CITATION: EllisDon Corp. v. International Union of Painters et al, 2012 ONSC 5810
COURT FILE NO.: 309/12
DATE: 20121015
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: ELLISDON CORPORATION Applicant
And
INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES LOCAL 114 and ONTARIO LABOUR RELATIONS BOARD Respondents
BEFORE: Justice Newbould
COUNSEL: Ronald Lebi, for the respondent/moving party Mark D. Mills and Daniel E. Attwell, for the applicant/responding party
DATE HEARD: October 12, 2012
E N D O R S E M E N T
[1] The International Union of Painters and Allied Trades, Local 114 moves to strike the affidavit of Walter R. Thornton filed by in support of the application brought by EllisDon for judicial review of two decisions of the Ontario Labour Relations Board.
Board decisions
[2] The proceeding before the Board concerned an application for certification brought by the Union to represent a bargaining unit of painters employed by EllisDon.
[3] The first Board decision certified the Union as bargaining agent for a five person unit of employees of EllisDon. The second Board decision denied EllisDon’s application for reconsideration of the first decision.
[4] Under the Labour Relations Act, the Board can certify a trade union that has demonstrated that it has the support of more than 55% of the employer’s employees who were employed in the bargaining unit on the application filing date.
[5] In the proceeding under review, there was a dispute between the parties as to whether two persons named Argibay and Prevost were in fact employees of EllisDon on the certification application date and whether they should count for the purposes of the 55% calculation. EllisDon asserted that they were both its employees. The Union took the opposite view. In the end, the Board found that Mr. Prevost was an employee of EllisDon, but that Mr. Argibay was not.
[6] In arriving at its decision, the Board considered seven criteria identified in earlier board decisions, including York Condominium Corporation, [1977] OLRB Rep. Oct. 645, Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538 and Thorium Contracting Ltd., OLRB File No. 0973-08-R, to assist in determining which of two or more entities is the employer for the purposes of The Labour Relations Act. The Board quoted from Thorium at length, including the following:
The question of which entity is the true employer of a particular employee (or group of employees) for the purposes of the Act is one that occurs frequently in the context of applications for certification in the construction industry. The Board's approach to answering this question is well known and of longstanding. It has been clearly set out in a number of prominent decisions. Essentially, the Board analyses the facts of a particular situation in relation to seven criteria in an effort to determine the substance (rather than the form) of the relationship(s) which exist between a worker and the various entities which may be the employer. None of the seven criteria which the Board uses are determinative and the importance of any one (or combination) of them will vary depending upon the specific circumstances of each case.
When, as in York Condominium, one company answers to nearly all of the seven criteria, the decision as to the identity of the employer is relatively simple. On the other hand, when various entities share the responsibilities in question the decision becomes more difficult and the Board must evaluate which criteria, in a given set of circumstances, are most indicative of an employer/employee relationship.
[7] The Board also stated the following, which counsel agree is a correct statement:
The York Condominium criteria are simply a tool for the Board to use to help it detect whether or not the relationship between individuals and companies or organization contains the elements that make it an employer employee relationship and therefore appropriately subject to the collective bargaining regime contained in the Act.
[8] The Board reviewed the evidence before it dealing with the seven York Condominium criteria and then concluded that Mr. Argibay was not an employee of EllisDon:
- There is the appearance of an employment relationship between EllisDon and Mr. Argibay in that EllisDon put him on their payroll and paid him. However, as the foregoing analysis indicates, it was a relationship in form only completely lacking the substance that is necessary to constitute an employment relationship as contemplated by the Act. Having regard to all of the above, the Board finds that Mr. Argibay was not an employee of the responding party, EllisDon, on September 25, 2010. The application of the criteria contained in the York Condominium case to the facts in this case leads to the conclusion that Mr. Argibay and EllisDon did not have an employment relationship on September 25, 2010.
[9] If, as EllisDon contended before the Board, Mr. Argibay had been held to be an employee of EllisDon, there would have been less than 55% of the bargaining unit that supported the union being certified, i.e. only 3 of 6 rather than 3 of 5 as held by the Board. In its application for judicial review, EllisDon takes the position that the Board made a series of findings in the absence of any evidence to support those findings, and thus made a jurisdictional error.
