Corner v. Ontario (Minister of Labour), 2011 ONSC 5979
CITATION: Corner v. Ontario (Minister of Labour), 2011 ONSC 5979
DIVISIONAL COURT FILE NO.: 437/10, 559/10 and 560/10
DATE: 20111128
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CHAPNIK, HOY AND HOURIGAN JJ.
BETWEEN:
MARK CORNER Applicant
-and-
ONTARIO (MINISTER OF LABOUR), ONTARIO LABOUR RELATIONS BOARD, INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793, RAINBOW CONCRETE INDUSTRIES LIMITED, Respondents
-and –
RAINBOW CONCRETE INDUSTRIES LTD. Applicant
-and-
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793 AND ONTARIO LABOUR RELATIONS BOARD Respondents
-and-
RAINBOW CONCRETE INDUSTRIES LTD. Applicant
-and-
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 793 AND ONTARIO LABOUR RELATIONS BOARD AND ONTARIO MINISTER OF LABOUR Respondents
Jeremy D. Schwartz, Counsel for the Applicant, Mark Corner
Darrell Kloeze and Andrea Cole, Counsel for the Respondent, Ontario (Minister of Labour)
Leonard Marvy, Counsel for the Ontario Labour Relations Board
Melissa Atkins-Mahaney, Counsel for the International Union of Operating Engineers, Local 793
Jack Braithwaite and Michael Carre, Counsel for Rainbow Concrete Industries Limited
HEARD: September 12 and 13, 2011
CHAPNIK J.
REASONS FOR DECISION
INTRODUCTION
[1] Over the course of two days, this Court heard three applications brought by two applicants, against one or more of the respondents, for judicial review. In general terms, these applications address a decision and a report of the Ontario Labour Relations Board (“the Board”) and a decision by the Minister of Labour (“the Minister”) made in respect of the negotiation of a first collective agreement (“the Agreement”) between the parties. The Agreement, which is for a two-year term, was ultimately settled by arbitration and became effective on December 20, 2010, after these applications were commenced.
[2] The three applications form part of a lengthy and litigious history between the employer, Rainbow Concrete Industries Ltd. (“Rainbow” or “the employer”) and the International Union of Operating Engineers, Local 793 (“the union”).
[3] The union applied for certification in 2006. The certification and scope of the bargaining unit was eventually finalized in a decision of this Court, dated February 2, 2010, which affirmed the bargaining unit as determined by the Board. See Rainbow Concrete Industries Ltd. v. International Union of Operating Engineers, 2010 ONSC 723 (Div. Ct.).
[4] The union is the exclusive bargaining agent for a number of employees at the Sudbury location of Rainbow.
[5] As noted, there are two applicants challenging different aspects of the two decisions and the report pertaining to the process by which the present Agreement came to exist. Mark Corner (“Corner”), an employee, seeks judicial review of all three decisions under application 437/10. Rainbow seeks judicial review of the first decision under application 559/10, and the second decision and the Board’s report under application 560/10.
THE DECISIONS AND REPORT OF THE BOARD
[6] The first decision under review is a decision by Vice-Chair Ian Anderson of the Board dated February 3, 2010, (reported at 2010 4341) and the reconsideration decision in the same matter dated March 5, 2010, (reported at 2010 11254), in which Vice-Chair Anderson allowed the union’s application under s. 43(1) of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A (“the Act”) and ordered arbitration to settle the first collective Agreement between the parties.
[7] The second decision under review is a decision by the Minister of Labour (“the Minister”) on February 4, 2010, to cancel a vote on the employer’s last collective agreement offer, which had been scheduled for February 5, 2010, and to refer to the Board under s. 115 of the Act, the question of whether “the Minister of Labour, on the facts of this case [is] required to direct that a vote of employees be held pursuant to section 42 of [the Act]”.
[8] The report at issue is that of Vice-Chair Anderson provided to the Minister in response to the s.115 reference, concerning whether a s. 42 final offer vote was required in the circumstances. After receiving submissions from the employer and the union, the Vice-Chair provided his report on May 3, 2010, in which he opined that in the present circumstances, where arbitration had been ordered, the vote was not required.
THE LEGISLATION
[9] The relevant sections of the Act are as follows:
Vote on employer’s offer
- (1) Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of the employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on the terms that he or she considers necessary direct that a vote of the employees to accept or reject the offer be held and thereafter no further such request shall be made.
First agreement arbitration
- (1) Where the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minister has released the report of a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.
Duty of Board
(2) The Board shall consider and make its decision on an application under subsection (1) within 30 days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 17 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of,
(a) the refusal of the employer to recognize the bargaining authority of the trade union;
(b) the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification;
(c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or
(d) any other reason the Board considers relevant.
Reference of questions
- (1) The Minister may refer to the Board any question which in his or her opinion relates to the exercise of his or her powers under this Act and the Board shall report its decision on the question.
BACKGROUND
The First Decision – s. 43(1) and (2)
(a) Intervenor Status
[10] On the morning of the Board hearing held January 26, 2010, a group of Rainbow employees, including Mr. Corner, took a bus from Sudbury to the hearing in Toronto. They carried with them a petition with the names and signatures of 62 employees who, Mr. Corner claimed, did not want the union to represent them any longer.
