Carpenters District Council et al., 2014 ONSC 1621

DIVISIONAL COURT FILE NO.: 424/13

DATE: 20140325

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Bur-Met Contracting Ltd. et al., Applicants

AND:

Carpenters District Council et al., and Ontario Labour Relations Board, Respondents

BEFORE: Gordon RSJ, Lederman and Kiteley JJ.

COUNSEL: Seth P. Weinstein and Ronald Poirier, for the Applicants

Douglas Wray, for the Respondent, Carpenters District Council et al.

Leonard Marvy, for the Respondent, Ontario Labour Relations Board

HEARD: at Toronto on March 11, 2014

ENDORSEMENT

NATURE OF APPLICATION

[1] This is an application for judicial review of four decisions of the Ontario Labour Relations Board (the “Board”). Three of the decisions were procedural in nature and the fourth decision dated September 6, 2012, declared that pursuant to ss. 69 and 1(4) of the Labour Relations Act, 1995, S.O. 1995, c.1, the Applicants constituted one employer and were bound to certain collective agreements with the Respondent Union.

[2] The procedural decisions in essence dealt with document production sought by the Union and the Applicants’ request for an adjournment of the hearing date that had been set for August 21, 2012 in Toronto and for a change of venue of the hearing from Toronto to Thunder Bay.

[3] In these decisions, the Board made an inspection and production order and refused the Applicants’ request for an adjournment and change of venue.

[4] With respect to the orders regarding the adjournment and change of venue requests, the Applicants submit on this judicial review application that the Board acted in breach of natural justice principles in that:

(a) the Board failed to consult counsel for the Applicants before setting a hearing date;

(b) the Board failed to give the Applicants adequate notice of the hearing i.e. that 69 days’ notice was insufficient having regard to counsel’s busy schedule;

(c) the Board denied the Applicants their right to a hearing by failing to grant an adjournment despite knowing that counsel, the Applicants, and their witnesses were not available for a hearing on August 21, 2012;

(d) there was no urgency to hold the hearing on the scheduled date and no prejudice would arise by the granting of an adjournment; and

(e) most, if not all of the parties and witnesses were located in Thunder Bay and the venue of Toronto for the hearing was inconvenient and costly to the Applicants.

STANDARD OF REVIEW

[5] Generally, the standard of review of the Board’s procedural decisions is one of reasonableness, given that the Board was exercising its discretion as to how the application before it should proceed. On procedural matters, the Court should afford the Board substantial deference in determining its choice of procedures. However, to the extent that the manner in which this discretion was exercised raises procedural fairness issues, there is no standard of review analysis and the Court is to assess the procedures in the context of the circumstances of the case and determine whether there was procedural fairness.

[6] On the oral hearing before this Court, counsel for the Applicants did not press the issues of the failure to consult counsel about an initial hearing date and the adequacy of the notice. Nevertheless, we find that the Board’s practice to set an initial hearing date on its own, without consultation, is reasonable given the need to proceed expeditiously in labour relations matters. Further, 69 days’ notice in this case was more than sufficient to allow for preparation and arranging counsel’s schedule. There was no procedural unfairness arising from these matters.

REQUEST FOR AN ADJOURNMENT AND CHANGE OF VENUE

[7] On July 24, 2012 (about five weeks after the Notice of Hearing was issued), the Applicants sent a letter to the Board informing it that counsel, their clients and their witnesses were not available for the August 21 hearing date, since their schedules were already booked up and the cost of bringing the witnesses to Toronto was immense. The Applicants requested that the Board hold the hearing in Thunder Bay since all of the companies, its counsel and witnesses were there.

[8] By letter dated July 25, 2012, the Board replied that a party seeking an adjournment of a scheduled hearing must obtain consent of all parties to the proceeding. Otherwise such request must be made before the panel hearing the case. The Union did not consent to an adjournment, but agreed to have additional dates set in Thunder Bay. On July 26, 2012, the Applicant sent another letter to the Board requesting an adjournment and that the hearing take place in Thunder Bay despite the Union’s lack of consent to their adjournment request.

[9] By decision, dated July 27, 2012, the Board held that it was not prepared to adjourn the hearing or relocate the hearing for August 21, but noted that the location of hearing dates after August 21 may be determined at a later date.

[10] On August 10, 2012, the Applicants sent a letter to the Board stating that they had no intention of attending the hearing in Toronto, but rather would be “sending affidavits and other materials to illustrate the fishing expedition that the [Union] is on.”

[11] The Board issued another decision on August 15, 2012 concluding that the application would proceed as scheduled on August 21, 2012 unless the Applicants either obtained the Union’s consent to adjourn or adequately explained to the Board why the proceeding could not proceed in any fashion on that date. This explanation would have to focus on circumstances beyond their control, apart from the weakness of the application or the inconvenience or expense of attending a hearing in Toronto. The Board noted that the Notice of Hearing pointed out that if a party does not attend the hearing, the Board may decide the application without further notice to that party and without considering any document filed by that party.