Thornton affidavit
[10] Mr. Thornton was counsel to EllisDon before the Board. In his affidavit that is attacked by the Union on this motion, there are a number of paragraphs that state that there was no evidence before the Board of certain things. Those impugned paragraphs are:
There was no evidence before the Board in this matter that Elias Argibay (“Argibay”) was required or directed by Enrico Igelsias (“Igelsias”) or anyone else from National Coatings to go to work at the Red Garage construction project. The only evidence before the Board in this regard was the uncontradicted evidence of Argibay himself that he was asked by Igelsias if he wouldn’t mind going to work for EllisDon, and he agreed.
There was no evidence before the Board that Igelsias or anyone else from National Coatings in any way supervised, controlled or directed Argibay or Travis Prevost (“Prevost”) with respect to their work at the Red Garage, or ever attempted to. There was no evidence that anyone from National Coatings even visited the Red Garage site at any time, to check the work they were doing, or for any other reason, or spoke to either Prevost or Argibay at any time after Igelsias had asked them if they were willing to go to work at the Red Garage.
There was no evidence before the Board that any of the terms and conditions of work at the Red Garage were any different for Argibay than for Prevost. Particularly, there was no evidence that their compensation, including their hourly wage rate and hours worked, differed, there was no evidence that the work they were assigned to perform differed, or that the degree of supervision, control and direction of their work while engaged at the Red Garage differed in any way.
Although Argibay testified that he prepared timesheets for the time he worked at the Red Garage, and that he gave those timesheets to “his boss” at National Coatings, no such timesheets were produced at the hearing. No evidence was given that National Coatings was engaged as a contractor or subcontractor for the work that Argibay and Prevost performed, or that payments of any kind were made by National Coatings to either Argibay or Prevost for the work they performed at the Red Garage, as would have been the case if National Coatings was so engaged. Timesheets for both Argibay and Prevost for the time they worked at the Red Garage were prepared, and produced at the hearing by EllisDon, in standard EllisDon format. Record of payment and cancelled cheque documentation with respect to the work performed by Argibay and Prevost at the Red Garage, again in standard EllisDon format, were also prepared and produced by EllisDon, and confirmed that EllisDon paid both Argibay and Prevost, and paid them on the basis of forty-eight (48) hours worked at the Red Garage between September 20th and 25th, 2010 at their applicable hourly wage rate. Copies of this documentation, produced and marked as Exhibits at the Board hearing are attached hereto and marked as Exhibit “A” to this, my Affidavit. There was no evidence that payment to Argibay and Prevost was based on any kind of fixed price for the painting work that they performed or on any method other than payment based on their hourly wage rate.
There was no evidence before the Board that there was any behaviour or misconduct by either Argibay or Prevost at the Red Garage construction site that could have merited disciplinary action.
There was no evidence before the Board that after commencing work at the Red Garage, Argibay would have stopped working there at any point before the painting work he and Prevost were assigned to perform was completed, if National Coatings told him to.
There was no evidence before the Board that Argibay did not voluntarily agree to go to work for EllisDon at the Red Garage after being asked to do so by Igelsias of National Coatings.
Test for admitting affidavits on a judicial review application
[11] The law in Ontario it has been well settled since Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 29 O.R. (2d) 513 (Ont. C.A.), as to what kind of evidence may be filed on a judicial review application. In 142445 Ontario Limited (Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636, [2009] O.J. No. 2011 (Div. Ct.); 95 Admin. L.R. (4th) 273, Swinton J. recently stated:
The Keeprite standard for the admission of affidavit evidence on judicial review has been applied in numerous decisions involving labour boards and labour arbitrators. These cases have held that affidavit evidence can be admitted either to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by a mere reference to the record.
The motions judge was bound by the decision in Keeprite. Therefore, before admitting such evidence, she had to ask, first, whether the affidavit material showed there was "no evidence to support a finding of fact". Second, to be admissible, the evidence must relate to a fact that is essential to the decision. (underling added)
[12] What is “an essential point” or “a fact essential to the decision” of the Board? Is it the fact as found by the Board that Argibay was not an employee of EllisDon, or is it the facts as they relate to each of the seven criteria looked at by the Board? To some extent, that is a question for the panel hearing the judicial review application, and I would hesitate to make any determination of that issue on this motion. I will assume without deciding, and giving the benefit of the doubt to EllisDon, that each of the seven criteria considered by the Board was an essential point.
