Court File and Parties

CITATION: Corner v. Ontario Minister of Labour, 2010 ONSC 6640
COURT FILE NO.: 437/10
DATE: 2010/12/01

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: Mark Corner

AND:

Ontario (Minister of Labour), Ontario Labour Relations Board, International Union of Operating Engineers, Local 793, Rainbow Concrete Industries Limited

BEFORE: Herman J.

COUNSEL:
Jeremy D. Schwartz, for Mark Corner
Darrell Koeze, for the Minister of Labour
Leonard Marvy for the Ontario Labour Relations Board
Melissa Atkins-Mahaney, for the International Union of Operating Engineers
Jack Braithwaite, for Rainbow Concrete Industries Limited

HEARD: November 25, 2010

ENDORSEMENT

[1] The applicant, Mark Corner, is an employee at Rainbow Concrete Industries Limited. He seeks a stay of the decision of the Ontario Labour Relations Board, dated February 3, 2010, or, alternatively, a stay of the first contract arbitration between Rainbow and the union, the International Union of Operating Engineers, Local 793, pending a determination of his application for judicial review. The arbitration is scheduled to commence on December 8, 2010.

[2] The applicant has sought judicial review of three decisions: the decision of the Board to order a first contract arbitration; the decision of the Minister of Labour on February 4, 2010 to cancel the final offer vote; and the referral of the Minister of Labour to the Board on February 5, 2010, for direction on the question of whether the Minister was required to direct that the final offer vote be held.

[3] The applicant claims that the Board and the Minister violated his rights and the rights of other employees to procedural fairness and natural justice, in that neither the Board nor the Minister gave the employees notice or an opportunity to participate in the proceedings.

[4] For the reasons that follow, I conclude that the applicant has not established irreparable harm. He therefore cannot succeed in the motion for a stay.

Background

[5] The union filed an application for certification in April 2006. On March 30, 2009, it was certified as the exclusive bargaining agent for Rainbow’s employees at its Sudbury location.

[6] On December 24, 2009, the union filed an application under s. 43 of the Labour Relations Act 1995, S.O. 1995, c.1, Sched.A seeking access to first contract arbitration. It also filed an unfair labour practice complaint under s. 96 of the Act.

[7] The s. 96 and s. 43 applications were consolidated and were scheduled to be heard on January 26, 2010.

[8] On January 26, 2010, the Vice-Chair convened a hearing to deal with the s. 43 application. He did not deal with the s. 96 complaint.

[9] The applicant says that he and other employees learned about the hearing although they did not receive formal notice. He and 18 other employees appeared at the hearing. The Vice Chair advised them that he would not hear them because they were neither a party nor an intervenor. He told the employees that they could file an application to intervene if they wished.

[10] The employees left the hearing. They filed an application to intervene later that day but did not reappear at the hearing. The hearing concluded on the same day without the employees’ participation.

[11] Also on January 25 or 26, 2010, Rainbow requested the Minister to order a final offer vote under s. 42 of the Act. The Minister did so and the vote was scheduled to take place on February 5, 2010.

[12] On February 3, 2010, the Board issued its decision on the s. 43 application. It ordered that the first contract be settled by way of arbitration. The Board found that the collective bargaining had not been successful and further discussions would not be fruitful. The Board further found that the lack of success occurred because the employer had refused to recognize the bargaining authority of the union, had adopted uncompromising bargaining positions without reasonable justification and had failed to make reasonable and expeditious efforts to conclude a collective agreement.

[13] The union advised the Minister of the Board’s decision and asked him to cancel the final offer vote. The Minister did so on February 4, 2010. The applicant says that the employees did not receive notice of this decision nor were they given an opportunity to provide submissions.

[14] On February 5, 2010, the Minister referred to the Board for direction the question of whether he was required to direct that the final offer vote be held. The union and Rainbow made submissions on this matter. The applicant says that the employees received no notice nor did they have an opportunity to make submissions.

[15] The Board issued its decision on May 3, 2010, advising the Minister that he was not required to direct the final offer vote.

[16] Rainbow has filed two judicial review applications. These applications seek a review of the same decisions of the Board and the Minister that are the subject matter of the applicant’s judicial review application. They will be heard at the same time as the applicant’s judicial review application. No date has been set yet for the hearing of the applications.

[17] The first contract arbitration is scheduled to commence on December 8, 2010. The applicant seeks a stay of that arbitration, pending the Divisional Court’s determination of the applications for judicial review.

Positions of the Parties

[18] The parties agree that the test for obtaining a stay is the three-part test set out in R.J.R. MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311: (i) there must be a serious issue to be tried; (ii) the applicant will suffer irreparable harm if the motion is refused; and (iii) the balance of convenience favours granting the stay.

[19] The parties disagree as to whether the applicable first part of the test is a serious issue to be tried or a strong prima facie case. They also disagree as to what standard of review applies in the judicial review application.

[20] The applicant and the union disagree as to whether the applicant has established irreparable harm and where the balance of convenience lies.

The applicant

[21] The applicant submits that because this is a test involving natural justice, he only needs to meet the test of a serious issue to be tried, not the higher standard of strong prima facie case that generally applies in cases involving Board decisions. However, the applicant contends that he can, in any case, meet the higher standard.

[22] Furthermore, the applicant submits that in considering whether there is a serious issue or a strong prima facie case, I should determine that the standard of review that the reviewing court will apply is correctness. That is because the applicant’s claim involves an alleged breach of natural justice and procedural fairness.

