EllisDon Corporation v. Ontario Sheet Metal Workers' and Roofers' Conference et al.

Ontario Sheet Metal Workers' and Roofers' Conference et al. v. EllisDon Corporation et al.

[Indexed as: EllisDon Corp. v. Ontario Sheet Metal Workers' and Roofers' Conference]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Molloy, Lederer and Hourigan JJ.

September 27, 2013

117 O.R. (3d) 16 | 2013 ONSC 5808

Case Summary

Employment — Labour relations — Collective agreement — Unions filing grievances alleging that applicant was bound by unions' provincial collective agreements as result of 1958 Sarnia Working Agreement and that it violated provincial collective agreements — Unions unable to find original of Sarnia Working Agreement and tendering photocopy — Board erring in admitting photocopy as business record under s. 35 of [page17 ]Evidence Act or under ancient documents rule without considering reliability of document — Unions permanently estopped from relying on agreement in any event because of representations made to applicant in 2000 that unions would not seek to enforce agreement which caused applicant to fundamentally alter its position to its detriment — Evidence Act, R.S.O. 1990, c. E.23, s. 35.

The unions filed grievances against a building contractor, EllisDon, alleging that EllisDon was bound by the unions' provincial collective agreements as a result of the 1958 Sarnia Working Agreement ("SWA") and that it had breached the provincial collective agreements. No original of the SWA was ever found. The unions tendered a photocopy which was found unexpectedly in a box of records. The vice-chair of the Ontario Labour Relations Board admitted the photocopy for the truth of its contents under s. 35 of the Evidence Act or, alternatively, as an "ancient document". The vice-chair found that the SWA was binding on EllisDon and that EllisDon had violated the provincial collective agreements of both unions. However, he found that the unions were estopped from claiming damages or other relief as a result of the violations for a period of two years from the date of his decision based on representations made to EllisDon in 2000 that the unions would not seek to enforce the SWA. EllisDon applied for judicial review seeking to quash the vice-chair's decisions. The unions applied for judicial review seeking to quash the decision that they were estopped from enforcing their rights.

Held, EllisDon's application should be granted; the unions' grievances should be dismissed.

Per Molloy J. (Lederer J. concurring): The vice-chair erred in admitting the photocopy as a business record under s. 35 of the Evidence Act. The business records provision in s. 35 of the Act is a codification of an exception to the hearsay rule in a situation where circumstantial guarantees of reliability are present. Given that the vice-chair was extending the business records exception to a document not normally included within this protection, it was incumbent upon him to consider both the purpose of the legislation and whether the evidence would be admissible on a principled approach to hearsay. In particular, the vice-chair failed to take into account a number of factors pointing to the possible unreliability of the document. His failure to consider the reliability of the document was an error of law. Even if the standard of reasonableness applied, the failure to address the issue of reliability was unreasonable. The vice-chair also erred in admitting the photocopy as an ancient document. The ancient documents rule, if it still applies at all, must be considered in conjunction with a principled approach to hearsay. Before simply accepting the document as proven because it fell within the defined test for ancient documents, the vice-chair was required to consider the reliability of the document. His failure to do so was an error of law. Even if the reasonableness standard applied, the vice-chair's conclusion was unreasonable as it was not supported by any reasons that could withstand scrutiny.

There were other possible options for finding the document admissible. If the admissibility of the document were the only issue, it would be appropriate to remit the matter to the board for further consideration. However, the decision could not stand even if the SWA had been proven admissible on a correct and/or reasonable basis. The vice-chair's determination that an estoppel arose based on representations that unions province-wide would not seek to enforce the SWA was unassailable. However, the purpose of estoppel is to put the other party into the position it would have occupied, but for the representations relied on. In [page18 ]finding estoppel, the vice-chair necessarily found that EllisDon had relied on the representation to its detriment. There was no possibility of putting EllisDon back into even a roughly comparable position to that which it occupied in 2000. Any time limitation set on the estoppel could not be reconciled with the vice-chair's findings of fact as to the basis for imposing the estoppel in the first place and could not be said to be reasonable. The only logical outcome was that the estoppel should be permanent.

Per Hourigan J. (concurring): Molloy J.'s reasons are applicable except the admission into evidence of the SWA. The SWA did not fit within the definition of a business record as described in s. 35 of the Evidence Act and, to the extent that the ancient documents doctrine is still extant in Canadian common law, did not qualify as an ancient document. However, boards and arbitrators are not bound by the rules of evidence and have a broad discretion on the admissibility of evidence. There were sufficient guarantees of the authenticity and reliability of the document to warrant its admission.

Delgamuukw v. British Columbia, 1989 2776 (BC SC), [1989] B.C.J. No. 1385, [1989] 6 W.W.R. 308, 38 B.C.L.R. (2d) 165, [1990] 1 C.N.L.R. 20, 16 A.C.W.S. (3d) 273 (S.C.); Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62, EYB 2011-199662, 2012EXP-65, 2012 EXPT-54, J.E. 2012-46, D.T.E. 2012T-7, 424 N.R. 220, 340 D.L.R. (4th) 17, 317 Nfld. & P.E.I.R. 340, [2012] CLLC Â220-008, 213 L.A.C. (4th) 95, 38 Admin. L.R. (5th) 255, 97 C.C.E.L. (3d) 199, 208 A.C.W.S. (3d) 435; R. v. Starr, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 2000 SCC 40, 190 D.L.R. (4th) 591, 258 N.R. 250, [2000] 11 W.W.R. 1, J.E. 2000-1848, 148 Man. R. (2d) 161, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1, 47 W.C.B. (2d) 250, consd

Other cases referred to

Ahousaht Indian Band v. Canada (Attorney General), [2008] B.C.J. No. 1095, 2008 BCSC 769, [2008] 3 C.N.L.R. 32, 167 A.C.W.S. (3d) 711; Ajayi v. R.T. Briscoe Ltd., [1964] 3 All E.R. 556, [1964] 1 W.L.R. 1326 (P.C.); Ares v. Venner, 1970 5 (SCC), [1970] S.C.R. 608, [1970] S.C.J. No. 26, 14 D.L.R. (3d) 4, 12 C.R.N.S. 349, 73 W.W.R. 347; Aynsley v. Toronto General Hospital, 1971 23 (SCC), [1972] S.C.R. 435, [1971] S.C.J. No. 122, (sub nom. Toronto General Hospital v. Matthews) 25 D.L.R. (3d) 241, affg 1969 31 (ON CA), [1969] 2 O.R. 829, [1969] O.J. No. 1407, 7 D.L.R. (3d) 193 (C.A.), affg 1967 258 (ON SC), [1968] 1 O.R. 425, [1967] O.J. No. 1148, 66 D.L.R. (2d) 575 (H.C.J.); Canada (Minister of Citizenship and Immigration) v. Seifert, [2006] F.C.J. No. 344, 2006 FC 270, 288 F.T.R. 1, 43 Admin. L.R. (4th) 1, 146 A.C.W.S. (3d) 415; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547,[2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; H. (F.) v. McDougall, [2008] 3 S.C.R. 41, [2008] S.C.J. No. 54, 2008 SCC 53, 61 C.R. (6th) 1, 61 C.P.C. (6th) 1, 297 D.L.R. (4th) 193, 83 B.C.L.R. (4th) 1, [2008] 11 W.W.R. 414, 260 B.C.A.C. 74, EYB 2008-148155, J.E. 2008-1864, 60 C.C.L.T. (3d) 1, 380 N.R. 82, EYB 2008-148155, 169 A.C.W.S. (3d) 346; Marathon-Delco Inc. v. International Union of Bricklayers and Allied Craftsmen, Local 6, [2001] O.J. No. 2831, [2001] OLRB Rep. January/February 265 (Div. Ct.); Martinez v. Hogeweide, [1998] A.J. No. 126, 1998 ABCA 34, 156 D.L.R. (4th) 757, 209 A.R. 388, 77 A.C.W.S. (3d) 27; Med-Chem Health Care Inc. (Re), [2000] O.J. No. 4009, [2000] O.T.C. 728, 101 A.C.W.S. (3d) 10 (S.C.J.); Noranda Metal Industries Ltd., Fergus Division and International Brotherhood of Electrical Workers, Local 2345 (Re) (1983), 1983 1690 (ON CA), 44 O.R. (2d) 529, [1983] O.J. No. 3280, 1 O.A.C. 187, 84 CLLC Â14,024 at 12093, 23 A.C.W.S. (2d) 136 (C.A.); [page19 ]Ontario Sheet Metal Workers' and Roofers' Conference v. EllisDon, [2012] O.L.R.D. No. 480, [2012] OLRB Rep. January/February 131, 2012 6306 (L.R.B.); Ontario Sheet Metal Workers' and Roofers' Conference v. EllisDon, May 1, 2012, Vice-Chair David McKee (Ont. L.R.B.); R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81, 113 N.R. 53, J.E. 90-1356, 41 O.A.C. 353, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1, 11 W.C.B. (2d) 10; R. v. Khelawon, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 2006 SCC 57, 274 D.L.R. (4th) 385, 355 N.R. 267, J.E. 2007-28, 220 O.A.C. 338, 215 C.C.C. (3d) 161, 42 C.R. (6th) 1, EYB 2006-111773, 71 W.C.B. (2d) 498; R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74, 94 D.L.R. (4th) 590, 139 N.R. 323, J.E. 92-1312, 55 O.A.C. 321, 75 C.C.C. (3d) 257, 15 C.R. (4th) 133, 17 W.C.B. (2d) 97; Setak Computer Services Corp. Ltd. v. Burroughs Business Machines Ltd. (1977), 1977 1184 (ON SC), 15 O.R. (2d) 750, [1977] O.J. No. 2226, 76 D.L.R. (3d) 641, [1977] 1 A.C.W.S. 467 (H.C.J.); Steds Limited, [1992] OLRB Rep. January 67; Subway Franchise Systems of Canada, Ltd. v. Esmail, [2005] A.J. No. 1474, 2005 ABCA 350, 380 A.R. 274, 23 C.P.C. (6th) 369, 143 A.C.W.S. (3d) 367; Sudbury District Roman Catholic Separate School Board (Re), 1984 5134 (ON LA), [1984] O.L.A.A. No. 65, 15 L.A.C. (3d) 284 (Adams); Toronto (City) and Canadian Union of Public Employees, Local 79 (Re) (1982), 1982 2229 (ON CA), 35 O.R. (2d) 545, [1982] O.J. No. 222, 133 D.L.R. (3d) 94, 82 CLLC Â14,174 at 162, 13 A.C.W.S. (2d) 145 (C.A.) [Leave to appeal to S.C.C. refused (1982), 36 O.R. (2d) 386n, [1982] 1 S.C.R. vi, 42 N.R. 586n]

Statutes referred to

Evidence Act, R.S.O. 1990, c. E.23, ss. 35, 36

Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 1(4), 48 [as am.], (12)(f), 111 [as am.], (2) (e), 151(2), 153(1)(b), 162(1) [as am.]

Authorities referred to

Brown, Donald J.M., and David M. Beatty, Canadian Labour Arbitration, 4th ed. (Aurora, Ont.: Canada Law Book, 2006)

Dyzenhaus, David, "The Politics of Deference: Judicial Review and Democracy" in Michael Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997)

Lederman, Sidney N., Alan W. Bryant and Michelle Fuerst, Sopinka,

Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham, Ont.: LexisNexis, 2009)

Lester, Geoffrey S., "The Problem of Ancient Documents: Part I" (1998), 20 Advocates' Q. 101

Lester, Geoffrey S., "The Problem of Ancient Documents: Part II" (1998), 20 Advocates' Q. 133

Phipson, Sidney Lovell, Phipson on Evidence, 13th ed. (London: Sweet & Maxwell, 1982)

APPLICATIONS for judicial review of decisions of the Ontario Labour Relations Board.

