SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: NATIONAL WASTE SERVICES INC.
Applicant
(Moving Party)
- and -
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION AND GENERAL WORKERS’ UNION OF CANADA (CAW-CANADA)
- and -
ONTARIO LABOUR RELATIONS BOARD
Respondents
BEFORE: JUSTICE JENNINGS
COUNSEL: Paul Wearing Lisa Kelly
For the Applicant for the Respondents National
Automobile, Aerospace,
Transportation and General
Workers’ Union of Canada
(CAW Canada)
Voy Stelmaszynski
for the Respondent Ontario Labour
Relations Board
HEARD AT TORONTO: OCTOBER 14, 2009
E N D O R S E M E N T
1The Ontario Labour Relations Board (“OLRB”) issued a decision dated June 8, 2009, certifying the responding party union (“the union”) as the bargaining agent for certain employees of National Waste Services Inc. (“National Waste”).
2The sole issue in the certification application was whether National Waste was the true employer of the employees the union sought to represent or whether they were the employees of a third party services provider. Prior to the determination of that issue the representation vote was held and of the 42 eligible ballots counted, 40 were in favour of certification of the union.
3The Board found National Waste was the true employer. National Waste has brought an application seeking judicial review of that decision which, I am told, because of counsel schedules cannot be heard until January 2010. National Waste now seeks a stay of the Board’s order pending the hearing of its application.
4The union submits that the test to be met by National Waste before the extraordinary remedy of a stay may be granted requires National Waste to demonstrate that:
(a) there is a strong prima facie case for judicial review.
(b) the applicant will suffer irrevocable harm absent a stay and
(c) the balance of convenience favours granting a stay.
5The union relies on Ellis-Don v. OLRB et al. (1992), 1992 6354 (ON SCDC), 10 O.R. (3d) 729; Knobb Hill Farms v. ORLB (1991), OLRB Rep. April. 521. and the cases referred to in paragraph 15 of its factum.
6Relying upon R. J. R. MacDonald Inc. v. Canada, [1994] S.C.R. 311, counsel for National Waste made a forceful submission that the first step in the test is not that the applicant must demonstrate that it has a strong prima facie case, but merely that it has raised a serious issue to be determined by the panel.
7In her argument before me counsel for the union conceded that if the standard is “serious issue to be determined” National Waste has satisfied that branch of the test. She agrees that “a serious issue to be determined” is a significantly lower threshold than “strong prima facie case”.
8Counsel’s facta were not as helpful on this issue as I would have liked. Counsel for the moving party did not cite any of the cases to which I will refer which support the “strong prima facie case” standard and counsel for the union did not refer to R.J.R. let alone attempt to distinguish it.
9Prior to the release of the decision of the Supreme Court of Canada in R.J.R. (supra) in March 1994 the case law in Ontario clearly stood for the proposition that the first step in the test for granting a stay of an order of the OLRB was whether a strong prima facie case in favour of setting aside the Board’s decision had been made out.
See Ellis Don v. OLRB (supra); Sobeys Inc. v. U.F.C.W., Local 1000A, 1993 8659 (ON SC), 12 O.R. (3d) 157.
10Almost two years after Ellis Don was decided the Supreme Court of Canada held in R.J.R. MacDonald that the decision of the House of Lords in American Cyanimide, 1975 2598 (FC), [1975] A.C. 396 was now generally accepted in Canada as establishing a standard of “serious issue to be tried” as a sufficient threshold test for granting a stay in a constitutional case. The Supreme Court of Canada discusses the rationale for that conclusion in paragraph 48 of its reasons, which may be summarized, in the wording of the judgment, as follows:
Furthermore, the complex nature of most constitutional rights means that a motions court will rarely have the time to engage in the requisite extensive analysis of the merits of the applicant’s claim. … It follows that we are in complete agreement with the conclusion of Beetz J. in Metropolitan Stores at p.128 that “the American Cyanimide ‘serious question’ formulation is sufficient in a constitutional case where as indicated below in these reasons the public interest is taken into consideration in the balance of convenience”.
11In paragraph 56 of its reasons the court referred to an exception to the “serious question to be tried” standard citing Dialadex Communication Inc. v. Crammond (1987), 1987 4419 (ON SC), 34 D.L.R. (4th) 392 at 396:
Where the facts are not substantially in dispute, the plaintiffs must be able to establish a strong prima facie case and must show that they will suffer irreparable harm if the injunction is not granted. If there are facts in dispute, a lesser standard must be met. In that case, the plaintiffs must show that their case is not a frivolous one and that there is a substantial question to be tried and that on the balance of convenience an injunction should be granted.
The court went on to hold that “to the extent that this exception exists at all it should not be applied in Charter cases”.
12Since R.J.R. was decided, the Ontario courts have applied both tests.
13In International Union of Bricklayers, [1999] O.L.R.B. Rep. September-October O’Driscoll J. referred to the test in R.J.R. and to decisions of the Supreme Court of Canada on the severe test to be met to attract appellate intervention in decisions of the O.L.R.B. Relying upon Ellis Don (supra) and Sobeys (supra) O’Driscoll J. held that the applicant had not met the test of a strong prima facie case and a stay was denied (see paragraphs 18-22 of the reasons).