[13] Mr. Mills for EllisDon says that paragraphs 2, 3 and 8 of the affidavit relate to the first York Condominium criterion of direction and control. He contends that there was no evidence of direction and control. Paragraph 2 of the affidavit appears to draw a distinction between a requirement or a direction on the one hand and a request made to the employee on the other.
[14] The Board was aware of the evidence on the point. It stated:
Mr. Argibay’s evidence was that his boss, the owner of National Coatings, Enrico Iglesias, asked him if he didn’t mind going to work for EllisDon. Mr. Argibay advised Mr. Iglesias that he would do as he asked.
[15] The Board in its reasons dealt with this criterion in paragraph 25 of its reasons in the following terms:
- In this case the party exercising direction and control criteria does not support the notion that EllisDon had an employment relationship with Mr. Argibay. The reality is he went to work at the Red Garage as a result of the direction received from National Coatings. It is reasonable in the circumstances to assume that had National Coatings told him to cease working at the Red Garage at any point he would have done so. When he got to the Red Garage he was left to his own devices, he self directed. When he came to work, how he behaved while at work, when he took breaks, how many hours he worked, what work he did when, when he left work were all issues decided by Mr. Argibay. Based on the evidence it appears Mr. Argibay simply continued to follow the terms and expectations of his employment with his employer of 37 years. Mr. Blais told him initially what work was to be done after that he visited the job site briefly on two or three occasions to check and see if the work had been done. Beyond those checks, no one from EllisDon exercised any direction or control over Mr. Argibay. Mr. Blais's relationship with Mr. Argibay was more like that between an employee of a sub-contractor and a customer than that between an employer supervisor and an employee.
[16] The onus was on EllisDon before the board to establish that Mr. Argibay was an employee of EllisDon. See paragraph 24 of the Board’s reasons. EllisDon did not in argument quarrel with that. In my view, paragraphs 2, 3 and 8 of the affidavit of Mr. Thornton do not provide evidence that there was no evidence to support the Board’s conclusion that the direction and control criterion did not support the notion that EllisDon was the employer, i.e that EllisDon did not exercise direction or control over Mr. Argibay. There was evidence before the Board from which it drew certain inferences. I would strike paragraphs 2, 3 and 8.
[17] Paragraph 7 of the affidavit of Mr. Thornton also relates to the direction and control criterion. It states that there was no evidence that was before the Board that after commencing work at the Red Garage, Mr. Argibay would have stopped working there at any point before the painting work he and Mr. Prevost were assigned to perform was completed, if National Coatings told him to. In paragraph 25 of its reasons dealing with this, the Board included the statement “It is reasonable in the circumstances to assume that had National Coatings told him to cease working at the Red Garage at any point he would have done so.” The Board made an assumption rather than making a finding of fact on that particular matter. In reading the reasons as a whole by the Board, I cannot say that paragraph 7 of the affidavit is evidence that there was no evidence before the Board on which it could base its conclusion regarding direction and control. I would strike paragraph 7.
[18] In my view, paragraph 4 of the affidavit of Mr. Thornton suffers from the same problem as these previous paragraphs. It states that there was no evidence before the Board that the terms and conditions of work were any different for Mr. Argibay than for Mr. Prevost. The argument of EllisDon presumably is that if Mr. Prevost was held to be an employee of EllisDon, then so should Mr. Argibay have been held to be an employee of EllisDon. That paragraph, however, does not provide evidence that there was no evidence to support the finding of the Board regarding Mr. Provost.
[19] In its reasons, the Board stated at paragraph 30 that factor 7, unlike most cases, was an important consideration in the particular facts of the case. Criterion 7 is the existence of an intention to create the relationship of employer and employee. The Board in paragraph 32 reviewed the evidence regarding Mr. Argibay and concluded that objectively considered, there was no indication of an intention on the part of Mr. Argibay to enter into an employment relationship with EllisDon. The evidence in support of that conclusion was stated in the reasons of the Board. The Board in paragraph 33 of its reasons dealt with Mr. Prevost, and concluded that he intended to enter into an employment relationship with EllisDon. It did so by drawing certain inferences from evidence referred to in its reasons.