Hal P. Rolph and Mark Contini, for applicant/ respondent EllisDon Corporation.

Ronald N. Lebi, for respondent/applicant unions.

Leonard Marvy, for Ontario Labour Relations Board.

MOLLOY J. (LEDERER J. concurring): — [page20 ]

Introduction

[1] On February 13, 2012, the Ontario Labour Relations Board issued an arbitration decision in respect of grievances filed by two unions (the Ontario Sheet Metal Workers' Conference and the International Brotherhood of Electrical Workers -- the "unions") against a building contractor, EllisDon Corporation. The unions took the position that EllisDon is bound to the provincial collective agreement of each of them as a result of a document signed in Sarnia in 1958 (the "Sarnia Working Agreement" or "SWA"). In the February 13, 2012 decision [[2012] O.L.R.D. No. 480, [2012] OLRB Rep. January/February 131 (L.R.B.)], Vice-Chair David McKee found in favour of the unions on almost all points. He found that: the Sarnia Working Agreement had been proven; that it was enforceable by the unions; that the bargaining rights arising from the SWA were extended province-wide for both unions; and that EllisDon violated the provincial collective agreements of both unions by subcontracting work on projects in Ottawa and Hamilton. However, the vice-chair also ruled that the unions were estopped from claiming damages or other relief as a result of the violations for a period of two years from the date of his decision. On May 1, 2012, the vice-chair modified the period of estoppel so that it also applied to any project commenced by EllisDon, or in respect of which it had made a firm and irrevocable bid, on or before February 13, 2014.

[2] EllisDon applies (in Application No. 310/12) for judicial review seeking to quash the decisions of the vice-chair. EllisDon takes the position that the Sarnia Working Agreement was not properly proven. Further, even if the agreement was proven, EllisDon argues that the vice-chair erred in failing to dismiss the grievances based on a lack of privity, delay by the unions and abandonment. Finally, EllisDon argues that in any event, the estoppel ordered by the vice-chair should have been permanent, rather than time-limited.

[3] The unions apply (in Application No. 363/12) for judicial review seeking to quash those portions of the decisions imposing an estoppel on the unions from enforcing their rights under the provincial collective agreements.

[4] I find that the vice-chair erred in law, and acted unreasonably, in the manner in which he found the Sarnia Working Agreement to have been proven. In particular, it was unreasonable to admit the document either as a business record or under the "ancient documents" rule. The vice-chair gave no other reasons for accepting the terms of the document as being proven. [page21 ]Since the entire grievances hinged on the SWA, if its terms cannot be proven, the grievance must fail. Although the vice-chair in this case provided no reasonable basis for accepting the SWA as proven, it is possible that another decision-maker could find the document proven on grounds not considered by the vice-chair. Therefore, if this was the only basis for interfering with the vice-chair's decision, I would remit the matter to another decision-maker for further determination on the proof of the agreement.

[5] In order to decide whether to send the matter back on this issue, it is necessary to consider all of the issues raised and determine if they have any impact on the ultimate decision of this court. Having considered those issues, I find the decision to be reasonable in respect of all of the other grounds raised by the parties, with the exception of the time limit placed on the estoppel.

[6] In respect of estoppel, the factual findings of the vice-chair are reasonable and supported by the evidence. He found that EllisDon fundamentally altered its position, to its detriment, based on representations made that unions province-wide would not seek to enforce the SWA. In these circumstances, the vice-chair's determination that an estoppel arises is unassailable. However, the purpose of estoppel is to put the other party into the position it would have been, but for the representations relied upon. On the facts of this case, that can no longer be done. In light of the factual findings giving rise to the estoppel, I see no reasonable basis for limiting the estoppel to two years, or any other arbitrary period of time. Once the grounds for the estoppel are established, the only rational conclusion is that the estoppel must be permanent.

[7] Given that result, there is no purpose in remitting the matter to the board for further consideration as to whether the SWA has been proven. Even if the agreement is proved, enforcement is permanently estopped. Accordingly, the appropriate remedy is to quash the decisions and dismiss the underlying grievances.

[8] My reasons for these determinations follow.

Issues

[9] The following issues are raised:

(i) Was the Sarnia Working Agreement proven?

(ii) If the SWA is proven, does the doctrine of privity of contract prevent these unions from enforcing it?

(iii) Did the unions abandon their rights under the SWA?

(iv) Does the doctrine of estoppel apply? [page22 ]

(v) Did the board act reasonably in limiting the length of the estoppel?[^1]

Proof of the Sarnia Working Agreement

The nature and source of the document

[10] No original of the SWA was ever found. The document tendered by the unions and accepted by the vice-chair as the SWA consists of three pages, all of which are photocopies. The document is dated October 24, 1958, is headed by the words "Working Agreement", and purports to be an agreement between "The Ellis-Don Limited" and "The Building and Construction Trades Council of Sarnia and Lambton County". The first two pages of the document are of poor quality and appear to be a photocopy of a carbon copy. They appear to comprise one complete document. The second page contains typed names (including the typed name "R.T. Sheppard" on the line for EllisDon, but contains no actual signatures. The third page is a photocopy of another document. The content is the same as the second page of the tendered document, but the size of the print is smaller. It contains signatures, including what appears to be a signature of R.T. Sheppard. This third page appears to be a photocopy of an original document, as opposed to a photocopy of a carbon copy.[^2]

[11] The photocopies tendered were found by James Bradshaw, the business manager of the Sheet Metal Workers 539 (an affiliate of the Sarnia Building Trades Council). He had set out to find evidence of a collective agreement between his union and EllisDon to support a grievance filed in Hamilton. Mr. Bradshaw has been the president of the Sarnia Building Trades Council since 2006 and has the current day-to-day files of the council in his office. He had no knowledge of the past record-keeping practices of the council. However, "past records" were stored in boxes on the mezzanine level of the offices of the International Union of Operating Engineers. When Mr. Bradshaw searched through [page23 ]those boxes, he found the three pages that were tendered as evidence of the SWA.[^3]

[12] The unions produced an original of a 1958 Working Agreement between the Sarnia Building Trades Council and a contractor called Finley-McLaughlan Ltd., found in the same location as the photocopied pages relating to EllisDon. It is identical in content to the document tendered as the SWA with EllisDon. The unions had no explanation for why the original of the Finley-McLachlan agreement was available, but no original of the EllisDon SWA could be found.[^4]

[13] The union did conduct a search for an original. In 1958, parties were required by law to file copies of every collective agreement with the Ontario Labour Relations Board. By letter dated November 12, 1958, the Sarnia Building Trades Council wrote to the board enclosing copies of the "collective agreements" with EllisDon and Finley-McLaughlan Ltd. In 1966, the conciliation branch of the Ministry of Labour took over this record-keeping function. However, searches of the records of the board, the Workplace Tribunals Library, the Collective Agreements Library at the conciliation branch of the Ministry of Labour, and the Archives of Ontario turned up nothing.[^5]

[14] There was no evidence before the vice-chair from anyone who had any knowledge of the negotiation or signing of the 1958 Working Agreement. There was also no evidence as to how, when and by whom the various photocopies comprising this document were made. The vice-chair found that he had no way of knowing whether the third page with the signatures had originally been attached to a first page that was the same as the first page of the document tendered or to a different first page. He stated, "I do not know how these pieces of paper relate to one another."[^6] The two unions had "no personal or institutional memories of any bargaining rights with EllisDon". They "quite literally found a document, or at least a photocopy of the document in an old box of files" and "could do no better than to say they discovered, serendipitously, a document of whose existence they had no prior knowledge".[^7] [page24 ]

[15] As for the nature of the content of the document, the vice-chair noted that the wording is "almost identical" to the Toronto Working Agreement that was subject to a series of labour board decisions in the 1980s and thereafter. Thus, he found that, "[i]n the abstract, this is precisely the type of document that the Board has found to be a voluntary recognition agreement that creates bargaining rights for a trade union with respect to the employees of an employer". Further, after 1978, employers who were parties to such agreements became bound to the various provincial collective agreements of all the affiliates of the Building Trade Council. Therefore, if the document tendered was accepted as the Sarnia Working Agreement, it would bind EllisDon to province-wide collective agreements with all affiliates of the Sarnia Building Trades Council.[^8]

Reasons of the board

[16] The vice-chair held that the three-page document tendered by the union was admissible for the truth of its contents and that it constituted an agreement that was binding on EllisDon as a voluntary recognition agreement creating province-wide bargaining rights for various unions, including the two applicants before the board. He found the document to be admissible on two grounds: (1) as a business record; and (2) as an ancient document.

[17] In finding the document to be a business record, the vice-chair relied entirely on s. 35 of the Evidence Act, R.S.O. 1990, c. E.23. He held that one of the things the Sarnia Building Trades Council did to advance the interests of its members was "to enter into Working Agreements of this sort". He stated:[^9]

What the documents were at the time is often debatable . . . but it was part of the regular business of the Sarnia Building Trade Council to enter into those relationships with employers. Records of the Sarnia Building Trades Council may not be kept in elegant or elaborate surroundings, but they are identified as the past records of the Sarnia Building Trades Council.

[18] The vice-chair further held that the signatures on the second page were "proved" by Mr. Bradshaw who recognized the signatures of two officers of the Sarnia Building Trades Council and that the signature of Mr. Sheppard on behalf of EllisDon was proved by an admission in another proceeding. The reference to the previous proceeding related to a grievance that had [page25 ]been filed in 1986 involving EllisDon and three unions affiliated with the Sarnia Building Trades Council. That grievance was settled without a decision by the board, without an admission of liability and without an admission that EllisDon was bound to any form of a collective agreement. However, in preparation for the litigation of the grievance, counsel for the parties confirmed in writing that EllisDon had agreed to the unions' filing without formal proof a copy of the working agreement between EllisDon and the trade council dated October 24, 1958, and signed by Mr. R.T. Sheppard, who was authorized to execute the agreement on behalf of EllisDon.[^10]

[19] That is the extent of the vice-chair's reasoning for admitting the document as a business record.

[20] The vice-chair then went on to find that "in any event" the SWA could be admitted as an "ancient document". On this issue, the vice-chair relied entirely on two articles written by G. Lester and published in the Advocates Quarterly in 1998.[^11] From this, he extracted three "requirements of proof" and determined that each had been met, holding as follows (at para. 18):

The requirements of proof are that:

(1) It must be an "ancient document" which means that it is at least 30 years older than the date on which it is sought to be introduced into evidence. In this case the time lapse is 50 years.

(2) It must be produced from proper custody, which I find was done here.

(3) If there are suspicious circumstances surrounding its execution or storage, they require explanation. There were none here.

[21] The vice-chair recognized that the ancient documents rule related to original documents, whereas what was before him was a photocopy. On this point, he also relied upon Mr. Lester's article, citing the following excerpt (from p. 115 of the article) as the "rule" with respect to copies.

(5) The Problem of Ancient Copies

Where the ancient document is not the original but an ancient copy of a lost original, a special problem arises. While loss or destruction will excuse production of the original, the logic of the rules entails the proposition that there is no witness who can prove that the ancient copy is a true copy. [page26 ]

Yet a copy carries with it the implied extrajudicial assertions of a copyist that the lost original was in fact executed, and that the copy is an accurate copy. Those assertions are hearsay, and so on principle an ancient copy should be inadmissible. But to overcome this problem, there is a presumption that the copy was duly made by a copyist, and that the copy is an accurate copy. This establishes the execution of the original, and the copy becomes admissible as secondary evidence to prove the contents of the original. This rule therefore amounts to another exception to the hearsay rule.

