Superior Court of Justice - Divisional Court
DIVISIONAL COURT FILE NO.: 101/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, SWINTON AND PENNY JJ.
BETWEEN:
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1 CANADA
Applicant
– and –
ONTARIO WORKERS’ UNION, HUMBER RIVER REGIONAL HOSPITAL and ONTARIO LABOUR RELATIONS BOARD
Respondents
Douglas J. Wray, for the Applicant
John R. S. Westdal, for the Respondent, Ontario Workers’ Union
Leonard Marvy, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: December 20, 2011
ORAL REASONS FOR JUDGMENT
JENNINGS J. (orally)
1SEIU seeks judicial review of a unanimous decision of a three person panel of the Board dated January 26, 2011, with reconsideration reasons dated February 14, 2011 finding that OWU was a trade union within the meaning of s.1(1) of the Ontario Labour Relations Act. OWU had applied for certification and sought to replace SEIU’s representation of employees at Humber River Regional Hospital.
2The parties agree that the standard of review is reasonableness, the Board having interpreted the definition of “trade union” under its home statute.
3SEIU raised two issues, submitting that the Board was unreasonable in concluding that:
(i) OWU was an organization of employees as defined in s.1(1) of the Act, and
(ii) OWU had an identifiable set of rules governing the contractual relationship of its members and that there had been compliance with the rules as at the date of the certification in July 2009.
4With respect to the first issue, SEIU submitted that because OWU’s constitution provided that both workers and independent employee organizations could be members, OWU could not be “an organization of employees” as set out in s.1(1) of the Act.
5Conceding that Board jurisprudence recognized that persons who were not employees could be union members without causing the union to run afoul of the definition of trade union, counsel submitted that organizations of employees, such as other trade unions, could not be members. Counsel relied upon M. J. Guthrie, 1984 OLRB Rep. January 50 and University of Toronto [1999] OLRB Rep. July 742, both holding that an organization of trade unions is itself not a trade union within the meaning of the Act. However, those cases can, in our opinion, be distinguished. In both of them, unlike this case, there were no individual employee members of the applicant for certification.
6The Board held that an Act provides that a trade union is “an organization of employees”, not an “organization of employees only” (emphasis added) following its decision in Etna Foods [1986] OLRB Rep. 710. In our opinion, that was a reasonable decision for the Board to reach.
7With respect to the second issue, the Board accepted that the constitution lacks a specific process for the election of the original officers of the organization and that the general process for the election of officers cannot apply because, among other things, the constitutional requirements for a quorum for the meeting were not met and none of Oribine, Downes or Kucey met or could have met the constitutional requirement for one year membership in the organization as of the time of its founding meeting. The Board reasoned, however, that “a contract is an agreement to which all the parties have agreed to be bound. It follows that the parties to a contract can unanimously agree to waive, suspend or vary any of the provisions of the contract.”
8The Board, applying that approach, concluded that the fact of the matter was that, Oribine, Downes and Kucey agreed to become members of the organization and then agreed that they would be the President, Vice President, Secretary Treasurer and General Counsel respectively. As they were the only members of the organization, their agreements were unanimous agreements of all the members.
9The SEIU argues that the Board erred in concluding that the terms of an otherwise unclear written constitution can be unanimously waived, suspended or varied by the individuals in attendance at a foundational meeting on April 19, 2009 when the application filed on July 14, 2009 relies upon membership support from a number of individuals who were not in attendance at that foundational meeting.
10The Board recognized in its Kubota decision that the web of necessary contractual relationships required for the formation of a trade union, “can arise in more than one manner”.
11We see no reversible error in the Board’s conclusion that the three founders could unanimously waive, suspend or vary any of the provisions of the “contract”. The lack of a process for the first election of officers in the written constitution is, in our view, not fatal to the status of OWU as a trade union.
12The key requirement is that the organization be viable for the purpose of collective bargaining. The OWU was clearly viable for collective bargaining in the relevant sense. The manner in which the founding officers were elected is an internal governance matter which, in the circumstances of this case does not go to the status of the OWU as a trade union.
13In our view, the Board was not unreasonable in coming to that conclusion. The decision falls within the range of possible outcomes which are defensible in respect of the facts and the law. It is also consistent with a long tradition at the Board of refusing to take a technical or legalistic approach to trade union formation.
JENNINGS J.
14For those reasons, the application is dismissed. Costs as agreed fixed at $4,500.00 inclusive, payable to OWU forthwith.
JENNINGS J.
SWINTON J.
PENNY J.
Date of Reasons for Judgment: December 22, 2011
Date of Release: January 26, 2012
CITATION: Service Employees International Union, Local 1 Canada v. Ontario Workers’ Union, 2011 ONSC 7611
DIVISIONAL COURT FILE NO.: 101/11
DATE: 20111220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, SWINTON AND PENNY JJ.
BETWEEN:
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 1 CANADA
Applicant
– and –
ONTARIO WORKERS’ UNION, HUMBER RIVER REGIONAL HOSPITAL and ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: December 22, 2011
Date of Release: January 26, 2012