[11] At the commencement of the hearing, they requested that they be allowed to speak. The Vice-Chair denied this request because the employees were neither a party nor intervenors. He instructed them that they would need to file an application to intervene, which they proceeded to do. The application to intervene was served on Rainbow by fax to its Sudbury offices at 2pm that afternoon and filed with the Board. However, the employees returned to Sudbury before the hearing ended, without trying to return to the hearing after filing their intervention application, apparently because their bus driver had to do so to comply with “hours of work laws”.
[12] The evidence indicated that Mr. Corner knew about the hearing well in advance and did not file any intervention application until the day of the hearing. Mr. Corner attended a union meeting on January 18, 2010, where the s. 43(1) application was discussed. This was more than a week before the hearing. However, the union did not learn that the employees intended to attend the hearing until the day before, when the employer informed the union of this fact by email.
[13] Notwithstanding that the application to intervene was filed, it was never adjudicated. It is unclear whether it could have been processed before the end of the hearing, because it was served (and presumably filed) at 2pm and Mr. Corner and his colleagues left shortly thereafter. The hearing lasted only one day.
(b) The Preliminary Issues
[14] The Board certified the union as bargaining agent on March 30, 2009, approximately three years after the union had applied for certification. Negotiations toward the creation of a first collective agreement took place between June and December of 2009, with the parties meeting eleven times, sometimes with the assistance of a conciliation officer.
[15] Vice-Chair Anderson found that by the final meeting on December 23, 2009, the union had decided to file its application under s. 43(1) of the Act, requesting that the first agreement be settled through arbitration.
[16] Prior to the hearing before the Vice-Chair, the parties filed detailed submissions. Of particular note is that the employer, in its submissions prior to the hearing, gave notice that it intended to bring a preliminary motion to dismiss the s. 43(1) application for failure to state a prima facie case.
[17] On January 18, 2010, the employer and union met with a Labour Relations Officer (“LRO”) from the Board. The parties agreed to a process of procedure for the hearing on January 26, 2010; in particular, the employer would proceed first with its preliminary matters, particularly as concerned the alleged failure to plead a prima facie case, after which, if the application proceeded, the union and employer would call evidence in that order.
[18] In a decision dated January 19, 2010, Vice-Chair Anderson ordered the employer to provide “notice and particulars of any preliminary motions that it seeks to make.”
[19] The employer responded with a letter of particulars dated January 22, 2010, regarding the orders it sought. Vice-Chair Anderson found that the particulars the employer provided in this letter were largely duplications of the employer’s previous submissions and not relevant to the s. 43(1) application. Rather, they were primarily relevant to the union’s application under s. 96 alleging certain unfair labour practices, which was being heard together with the s. 43(1) application.
[20] On January 25, 2010, the day before the hearing, the union responded to the letter of particulars, asking that the preliminary motions be dismissed summarily by the Vice-Chair. In particular, it requested that “the Board summarily dismiss the Responding Party’s preliminary motion without recourse to oral argument as they fail to provide pleadings and particulars justifying the orders sought”, in contravention of the Board’s order to provide notice and particulars. Furthermore, the union submitted that,
…it is clear that the Responding Party is raising frivolous and legally unsupported preliminary motions in an effort to frustrate the resolution of these Applications in a timely manner. The Board, as the master of its own processes, should exercise its discretion and dismiss the Responding Party’s preliminary motion forthwith and proceed directly to the merits of the Applications when the hearing commences on January 26, 2010.
(c) The s. 42 vote application
[21] On the same day, January 25, 2010, the employer filed an application with the Minister of Labour for a vote by bargaining unit employees on its final collective agreement offer as per s. 42 of the Act. The employer’s proposed agreement was for a term ending in April, 2010. The Minister granted this application, and a vote was eventually scheduled for February 5, 2010. The timing of this application is important, in that the employer and Mr. Corner argue that once the vote is scheduled, the Minister is without jurisdiction to cancel the vote even if the s. 43(1) application, to be heard the next day, was granted.
(d) The hearing
[22] On January 26, 2010, the hearing commenced. Vice-Chair Anderson informed the parties that, notwithstanding the arrangement reached on January 18, 2010, they should proceed directly to argue the merits of the s. 43(1) application, rather than arguing the preliminary objections separately. It appears that Vice-Chair Anderson had prepared a direction for the parties on this point, dated January 22, 2010; however, the parties never received this direction.
[23] In his reasons on the procedural question, Vice-Chair Anderson noted that s. 43(2) directed him to consider and make his decision within 30 days of receiving the application, and that he was not bound by the parties’ agreement on procedure.
[24] Importantly, Vice-Chair Anderson pointed out that the standard under s. 43(2) was that the applicant union had to show that it appeared that at least one of the threshold requirements under s. 43(2) “appears” to have been met. Board jurisprudence under s. 98(3), for instance, indicates that determining what “appears” to be the case may not require formal findings of fact.
[25] Moreover, the Vice-Chair held that, based on the materials filed, there appeared to be “few, if any, material facts in dispute”, such that he directed the parties to argue the case on the basis of the employer’s version of the facts, as stated in its pleadings and documents. In other words, any factual differences were resolved in favour of the employer. This alleviated the need to assess whether formal findings of fact were required, or whether the s. 98(3) jurisprudence applied concerning whether one or more of the criteria “appeared” to have been met.
[26] The employer took issue with this proposed procedure and wished to argue preliminary matters only. However, it does not appear that the employer disputed that its version of facts would be sufficient evidence to dispose of the matter. The hearing proceeded as the Vice-Chair directed, and the employer did not request leave to file any additional submissions or cases during or after the hearing.