[22] Finally, the vice-chair held that this analysis "fit comfortably" with the case before him, stating as follows, at para. 19:

This rule fits comfortably with the facts of this case. What appears to be a "trued-up" copy is identical in wording to the original document between the Sarnia Building Trades Council and Finley-McLaughlan. That original document was found in the same storage area as the photocopy of the Working Agreement executed by R.T. Sheppard on behalf of Ellis Don. Indeed it was filed with the Board at the same time in 1958. In 1958 this was the only way of creating a "true copy" since photocopies did not exist and Gestetner copiers were rare and impractical. Finally, when Ellis Don admitted in 1986 that the Sarnia Working Agreement had been executed by R. T. Sheppard, it must have concluded that there was a document in existence that could be called the Working Agreement between Ellis Don and the Building and Construction Trades Council of Sarnia and Lambton County dated October 24, 1958. The document introduced in these proceedings was what the Unions had delivered to Ellis Don at that time, and Ellis Don has not suggested that it had any other document in its contemplation at the time it made the admission.

Standard of review

[23] It is beyond debate that the usual standard of review from decisions of the Ontario Labour Board Relations Board is reasonableness. However, the applicable standard of review is not governed solely by the nature of the decision maker; it is also a function of the nature of the decision under review.

[24] In its landmark decision in Dunsmuir v. New Brunswick,[^12] the Supreme Court of Canada preserved the correctness standard for "many legal issues", including questions of law outside the special area of expertise of the tribunal and which have a broad application beyond the context of the particular administrative law decision involved. The majority held, at para. 60:

As mentioned earlier, courts must also continue to substitute their own view of the correct answer where the question at issue is one of general law "that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise" (Toronto (City) v. C.U.P.E., at para. 62, per LeBel J.). Because of their impact on the administration of justice as a whole, such questions require uniform and consistent answers. Such was the case in Toronto (City) v. C.U.P.E., which dealt [page27 ]with complex common law rules and conflicting jurisprudence on the doctrines of res judicata and abuse of process -- issues that are at the heart of the administration of justice (see para. 15, per Arbour J.).

[25] In this case, the unions argued that the board has a statutory power under s. 48(12)(f) and s. 111(2) (e) of the Labour Relations Act, 1995 to accept such oral or written evidence as it, in its discretion, considers proper, whether admissible in a court of law or not.[^13] I do not disagree that if the vice-chair had rested his decision on findings of fact and his discretion to admit evidence under the provisions of the home statute, a reasonableness standard might well be appropriate.

[26] However, the vice-chair did not rely on this provision of the Act. Rather, he found the document to be admissible under the common law principle relating to ancient documents and as a business record under s. 35 of the Evidence Act. These are questions of law of general application outside the special expertise of this tribunal. Further, they are issues of central importance to the administration of justice. Decision-making on matters of principle such as this should be consistent. In my view, the vice-chair was required to be correct as to the application of these general legal principles.

Analysis: Admitting the document as a business record

[27] In this case, the vice-chair admitted the tendered document as a business record under s. 35 of the Evidence Act, which states:

35(1) In this section,

"business" includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise;

"record" includes any information that is recorded or stored by means of any device.

(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. [page28 ]

[28] Any interpretation of this provision should appropriately consider its history. The statutory recognition of business records finds its roots in the common law rule dealing with their admissibility as an exception to the hearsay rule. As set out in Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham, Ont.: LexisNexis, 2009), the common law exception for business records was historically justified on the basis of necessity and because of the guarantees of reliability and accuracy typically produced by the circumstances in which business records are generated. As stated, at p. 284 of that text (s. 6.187):

An exception for this type of hearsay was justified on the basis of necessity, the declarant no longer being available to give evidence . . . Moreover, the statement was said to possess a circumstantial guarantee of truth based upon the assumption that a declarant would fear censure and dismissal should an employer discover an inaccuracy in the statement. Also, the constant routine and habit in making entries provided some likelihood of accuracy.

(Footnotes omitted)

[29] Initially, the rule applied only where the maker of a record had died before trial. However, in 1970 the strictures of the common law rule were examined and relaxed by the Supreme Court of Canada in Ares v. Venner,[^14] in which routine charting notes made by nurses on hospital records were found to fall within the business records exception. In that case, the Supreme Court held that there was good reason to expand the common law exception in situations where there are circumstantial guarantees of trustworthiness, including where the maker of the record had no motive to fabricate, had a duty to properly record the matter set out, and could be liable to punishment or reprimand by superior authorities if the record was not accurately made. The court held (at p. 626 S.C.R.):

Hospital records, including nurses' notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses' notes, the nurses were present in court and available to be called as witnesses if the respondent had so wished.

[30] The Sopinka text offers the following explanation for the expansion of the common law exception in Ares v. Venner (s. 6.196): [page29 ]

[J]udicial reform of the common law exception made sense for a number of reasons. First, there was the consideration of mercantile convenience. To call all the persons responsible for keeping a record in a large institution was too inconvenient and might in fact serve to disrupt the business of that institution by taking a multitude of witnesses away from their work. Secondly, one had to consider the expense to the litigants in seeking out and subpoenaing all relevant witnesses. Thirdly, the cost to the public and the great length of time that would be consumed at trial by the testimony of witnesses called merely to prove a business record had to be considered. Fourthly, with records of a hospital, involving the health of patients, it could be taken for granted that nurses would make every effort to keep accurate notes. The nurses had no interest, apart from their duty, in keeping the notes and, therefore, in all likelihood, the notes were an impartial and trustworthy record of the patients' condition. Further, nothing would be gained from calling the nurses themselves. In all probability, they would have no independent memory, apart from the notes that they made, and, therefore, the notes as evidence were superior to the testimony of the nurses.

[31] The Supreme Court in Ares v. Venner noted the need for legislative reform in this area. It is widely accepted that the current exception in s. 35 of the Evidence Act reflects a concurrent drive for a legislated solution to the same problem. The current exception found in s. 35 of the Act was introduced in 1966 and was at that time s. 36. One of the first cases to interpret the new s. 36 provision was Aynsley v. Toronto General Hospital,[^15] in which Morland J. held (at pp. 431-32 O.R.):

By this amendment it appears clear to me that the Legislature intended to allow in evidence certain matters which could not be admissible without calling the witnesses to prove each particular item in a record. And, I am bearing in mind that this section would cover such diverse things as, perhaps, pages and pages of stockbrokers' dealings with a client, pages and pages of a credit company's business affairs, perhaps pages and pages of records of one of the big stores in the community where the records might have been made by as many as twenty or thirty different people; and in the ordinary course, perhaps we would have had to call all these people to make that record admissible. So, clearly, I think this section must mean that what would normally be considered hearsay by the Court, that is, a record may be admitted without calling the person who made that record.

[32] In Setak Computer Services Corp. Ltd. v. Burroughs Business Machines Ltd.,[^16] Griffiths J. considered the admissibility of records under both the Ares v. Venner common law exception and s. 36 (now s. 35) of the Evidence Act. The litigation [page30 ]involved a dispute between Setak and Borroughs as to computer equipment supplied by Borroughs that was alleged by Setak to be defective. Prior to the litigation, there had been a history of dealings between the parties relating to the alleged problems. In particular, there was a series of meetings between representatives of the two companies through 1969 and 1970. Minutes were taken of those meetings, which were circulated between the parties and, on occasion, corrected at subsequent meetings. At the time of trial, in 1977, the admissibility of the minutes of those meeting was a significant issue. In a thorough decision, Griffiths J. reviewed the history and purpose of both the common law and legislative exceptions for business records and concluded (at para. 63) that "[t]he Act was intended to make admissible records which, because they were made pursuant to a regular business duty, are presumed to be reliable". He held that the legislative exception for business records should not be limited to traditional business records such as ledgers, payroll receipts, books of entry and the like. Rather, it was sufficient that the records were made "in the course of a business in the sense that they related to the operation of a business as defined, as opposed to some purely private or personal activity".[^17] Further, he held that it was not necessary that the records be made in the course of the core business of the company involved, as long they were made in connection with some aspect of the business operations. He held (at p. 760 O.R.):

To draw a distinction between records relating to the principal business and those relating only to an auxiliary feature of the business, is not justified by the plain wording of the section. So long as the records are made in the usual and ordinary course of some phase of the business, whether principal or auxiliary, they should be admitted, in my view, according to the plain meaning of s. 36.

[33] In the result, Griffiths J. admitted the minutes of the meetings under s. 36 of the Act, but with some exceptions with respect to hearsay statements made by others at the meetings, as recorded in the minutes. The fact that the minutes were maintained with respect to meetings that were somewhat out of the ordinary was not found to be an obstacle to their admissibility. There were circumstantial guarantees of accuracy. The employees who prepared the minutes were charged with responsibility of recording the dates of the meeting, who was present and what was said. The purpose of preparing such minutes was to ensure an accurate record was kept of those matters. The [page31 ]minutes were circulated to all present and corrections were made as required. Although the records might not be part of the same kind of "routine" as books of ledger, similar circumstantial guarantees of accuracy were present.

[34] It is clear from this case law, and from the history of the common law rule, that the business records provision in s. 35 of the Evidence Act is a codification of an exception to the hearsay rule in a situation where circumstantial guarantees of reliability are present. Those circumstances relate to the reason for the creation of the record and the duty of those preparing it to maintain accuracy.

[35] I cannot see how extending the business records exception to the document at issue in this case complies with any of these underlying principles. This court was not referred to, nor am I aware of, any case law in which the business records exception has been extended to include a contract such as the one here. The vice-chair held [at para. 15] that the requirements of s. 35 had been met because "one of the things the Sarnia Building Trades Council did . . . was to enter into Working Agreements of this sort" and "it was part of the regular business of the Sarnia Building Trades Council to enter into those relationships with employers". I have considerable difficulty describing such a document as a "business record" merely because a business entity entered into it, and had the authority to enter into it in the course of that business. If this kind of document constitutes a "business record" within the meaning of s. 35 of the Evidence Act, then every document authored by that entity or signed by someone on behalf of that entity is also a business record. Such a result completely undermines the purpose of the provision and makes all hearsay records admissible, provided they are the documents of a business as opposed to an individual. That cannot be the law.

[36] In landmark decisions in 1990 (R. v. Khan)[^18] and 1992 (R. v. Smith),[^19] the Supreme Court of Canada substantially changed the law with respect to the admissibility of hearsay evidence, turning to what has been referred to as the "principled approach" to admissibility. In 2000, in R. v. Starr,[^20] the Supreme Court extended the principled approach to a consideration of the exceptions to the hearsay rule. The court held in Starr that [page32 ]although evidence falling within a traditional exception to the hearsay rule was presumptively admissible, it should still be examined under the principled approach and excluded if it did not meet the requirements of necessity and reliability. Although the Supreme Court modified some aspects of Starr in its later decision in R. v. Khelawon, those distinctions have no application here. In Khelawon, the court reaffirmed the application of the "overarching principled approach to hearsay", the twin requirements of necessity and reliability, and the application of those principles even where evidence might on its face fall within a common law exception to hearsay.[^21]

[37] In my view, given that the vice-chair was extending the business records exemption in s. 35 of the Evidence Act to a document not normally included within such protection, it was incumbent upon him to consider both the purpose of the legislation and whether the evidence should be admissible based on the principled approach to hearsay. In particular, the vice-chair failed to take into account a number of factors pointing to possible unreliability of the document in question. Firstly, the document admitted is not an original. The original of the agreement is missing, and its absence is unexplained. Secondly, the original document is not in places one would expect to find it, such as government records and the files of the Sarnia Business Trades Council (where the copy was found along with the original of another similar document). Thirdly, there is no evidence as to who made the photocopy or why or in what circumstances. Therefore, there is no basis for saying that the copy was made in the "ordinary course of business" or that is was usual to make such a copy close to the time at issue. Indeed, it would appear that the document consists of more than one copy made at different times and in a different manner. Fourthly, the integrity of the document is in question. There is no way of knowing whether the third page tendered was ever attached to anything. In any event, there is no way of knowing whether the page to which it was attached was identical, in content, to the first of the three pages that were tendered. Fifthly, there is no institutional memory of any of the surrounding events. The unions did not know the document existed until it was found in a box.