[23] The applicant maintains that proceeding with the arbitration prior to the court’s decision on the judicial review applications will cause him irreparable harm. He submits that a denial of natural justice and procedural fairness constitutes irreparable harm and such harm will be exacerbated if the arbitration proceeds. In his submission, this harm far outweighs any inconvenience to the union of a delay of a few months.

The employer

[24] Rainbow supports the position of the applicant. It submits that there would be no prejudice to the union if a stay were granted, while the arbitration could become moot if the applicant or the employer is successful in the judicial review applications.

The union

[25] The union submits that a strong prima facie test applies to decisions of the Board and the Minister and the standard of review is reasonableness.

[26] The union further submits that the applicant has failed to establish any irreparable harm. However, a delay in the arbitration will add to the already significant delay that has occurred due to the employer’s conduct.

The Board

[27] The Board’s position is that the applicant must establish a strong prima facie test if he wants to obtain a stay of the Board’s decision. However, given that the allegations involve a breach of natural justice, the Board submits that the issue is neither one of fact nor law. Therefore, the standards of review of correctness and reasonableness do not apply. Rather, in the Board’s submission, the reviewing court’s job is to determine whether there was a breach of natural justice or procedural fairness.

The Minister

[28] The position of the Minister is that the Minister’s decisions with respect to the final offer vote are irrelevant to the decision of whether the arbitration should proceed since the Board’s decision to direct a first contract arbitration was made before the Minister’s decisions. However, if the court nonetheless considers the Ministers’ decisions to be relevant, he submits that the appropriate standard of review is reasonableness.

Analysis

[29] In order to obtain a stay, the applicant must satisfy each of the three parts of the three-part test. For the reasons that follow, I have determined that the applicant has failed to establish irreparable harm and therefore cannot succeed in his application for a stay.

[30] It is therefore not necessary for me to determine whether the applicant has met the first stage of the test, whether that be a serious issue to be tried or a strong prima facie test. While it may be the case that where the applicant has a strong case on the merits, there will be less emphasis on the other two parts of the test, that does not mean that the applicant is relieved of establishing irreparable harm in order to obtain a stay (see Sharpe J.A., Injunctions and Specific Performance at pp. 2-13, 9-3 to 9-4).

[31] It is, in my opinion, preferable not to engage in a lengthy analysis of which standard of review is applicable and the merits of the case since the Divisional Court panel hearing the judicial review application will have to determine both of these issues.

[32] “Irreparable harm” refers to the nature of the harm, not to its magnitude. It is harm that cannot be quantified or harm that cannot be cured (R.J.R. MacDonald Inc. v. Canada (Attorney General) at para. 59).

[33] The applicant does not contend that his wages and benefits, terms and conditions of employment or seniority rights will be adversely affected should the arbitration proceed and a collective agreement be imposed.

[34] Rather, it is the applicant’s submission that the Board’s and the Minister’s denial of natural justice and procedural harm is, in itself, irreparable harm. He contends that their decisions and actions resulted in the disenfranchisement of employees.

[35] The applicant submits that if the arbitration is allowed to proceed, the result will be that the employees will have a contract imposed on them by a third party until the Divisional Court undoes the wrong that has been done to them. This will exacerbate the irreparable harm that was caused by the Board and the Minister, even if the terms of the collective agreement do not adversely affect the applicant or other employees.

[36] However, the issue in this motion for a stay is not whether the alleged denial of natural justice by the Board and the Minister caused the applicant irreparable harm. Rather, in order to obtain a stay, the applicant must establish that he will suffer irreparable harm if the arbitration is allowed to proceed before the hearing of the judicial review applications.

[37] The issue of whether there was a denial or natural justice or procedural fairness will not be resolved until the Divisional Court determines the judicial review application. Any harm that the applicant claims has been done will not be undone until that decision is made.

[38] The only effect of the arbitration proceeding on the applicant will be the imposition of a collective agreement. The applicant concedes that it is unlikely that he will be adversely affected by the terms of such an agreement. I do not see how the arbitration proceeding will affect or exacerbate any harm that was done to the employees as a result of the alleged denial of their rights by the Board and the Minister.

[39] I therefore conclude that the applicant has failed to establish that there will be irreparable harm should the arbitration proceed. Therefore, the motion for a stay cannot succeed.

[40] Given this conclusion, it is not necessary to consider the balance of convenience.

Conclusion

[41] The applicant has not established that irreparable harm will result if a stay is not granted. The motion for a stay is therefore dismissed.

[42] Neither the Board, the Minister nor Rainbow seeks costs.

[43] The union, as the successful party, is entitled to costs. It has presented a bill of costs of $6,340.00 in fees and $540.00 in disbursements. The union is claiming costs at a partial indemnity rate of $200.00 per hour. Counsel for the union is in-house counsel, with four years experience at the bar.

[44] The union is not disentitled to its costs by reason of the matter having been handled by in-house counsel. On the other hand, a costs award should reflect the fact that there are generally lower overhead costs associated with in-house counsel. In the circumstances, a rate of $150.00 per hour would be appropriate. The number of hours claimed is reasonable.

[45] I note that the bill of costs submitted by counsel for the applicant is significantly higher ($14,398.50, inclusive) than that submitted by the union.

[46] In these circumstances, a costs award of $4,500, inclusive, is fair and reasonable. Costs are fixed at $4,500, inclusive, payable by the applicant to the union.

Herman J.

Date: December 1, 2010