[27] As noted above, Rainbow had previously applied for judicial review opposing the certification order. The decision of this Court in that matter was released on February 2, 2010, dismissing the application and affirming the Board’s certification order.
[28] The next day, February 3, 2010, the union wrote to Vice-Chair Anderson (copying counsel for the employer) and asked him to provide a “bottom-line” ruling on its application for arbitration because of the pending s. 42 vote on February 5, 2010. The union’s position was that if the application was granted, it would render the vote moot, and so, if possible, it was best to resolve the application first. Later that day, the Vice-Chair released the reasons for the first decision under review.
[29] Vice-Chair Anderson found that it was clear on the facts as they were presented in the employer’s pleadings, that bargaining appeared to have been unsuccessful and, in particular, that the reason for this was the conduct of the employer as contemplated in ss. 43(2) (a)-(c), above. Therefore, the statutory conditions for ordering first agreement arbitration were met.
[30] The Board gave no notice of its decision to Mr. Corner or any other employees personally, and it appears that neither party requested that the Board do so.
The Second Decision – s. 42 and the last offer vote
[31] On the same day, February 3, 2010, the union wrote to the Minister informing him that the s. 43(1) application had been granted, and requesting that the vote be cancelled as a result. Notwithstanding the employer’s objections, the Minister cancelled the vote on February 4, 2010. However, the Minister also referred to the Board the question of whether a vote was required in the circumstances.
[32] Upon learning that the Minister had cancelled the vote and referred the question to the Board, Mr. Corner attempted to send submissions to the Minister on this point, requesting that the vote go ahead as planned. However, those submissions were dated February 6, 2010, which is the day after the vote was to take place, and two days after the Minister cancelled the vote. As such, the Minister did not have access to those submissions when making his decision to cancel the vote and refer the question to the Board.
[33] On February 23, 2010, the employer filed a request for reconsideration of the February 3, 2010, decision granting first agreement arbitration under s. 43. At the reconsideration hearing, the employer argued that Vice-Chair Anderson should recuse himself for reasons of personal bias. The union points out that this was never raised until the reconsideration application, and was not raised at the January 26, 2010, hearing. Nonetheless, the employer argues in this application that the Vice-Chair should have recused himself from the January 26, 2010, hearing as well.
The report – the s. 115 reference
[34] Both parties filed submissions on the question of whether a vote under s. 42 could take place after a s. 43(1) application had been granted. The employer conceded that after granting a s. 43(1) application, it was no longer possible for either a strike or a lockout to occur. All parties agreed that the potential for a strike or lockout was a precondition to ordering a s. 42 vote. However, the employer took the position that once a vote is ordered, the Minister does not have the jurisdiction or the authority to cancel the vote. Vice-Chair Anderson rejected this position and found that the Minister was not required to order a vote on the given facts.
[35] Because Mr. Corner did not have intervenor status, he was not given notice of the s. 115 reference. However, he became aware of the deadline and drafted submissions, which he never actually sent to the Board despite his belief that they had been submitted.
JURISDICTION
[36] The Court has jurisdiction to hear applications for judicial review of decisions by the Board and the Minister under ss. 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Pursuant to those provisions, the Divisional Court has jurisdiction to grant any relief that an applicant would be entitled to in: (1) proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari, or (2) proceedings by way of an action for a declaration or for an injunction or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.
[37] The applicants requested various remedies in the nature of writs of mandamus, prohibition and certiorari, in relation to the Board’s and the Minister’s exercise of their respective powers under the Act. The parties raise no contentious issues concerning the Court’s jurisdiction.
STANDARD OF REVIEW
[38] The parties agree in general on the applicable principles governing the standard of review, as articulated by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, particular at paras. 62-64:
In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review.
The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case.
[39] The various parties disagree, however, as to which standard applies to the actions of the Board and the Minister. To summarize, Mr. Corner argued that the matter of intervenor status and the employees’ right to be heard is a matter of jurisdiction, subject to a correctness standard, while the respondents view this as a question of procedural fairness or natural justice, which is not a matter of substantive review. See Ontario (Commissioner, Provincial Police) v. MacDonald, 2009 ONCA 805, at para. 37.
[40] If the respondents are correct, then it is a question of the content of the duty of fairness. The test for this is set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-28, which involves a consideration of five factors: the nature of the decision, the legislative scheme, the importance of the decision to the affected individual, the legitimate expectations of the person challenging the decision and the deference accorded to the decision-making body.
[41] With respect to reasonable apprehension of bias, the court must consider what an “informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude” concerning whether it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly. See Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, at 394.
[42] In reviewing the merits of the s. 43(1) application, the parties agree that the applicable standard of review is reasonableness, given that the Board is subject to a strong privative clause and has a high level of expertise in labour relations matters.
[43] In regard to the cancellation of the vote by the Minister, Mr. Corner and the employer contend this too is a jurisdictional issue raising the question of whether the Minister exceeded his authority under s. 42 of the Act, and therefore, the applicable standard is correctness. The union and the Minister argue that the applicable standard of review is reasonableness. They do not characterize the issue as one of jurisdiction.
[44] Both applicants challenge the report itself. Mr. Corner argues that the Vice-Chair’s procedure breached his rights in that he was not given an opportunity to participate in the s. 115 reference. Rainbow argues two main points concerning the report: first, that the Vice-Chair should have recused himself, and his failure to do so resulted in a reasonable apprehension of bias; and (2) that, on the merits, the May 3, 2010 decision was unreasonable. Rainbow roots its argument in the report itself, allegations of bias, the issue of fairness, and the policy issues behind the making a report to the Minister by the Vice-Chair on a s. 115 reference.