[38] Given these circumstances, the vice-chair ought to at least have considered the reliability of this document before he admitted it into evidence. The failure to do so was an error of [page33 ]law. Further, the vice-chair appeared to be of the view that once the document was admitted into evidence, it was now admissible for its truth without any further consideration of its reliability. Again, this was an error of law. Admissibility is only a threshold issue; once the document is admitted there is still a requirement to consider the weight to be given to it, which also mandates an examination of the factors that may undermine its reliability, as I have noted above. The vice-chair did no such analysis. Rather, having determined that the document was admissible, he accepted it as proof of its contents, and on that basis held that it created province-wide bargaining rights for unions that had no connection whatsoever to the original document executed more than half a century earlier. That too is a legal error.

[39] I have approached this from the standard of correctness. However, given the lack of analysis, I would have reached the same conclusion even if a standard of reasonableness was applied. At a minimum, the vice-chair was required to address his mind to these issues. Instead, he concluded that because the Sarnia Business Trades Council could be considered a business, and because it entered into agreements with employers, these three photocopied pages were admissible for their truth. That is an unreasonable conclusion because the path taken to get to it is not an intelligible decision-making process and the outcome is not justifiable on the process of reasoning applied.

Analysis: Admitting the document as an ancient document

[40] The reasoning of the vice-chair with respect to the ancient documents exception suffers from many of the same deficiencies. The sole authority cited by the vice-chair is the 1998 article by Geoffrey Lester. The Lester article pre-dates the Supreme Court's decision in Starr. Neither the article, nor the vice-chair, considered the impact of the Supreme Court of Canada's decisions about the principled approach to hearsay on the ancient documents rule. In particular, the vice-chair did not address the impact of the Starr decision, although in fairness, it does not appear to have been argued before him.

[41] There appears to be very little Canadian case law interpreting or applying the ancient documents rule. In the most recent edition of the Sopinka text cited above, it is suggested the ancient documents exception is limited to documents relating to property (at s. 6.290 on p. 320):

Ancient documents such as deeds or leases which affect an interest in property have been admitted by the courts as evidence of possession of the realty. This exception is usually restricted in its application to property deeds and similar documents . . . [(citing to R. v. Zundel (1987), 1987 121 (ON CA), 58 O.R. (2d) 129, [1987] O.J. No. 52, 31 C.C.C. (3d) 97 (C.A.), at p. 168 [page34 ]where the court makes this latter point in obiter)]

[42] However, other authority suggests the exception can apply to any type of document over 30 years of age. This was the view of McEachern C.J.B.C. in Delgamuukw v. British Columbia, 1989 2776 (BC SC), [1989] B.C.J. No. 1385, [1989] 6 W.W.R. 308 (S.C.) (note, however, this was an aboriginal land claims case). Citing to Phipson on Evidence, 13th ed. (London: Sweet & Maxwell, 1982), at p. 871, Justice McEachern commented, at para. 17, that "[t]he types of documents which can be subject to the ancient document rule appear to be limitless". He thus summarized the requirements of the exception as follows (at para. 18):

The rule, therefore, seems to be that private documents 30 years old, produced from proper custody, and otherwise free from suspicion, etc., are admissible and no evidence of the handwriting, signature, sealing or delivery need generally be given. As I have said, 30 years is the rule at common law. Legislation has changed this to 20 years in England, but there is no such legislation in this country.

(Emphasis added)

[43] It is important to note, however, that McEachern J. gave a broader interpretation to the test for "free from suspicion" than would appear to have been applied by the vice-chair in this case. In his article (the only source relied upon by the vice-chair), Lester suggests that the only vestige of the "free from suspicion" test that now remains relates to suspicion of fraud. However, in Delgamuukw, McEachern J. held (at para. 19):

I do not propose to dwell on the question of what constitutes freedom from suspicion. Wigmore's two great rules of necessity and a circumstantial guarantee of trustworthiness are as good a test as any that might be suggested.

[44] Relying in part on this finding in Delgamuukw, O'Reilly J. of the Federal Court held in 2006 that the ancient documents rule had been superseded by the principled approach to hearsay developed by the Supreme Court of Canada. In Canada (Minister of Citizenship and Immigration) v. Seifert,[^22] O'Reilly J. stated as follows (at para. 7):

Regarding the ancient documents exception to the hearsay rule, the plaintiff relied on Delgamuukw v. British Columbia. In that case, Chief Justice McEachern acknowledged that ancient documents (more than 30 years old) can be admitted as proof of their contents if they are free from suspicion. To determine whether the documents are free from suspicion, Chief Justice McEachern suggested that Wigmore's two "great rules of necessity and a [page35 ]circumstantial guarantee of trustworthiness are as good a test as any that might be suggested" (at p. 2). These criteria are identical to those that underlie the principled approach to hearsay exceptions recognized by the Supreme Court of Canada in the well-known trilogy of cases: R. v. Khan; R. v. Smith, and R. v. B.(K.G.). Delgamuukw, above, predates those cases and, in my view, the particulars of the ancient documents doctrine set out in it have been overtaken by the Supreme Court of Canada's overarching approach to admitting hearsay evidence. Certainly, the two important criteria cited by Chief Justice McEachern are co-extensive with the Supreme Court's ruling that hearsay can be admitted where the requirements of necessity and reliability have been met. Accordingly, my consideration of the principled approach to the hearsay rule obviates the need to consider the ancient documents doctrine as a separate and free-standing ground of admissibility.

(Emphasis added; citations omitted)

[45] In Ahousaht Indian Band v. Canada (Attorney General),[^23] Garson J. of the British Columbia Supreme Court came to a similar conclusion, stating (at para. 1):

The documents are not admissible as ancient documents. The ancient documents doctrine, an exception to the hearsay rule, has been overtaken by the more flexible approach of R. v. Kahn, 1990 77 (SCC), [1990] 2 S.C.R. 531, R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915 and subsequent jurisprudence, though the exceptions may still be used. In any event, the documents are not ancient documents. They are primarily narrative accounts of events. The ancient document exception was intended to apply to records that were less subjective in nature, such as property deeds, documents nearer to business records, and other similar recordings of transactions. The exception was not intended to apply to the kind of narrative journals that are before the court, but, rather, to prove more transactional type events.

[46] I agree with the observations of McEachern J. and O'Reilly J. in these two cases. The ancient documents rule, if it still applies at all, must at least be considered in conjunction with the principled approach to hearsay as set out by the Supreme Court of Canada in Starr. Before simply accepting the document as proven because it fell within the defined test for ancient documents, the vice-chair was required to consider the reliability of the document. His failure to do so was an error of law. That aspect of his decision therefore cannot stand.

[47] Further, as I have already stated in dealing with the business records exception to hearsay, an analysis of reliability should be contextual and should include a consideration of factors such as the five issues to which I have already alluded in para. 37, above. Also, and again as I have already pointed out with respect to the business records analysis, the vice-chair jumped from a finding of admissibility to accepting the contents [page36 ]of the document as proven. Some further analysis was required with respect to the weight to be given to the document in all of the circumstances. Failing to do so was an error of law.

[48] Even if a reasonableness standard is applied, I would find the vice-chair's conclusion on this point to be unreasonable as it is not supported by any reasons that can withstand scrutiny. There is no question that the document is more than 30 years old. However, the reasons of the vice-chair provide no insight into why he concluded that the document had been retrieved from "proper custody" or that there were no "suspicious circumstances". He made only bald and conclusory statements in respect of both issues. This is not a situation in which those issues were simply uncontentious. Rather, as I have already discussed, the document was simply discovered in a box and there is some considerable mystery about what the different pages are, who photocopied those pages and when, what happened to the original, and why the document was not located in any of the usual places one might expect to find it. In the absence of any real consideration of these circumstances by the vice-chair and how they affect the reliability of the document and the weight to be given to it, I am unable to conclude that his decision is reasonable.

Privity of Contract

Reasons of the board

[60] EllisDon argued that the applicant unions were not parties to the alleged SWA and that the doctrine of privity of contract therefore prevents them from enforcing or relying upon it.

[61] The vice-chair recognized the doctrine of privity of contact. He also recognized that based on the SWA alone, these unions would have no rights under it or against EllisDon. However, the vice-chair held that as a result of legislative amendments in 1978 and 1980, bargaining rights were extended beyond the original contracting parties and the applicant unions were brought within the scope of the SWA, creating bargaining rights.

[62] The vice-chair held (at paras. 45 and 46): [page41 ]

In 1978 and in 1980, the extent of the bargaining rights was changed. The change was created by changes to the statute not by agreement between the contracting parties. In 1978 the Act was amended to require the province wide bargaining of a single collective agreement in the ICI sector. That amendment did not change the geographic scope of any bargaining rights. It simply changed the way in which a collective agreement could be negotiated for those bargaining rights, and limited the number of collective agreements in that sector to one.

In 1980 the bargaining rights held by each local union were extended province wide. That is bargaining rights were then held by all of the affiliated bargaining agents and each employee bargaining agency associated with each of the local unions on their own behalf and on behalf of all other affiliated bargaining agents (see section 158). This applies, of course, only to the ICI sector, the only sector relevant for this decision. Bargaining was continued on a province-wide basis by the respective employee and employer bargaining agencies.

Standard of review

[63] The vice-chair's decision is based entirely upon the evidence before him and the interpretation of relevant legislative provisions in 1978 and 1980 dealing with bargaining rights. This is an issue squarely within his area of expertise. The standard of review is reasonableness.

Analysis

[64] There is no general principle of law at issue here. Rather, the vice-chair determined that the nature of the document was such that when the law was amended in 1978 and 1980, province-wide bargaining rights were created. He further held that the contract itself had nothing to do with the issue and that privity of contract was irrelevant. The rights were created by statute.[^27]

[65] The vice-chair's reasons demonstrate a reasonable basis for his decision. This is clearly an issue upon which deference is owed. His construction of the statute is reasonable. I see no basis for intervening with this aspect of the decision.

Abandonment

Reasons of the board

[66] In his decision dated February 13, 2012, the vice-chair dealt, in paras. 32-36, with the issue of the delay by the unions in asserting their rights and whether their neglect amounted to abandonment of those rights. He held that the onus is on the employer to prove abandonment. He then found, on the facts, that [page42 ]the employer had failed to meet the test. The unions did not know about the SWA until it was discovered "serendipitously" in a box of old files. Therefore, they could not be found to have made any conscious decision to abandon their rights. Moreover, in the over 30 years after the 1958 SWA there was no evidence that EllisDon had taken any steps to formally terminate the SWA under its terms or that EllisDon had ever performed work or subcontracted work to a non-union subcontractor in either Ottawa or Hamilton, where the grievances now at issue arose. The vice-chair reasoned (at para. 34):

If there is no occasion to require a union to focus its attention on the precise nature of its legal relationship with the contractor, it is inappropriate to require a trade union to engage in a series of meaningless gestures to demonstrate that it wishes to keep alive the knowledge of bargaining rights which they believe, assume, or hope that they have. That would be the equivalent of requiring a natural person to write annual letters to relatives saying in effect "I'm still alive".

[67] On that basis, the vice-chair concluded that any neglect by the unions in failing to enforce their rights did not amount to abandonment.

[68] EllisDon sought reconsideration of the February 13, 2012 decision on various grounds, including on this point. In his reconsideration decision dated May 1, 2012, the vice-chair again rejected EllisDon's arguments on this point. He noted that this issue had already been adequately addressed in paras. 32-36 of his main decision. He reiterated the point that the only time the board would expect a union to raise the issue of bargaining rights with a subcontractor would be if the work of that trade had been subcontracted to a non-union business or to an employer with a collective agreement with a different union. However, there was no evidence from EllisDon that any such situation arose and therefore no evidence of an occasion where the unions would have been expected to assert their bargaining rights, but failed to do so.