14Recently in Edgewater Gardens v. OLRB, [2008] O.J. No. 4489 Carpenter-Gunn J. had this to say at paragraph 7 of her reasons:
The issue here is the test that the applicant must meet in order to satisfy me to provide the stay that the applicant is seeking. I have heard submissions from the applicant that the test is one of a serious issue to be tried, and I have heard from the two responding counsel that the appropriate test is a strong prima facie case. I have had the opportunity of reviewing the factums and the books of authority [sic] that counsel have provided, and I have determined that the appropriate test to look at, the first prong of the test, is whether or not there has been a strong prima facie case. I have been assisted by looking at the decisions of Ellis Don Limited, Sobeys, and thirdly the International Union of Bricklayers and Allied Craftworkers’ decisions referred to in the material before me.
15Although Carpenter-Gunn J. does not refer to R.J.R.. in her reasons, Mr. Stelmaszynski advised me that he appeared on the motion before her and he assured me that R.J.R. was fully canvassed in argument.
16On the other hand, the R.J.R. test has been applied by motions judges in:
i) Caterair Chateau Canada Limited v. Ontario, [1995] O.J. 1674, where a constitutional challenge was raised and referred to;
ii) Great Blue Heron v. CAW Canada, [2004] O.L.R.B. Rep. Jan.-Feb. 176;
iii) Elementary Teachers’ Federation of Ontario v. Minister of Labour for Ontario 2007 35151;
iv) Xanthoudakis v. OSC 2009 30146.
17In none of those decisions does there appear to have been any analysis of the two standards, but merely an assumption by the motions judge that R.J.R. is controlling.
18This case does not raise a constitutional issue. The issue is simple and clear cut and, as I understand it, the facts are not substantially in dispute, but rather the interpretation that should be given to the facts. It is difficult to think of privative clauses more strongly worded than those which protect the decisions of OLRB. Courts in this province give considerable deference to decisions of the OLRB. That suggests to me that the following language of this court in Sobeys should be applied by me in this case:
On judicial review the court should not interfere with the Board’s decision unless it is patently unreasonable. This is a high standard and on a motion for stay, a strong prima facie case must be made out that the high threshold can be met before a stay should be granted. The emphasis must be on the word “strong” and it must go beyond simply what may be an arguable case. We agree with the decision in Ellis Don Limited v. The Ontario Labour Relations Board, 1992 6354 (ON SCDC), 10 O.R. (3d) 729.
19Notwithstanding that post-Dunsmuir, the patently unreasonably standard no longer pertains, this reasoning with respect to granting a stay appears to me to be in keeping with Ontario jurisprudence.
20Applying that standard, I turn to the first branch of the test. National Waste has not persuaded me that it has a strong prima facie case for judicial review. The OLRB is an highly specialized tribunal. Its decisions are protected by extremely strong privative clauses. On the issue of true employer it heard evidence over two years and gave extensive rational reasons for its findings that National Waste was the true employer. There was ample evidence as reviewed by the Board in its reasons to support that finding. That finding will be reviewed by the panel on a standard of reasonableness with considerable deference owed to the Board. That is particularly so as the true employer question rises squarely within the expertise of the OLRB which is frequently called upon to determine the identity of the employer: Schuit Plastering & Stucco Inc. v. OLRB 2009 30145 (Ont. Div. Ct.).
21My assessment of whether a strong prima facie case exists must be carried out in the context of a reasonableness standard of review that the panel will apply having regard to the issues I have just outlined.
22The applicant fails on the first branch of the test.
23Had I found that this branch of the test was a serious issue to be determined I would agree with counsel for the union that the applicant had met the standard. It is disturbing to me to find this possible divergence in authority in private law cases not involving constitutional issues and I would hope that at an appropriate time the question could be considered by an appellate court.
24My finding that National Waste has failed to meet the first part of the three part test is dispositive of this motion for a stay. However, in the event that I am in error in the standard to be applied I will consider the other two steps in the test.
irreparable harm
25National Waste must establish clearly that it will suffer harm not compensable in damages. Its chief concern appears to be that as a result of the certification it now must bargain in good faith to reach a collective agreement, prior to the application for judicial review coming on for hearing. No authority was cited to me to support the proposition that complying with the requirement to embark upon the collective bargaining process at this stage can be said to constitute irreparable harm. The decision of Osler J. in Wells Fargo Armcar Inc. v. OLRB (1981), 1981 1887 (ON SC), 34 O.R. (2d) 99 at 101 would suggest the contrary to be true. Given that the application will be heard by the panel in a relatively short time, I cannot find that irreparable harm has been demonstrated.
balance of convenience
26The courts of this province have frequently considered the delay a stay will cause to the expressed desire of employees to be represented by a trade union. Courts have held that labour relations delayed are labour relations defeated and that delay works unfairness and hardship on the expectations of the employees. No similar concerns are visited upon the employer. In my opinion, the balance of convenience clearly favours the union.
conclusion
27The motion for a stay is dismissed. If the parties cannot agree on costs, brief submissions not to exceed three pages may be made within 14 days of the release of these reasons.
JENNINGS J.
RELEASED: October 20, 2009