[45] The union argues that the report to the Minister, being an opinion only, is not subject to review; but if it is, then the standard of review is reasonableness. The union argued that reasonableness applies because this was an interpretation by the Board of its ‘home statute’ and not a question of true vires. If the question is jurisdictional, on the other hand, then the union agrees the standard of review would be correctness.
ANALYSIS
The First Decision
(a) Intervention by Corner
[46] Clearly, the Vice-Chair did not respond to Mr. Corner’s intervention application or permit him to intervene. Since Mr. Corner would not receive notice and a chance to make submissions without intervenor status, the main issue is the failure to adjudicate the intervention application.
[47] In effect, Mr. Corner is alleging a denial of procedural fairness or natural justice. Thus, the question becomes whether the applicable duty of fairness has been met. As previously noted, the test for determining the content of the duty of fairness lies in the five Baker factors, cited above.
[48] While Mr. Corner does not directly address the Baker factors, he enunciates several factors in arguing that his rights were breached. First, he distinguishes this situation from one in which the Board has considered but denied an application, because “[d]etermining the parties to a matter is material to the Board’s ability give the issues in dispute a full and fair hearing”. Second, he argues that, notwithstanding whether the application would have been granted, he was entitled to more than a “pre-emptory brush off”. Third, he argued that fairness required that he and his colleagues be allowed to make submissions because (i) they were adverse in interest to the union and (ii) they objected to “false allegations” by the union in the two applications which, he argues, the employer could not have raised on their behalf. As such, their position would not have been represented unless they could intervene.
[49] The jurisprudence in this area suggests rare exceptions in which employees are granted intervenor status, specifically where the subject of the hearing is the status or right of an employee distinct from that of the union. For example, in termination and decertification applications, the Board’s rules require notice to employees and contemplate their right, as employees, to make submissions. This is because the union and the employees are potentially adverse in interest and the status of the affected employees is at issue. In an application to set the terms of a collective agreement through arbitration, the proper parties are the employer and the union.
[50] The Courts have always shown deference to the Board with respect to procedural matters and the determination of the appropriate procedure for the expeditious adjudication of disputes. This is sometimes referred to as recognizing that the Board, like other administrative tribunals, is the “master of its own procedure”. See e.g. International Woodworkers of America, Local 269 v. Consolidated-Bathurst Packaging Ltd., 1990 132 (SCC), [1990] 1 S.C.R. 282 at pp. 307, 338; Industrial Wood & allied workers of Canada, local 2693 v. Domtar Inc., 2002 25708 (Div. Ct.), at para. 11, (“[a]n administrative tribunal is the master of its own procedure, and its exercise of that jurisdiction in the course of a proceeding should not be lightly interfered with.”); Rapid Refrigeration Manufacturing Co. v. Huang, [2002] O.J. No. 2093 (Div. Ct.), at para. 3.
[51] The duty of fairness would include the right for all interested parties to make submissions on the issues and due consideration of those submissions but, in our view, would not include the right to also participate orally in the hearing, particularly in the absence of a timely intervention application from an appropriate party. In this case, the request to intervene was filed late in the day, near the conclusion of a one-day hearing and after the time for making submissions had passed.
[52] In any event, this intervention application was clearly inappropriate in light of the nature of the application. In context of the first Baker factor, the nature of the decision, and the fifth Baker factor, the reasonable expectation of the parties, this was not an appropriate circumstance for intervention. Here, the nature of the decision to be made was whether or not to settle the collective agreement between the employer and the union through first contract arbitration, concerning which the two parties, the employer and the union, were adverse in interest. And given the adversity between the employer and union, and the fact that the application sought to settle matters between them, the only reasonable expectation of all those involved would be that the application would be determined following a hearing between the parties to any eventual collective agreement, that being the union and the employer. Indeed, contrary to the exceptional case such as a decertification application, in a case such as this, the Board’s rules of procedure do not explicitly contemplate or make provision for intervention by employees.
[53] We find, in the particular circumstances of this case, that the Board did not breach its duty of fairness to the applicant, Mr. Corner.
(b) Did the procedure adopted at the January 26, 2010, hearing breach the employer’s rights?
[54] The concerns raised by the employer are that, among other things, the Vice-Chair changed the procedure to be used in the hearing without notice (as his directive was never delivered to the parties), in violation of the employer’s reasonable expectations that the Board would adhere to the parties’ agreed procedure. The employer highlights the fact that a representative of the Board, the LRO, was involved in settling on this procedure, and argues that the change in procedure affected the quality of the evidence received.
[55] The parties agreed that the Baker factors determine the content of the duty of fairness in this situation.
[56] In that regard, the employer argued that a significant duty of fairness attaches to s. 43(1) applications before the Board. Even though the Board is the master of its own procedure, the adversarial nature of the dispute, the reasonable expectations of the parties and the nature of the statutory scheme, particularly the requirement under s. 110(16) of the Act that the “Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions”, requires a high level of procedural fairness.
[57] According to the employer, the Board breached its duty of fairness in not entertaining its preliminary motion to dismiss the union’s application for not having pled a prima facie case, and in not permitting it to introduce evidence and cross-examine opposing witnesses.
[58] Though the Vice-Chair did not entertain the motion, the procedure he adopted was premised upon the fact that he resolved all factual differences in favour of the employer based on its pleadings and other documents filed.