[69] The vice-chair also rejected the EllisDon argument that the unions ought to have at least pursued the point with respect to province-wide bargaining rights during a grievance in 1986, stating (at para. 12) that "it does not lie in the mouth of EllisDon to complain that the Unions did not proceed with a grievance that EllisDon was prepared to settle in 1986".

Standard of review

[70] Again, this is an issue engaging the board's core area of expertise. No issue is taken with respect to the vice-chair's analysis of the legal principles involved or which party had the onus [page43 ]of proof. Essentially, the vice-chair's conclusion on the issue of abandonment is a factual determination based on evidence, the lack of evidence and the inferences to be drawn. The standard of review is reasonableness, which is accepted by both parties.

Analysis

[71] A high degree of deference is due to an expert tribunal making findings of fact and drawing inferences based on the evidence before it. The subject matter is specialized and within the expertise of the decision-maker here, not this court. The conclusion reached by the vice-chair is easily one that was open to him on the facts. It is rational and supported by the evidence and lack of evidence. I find it to be reasonable and see no basis to intervene.

[72] EllisDon submits that the vice-chair failed to take into account the evidence of Mr. Richer and Mr. Dillon with respect to their discussions in 2000, at the time of the negotiations with the Ontario government involving proposed amendments to provincial labour legislation. EllisDon argues that the representations made by Mr. Dillon that no unions would claim rights under the SWA outside the Sarnia/Lambton area, when accompanied by the fact that no unions ever took such a position, is clear evidence that bargaining rights had been abandoned and that it was unreasonable for the vice-chair to conclude otherwise.

[73] A tribunal is not required to specifically address in its reasons every single argument advanced by every party.[^28] The vice-chair did not make specific reference to the representation made by Mr. Dillon in the course of dealing with the abandonment issue. The vice-chair was clearly aware of that representation; it forms the core of his determination with respect to estoppel. He dealt with that issue at great length and found in EllisDon's favour on the estoppel point. However, on the issue of abandonment, the vice-chair was of the view that the determinative issue was that Ellis-Don had never subcontracted work to a non-union business over this entire period of time. He refused to infer abandonment from the unions' failure to take action in circumstances where there was no action to take. That was a reasonable conclusion and clearly within the range of possible reasonable outcomes. There is no basis for intervening on this issue. [page44 ]

Estoppel

Reasons of the board

[74] The vice-chair held that the unions were estopped from relying on the SWA as creating province-wide bargaining rights with EllisDon because of representations made to EllisDon in 2000 by a representative for all building trade unions in Ontario.

[75] The vice-chair placed the burden on EllisDon to establish the constituent elements of estoppel on a balance of probabilities. He identified the elements to be proven, at para. 108 of his reasons, as follows:

The elements of estoppel are well known, and the law does not require extensive elaboration here. An estoppel operates when:

(1) 1 of 2 or more parties in a legal relationship (generally a contract or a trust),

(2) makes a representation to another party in that relationship,

(3) about one or more of the terms of their legal relationship,

(4) which causes the other party to act in reliance on that representation to its detriment,

(5) and that other party is prejudiced by doing so.

See: Steds Limited [1992] OLRB Rep Jan 67; R. Reusse Co. Ltd., [1998] OLRB Rep May 523; Toronto Dominion Bank [1995] OLRB Rep May 686.

[76] The vice-chair found that there was a legal relationship between EllisDon and the province-wide Building Trade Unions[^29] arising out of the Toronto Working Agreement and the Sarnia Working Agreement. That satisfied the first element of estoppel.

[77] On the second and third elements, the vice-chair made a finding of fact that a representation was made in 2000 by Pat Dillon (representing the Building Trade Unions) to Paul Richer (representing EllisDon) with respect to the enforcement of the Sarnia Working Agreement. At the time this representation was made, construction companies and construction unions were engaged in extensive negotiations with the Ontario government [page45 ]about amendments to labour legislation affecting the provincial collective agreements. EllisDon was actively involved in, and indeed was said to have spearheaded, the construction contractors' side of that process. The vice-chair found that in this context Mr. Dillon was authorized to bind every construction trade union in the province. He held as follows, at para. 87:

Initially the idea of one person being able to speak on behalf of the entire Building Trades -- every local union, provincial council, employee bargaining agency and International Union, seems absurd. Such things are not common occurrences, to say the least. On the other hand, that is precisely what the Building Trades were there doing at that meeting. In the course of those negotiations they had assembled the necessary people to make a decision and were speaking with one voice. Mr. Dillon was not a principal for any Union entity, but he was the spokesperson for the collective group. He had with him on the negotiating team and in the meeting room all the senior union officers in the province. The ostensible purpose of the meeting was to forge a consensus among the employer and union groups, hence all the decision makers would need to be there and appeared to be there.

[78] Both Mr. Richer and Mr. Dillon testified before the vice-chair as to the nature and content of the discussions between them. In his reasons, the vice-chair made extensive reference to the evidence of both. Ultimately, he concluded that the discussion was essentially as testified to by Mr. Richer. He reasoned as follows (at paras. 93 and 100):

This is a difficult conflict to resolve. Both Mr. Richer and Mr. Dillon were suffering from definitely hazy memories of the events in a charged and shifting atmosphere 11 years ago. Many of Mr. Richer's notes had been lost when he left the employment of Ellis Don. Mr. Dillon was not asked for any notes and likely did not have any. Both men gave their evidence in a manner that was straightforward and careful. Neither one of them appeared to exaggerate or overstate anything. Both are people who have been involved in the construction industry for many years, and both have a reputation as persons of integrity and men of their word. This decision is inevitably one based on the balance of probabilities, and is at best less than entirely certain.

I conclude therefore that there was a discussion between Mr. Richer and Mr. Dillon in which Ellis Don sought assurances from the Building Trades about the Sarnia Working Agreement. While Mr. Richer's memory as to the terms was less than absolutely precise, Mr. Dillon's memory was non-existent. I conclude therefore that Mr. Dillon did reassure Mr. Richer that, while they would give nothing in writing, the Building Trades would not use the Sarnia Working Agreement to recreate the situation that the Toronto Working Agreement produced, and thus "torpedo" the understanding that they had. Whatever the precise words used, they had the desired effect of deflecting Ellis Don's concern about the Sarnia Working Agreement and not widening the discussions with the government.

[79] Thus, the vice-chair concluded that Mr. Dillon told Mr. Richer that no union in the province would seek to rely upon [page46 ]the SWA as creating province-wide bargaining rights. This was within the context of the unions and construction companies trying to reach some consensus on a proposal they could make to the province with respect to labour law reform. The union proposal on the table at that time was that there would be no amendment to the legislation itself, but a regulation would be passed that would have the effect of limiting the application of the Toronto Working Agreement to the Board Area 8. In other words, the Toronto Working Agreement would no longer have the effect of creating province-wide bargaining rights. EllisDon (on behalf of the construction industry) could live with that solution (as opposed to a more extensive amendment to the Act), but needed assurance that it would not find itself in exactly the same position as a result of the Sarnia Working Agreement. This was the assurance provided by Mr. Dillon -- the effect of the SWA would be limited to the three trades in Sarnia only and would not be a basis for bargaining rights claimed in any other fashion.

[80] The fourth element required for estoppel is reliance. The vice-chair found that EllisDon changed its position in the negotiations with the government in reliance on the representation made.

[81] Previously, the focus of the construction industry had been on what was referred to as the "three and out" proposal or the repeal of s. 1(4) of the Labour Relations Act, 1995. Section 1(4) of the Act is the "one employer" rule, a provision the unions considered crucial to effective collective bargaining. The "three and out proposal" would involve an amendment to the Act to provide that where an employer did not employ a single employee under a particular agreement for three years or, alternatively, for the full term of one provincial collective agreement, then the collective agreement and the bargaining rights of the union thereunder would be extinguished. The vice-chair noted that the unions "were particularly fearful of such a proposal since it provided an obvious way out for an employer from almost any construction collective agreement and it seemed likely to appeal to the government of the day".[^30]

[82] In 2000, in the course of the construction companies and unions attempting to reach consensus, an alternative proposal was raised. This would involve an acceptance by all parties that the Toronto Working Agreement would not create bargaining rights province-wide, but would only apply in the Toronto area. This created a problem for EllisDon. It was concerned that the [page47 ]SWA would bind it to province-wide bargaining even if the Toronto Working Agreement did not. This did not create a problem for other contractors as they were only bound to province-wide bargaining because of the Toronto Working Agreement. EllisDon preferred not to strike out on its own and lobby for either the repeal of s. 1(4) or the "three and out" rule, but would have done so if the Sarnia Working Agreement would have the same effect for EllisDon as the Toronto Working Agreement did for it and others.

[83] However, upon receiving the assurances from Mr. Dillon that this would not happen, EllisDon changed its position. It indicated privately and publicly that it would support the proposal to limit the Toronto Working Agreement to Board Area 8. Ultimately, that is the solution chosen by the government, which was accomplished by regulation rather than legislative amendment. The vice-chair held (at paras. 106-107):

On the other hand, I conclude that the representation did cause Ellis Don to alter its public stance and its bargaining strategy with respect to Bill 69. It signalled that it was prepared to live with the effects of the Toronto Working Agreement provided it was confined to Board Area 8. It did not do so in the expectation that this would be an illusory victory. Given the considerable uncertainty about the outcome of any of these discussions and of the political lobbying, if Mr. Dillon was not able to undertake on behalf of the Building Trades any sort of commitment about the Sarnia Working Agreement, it was incumbent on him to say so clearly and without equivocation. It was not sufficient to make vague and hopeful sounding statements that were open to various interpretations, particularly where, as I find, his purpose in doing so was to deflect Ellis Don's attention from other matters and keep it focussed on the Toronto Working Agreement.

I find therefore that there was a representation made by the Building Trades Council on behalf of the Building Trades, its affiliates, that they would not seek to claim bargaining rights from the Sarnia Working Agreement beyond those set out in the 1987 and 1993 Minutes of Settlement. I find that Ellis Don adjusted its political strategy accordingly and ultimately it did receive what it thought was the legislative solution that it could accept. Since it finds itself in the same position it was in before section 160.1 was introduced into the Act, it is clearly prejudiced in that reliance.

[84] Finally, with respect to the fifth constituent element, the vice-chair held that EllisDon was prejudiced as a result of its reliance on the representation made on behalf of the unions. Because it relied on that representation and did not consider its position to be jeopardized by the SWA, EllisDon did not lobby government for a different solution, nor did it seek to have the SWA included in the regulation that solved the problem for everybody else arising from the Toronto Working Agreement. The vice-chair noted that EllisDon "is now the only general contractor in the position of being bound to every Provincial Collective [page48 ]Agreement in the Province".[^31] The vice-chair concluded that this constituted prejudice as a result of reliance.

Standard of review

[85] There is no challenge to any of the legal principles stated by the vice-chair. There is therefore no need to consider whether a standard of correctness applies to his definition of the test for estoppel or the burden of proof to establish the constituent elements. The unions challenge various of the findings made by the vice-chair in respect of whether the elements of estoppel had been proven. In particular, the unions submit that (i) there was no "clear and unequivocal" representation; (ii) the vice-chair reversed the burden of proof in respect of the clarity of the representation; (iii) the alleged representation was not intended to be relied upon; and (iv) there was no detrimental reliance.

