Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, SWINTON AND LOW JJ.
B E T W E E N:
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 353
Applicant
- and -
JACOBS CATALYTIC INDUSTRIAL SERVICES LIMITED, GENERAL PRESIDENTS’ MAINTENANCE COMMITTEE FOR CANADA, THE ELECTRICAL TRADE BARGAINING AGENCY OF THE ELECTRICAL CONTRACTORS ASSOCIATION OF ONTARIO, and ONTARIO LABOUR RELATIONS BOARD
Respondents
Counsel:
Ronald N. Lebi, for the Applicant
Roy C. Filion, Q.C. and Laura Karabulut, for the Respondent, Jacobs Catalytic Industrial Services Ltd.
Chris G. Paliare and Donald J. Eady, for the Respondent, General Presidents’ Maintenance Committee for Canada
Leonard Marvy, for the Ontario Labour Relations Board
HEARD at Toronto: January 27, 2009
Oral Reasons for Judgment
JENNINGS J.: (Orally)
1This is an application for judicial review of a decision of the Ontario Labour Relations Board, dated November 29, 2007 dismissing grievances by the Union.
2The Union grieved that work done and paid for as maintenance under the General Presidents’ Maintenance Agreement (“GPMA”) was actually construction, which as such was covered at a higher pay scale and should have been performed under the industry-wide Principal Agreement between the Union and the bargaining agency of the Electrical Contractors Association of Ontario.
3The Board found that the work done was part maintenance and part construction. Regardless, the Board was unanimous in its decision that the Union was estopped from relying on its rights under the Principal Agreement because the Union’s business agent had agreed with the respondent’s representative that the work would be done under the GPMA.
4Before us, the Union submitted that the Board’s decision ignored the effect of s.162 of the Labour Relations Act which provides that there shall be only one provincial agreement between employer and employee bargaining agencies and that “… any collective agreement or other arrangement that does not comply with subsection (1) is null and void”.
5The Union submits that the arrangement between its business agent and the respondent’s representative was an impermissible attempt to avoid the Principal Agreement.
6The parties agree that the standard of review is reasonableness.
7In its analysis of the issue of estoppel the Board accepted that generally the doctrine cannot apply against the application of the Labour Relations Act itself, particularly when public policy considerations are at issue (see Reasons, para. 89).
8However, the Board’s finding properly construed was not that there was a parallel collective agreement or other arrangement existing contrary to the scheme of the Labour Relations Act and in particular s.162, but only that the Union is estopped from claiming damages in the specific circumstances that are present here.
9We do not accept the Union’s submission that the Board ignored the provisions of s.162. To the contrary, we find that the Board conducted a purposive analysis of s.162. None of the mischiefs that s.162 addresses were found to be present. The Board found no public policy considerations in play.
10Having so found, the Board applied the doctrine of estoppel, not to allow a contracting out of the Provincial Agreement, but that because of the reliance by the respondent on the representations made to it “ … it would be unjust or unconscionable to allow the Union to enforce the strict terms of the Principal Agreement”. (Reasons, para. 106).
11We find that conclusion to be within the range of reasonableness. It determines an issue squarely within the Board’s expertise and experience.
12Accordingly, the application for judicial review will be dismissed.
COSTS
13I endorse the Record: “Application is dismissed for oral reasons delivered today. Costs fixed by agreement at $4,000, payable to each of the respondents, Jacobs and GPM Committee”.
JENNINGS J.
SWINTON J.
LOW J.
Date of Reasons for Judgment: January 27, 2009
Date of Release: January 29, 2009
COURT FILE NO.: 66/08
DATE: 20090127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, SWINTON AND LOW JJ.
B E T W E E N:
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 353
Applicant
- and -
JACOBS CATALYTIC INDUSTRIAL SERVICES LIMITED, GENERAL PRESIDENTS’ MAINTENANCE COMMITTEE FOR CANADA, THE ELECTRICAL TRADE BARGAINING AGENCY OF THE ELECTRICAL CONTRACTORS ASSOCIATION OF ONTARIO, and ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: January 27, 2009
Date of Release: January 29, 2009```