[59] In adopting this procedure, he made the observation that s. 43(2) creates a reasonable expectation on the part of the parties, and a duty on the part of the Board, to resolve applications for first agreement arbitration in an expeditious fashion. Indeed, pursuant to that section, applications are to be resolved within thirty days.
[60] The Vice-Chair explained his reasoning on this point at paras. 6-9 of his reasons:
First, section 43 contemplates the expeditious resolution of first contract arbitration applications. Indeed, section 43(2) directs the Board to “consider and make its decision on an application under subsection (1) within 30 days of receiving the application”. Consistent with this expeditious resolution of such applications, the determination which the Board is called upon to make under section 43(2) is whether it “appears” that at least one of the threshold conditions for the granting of such an application have been made out. I note that this is the same as the determination which the Board is called upon to make under section 98(3) with respect to the request for certain interim orders. As the Board’s jurisprudence has made clear, in determining whether or not threshold conditions under that section “appear” to have been met, the Board is not making factual determinations: see, for example, Patrolman Security Services Inc., [2005] OLRB Rep. Sept./Oct. 818 and K-2 Electrical Contracting Ltd., [2006] OLRB Rep. May/June 375. It may be that a similar approach should be applied to determinations under section 43.
Second, in any event my review of the materials filed by the parties suggested that there would be few, if any, material facts in dispute. I note in this respect that in their submissions during the hearing itself, both counsel recognized this to be the case. Further, as the parties were directed to argue the case on the basis of the responding party’s pleadings and documents, any factual differences were resolved in favour of the responding party. Accordingly, it is not necessary in this case to decide whether a determination under section 43(2) may be made on the same basis as a determination under section 98(3).
…the Board is not bound by agreements of parties. The agreement reached by the parties in this instance would not have resulted in an expeditious hearing of the matter and thus was not consistent with the statutory direction contained in section 43(2). Accordingly, the Board did not give effect to this agreement. [emphasis in original].
[61] The s. 43 test only requires an appearance that the conditions set out in section are met. The Vice-Chair gave cogent reasons as to why it appeared to him that the process of collective bargaining had been unsuccessful. He accepted the employer’s version of any disputed facts, alleviating the need for viva voce evidence, and proceeded with the hearing in an expeditious fashion, as he was entitled and mandated to do.
[62] We see no lack of fairness in the Board proceeding as it did.
(c) The Vice-Chair’s refusal to recuse himself
[63] The employer contends that the Vice-Chair should have recused himself from the s. 43(1) application and/or the application for reconsideration of his February 3, 2010 decision.
[64] In sum, the employer alleges that the Vice-Chair’s findings would “directly undermine or validate his own decisions” and all related decisions, including the judicial review of the certification order. Rainbow also alleges that the Vice-Chair released his decision on February 3, 2010, as a result of urgent communication from the union, without giving the applicant the right to respond; and that the timing of its release was an attempt to prevent the vote. In the words of the employer, “[t]he result of the decision by the Board…was an attempt to thwart the legitimate expressions of the democratic will of the employees of the Applicant, by attempting to block the vote under s. 42.”
[65] We do not accept these arguments. As noted by the union, the Board often assigns numerous related files to the same adjudicator. The reasons for assigning related files to the same adjudicator are obvious. The mere fact that an adjudicator has determined other issues between parties does not make it more likely than not that he would not decide the matter fairly. As for the timing of the release of his decision, the hearing was held on January 26, 2010, this Court’s ruling on the certification judicial review application was released on February 2, 2010, and the union’s request for a “bottom-line” decision came the following day.
[66] The Vice-Chair was presumably attempting to release his decision within the 30 day period provided for in s. 43, which, we understand, the parties had agreed would run from January 4, 2010, when the employer says it actually received the application. Moreover, it would be entirely reasonable for the Vice-Chair to wait until the Divisional Court affirmed the certification before releasing a decision that might grant first contract arbitration, if this was indeed what he did. Though the union requested a “bottom-line” decision, the Vice-Chair’s February 3, 2010, decision clearly was not written as a result of this request, given its detail and length. There is no evidence that the actual reasons of the Vice-Chair were influenced in any way by the union’s request, or that the Vice-Chair would likely not have decided the issue fairly.
[67] This ground must also fail.
(d) The merits of the s. 43(1) decision
[68] Both the employer and the union agree that the standard of review on the merits of the s. 43(1) application is reasonableness and that s. 43(1) applications are governed by a two-part test.
[69] This test requires that the Board adjudicator find that it appears that (i) bargaining was unsuccessful, and (ii) the cause of why it was unsuccessful appears to be one or more of the reasons listed under ss. 43(2)(a)-(d).
[70] The test is a ‘causal’ one, where an enumerated reason having to do with the conduct of a party (in this case, the employer) must be the cause of the lack of bargaining success. The threshold for lack of success must not be so low that it discourages meaningful first contract negotiations. The Vice-Chair quoted from Metro Taxi Ltd. (c.o.b. as Capital Taxi)¸ [1996] O.L.R.D. No. 3226, in reaching the following conclusions concerning the threshold for a lack of bargaining success:
In Metro Taxi, the Board discussed the measure by which to determine whether the “process of collective bargaining has been unsuccessful”. The Board noted the primacy of free collective bargaining, in recognition that an agreed to collective agreement is always preferable to an imposed one (paragraph 16). The Board stated that the threshold for “unsuccessful” collective agreement should not be set so low as to have a “narcotic”, “corrosive” or “chilling” effect on the process of collective bargaining. It is noteworthy, in this respect, that the particular concerns that the Board expressed were that the parties not be “unwilling to compromise because at the end of the day, they assume that a third party will “split” the difference between the two” or that the parties would “take positions at the table designed primarily to enhance their positions before a Board of Arbitration”. The Board concluded its discussion on this issue as follows:
As the jurisprudence suggests, there are no "mandatory" steps or numbers of negotiating sessions that parties must have before the Board may determine that collective bargaining has been unsuccessful. What must an applicant then show to discharge the onus of demonstrating that collective bargaining has been unsuccessful?