[86] The issues raised relate either to findings of fact, or to the application of the law to the facts. All parties submit that these are matters to which deference is owed. I agree. These issues are reviewable on a standard of reasonableness.[^32]

Clear and unambiguous representation

[87] Both parties agree that in order for a representation to give rise to an estoppel, the representation must be clear and unambiguous.[^33]

[88] The unions argue that this test was not met because the vice-chair's conclusion was not based on "cogent" evidence. In particular, the union points to the vice-chair's comments that the witnesses suffered from "hazy memories of the events in a charged and shifting atmosphere 11 years ago" and that Mr. Richer's memory as to the terms of the representation was "less than absolutely precise". The unions submit that the vice-chair's conclusion that the representation made was sufficient to support an estoppel is unreasonable. [page49 ]

[89] There is only one standard of proof to be applied in this situation -- proof on a balance of probabilities.[^34] It is clear from the reasons of the vice-chair that he applied that standard. In coming to the conclusion that he did, the vice-chair was cognizant of some weaknesses in the evidence. He found the conflict between the two main witnesses to be "difficult" to resolve, but he did not find it to be impossible. In determining whether to accept the evidence of Mr. Richer as to the representation made, the vice-chair considered the context in which it was given, including the importance to EllisDon of the assurance with respect to the SWA and the fact that an agreement to limit the effect of the Toronto Working Agreement was useless to EllisDon without a similar concession in respect of the Sarnia Working Agreement. Taking all of the surrounding circumstances into account, the vice-chair held (at para. 93) that his "decision is inevitably one based on the balance of probabilities, and is at best less than entirely certain". In doing so, he applied the balance of probabilities test, as he was required to do. Certainty is not required to prove something on a balance of probabilities, and the vice-chair was clearly alive to that legal principle.

[90] The vice-chair recognized that Mr. Dillon was not prepared to make a public statement, nor to put the representation in writing. However, the vice-chair noted as well that Mr. Dillon had a reputation as a person of integrity and a man of his word. In this context, it is not unreasonable to find that EllisDon would have relied on an oral representation. It is not necessary that the representation be in writing to create an estoppel, and it is not unreasonable to find an estoppel arising from an oral representation.

[91] In support of its argument that the vice-chair improperly reversed the onus of proof, the unions rely on the following passage from the reasons (at para. 106):

Given the considerable uncertainty about the outcome of any of these discussions and of the political lobbying, if Mr. Dillon was not able to undertake on behalf of the Building Trades any sort of commitment about the Sarnia Working Agreement, it was incumbent on him to say so clearly and without equivocation. It was not sufficient to make vague and hopeful sounding statements that were open to various interpretations, particularly where, as I find, his purpose in doing so was to deflect Ellis Don's attention from other matters and keep it focussed on the Toronto Working Agreement.

(Emphasis added) [page50 ]

[92] It is not appropriate to isolate one phrase in the reasons and interpret it without regard to the entirety of the reasons. The point being made by the vice-chair, at para. 106, was that Mr. Dillon did not make vague equivocal statements. EllisDon required more than that and Mr. Dillon was aware of that fact. They had gone back and forth on the issue more than once before Mr. Dillon finally gave the assurance that he did. EllisDon needed to know that if it backed a proposal to limit the Toronto Working Agreement, its victory would not be illusory and that the unions would not be able to achieve precisely the same result by simply relying upon the Sarnia Working Agreement. The vice-chair held that EllisDon would not have been satisfied by a vague or equivocal promise. From this, he reasoned that he believed the testimony of Mr. Richer that he had been given a clear promise.

[93] Looked at in context, it is clear that the vice-chair applied the "clear and unequivocal" test and placed the burden on EllisDon. He concluded that the burden was met and that a representation of this sort was in fact made. This is a finding of fact, or a finding of mixed fact and law, and one that is entitled to deference. It might equally have been possible for a decision-maker to come to a different conclusion on those same facts, but that is not the test. Reasonable minds can disagree. The question is whether the conclusion reached by the arbitrator in this case falls within a range of outcomes that can be said to be reasonable. The vice-chair provided extensive and detailed reasons setting out his thought process. His reasoning and the evidence support the conclusion he reached. I therefore find his conclusion to be reasonable.

Intended to be relied on

[94] The union points to two factors: (1) that Mr. Dillon would not put his representation in writing; and (2) that the vice-chair concluded Mr. Dillon may have honestly forgotten the representation he made because it was "a statement on which he did not place any significance at the time". Based on these factors, the unions argue that the vice-chair was unreasonable in finding estoppel, because this was a situation where the representation was not intended to be relied upon.

[95] I do not accept this submission for two reasons. First, the submission ignores the context in which the representation was made. In all of the circumstances, the only reason for making the representation would have been to allay EllisDon's concerns about the SWA and cause EllisDon to alter its bargaining and negotiating position. Nothing else makes sense. Second, the vice-chair specifically found in various places that the representation was [page51 ]made intentionally, including in para. 106, when he stated that Mr. Dillon's "purpose in doing so [making the representation] was to deflect Ellis Don's attention from other matters and keep it focussed on the Toronto Working Agreement". This is a conclusion amply supported by the evidence and factual findings, and one which was open to the vice-chair to make.

[96] I find the vice-chair's conclusion on this point to be reasonable.

Detrimental reliance

[97] On the issue of detrimental reliance, the unions take the position that there was no evidence upon which the vice-chair could have found reliance and that any decision made by EllisDon to change its lobbying efforts or bargaining strategy was not conduct that could be considered detrimental reliance.

[98] Contrary to the unions' submission, the vice-chair made extensive findings with respect to both reliance and detriment. The vice-chair noted that the position taken with respect to the Toronto Working Agreement would have been useless to EllisDon but for the assurances with respect to the SWA. The vice-chair also found this to be a matter of vital concern to EllisDon and one that "Ellis Don could not afford to let go".[^35] The vice-chair also made specific findings that EllisDon altered its position as a result of the representation made. He found that the representation "had the desired effect of deflecting EllisDon's concern about the Sarnia Working Agreement and not widening the discussions with the government" and that it caused EllisDon "to alter its public stance and its bargaining strategy" by signalling "that it was prepared to live with the effects of the Toronto Working Agreement provided it was confined to Board Area 8".[^36]

[99] As a result of the representation made, EllisDon did not pursue any legislative solution for its concerns about the SWA, whether by seeking the same relief in connection with the SWA as was ultimately given by the legislature for the Toronto area or by more substantial amendment to the legislation (e.g., the "three and out proposal" or the repeal of s. 1(4)). The board specifically held that this was to EllisDon's detriment, stating as follows (at paras. 107 and 111):

I find therefore that there was a representation made by the Building Trades Council on behalf of the Building Trades, its affiliates, that they [page52 ]would not seek to claim bargaining rights from the Sarnia Working Agreement beyond those set out in the 1987 and 1993 Minutes of Settlement. I find that Ellis Don adjusted its political strategy accordingly and ultimately it did receive what it thought was the legislative solution that it could accept. Since it finds itself in the same position it was in before section 160.1 was introduced into the Act, it is clearly prejudiced in that reliance.

In reliance on that representation Ellis Don changed its bargaining and lobbying position with respect to legislative change. It did so to its detriment, as it then abandoned the only avenues that might have led to negating the effect of the Sarnia Working Agreement.

(Emphasis added)

[100] These conclusions by the vice-chair are findings of fact rooted in the evidence and are entitled to considerable deference. His findings are reasonable and there is no basis to interfere.

Conclusion regarding estoppel

[101] In conclusion, the vice-chair applied the correct test with respect to the doctrine of estoppel. He considered the relevant factors and made factual findings based on the evidence before him. He came to a reasonable conclusion with respect to each element of estoppel and ultimately concluded that the requirements for estoppel had been met. His conclusions in that regard are reasonable in every respect and must therefore stand.

[102] Further, the vice-chair was fully aware that the doctrine of estoppel is not usually applied in situations of political negotiations. However, he found that within this particular context, and in particular the political climate at the time, the doctrine was applicable. He held as follows (at paras. 109-110):

At first blush, it would seem rather difficult to apply the doctrine of estoppel to political negotiations. In dealing with the Legislature, Ellis Don and the Building Trades Unions were not in any sort of legal relationship. In making representations to the government about the legislation, Ellis Don and the Building Trades Union were political adversaries. The behaviour that Ellis Don was induced to take was not a step under a collective agreement or any form of contract. It was a step in its lobbying of the provincial government.

However, I conclude that the Building Trades collectively, through Mr. Dillon, made a representation about the legal relationship between them arising out of the Sarnia Working Agreement that induced Ellis Don to change its position in respect of the political lobbying in which it had been engaged for several years. This is no less a form of detrimental reliance than bidding on a tendered contract with the price calculated, in part, on a union's promise not to require certain overtime premiums or to relax hours of work restrictions. In neither case is the employer certain to get to the contract it is seeking, but once it does so it has lost the opportunity to otherwise adjust its position. In the bidding context, if no representation was made a general contractor could have looked at a lower profit margin or attempted to exert greater pressure on subcontractors whose price it was carrying. In this [page53 ]instance Ellis Don changed its tactics and indeed indicated privately (and hinted publicly) that it could live with a particular political solution.

[103] Thus, in considering the applicability of the doctrine, the vice-chair applied the general principles of estoppel, but he also considered how the doctrine fit within a labour law context and the political environment at the time. These are matters within his specialized area of expertise. Deference is required.

[104] Accordingly, I find the vice-chair's conclusions with respect to the application of estoppel to be unassailable. Both parties challenge the length of time for which the estoppel should operate, a point to which I will now turn. However, subject to the length of the estoppel, the vice-chair's decision stands.

Length of the Estoppel

Reasons of the board

[105] In his February 13, 2012 decision, the vice-chair imposed a time limit of two years on the estoppel. After that period of time, in the absence of a legislative solution, the 1958 SWA would apply and EllisDon would be subject to province-wide collective bargaining.

[106] EllisDon argued at the board hearing, and also on this judicial review, that the estoppel should be permanent. The vice-chair rejected that submission for two reasons (at para. 112):

(1) it was impossible to know what the real outcome would have been if EllisDon had not changed its position and a completely favourable outcome to EllisDon was therefore speculative; and

(2) the representation was not a formal written agreement and was therefore an inherently fragile undertaking from a very large group of local unions and employer bargaining agencies not known for unanimous agreement on anything when their immediate self-interests diverge.

[107] The vice-chair held that what EllisDon lost in 2000 was an opportunity to lobby government for a solution to its problem with the SWA. The vice-chair further held that it was beyond his expertise to predict the outcome of that opportunity. He stated that all he could do was "to give EllisDon the opportunity it lost, as nearly as possible".[^37] The overall lobbying that lead to the solution for the Toronto Working Agreement took place from [page54 ]April 1997 to April 2001. However, the vice-chair held that "the significant lobbying took place in the two years of 1999 to 2000" and that "the same two year time period is appropriate" as a limit for the period of estoppel.[^38]

[108] Both the unions and EllisDon sought reconsideration on this issue. In his May 1, 2012 reconsideration decision, the vice-chair acknowledged that at the previous hearing there had been no argument from the parties on the appropriate length of the estoppel and he had not previously turned his mind to some of the arguments made on the reconsideration request. On reconsideration, he held that the two-year estoppel period must be seen in the context of the work that EllisDon does as a general contractor. It invariably subcontracts electrical and sheet metal work. Further, when soliciting bids from subcontractors and bidding on large projects, EllisDon's current work affects the selection of the subcontractor and therefore affects the employment of workers several years hence. Therefore, the vice-chair amended his previous order with respect to the length of the estoppels and held that the estoppels "shall apply to any project commenced by EllisDon or in which it has made a firm and irrevocable bid to a project sponsor, owner, or other source of work on or before February 13, 2014".[^39]

Standard of review

[109] This is a question of mixed fact and law within the vice-chair's area of expertise and therefore subject to review on a reasonableness standard.

Analysis

[110] In my view, any time limitation set on the estoppel cannot be reconciled with the vice-chair's findings of fact as to the basis for imposing the estoppel in the first place and therefore cannot be said to be reasonable.

