CITATION: Rail Cantech Inc. v. Labourers’ International Union of North America, 2013 ONSC 7236
DIVISIONAL COURT FILE NO.: 127/13
DATE: 20131121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., BALTMAN AND MCEWEN JJ.
BETWEEN:
RAIL CANTECH INC.
Applicant
– and –
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL and ONTARIO LABOUR RELATIONS BOARD
Respondents
Greg F. McGinnis, for the Applicant
Lorne A. Richmond, for the Respondent, Labourers’ International Union of North America, Ontario Provincial District Council
Leonard P. Marvy, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: November 21, 2013
THEN R.S.J. (ORALLY)
[1] The respondent Union has brought a certification application before the Ontario Labour Relations Board. The parties agreed that the Board determine the constitutional issue first, namely, whether the employer Cantech’s labour relations fall under federal or provincial jurisdiction.
[2] The Board found that the certification application fell within provincial jurisdiction and that accordingly, the Ontario Labour Relations Board had jurisdiction to deal with the matter.
[3] The applicant seeks judicial review before this Court of the Board’s decision on the constitutional issue.
[4] The respondent Union submits that while the constitutional issue has been decided, there has been no final determination of the certification application, as the employer, Cantech, opposes certification on grounds other than the constitutional objection.
[5] The Union submits that Cantech has other non-constitutional grounds for opposing the certification application that may succeed on the merits. If the Union is not certified on the merits, this application would be rendered meaningless. Alternatively, if the Union is certified on the merits, the employer may later apply for judicial review of that determination on separate grounds resulting in a second judicial review application. Thus, hearing this application now would violate the principle of judicial economy.
[6] The Union further submits, that in these circumstances the application is premature. It cites in support the decision of this Court in Ontario College of Art v. Ontario (Human Rights Commission), 11 O.R. (3d) 798, wherein Chief Justice Callaghan advanced the proposition that absent extraordinary or exceptional circumstances, the Divisional Court will not fragment proceedings before administrative tribunals and will refuse to consider individual legal issues, including constitutional issues arising from such proceedings, until they are concluded. Specifically, at paras. 6 to 7, he stated the following:
For some time now the Divisional Court has, as I have indicated, taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion.
While there were constitutional issues raised in the course of this application, I should also point out that this court has followed a policy of not ruling on such issues unless it is absolutely necessary to do so. Whether or not those issues will continue to be of interest at the time of an appeal to this court will depend on the outcome before the board. It may well be that issues foreseen at this time will not exist at the termination of the proceedings. Furthermore, as has been said in many cases in relation to other boards and tribunals, it is preferable to consider issues such as those raised on this application against the backdrop of a full record, including a reasoned decision by the board or tribunal. Obviously, this is usually available to the court only after the administrative body has conducted a full hearing.
[7] Recently, in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, the Court of Appeal has affirmed that even a true question of jurisdiction does not, of itself, amount to “exceptional circumstances” justifying judicial review until the relevant administrative processes are exhausted (See: para. 70). The applicant may demonstrate exceptional circumstances by adducing evidence of hardship, prejudice, costs, or delay. (See: para. 80).
[8] In our view, the employer Cantech, has raised no exceptional circumstances that would warrant this Court to review the Board’s decision on the constitutional issue before the Board has finally decided the certification application.
[9] Accordingly, the application is quashed as premature.
COSTS
[10] I have endorsed the Application Record as follows, “For oral reasons delivered this day, the application is quashed as premature. Counsel have agreed that costs in the amount of $8,500 all inclusive are appropriate and are accordingly awarded to the respondent.”
THEN R.S.J.
BALTMAN J.
MCEWEN J.
Date of Reasons for Judgment: November 21, 2013
Date of Release: December 5, 2013
CITATION: Rail Cantech Inc. v. Labourers’ International Union of North America, 2013 ONSC 7236
DIVISIONAL COURT FILE NO.: 127/13
DATE: 20131121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., BALTMAN AND MCEWEN JJ.
BETWEEN:
RAIL CANTECH INC.
Applicant
– and –
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL and ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
THEN R.S.J.
Date of Reasons for Judgment: November 21, 2013
Date of Release: December 5, 2013