We would expect that at a minimum, an applicant should be able to show that it has attempted to seriously explore with the respondent all of the significant issues that exist between the parties. Of course, if the respondent has in fact rendered such attempts pointless, then that would be sufficient to determine that bargaining has been unsuccessful.
Are further discussions possible and if so would they be helpful or fruitful? These are the types of questions that have been posed in the Board's jurisprudence. There is no specific number of bargaining sessions that parties must participate in before these questions can be answered. In some cases, many unproductive sessions may be indicative of a lack of success, but it is not necessarily so.
[71] In terms of the application of s. 43(2) to these facts, the employer argues that there was “no evidence” to support a number of the Vice-Chair’s findings, including that there were unreasonable delays in commencing bargaining or scheduling negotiations, unreasonable conduct on the part of the employer, that its bargaining positions were uncompromising or unlawful, that the employer refused to recognize the union as bargaining agent or that the parties had not engaged in real and genuine efforts to conclude a collective agreement.
[72] According to the employer, it bargained in good faith throughout the process.
[73] However, the union reported a recurring pattern of the employer failing to respond to requests for documents and proposals in advance, which was evidence of unreasonable conduct and a lack of genuine effort to conclude an agreement. There was also evidence of extreme bargaining positions such as the controversial, “Magna style” no-strike clause, which could serve as the basis for a finding that the employer acted unreasonably or presented uncompromising or unlawful positions. The employer admitted having changed its position on settled points. Moreover, there was clear evidence the employer attempted to bargain for terms that were less favourable than those currently in place for bargaining unit employees.
[74] This Court will not interfere with the Vice-Chair’s findings as to the appearance of a lack of success in bargaining due to factors that were well-supported by the evidence. The decision of the Vice-Chair on the s. 43(1) application amply meets the test of reasonableness.
The Second Decision
(a) The Minister’s authority to cancel the s. 42 vote
[75] Both Mr. Corner and the employer argue the Minister lacks jurisdiction or authority to cancel a vote once it has been properly scheduled. Indeed, the language used in s. 42 is mandatory in that the Minister “shall” order the last offer vote when requested, except in the construction industry, where the Minister “may” do so. The parties are not in the construction industry. Mr. Corner and the employer submit that once the vote is called, the Minister is functus officio.
[76] Moreover, according to Mr. Corner, the right to a s. 42 vote on the employer’s final offer vests in the employees, once called.
[77] The union also takes the position that the authority of the Minister is grounded in the proper interpretation of the wording of s. 42 of the Act, which is the Minister’s ‘home statute’. It argues that although the vote “shall” be ordered, this is contingent on certain conditions being in place, particularly the possibility of a “strike or lockout”.
[78] However, the union submits, once a contract is either agreed upon or referred to arbitration under s. 43(1), the Minister has authority to cancel the vote, since a strike or lockout would be illegal in those circumstances. This would mean that the precondition of the possibility of a strike or a lockout would no longer be met. Moreover, the fact that s. 42 contains a notation that the vote shall be ordered “on the terms that [the Minister] considers necessary” underscores his authority to exercise judgment.
[79] We find that the question of whether the Minister has the power to cancel a s. 42 vote is a question of true vires, as distinct from the question of whether the Minister ought to do so in a particular case. In Dunsmuir at para. 59, the Court cautioned against characterizing issues as “jurisdictional” and adopted a narrow view of jurisdiction as being the question of whether the decision-maker had the power to make a particular decision. The question of whether the Minister could cancel the vote under any circumstances fits within even the narrowest view of jurisdiction. At this stage of the analysis, we ask only whether the Minister can cancel a s. 42 vote, not whether it was appropriate to do so in this case.
[80] As to whether the Minister has jurisdiction to cancel a s. 42 vote, in our view, the position taken by Mr. Corner and the employer on this issue is untenable. Would the Minister, for example, have jurisdiction to cancel the scheduled vote after a collective agreement had been reached by voluntary bargaining? And what if he did not, and a contrary result were obtained as a result of the vote?
[81] This would, as noted by the Vice-Chair in the s. 115 reference, produce “absurd” results. It would also be contrary to the express policy purpose of the statute to encourage expeditious settlement of disputes. In our view, the rational way to read s. 42 in its entirety would be that the authority of the Minister to direct a vote by the employees on the employer’s last contract offer continues to be on contingent on the statutory preconditions of a strike or lock-out being possible. This stipulation would apply until the vote is taken and would include the power to cancel the vote in circumstances such as these.
[82] The purpose of the provision was not to create a vested right of employees to vote for the sake of voting where it would not affect their interests in a fundamental way. The Minister did not exceed his authority in cancelling the vote after the Vice-Chair’s decision to send the matter to arbitration.
[83] This ground too must fail.
