’s reasons for failing to respond to the application within the time limit were unsatisfactory in the context of the clear notice from both the application and the separate notice from the OLRB regarding the importance, immediacy and potential legal impact of the matter. Moreover, the OLRB recognizes the important principle of finality of its decisions, particularly where, as here, it had made the decision granting certification.

26The Board is an expert tribunal specializing in labour relations and is entitled to considerable deference and respect for its decision-making process and decisions, particularly with respect to the exercise of its discretion in the certification process. It examined Schuit’s explanation in the particular factual context before it and found that it did not provide a compelling rationale to put aside a certification decision.

Conclusion

27For the above reasons, this application for judicial review is dismissed. The OLRB does not seek costs. The Respondent Union, having been successful will have its costs fixed at $4500, all inclusive, an amount agreed upon by counsel payable by the applicant.

Karakatsanis J.

Lederman J.

Tulloch J.