[111] The vice-chair's secondary rationale for a time limitation on the estoppel was that the representation was not made in writing. With respect, I fail to see the logic in that rationale. The vice-chair considered whether an estoppel could arise in light of the nature of the representation and the fact that it was given orally rather than in writing. The vice-chair found that notwithstanding this, the representation was clear and unequivocal. [page55 ]Having concluded that the statement is clear and unequivocal, it is not logical to conclude that it is nevertheless time-limited because it was not in writing. Either it creates an estoppel or it does not. There was nothing in the terms of the representation made that limited it in time; on its terms it was unlimited. In effect, the vice-chair found the representation to be clear and unambiguous, and then rewrote it arbitrarily by changing a fundamental term -- the imposition of a time limit. That cannot be said to be within a range of reasonable outcomes.

[112] The primary reason given by the vice-chair for imposing a time limit was because it was not possible to predict what the outcome would have been if EllisDon had not changed its position in the negotiations with the government of the day. Obviously, the value of a lost opportunity is almost always incapable of precise measurement. The vice-chair equated it to damages for lost opportunity, which tend to be nominal rather than substantial, while recognizing that to be a "poor analogy".[^40] The vice-chair was correct in finding these two concepts to be quite different. The vice-chair did mention (at para. 119) that "[the objective was] to give EllisDon the opportunity it lost, as nearly as possible". However, the vice-chair failed to consider that the underlying purpose of estoppel is to put the parties back to the position they would have been in but for the representation and failed to consider the extent to which this was at all possible in the circumstances.

[113] The vice-chair considered the nature of estoppel as it has been applied in the labour context and concluded that some time limitation must be imposed. It is unclear if the vice-chair held that a permanent estoppel was simply not available in a labour context. If so, such a broad and sweeping conclusion would, in my view, be a clear error of law and reviewable on a correctness standard. However, the vice-chair does not specifically state that to be the case, but rather refers to situations in labour law in which time-limited estoppels were imposed. He held as follows (at para. 113):

In the context of labour law, when the doctrine of estoppel has been applied, the estoppel may last for varying periods of time. In circumstances where the estoppel relates to a particular pattern of action on the part of the employer which the employer can easily change, the estoppel may come to an end when the union files a grievance. In construction industry grievances, the estoppel may last until the end of a particular construction contract (given that the price of that contract is fixed once the bid is accepted) or indeed until all bids outstanding on the date the grievance was filed are completed. In circumstances where [page56 ]the detrimental reliance arises out of failing to attempt to negotiate a particular position in a collective agreement (again something of a speculative result) the estoppel may last until the opportunity to renegotiate the collective agreement arises again. In Steds Limited,[^41] above, the Board suggested that it might last longer than that, without actually coming to a conclusion.

[114] The difficulty with this analysis is the failure of the vice-chair to recognize the unique nature of the estoppel in this case and how it arose. The vice-chair was certainly aware of this uniqueness and referred to it a number of times at other points in his decision. However, he failed to take this into account in determining whether a permanent estoppel was the only remedy that could remedy the prejudice sustained by EllisDon. In his reasons, the vice-chair made the following findings:

(a) The fact of province-wide bargaining was never the subject of negotiation between the parties, but rather was created by legislative amendment in 1978 and 1980.[^42]

(b) On June 8, 1995, a new government was elected in Ontario, headed by Premier Mike Harris. Labour law reform was of key interest to this government and reducing the statutory power of unions, including in the construction industry, was a major election issue. This government was perceived by most unions as being hostile to their interests.[^43]

(c) It was in this context that the negotiations at the heart of this case began. The lobbying efforts by contractors in the construction industry were spearheaded by EllisDon, through an organized group of contractors called the Coalition for Fair Labour Laws. Their main focus was the multiplicity of collective agreements to which these contractors were bound, which they said interfered with their ability to compete.[^44] [page57 ]

(d) The solution imposed by the government in 2000 was an excision of bargaining rights of trade unions representing employees of general contractors who were specifically and narrowly identified as being unfairly affected by the Toronto Working Agreement. This included EllisDon.[^45]

(e) It was vitally important to EllisDon that it receive the same protection with respect to the Sarnia Working Agreement, otherwise it would have achieved nothing from the solution negotiated with and imposed by the government.

(f) If EllisDon is now bound by the Sarnia Working Agreement, it will be the only construction contractor in Ontario subject to province-wide bargaining.[^46]

(g) In the run-up to the legislative solution in 2000, EllisDon was not alone. General contractors in the construction industry across the province were united in their efforts to achieve this result.

(h) The legislative agenda of any government is always crowded and many issues compete for legislative attention. Special interest or special pleading by one company is less likely to attract government time and energy.[^47]

[115] In cases outside the labour context, it is recognized that a permanent estoppel is appropriate in situations where the party who relied on a representation to its detriment cannot be put back into its previous position. As articulated by the Privy Council in Ajayi v R.T Briscoe Ltd., where a promisee can be put back into its previous position, the promisor can resile from his promise on giving reasonable notice, "[however] the promise only becomes final and irrevocable if the promisee cannot resume his position".[^48] Thus, if the opportunity that was present before is forever lost, the estoppel is said to be "final" and "irrevocable". In my view, those same principles apply here. This is not the usual situation in which estoppel arises in a labour context, where [page58 ]inherent time limits (such as the life of a collective agreement or the date of a grievance) will logically start the clock ticking again. While the parties in those types of situations do not go back to identical positions, they are at least comparable.

[116] That is not the case here. The political climate that existed in 1999-2000 was unique. Labour reform, indeed the precise nature of labour reform sought by construction contractors, was already on the agenda of the party in power. There was an alliance of contractors -- a united front -- and a question of principle involved. Those days are gone. There is a different government; a different environment; and no allies for EllisDon to pursue its special remedy. Any time limit imposed for the purpose of EllisDon negotiating with the government to obtain a private remedy through legislation directed solely to protecting the interests of EllisDon is arbitrary and illusory. The effect of imposing a time limit on the estoppel is essentially to deny the estoppel altogether (apart from the issue of damages for past "breaches" of the provincial collective agreement).

[117] This is not a reasonable outcome. The factual findings that support the imposition of the doctrine of estoppel apply equally to making that estoppel permanent. There is no possibility of putting EllisDon back into even a roughly comparable position to that which it had in 2000. Therefore, the only logical outcome, in light of the other factual findings, is that the estoppel should be permanent. That puts EllisDon back into the position it would have been but for the representation. At the very minimum, it is highly likely that EllisDon would have been successful in having the Sarnia Working Agreement added to the list set out in the Regulation passed by the government in 2000. It is not reasonable to characterize that possibility as "speculative". The government did impose a solution to get general contractors in the province out of the multiplicity of province-wide collective agreements to which they became bound by virtue of the Toronto Working Agreement. There can be no logical reason why the government, if it had been aware of the situation of EllisDon under the Sarnia Working Agreement, would have had any hesitation in imposing the same solution for that same problem. There is every reason to believe that, but for the representation made, EllisDon would have avoided the SWA in 2000 through a government-imposed solution.

[118] Conversely, there is no realistic prospect that, in the course of the next two years, EllisDon will be able to persuade a different government, under completely different circumstances, to fix its unique problem by government regulation. It will be stuck in the future with the impact of a 1958 agreement nobody [page59 ]remembers, extended province-wide by virtue of 1978 legislation, notwithstanding the fact that both EllisDon and all unions in the province agreed that this would not happen. I do not find that to be a reasonable outcome.

[119] In my view, only a permanent estoppel can be appropriate and reasonable in these unique circumstances. Accordingly, I find that the time limitation imposed by the vice-chair is unreasonable and must be struck.

Conclusion

[120] If the only problem with the vice-chair's decision had been with respect to how the SWA was proven, it would be appropriate to send this matter back to the board for reconsideration on that issue.

[121] However, regardless of whether the agreement can be properly proven and admitted into evidence, EllisDon is entitled to an estoppel and it is not reasonable to impose a time limit on that estoppel. Therefore, there is no reason to return the matter to the board.

[122] In the result, therefore, I would quash the decisions of the vice-chair with respect to any time limit on the estoppel and dismiss the grievances filed by the unions. No costs are sought by the board. As agreed by the parties, costs are fixed at a total of $7,500 to EllisDon (being $3,750 for each application), payable by the unions.

HOURIGAN J. (concurring): --

Introduction

[123] I have had the benefit of reviewing the reasons of Molloy J. I concur with the result reached by Molloy J. and with her analysis, save for the issue of the admission into evidence of the Sarnia Working Agreement.

[124] For the following reasons, I find that the admission of the Sarnia Working Agreement was reasonable and did not amount to an error in law. However, that conclusion does not change the result because I concur with the balance of Molloy J.'s analysis and, in particular, her conclusion that there was no reasonable basis for limiting the estoppel to two years, or any other arbitrary period of time.

Analysis

[125] It is unnecessary to repeat the thorough recitation of the facts surrounding the creation and discovery of the Sarnia Working Agreement as found in the reasons of Molloy J. [page60 ]

[126] In his decision, the vice-chair found that the document was admissible for the truth of its contents and that it constituted an agreement that was binding on EllisDon. In so concluding, the vice-chair articulated two grounds. The first was that the Sarnia Working Agreement was admissible as a business record under s. 35 of the Evidence Act, R.S.O. 1990, c. E.23. The second was that it was admissible as an ancient document.

[127] I agree with the conclusion of the majority that the Sarnia Working Agreement does not fit within the definition of a business record as described in s. 35. I also do not find that the document qualifies as an ancient document, to the extent that that doctrine is still extant in Canadian common law.

[128] With respect to the standard of review, I find that the reasonableness standard applies. In this case, the board was dealing with a determination of an issue that goes to the very essence of its expertise, being the existence of collective bargaining rights in the construction industry. Moreover, the admission of the evidence, as will be described below, is governed by specific provisions of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, which grants the board broad power to admit evidence. In any event, even if a correctness standard applied, I find no error in law.

[129] The starting point in the analysis of the admission of the document is ss. 48(12)(f) and s. 111(2)(e) of the Labour Relations Act, which provide:

48(12) An arbitrator or the chair of an arbitration board, as the case may be, has power, . . .

and an arbitrator or an arbitration board, as the case may be, has power,

(f) to accept the oral or written evidence as the arbitrator or the arbitration board, as the case may be, in its discretion considers proper, whether admissible in a court of law or not[.]

111(1) The Board shall exercise the powers and perform the duties that are conferred or imposed upon it by or under this Act.

Specific

(2) Without limiting the generality of subsection (1), the Board has power,

(e) to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not[.]

[130] In Noranda Metal Industries Ltd., Fergus Division and International Brotherhood of Electrical Workers, Local 2345 (Re) (1983), 1983 1690 (ON CA), 44 O.R. (2d) 529, [1983] O.J. No. 3280 (C.A.) [page61 ]and Toronto (City) and Canadian Union of Public Employees, Local 79 (Re) (1982), 1982 2229 (ON CA), 35 O.R. (2d) 545, [1982] O.J. No. 222 (C.A.), our Court of Appeal has made clear that these provisions mean exactly what they say. Boards and arbitrators are not bound by the rules of evidence and thus have a broad discretion regarding the admissibility of evidence. This principle has not been challenged in over 30 years.

[131] In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62, the Supreme Court of Canada considered the issue of the adequacy of reasons from administrative tribunals. In so doing, Justice Abella made the following comments that are particularly apt for the purposes of the present analysis [at paras. 12, 14, 15 and 18]:

It is important to emphasize the Court's endorsement of Professor Dyzenhaus's observation that the notion of deference to administrative tribunal decision-making requires "a respectful attention to the reasons offered or which could be offered in support of a decision". In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows:

(David Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy", in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304)

See also David Mullan, "Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let's Try Again!" (2008), 21 C.J.A.L.P. 117, at p. 136; David Phillip Jones, Q.C., and Anne S. de Villars, Q.C., Principles of Administrative Law (5th ed. 2009), at p. 380; and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 63.