(b) The Minister’s refusal to permit intervention
[84] Mr. Corner argues that since neither he nor his colleagues were given notice and an opportunity to make submissions, the Minister breached his duty of fairness to them in cancelling the vote and referring the question back to the Board, without their input. It is noted, however, that Mr. Corner sent his submissions to the Minister two days after the Minister made his decision. In addition, the Act gives a certified union exclusive bargaining rights.
[85] In our view, the Minister has no duty or authority to deal with individual employees or to consult them on matters related to bargaining “unless and until a union is decertified” as the bargaining agent for a group of employees. Exclusivity of bargaining is a bedrock principle of Ontario’s labour relations system. Section 45(1) of the Act deems all collective agreements to provide that the trade union that is party to the agreement is the exclusive bargaining agent for the employees to whom the agreement applies. Under the Act, only one trade union may represent a unit of employees at any one time, and there are limits on decertification and “union raids” to displace an incumbent union’s position as exclusive bargaining agent. Exclusivity is also implicit in the logic of s. 74 of the Act, which impresses on the union a duty to represent bargaining unit members in good faith so long as the union remains the bargaining agent for those employees. This duty is the corollary to the exclusivity of bargaining: because the union is the exclusive bargaining agent for a group of employees, the union has a duty to represent those employees in good faith.
[86] The principle of exclusivity avoids situations where some employees attempt to circumvent the Union, thereby weakening its ability to represent them as a group. In any event, the employees have remedies under the Act against the Union if they have complaints about how they are being represented (particularly s. 74). The Minister had no duty to include them in the decision-making process.
(c) The Minister’s decision to cancel the vote and refer the question to the Board
[87] We have already dealt with the issue of the Minister’s authority to cancel the vote. Was his decision to do so, in this case, reasonable? The legislature gives the power to control s. 42 votes directly to the Minister instead of the Board.
[88] It is well-settled law that the Minister ought to be afforded a high degree of deference when the legislature has specifically allocated a decision-making power to the Minister rather than to the courts. See C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, at paras. 152-157; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 25.
[89] This recognizes the Minister’s considerable expertise in labour relations matters. The question of whether to cancel the vote in this case was a determination of mixed fact and law that fell within his area of expertise. Moreover, the purpose of the section is to minimize industrial conflict, which is a matter that is central to the discrete and special administrative regime regulated by the Act.
[90] In light of the directed settlement by arbitration under s. 43(1), it was, in our view, entirely reasonable for the Minister to exercise his discretion in the manner in which he did. Once the agreement was out of the parties’ hands, it was also out of the hands of the employees. To give just one example, while bargaining unit members might normally vote to ratify a negotiated collective agreement, they do not vote to ratify an arbitrated collective agreement, as that would now be out of their hands and in the hands of a neutral, third party decision-maker. The purposes for which s. 42 were designed would be, as here, no longer relevant.
[91] Even if the Minister’s choice to cancel the vote was incorrect in law, which we do not find it was, it was reasonable for him to do so in the within circumstances in light of the statutory purposes of s. 42 and the need to facilitate the conclusion of bargaining.
The Report to the Minister
(a) The Intervention
[92] Though Mr. Corner argued the standard of review is correctness, the other parties again took the position that the issue of whether the employees should have been given a right to intervene in the s. 115 reporting is one of procedural fairness. We agree with this latter submission.
[93] Mr. Corner takes the position that the Board’s duty of fairness included an obligation to provide him and the other employees with notice and an opportunity to participate in the process.
[94] Clearly, the duty of fairness demands that interested parties be permitted to make submissions in writing. In this case, however, although Mr. Corner drafted submissions intending to file them with the Board, he failed to do so. Hence, even assuming Mr. Corner was a proper party, there was no direct denial of this right by the Board.
[95] That said, though Mr. Corner had previously expressed interest in being involved in the s. 43(1) application, neither the Board’s rules nor the Act require that notice be given to individual employees either on the s. 115 reference or the s. 43(1) application. This too was a matter between the employer and the union in their bargaining role, that is, to establish and implement the processes by which the parties would reach an agreement. Similar considerations apply here as they do with respect to Mr. Corner’s desire to intervene in the s. 43 application.
(b) Is the Board’s report to the Minister reviewable?
[96] The issue here is that the Board itself did not make any decision except to render an opinion to the Minister pursuant to s. 115. The Board’s report constitutes an advisory opinion only. It is the Minister, not the Board, that makes any decision whether to call or to cancel a vote.
[97] Laskin J.A. in Ex Parte Kitchener Food Market Ltd. (1966), 1966 248 (ON CA), 57 D.L.R. (2d) 521 at pp. 530-31, held that a similar report to the Minister was not reviewable because “it does not control in law any following action of the Minister” and “the Board’s decision has no independent legal effect”.
[98] We are of the view that the Board’s opinion report is not reviewable.
[99] Assuming that we are incorrect and the Board’s advice to the Minister pursuant to s. 115 is subject to judicial review, then the same standard of review that applied to the Minister’s decision that he had jurisdiction to cancel the vote (correctness) would apply to the Vice-Chair’s determination that the Minister had jurisdiction to do so. This follows because in order to find the reference reviewable, we would have to treat the reference as, in effect, the Minister’s actual decision on whether or not he was required to call a vote in the circumstances. Indirectly, this inquiry asks whether the Minister has jurisdiction to cancel a s. 42 vote, and therefore, it would be subject to the same standard of review as the Minister’s own decision on February 3, 2010, to cancel the vote.
[100] The employer argues that the purpose of s. 42 can best be understood by reference to Bill 7, the Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1 (partially repealed by the Labour Relations Statute Law Amendment Act, 2005, S.O. 2005, c. 15).