[12] The Applicants outright failed to explain why they could not attend the hearing after they were invited to do so by the Board. They simply failed to attend on the hearing date in Toronto on August 21^st.

[13] On August 21, 2012 the hearing was held in Toronto. Neither the Applicants nor their counsel attended the hearing. The Board heard the Union’s evidence and issued its decision on September 6, 2012, declaring that the Applicants should be treated as one employer for the purposes of s. 1(4) of the Labour Relations Act and that the Applicants were bound by collective agreements with the Union.

[14] In argument before this Court, counsel for the Applicants took issue with the Travel Policy of the Board which provided that because of current economic restraints, hearings are generally to be held at the Board in Toronto, regardless of the location of the parties. The policy indicated that where matters are scheduled initially in Toronto, the parties may ask the Board to change the hearing venue to one of the regional centres such as Thunder Bay after the first two days of hearing and where a lengthy hearing is anticipated. Where it considers it advisable, the Board may schedule continuation hearing dates out of town as requested. The policy also indicates that where travel remains a significant issue, the parties may consider requesting that some or all of the proceeding be conducted via an electronic hearing (video conference or teleconference), if appropriate.

[15] Further, the policy is not fixed in stone. It allows for exceptions in a limited number of cases where the workplace parties are located 250 km from the Board and in such cases, the Board may travel to a regional centre such as the one located in Thunder Bay.

[16] Counsel for the Applicants conceded in oral argument that he stonewalled because he was of the view that there was no purpose in attending in Toronto for one day and it was not the right place for the hearing.

[17] In responding to questions from the Bench, Mr. Marvy, counsel for the Board, explained the rationale for the Travel Policy without objection from Applicants’ counsel. It appears to be based on a desire to best utilize the Board’s resources, both in terms of its members and the cost of travel outside Toronto. Recognizing that most cases in fact settle on the first day of hearing, the Board’s practice is to hold the initial hearing day in Toronto at its offices where its members, as well as labour relations officers, are available. If the matter does not settle, then the parties can commence the hearing that day and arrange for the logistics of further days of hearing if necessary and the venue of such hearings. In deference to the Board’s practice in dealing with scheduling its cases in the most cost effective and efficient way, we agree that this Travel Policy has a reasonable basis.

[18] The Board, in its August 15^th decision stated, “the Responding parties have not indicated why any of their witnesses are unavailable other than it would be more convenient for them to be in Thunder Bay (rather than Toronto) or why at least one or two of them could not be available so that the case could at least commence on August 21, 2012”.

[19] It should be noted that counsel for the Applicants took no other steps such as trying to take advantage of teleconferencing or to suggest proposed alternative dates for the hearing. There was just a lack of co-operation on the part of the Applicants. It is the Applicants’ own conduct in not taking up the Board’s invitation to explain the need for the adjournment that gave rise to the refusal of the adjournment.

[20] The Applicants did not, in any meaningful way, try to justify why they would not attend and accordingly it was reasonable for the Board to conclude that there was no basis to adjourn the hearing. As the Applicants were specifically invited to give reasons that would support an adjournment and chose not to respond, they cannot now say they have been denied natural justice.

[21] In these circumstances, there was no denial of procedural fairness as a result of the Board’s decisions to deny an adjournment or change the venue of the scheduled initial hearing date.

PRODUCTION ORDER

[22] The Applicants submit that the Board exceeded its jurisdiction by ordering production of numerous documents without considering whether they were relevant as required by Rule 40.6.

[23] However, the production order made by Board became moot since the only documents relied on by the Board in its September 6, 2012 decision on the merits were the documents submitted by the Union. Accordingly, the production order had no effect upon the Applicants.

[24] In any event, there is a low threshold for document production. Section 111(2) of the Labour Relations Act, and Rule 40.6 enable the Board to require any party to produce documents that may be relevant to the matter before it. Although the Applicants initially challenged the constitutionality of this provision in their application as being overly broad and vague, that argument was abandoned at the hearing before this Court.

[25] Similar to their treatment of attendance at the hearing, the Applicants refused to set out specific reasons for objecting to production. They were given an opportunity by the Board to explain why production should not be made but they did not provide any detailed explanation. In these circumstances, the production order made by the Board was reasonable.

OTHER ISSUES

[26] In its original application to this Court, the Applicants challenged the constitutionality of the reverse evidentiary onus provisions set out in sections 1(5) and 69(13) of the Labour Relations Act but abandoned this position in the oral hearing before this Court.

CONCLUSION

[27] The application is therefore dismissed. The Union is entitled to its costs of this application. Costs in the amount of $3,500 all inclusive, were awarded to the Union on the Applicants’ motion for an interim stay of the Board’s orders. With that in mind, costs of this application fixed at $6,000 all inclusive are appropriate in respect of this application, payable by the Applicants to the Respondent Union.

Gordon RSJ.

Lederman J.

Kiteley J.

Date: March 25, 2014