COURT FILE NO.: 142/09
DATE: 20091202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEITCH, DAMBROT AND SWINTON JJ.
B E T W E E N:
INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, LOCAL 1795, THE ONTARIO COUNCIL OF PAINTERS AND ALLIED TRADES and INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, LOCAL 557
Applicants
- and -
THE CADILLAC FAIRVIEW CORPORATION LTD., CF/REALTY HOLDINGS INC., QUEENSTON ROAD INVESTMENT INC., EASTGATE SQUARE HOLDINGS INC., REDCLIFF REALTY MANAGEMENT INC., CENTRE MALL HOLDINGS INC., KENILWORTH AVENUE INVESTMENT INC., ONTARIO LABOUR RELATIONS BOARD
Respondents
Ronald N. Lebi, for the Applicants
Michael D. Failes, for the Respondents, The Cadillac Fairview Corporation Ltd. and CF/Realty Holdings Inc.
Brian D. Mulroney, for the Respondents, Queenston Road Investment Inc., Eastgate Square Holdings Inc., Redcliff Realty Management Inc., Centre Mall Holdings Inc., and Kenilworth Avenue Investment Inc.
Leonard Marvy, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: December 2, 2009
SWINTON J.: (Orally)
[1] The applicant trade unions seek judicial review of the decision of the Ontario Labour Relations Board dated January 20, 2009 which dismissed their application to have Cadillac Fairview Corporation Ltd. (“Cadillac Fairview”) declared a “related employer” pursuant to s.1(4) of the Labour Relations Act, 1995, S.O. 1995, c.1 or a “successor employer” pursuant to s.69(2) of the Act.
[2] The standard of review of the Board’s decision applying its constituent Act to the facts of this case is reasonableness.
[3] Pursuant to s.1(4), the Board has a discretion whether to declare related employers to be one employer for purposes of the Act. While Cadillac Fairview and Cadco carried on related businesses, the Board refused to declare them to be one employer following the amalgamation of Cadillac Development and The Fairview Corporation in 1974. The Board applied its existing jurisprudence, determining that the amalgamation of the two corporations did not have the effect of eroding the bargaining rights of the unions acquired by the voluntary recognition agreements with Cadco and its predecessor.
[4] In particular, the Board found that there was an identity of existence between the pre- and post-amalgamation corporations. I note this is contemplated by paragraph 2 of the Amalgamation Agreement and by the provisions of the Business Corporations Act.
[5] The Board went on to find (at paragraph 27 of its Reasons):
Further, if the Board would not exercise its discretion to find that Cadillac Development Corporation Limited and Cadco are one employer, it is impossible to see how that analysis is changed by the addition to the business of Cadillac Developments of a similar business of another non-union employer, i.e. Fairview. Fairview carried on the same business as Cadillac Developments, not the same business as Cadco. After the amalgamation, Cadillac Fairview continued to do what Cadillac Developments and Fairview had done before the amalgamation, that is, assemble and develop land. Cadco continued to do what it had done, operate a general contractor’s business whose only client, or whose primary client, was the corporation that owned and controlled it. The amalgamation itself did not create any erosion or potential for erosion of bargaining rights to any greater extent than the existence of Cadillac Development did on the day the Working Agreements were signed.
Therefore, the Board refused to exercise its discretion to grant the relief sought by the unions.
[6] The Board’s decision is a reasonable one, based on the facts, and it does not demonstrate any error of law.
[7] The Board determined that there was not a sale of business in 1981 or 1982 when Cadco ceased operating and, therefore, s.69(2) of the Act did not apply.
[8] It is implicit in the Board’s decision that it found there was no sale of a business in 1974 at the time of the amalgamation, as the Board explicitly found that Cadco continued the general contracting business it had been conducting prior to the amalgamation, and Cadillac Fairview continued the development business that the amalgamating corporations had been doing prior to the amalgamation (see para. 27).
[9] Moreover, in paragraph 30, the Board found that Cadillac Fairview did not take up the business of Cadco in 1981 or 1982 when Cadco was shut down. The Board stated:
More importantly, Cadillac Fairview did not acquire or take up the business of Cadco. It continued to do what it had always done: engage a general contractor to build its projects. It did not do what Cadco did, that is, to act as a general contractor, letting portions of the main contract to specialized sub-trades. Cadco’s business was wound up. It disappeared. There was nothing left to transfer to anyone and nothing was transferred to Cadillac Fairview. There was no sale or transfer of a business of any sort.
[10] Given these conclusions, it is implicit that there had been no transfer of the business of Cadco in 1974. Again, the decision of the Board that there was no sale of a business at any time is reasonable, given the facts and the findings.
[11] Therefore, the application for judicial review is dismissed.
LEITCH J.
[12] Costs ought to be awarded in favour of the two respondents and we fix the amount of those costs at $4,000.00 to each respondent.
SWINTON J.
LEITCH J.
DAMBROT J.
Date of Reasons for Judgment: December 2, 2009
Date of Release: December 4, 2009
COURT FILE NO.: 142/09
DATE: 20091202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEITCH, DAMBROT AND
SWINTON JJ.
B E T W E E N:
INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, LOCAL 1795, THE ONTARIO COUNCIL OF PAINTERS AND ALLIED TRADES and INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, LOCAL 557
Applicants
- and -
THE CADILLAC FAIRVIEW CORPORATION LTD., CF/REALTY HOLDINGS INC., QUEENSTON ROAD INVESTMENT INC., EASTGATE SQUARE HOLDINGS INC., REDCLIFF REALTY MANAGEMENT INC., CENTRE MALL HOLDINGS INC., KENILWORTH AVENUE INVESTMENT INC., ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: December 2, 2009
Date of Release: December 4, 2009