[101] Bill 7 implemented secret ballot voting for certification, decertification, ratification and final offer voting. The employer argued that the Board’s advice “serves to deprive the employees of their democratic right to vote on matters that directly affect them”, which they suggest is “a flagrant violation of the public policy of the province of Ontario”. As well, since the requirements for a final offer vote were met when it was scheduled, the vote vests in the employees once it is scheduled. Moreover, the intent of Bill 7, as evidenced in Hansard, subsequent government publications and the case law, is to protect employee choice on matters affecting them, and the final offer vote had the potential to show the arbitrator what the parties would have agreed to were the employer’s offer accepted.
[102] As noted above, the purpose of s. 42 is to reduce industrial conflict and to overcome an impasse in bargaining. In this case, however, the arbitration order effectively ended the impasse. Therefore, no labour relations purpose would have been served by holding the vote.
[103] The employer is correct that, through Bill 7, the intent of the legislature was to ensure that workers had a right to vote on “matters which directly affect them”. However, after the s. 43(1) application was granted, the collective agreement terms were to be set at the arbitration and therefore, the employer’s last offer would no longer affect the employees. Bill 7 says nothing as to whether it is consistent with “democratic principles” to vote after a s. 43(1) application has been granted.
[104] We do not agree that Bill 7 in any way indicates that the legislature intended final offer votes to go ahead after the Board orders first contract arbitration.
(c) The allegation of bias.
[105] The employer alleges a reasonable apprehension of bias on the part of the Vice-Chair due to his failure to recuse himself from the s. 115 reference.
[106] In some situations, a recusal from a s. 115 reference that followed the Vice-Chair’s own decision might well have been appropriate. However, in the circumstances here, the Minister did not know about the s. 43(1) application when he agreed to schedule the last offer vote and, most importantly, the Vice-Chair was not aware of the scheduled vote when he made his decision to order arbitration. The Vice-Chair only learned on the morning of February 3, 2010, that a s. 42 vote was to be held on February 5, 2010. As discussed above, while he released his decision later in the day on February 3, 2010, it is clear from the length and detail of the reasons that the Vice-Chair had already been made prior to the union’s request for a “bottom-line” ruling. The decision clearly was not a bottom-line ruling. Therefore, the Vice-Chair’s advice to the Minister on whether or not a vote had to be held would not have had any impact on the validity of his s. 43 order in the given circumstances. His order was in no way premised on the pending vote, nor was he aware of the pending vote when he wrote his reasons.
[107] The Vice-Chair, in his report to the Minister, gave detailed and cogent reasons for his opinion, which directly responded to the issues raised and the relevant factual circumstances.
[108] We do not think in these particular circumstances that a reasonable, informed person would perceive an apprehension of bias on the Vice-Chair’s part, in his failure to recuse himself from the s. 115 reference.
CONCLUSION
[109] The employer and Mr. Corner submitted that the circumstances of this case raise important matters of democracy in the workplace. They argued that the process involving the Board and the Minister undermined the right of the employees to exercise their will independent from their union representatives, which the applicants allege is the right of individual employees under the Act.
[110] With respect, we disagree with this characterization of the course of events. All of the issues raised turned, for the most part, on their own specific factual circumstances and the applicable law.
[111] The timing of events in this case was in some ways unfortunate. For instance, the employer requested the final offer vote on January 25, 2010, one day before the s. 43 application was heard at the Board. The Minister sent notification of the vote after the s. 43 hearing occurred, but before the s. 43 decision was released. The decision of this Court as to certification was released on February 2, 2010. The very next day the union wrote to the Board asking for a “bottom-line” decision before the s. 42 vote, scheduled for February 5, 2010. Against the backdrop of the expeditious manner in which s. 43 applications are to be adjudicated and the receipt of reasons in the pending judicial review, the Vice-Chair released full reasons that, obviously, were not drafted in the short time on February 3, 2010, between the union’s request for a “bottom-line” decision and the Vice-Chair’s release of his reasons. The reasons were released only two days before the s. 42 vote was to take place. This left only a very small window of time for the Minister to consider whether the vote should go ahead, and to cancel it if he deemed this to be appropriate.
[112] Perhaps, as a matter of practice, it would be best for the parties to inform the Minister in advance of their pending adjudication in cases like these, and to inform the Board during a s. 43 application that a s. 42 vote has been requested, so as to ensure that the various administrative and adjudicative processes at play work in harmony rather than in discord. However, these facts do not disclose any basis for the Court to intervene.
[113] Finally, in passing, we note that the employer’s last offer expired in April 2010, and given the arbitrated agreement currently in effect, there is, at this stage, no practical remedy.
[114] For all of the reasons stated above, this application is dismissed.
COSTS
[115] The union requested approximately $27,000 to $30,000 ($8,000-$10,000 per application) in partial indemnity costs for the three applications. The applicants each requested $10,000 in costs, if successful. In our view, the amount sought by the union is somewhat high in that portions of the applications overlapped one against the other, and some costs were previously awarded to the union.
[116] Taking into account the criteria in Rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, reg. 194, and the reasonable expectation of the parties, we award the union the all-inclusive sum of $21,000, one-third or $7,000 as against the employee Corner and $14,000 against the employer, Rainbow. Neither the Minister nor the Board requested costs and we award them none.
CHAPNIK J.
HOY J.
HOURIGAN J.
Released: Nov 28 2011