Read as a whole, I do not see Dunsmuir as standing for the proposition that the "adequacy" of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses -- one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at 12:5330 and 12:5510). It is a more organic exercise -- the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes" (para. 47). [page62 ]

In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show "respect for the decision-making process of adjudicative bodies with regard to both the facts and the law" (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.

Evans J.A. in Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, [2011] 2 F.C.R. 221, explained in reasons upheld by this Court (2011 SCC 57, [2011] 3 S.C.R. 572) that Dunsmuir seeks to "avoid an unduly formalistic approach to judicial review" (para. 164). He notes that "perfection is not the standard" and suggests that reviewing courts should ask whether "when read in light of the evidence before it and the nature of its statutory task, the Tribunal's reasons adequately explain the bases of its decision" (para. 163). I found the description by the Respondents in their Factum particularly helpful in explaining the nature of the exercise:

When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum -- the result is to be looked at in the context of the evidence, the parties' submissions and the process. Reasons do not have to be perfect. They do not have to be comprehensive. [para. 44]

(Emphasis added)

[132] The gravamen of the analysis on the issue of the admissibility of the Sarnia Working Agreement is whether we are being invited by the unions to take the impermissible step of substituting our own reasons or if the court is taking the permissible step of looking to the entirety of the record for the purpose of assessing the reasonableness of the outcome. I find that we are engaged in the latter exercise. Further, I find that when the court engages in the "organic exercise" of considering the admissibility of the Sarnia Working Agreement, not only does its admission fall within a range of possible outcomes, the decision is correct.

[133] There was ample evidence before the board regarding the reliability of the Sarnia Working Agreement. Among other things, the board considered

(i) the evidence of Jim Bradshaw regarding his discovery of the document;

(ii) an original document between the Sarnia Building Trades Council and Finely-McLaughlin from the same era and to the same effect as the Sarnia Working Agreement; and

(iii) the 1987 exchange of letters between EllisDon and the Sarnia Building Trades Council wherein EllisDon agreed to the filing of the Sarnia Working Agreement without formal proof. [page63 ]

[134] In addition, the admission of the document into evidence was made in a hearing wherein EllisDon was arguing that it had reached a binding arrangement whereby the unions agreed that the Sarnia Working Agreement, the very agreement that EllisDon argues is not admissible, would not be relied upon.

[135] The majority properly concludes that whether a document would have been admitted in a court is irrelevant given the provisions of the Labour Relations Act cited above. However, they go on to find that in this case because the vice-chair held that the document was admissible as a business record or ancient document he was required to reach the correct legal conclusion regarding its admissibility under these two legal principles. I disagree. It is unduly formalistic and contrary to the clear intention of the legislature to conclude that the fact that the vice-chair wrongly articulated the reasons for the document's admission ends the analysis of its admissibility.

[136] I concede that the vice-chair's conclusions that the document was admissible pursuant to the business records exception and the ancient document doctrine were not correct. But admissibility pursuant to either ground was not necessary given his statutory power. Moreover, read purposively, the vice-chair's analysis in this regard is really nothing more than a determination that the reliability and authenticity of the documents had been proven to his satisfaction. This purposive analysis of his reasons is entirely consistent with the principle of deference and does not cross the line to a rewriting of the vice-chair's decision.

[137] In these circumstances, there were sufficient guarantees of the authenticity and reliability of the document to warrant its admission. The decision was therefore reasonable. Moreover, even though the basis for admission were not correctly articulated, given the vice-chair's statutory power to admit the document into evidence regardless of whether it would be admissible in court, I find that the admission of the document does not constitute an error of law.

Conclusion

[138] For the foregoing reasons, I conclude that the decision to admit the Sarnia Working Agreement and the determination by the vice-chair that the document created collective bargaining rights were reasonable and correct.

[139] However, as outlined above, given that I agree with the balance of the analysis in the reasons of Justice Molloy, I concur in the result.

Employer's application granted; unions' application

dismissed.

[^1]: The unions had also raised issues in its factum with respect to estoppel not having been argued by EllisDon before the board and estoppel not being available by virtue of s. 162(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the "Act"). Those arguments were withdrawn during argument, and appropriately so, and are therefore not dealt with in these reasons.

[^2]: Ontario Sheet Metal Workers' and Roofers' Conference v. EllisDon, [2012] O.L.R.D. No. 480, 2012 6306 (L.R.B.), at para. 10.

[^3]: Ibid., at paras. 5-7.

[^4]: Ibid., at para. 7.

[^5]: Ibid., at para. 9.

[^6]: Ibid., at para. 10.

[^7]: Ibid., at para. 32.

[^8]: Ibid., at paras. 21-23.

[^9]: Ibid., at paras. 13-15.

[^10]: Ibid., at paras. 16 and 11-12.

[^11]: G. Lester, "The Problem of Ancient Documents: Part I" (1998), 20 Advocates' Q. 101 and "The Problem of Ancient Documents: Part II" (1998), 20 Advocates' Q. 133.

[^12]: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, at paras. 50, 51, 55 and 60.

[^13]: See, also, Noranda Metal Industries Ltd., Fergus Division and International Brotherhood of Electrical Workers, Local 2345 (Re) (1983), 1983 1690 (ON CA), 44 O.R. (2d) 529, [1983] O.J. No. 3280 (C.A.); Toronto (City) and Canadian Union of Public Employees, Local 79 (Re) (1982), 1982 2229 (ON CA), 35 O.R. (2d) 545, [1982] O.J. No. 222 (C.A.), leave to appeal to the S.C.C. refused (1982), 36 O.R. (2d) 386n, [1982] 1 S.C.R. vi.

[^14]: 1970 5 (SCC), [1970] S.C.R. 608, [1970] S.C.J. No. 26.

[^15]: Aynsley v. Toronto General Hospital, 1967 258 (ON SC), [1968] 1 O.R. 425, [1967] O.J. No. 1148 (H.C.J.), affd 1969 31 (ON CA), [1969] 2 O.R. 829, [1969] O.J. No. 1407 (C.A.), affd 1971 23 (SCC), [1972] S.C.R. 435, [1971] S.C.J. No. 122, (sub nom. Toronto General Hospital v. Matthews) 25 D.L.R. (3d) 241.

[^16]: Setak Computer Services Corp. Ltd. v. Burroughs Business Machines Ltd. (1977), 1977 1184 (ON SC), 15 O.R. (2d) 750, [1977] O.J. No. 2226 (H.C.J.).

[^17]: Ibid., p. 759 O.R.

[^18]: R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81.

[^19]: R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, [1992] S.C.J. No. 74.

[^20]: R. v. Starr, [2000] 2 S.C.R. 144, [2000] S.C.J. No. 40, 2000 SCC 40.

[^21]: R. v. Khelawon, [2006] 2 S.C.R. 787, [2006] S.C.J. No. 57, 2006 SCC 57, at paras. 2 and 42.

[^22]: Canada (Minister of Citizenship and Immigration) v. Seifert, [2006] F.C.J. No. 344, 2006 FC 270, 288 F.T.R. 1.

[^23]: Ahousaht Indian Band v. Canada (Attorney General), 2008 BCSC 769, [2008] B.C.J. No. 1095, [2008] 3 C.N.L.R. 32 (S.C.).

[^24]: See Noranda (Re) and Toronto (City), supra, note 13.

[^25]: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, [2011] S.C.J. No. 62, 2011 SCC 62 ("Newfoundland Nurses").

[^26]: David Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy" in Michael Taggart, ed., The Province of Administrative Law (Oxford: Hart Publishing, 1997), at p. 304.

[^27]: Labour Relations Act, 1995, s. 151(2).

[^28]: Newfoundland Nurses, supra, note 25, at para. 16.

[^29]: "Building Trade Unions" is a term used by the vice-chair to "refer collectively to all the trade unions that are active in representing employees in the construction industry and have some form of provincial body that is designated by the Minister of Labour as an Employee Bargaining Agency under s. 153(1)(b) of the Act". The term encompasses unions to whom EllisDon was bound under the provincial collective agreement by virtue of the Toronto Working Agreement, and might arguably be bound now to the SWA. See EllisDon, supra, note 2, at para. 56.

[^30]: EllisDon, supra, note 2, at para. 74.

[^31]: EllisDon, supra, note 2, at para. 119 and paras. 115-18.

[^32]: Marathon-Delco Inc. v. International Union of Bricklayers and Allied Crafstmen, Local 6, [2001] O.J. No. 2831, [2001] OLRB Rep. January/February 265 (Div. Ct.), at para. 3; Dunsmuir, supra, note 12.

[^33]: Donald Brown and David Beatty, Canadian Labour Arbitration, 4th ed. (Aurora, Ont.: Canada Law Book, 2006), s. 2:2211; Med-Chem Health Care Inc. (Re) (2000), 101 A.C.W.S. (3d) 10 (S.C.J.); Sudbury District Roman Catholic Separate School Board (Re), [1984] O.L.A.A. No. 65, 15, [2000] O.J. No. 4009, [2000] O.T.C. 728, L.A.C. (3d) 284 (Adams), at pp. 291-93 L.A.C.

[^34]: H. (F.) v. McDougall, [2008] 3 S.C.R. 41, [2008] S.C.J. No. 54, 2008 SCC 53.

[^35]: EllisDon, supra, note 2, at paras. 86, 88, 95, 96 and 97.

[^36]: Ibid., at paras. 100, 106, 107 and 111.

[^37]: EllisDon, supra, note 2, at paras. 118-19.

[^38]: Ibid., at para. 119.

[^39]: Ibid., at paras. 18-22.

[^40]: EllisDon, supra, note 2, at para. 112.

[^41]: Steds Limited, [1992] OLRB Rep. January 67 (In this case, Vice-Chair Davie held that a union was stopped from pursuing a grievance about province-wide collective bargaining because it had sat on its rights for 20 years, leading the employer to govern its business as if no collective agreement applied. The vice-chair considered that this could be an appropriate case for a permanent estoppel because of the unique aspects of province-wide bargaining, but referred the matter to a tripartite board consisting of a neutral vice-chair and representatives of labour and management in the event the parties were not able to agree on the matter. It would appear that the matter did not proceed any further).

[^42]: EllisDon, supra, note 2, at para. 45.

[^43]: Ibid., at para. 70.

[^44]: Ibid., at para. 71.

[^45]: Ibid., at para. 104.

[^46]: Ibid., at para. 119.

[^47]: Ibid., at para. 117.

[^48]: Ajayi v. R.T Briscoe Ltd., [1964] 3 All E.R. 556, [1964] 1 W.L.R. 1326 (P.C.), at p. 559 All E.R.; see, also, Martinez v. Hogeweide, 1998 ABCA 34, [1998] A.J. No. 126, 156 D.L.R. (4th) 757 (C.A.); Subway Franchise Systems of Canada, Ltd. v. Esmail, [2005] A.J. No. 1474, 2005 ABCA 350, at para. 14.

EllisDon Corporation v. Ontario Sheet Metal Workers' and Roofers' Conference et al.

Ontario Sheet Metal Workers' and Roofers' Conference et al. v. EllisDon Corporation et al.

[Indexed as: EllisDon Corp. v. Ontario Sheet Metal Workers' and Roofers' Conference]

Case Summary

Other cases referred to

Statutes referred to

Authorities referred to

Introduction

Issues

Proof of the Sarnia Working Agreement

The nature and source of the document

Reasons of the board

Standard of review

Analysis: Admitting the document as a business record

Analysis: Admitting the document as an ancient document

Other bases for proving document

Privity of Contract

Reasons of the board

Standard of review

Analysis

Abandonment

Reasons of the board

Standard of review

Analysis

Estoppel

Reasons of the board

Standard of review

Clear and unambiguous representation

Intended to be relied on

Detrimental reliance

Conclusion regarding estoppel

Length of the Estoppel

Reasons of the board

Standard of review

Analysis

Conclusion

Introduction

Analysis

Conclusion

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 4

Legislation 2