[20] What EllisDon seeks by paragraph 4 of the affidavit of Mr. Thornton is to argue that other facts should have persuaded the Board not to rely on the evidence that it did in concluding that criterion 7 should have led to Mr. Argibay being held to have intended an employment relationship with EllisDon. However, there was evidence before the Board leading to its conclusion regarding criterion 7 and paragraph 4 does not establish otherwise. I would strike paragraph 4.
[21] Paragraph 5 of the affidavit first says there were no timesheets given by Mr. Argibay to National coatings produced at the hearing by the Union, and then states that EllisDon produced timesheets that were in standard EllisDon format and goes on to describe them and attaches copies to the affidavit. The paragraph deals with the subject matter of criterion 2, being the party bearing the burden of remuneration. In its reasons relating to this criterion, the Board stated:
- EllisDon is certainly the party that bore the burden of remuneration, however, this does not provide any real guidance as to how the issues involved in this case should be resolved. EllisDon did not make any commitment to engage the two painters beyond the period required to perform the specific piece of work. The basis upon which they chose to compensate Mr. Argibay does not necessarily point in the direction of EllisDon as employer. The payment appears to have related more to a price for a piece of work than to hours paid for hours worked as an employee.
[22] It is this last sentence that EllisDon attacks. Paragraph 5 of the affidavit of Mr. Thornton states that there was no evidence that payment to Mr. Argibay or Mr. Prevost was based on any kind of fixed price for the painting work that they performed or on any method other than payment based on their hourly wage. While the last sentence of paragraph 26 of the Board’s reasons may not have been critical to its decision on the point, something that no doubt will be the subject of debate before the panel hearing the judicial review application, I would permit paragraph 5 of the affidavit to stand.
[23] Paragraph 6 of the affidavit states that there was no evidence before the Board of any misconduct by either Mr. Argibay or Mr. Prevost that could have merited disciplinary action. This presumably relates to the third criterion, being the party imposing discipline. In dealing with this criterion, the Board stated:
- The party imposing discipline criteria does not point to EllisDon as the employer. EllisDon simply did not exercise the degree of control over the activities of Mr. Argibay that would allow them to or would indicate an intention to impose discipline in the way that is normally expected of an employer. EllisDon indicated by its lack of supervision of his work an interest only in the outcome of his work activity and a complete lack of interest in how he behave[d] while he was at work.
[24] In my view, paragraph 6 does not establish that there was no evidence on which the Board could say what it did regarding this criterion. The Board referred to evidence before it. In any event, I fail to see how the paragraph would assist EllisDon. If the argument is that because there was no misconduct, nothing should have been said about this criterion, I fail to see how that would assist EllisDon, as it would not lead to a conclusion that EllisDon was the employer. Again, the onus was on EllisDon to establish that it was the employer. I would strike paragraph 6.
[25] Paragraph 9 of the affidavit of Mr. Thornton is also attacked. It states:
- Igelsias the owner of National Coatings, was summonsed by the Respondent Union to testify at the Board hearing in this matter. Igelsias appeared at the Board on the day of the hearing in compliance with the summons issued to him. In the course of the hearing, the Respondent Union requested permission of the Board, which was granted, for a recess to speak to Igelsias. However, the Respondent Union did not call Igelsias as a witness to testify.
[26] I fail to see how the paragraph meets the Keeprite standard for the admission of affidavit evidence. It has nothing to do with a lack of evidence on an essential point or a breach of natural justice. The statement in the affidavit is the kind of argument one could perhaps make to the trier of fact that an adverse inference could be drawn against the Union for failing to call the owner of National Coatings, although it would be open for the Union to contend that EllisDon could have called the owner of National Coatings as well. I would strike paragraph 9.
[27] In the result, paragraphs 2 to 4 and 6 to 9 of the affidavit of Mr. Thornton are struck. I leave costs of the motion to the panel hearing the application for judicial review.
Newbould J.
DATE: October 15, 2012