CITATION: I.B.E.W. Local 894 v. I.B.E.W. First District-Canada, 2014 ONSC 1997
DIVISIONAL COURT FILE NO: 321/12 JR
DATE: 20140409
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO, NORDHEIMER and WHITAKER JJ.
B E T W E E N:
International Brotherhood of Electrical Workers, Local 894 and International Brotherhood of Electrical Workers' Compensation Board, Local 1739
Applicants
- and -
International Brotherhood of Electrical workers, First District – Canada, International Brotherhood of Electrical Workers' Compensation Board, Local 353, I.B.E.W. Local 894 Welfare Trust Fund, I.B.E.W. Local 894 Pension Plan Trust Fund and the Ontario Labour Relations Board
Respondents
L.A. Richmond,
for the Applicants, International Brotherhood of Electrical Workers, Local 894 and 1739
Douglas Wray,
for the Respondent, International Brotherhood of Electrical Workers, First District – Canada
Susan Ursel & Jennifer Micallef,
for the International Brotherhood of Electrical Workers, Local 353
Leonard Marvy,
for Ontario Labour Relations Board
HEARD at Toronto: March 26, 2014
WHITAKER J.:
Introduction
[1] This is an application for judicial review by Locals 894 and 1739 of the International Brotherhood of Electrical Workers (“IBEW”). These locals challenge 5 of 24 decisions made by the Ontario Labour Relations Board (“Board”) in the course of this litigation. The challenged decisions are those dated November 1, 2010, March 31, 2011, December 19, 2011, May 2, 2012, and June 25, 2012.
[2] Locals 894 and 1739 allege the IBEW International Union (the “International”) breached the Labour Relations Act, 1995, S.O. 1995, c 1 Sched. A (the “Act”) by ordering their merger with IBEW Local 353, without just cause.
[3] The International takes the position that it had just cause to merge the locals but in the alternative that this application is untimely and should be dismissed for delay.
[4] Local 353 does not take a position on the merits, but agrees with the International that this application should be dismissed for delay.
[5] In an application to the Board by Locals 894 and 1739, the Board concluded that the International had just cause to merge the two applicant locals with Local 353 and for that reason the International did not breach the provisions of sections 147 and 149 of the Act.
Overview
[6] On June 22, 2009, the International retained Mr. Tim Armstrong to investigate the areas of jurisdiction, work performance and market share for the three subject local unions. The International was concerned about the ability of the three local unions to grow if not maintain their business in the face of mounting competition in the southern Ontario region from other unions and/or the non-union sector.
[7] The parties agree that Mr. Armstrong is a former Chair of the Board, former Deputy Minister of Labour, and is a well-qualified and highly regarded labour arbitrator and neutral with impeccable credentials.
[8] Mr. Armstrong conducted his study with the assistance of Mr. John O’Grady, an economist with much expertise in the construction industry. Mr. O’Grady was particularly included at the behest of the two applicant locals.
[9] The locals were advised by the International of Mr. Armstrong’s appointment. During the course of his investigations, Mr. Armstrong met with all three locals. Each local provided Mr. Armstrong with written material and information.
[10] Mr. Armstrong issued his report in November 2009. He concluded that there were strong reasons as to why the three locals should be merged. Mr. Armstrong predicted that the locals may not survive in the long term without restructuring.
[11] Based on the Armstrong Report, International 1st Vice President responsible for Canada, Mr. P. Flemming, recommended to the International that the three locals be immediately merged.
[12] International President, Edwin Hill, accepted Mr. Flemming’s recommendation. Mr. Hill wrote to Mr. Flemming on January 8, 2010 indicating that the three locals would be merged effective February 1, 2010. As a result an implementation committee was struck.
[13] On January 27, 2010, several days before the proposed merger date, the two applicant locals filed the present applications before the Board alleging that there was no just cause to merge the locals.
[14] The issues to be determined are: What is the standard of review? Do the Board’s decisions concerning the choice of process, including evidentiary rulings and the decision on the merits survive review on the appropriate standards?
[15] Over a two-year period the Board has issued 24 decisions in this matter, five of which are the subject matter of this application for judicial review.
Analysis
[16] The complaints raised in this application for judicial review may be summarized as:
• the Board’s decision to use its consultation process rather than a full hearing to conduct the litigation;
• the Boards decision to restrict the respondent locals from calling all of the oral evidence that was relevant according to the applicant’s view of the case; and
• the Board would not compel Mr. Armstrong or the International President, Mr. Hall, to testify.
[17] The parties agree the standard of review is one of reasonableness. The parties also agree that the standard of review analysis does not apply to procedural matters which are either consistent with natural justice and procedural fairness – or are not.
[18] At the outset of the hearing, the International indicated that it was no longer contesting the Board’s choice in using a consultation process to adjudicate and determine the application before it.
[19] It became apparent, however, during argument before us that the applicants were contesting the particular application of the consultation process by the Board. To be precise, the applicants challenged the Board’s decision to not provide the applicants with a Report from Mr. Flemming to Mr. Hill, identified for the first time in the cross-examination of Mr. Hill – despite the Board indicating that the Report could be relevant.
[20] The consultation process has now become the default process in most of the wide range of work performed by the Board and has supplanted what might be described as the civil trial model. The consultation process is, in many respects, inquisitorial and adjudicator centric. Following an exchange of productions, the decision-maker “consults” with the parties for purposes of obtaining any outstanding information and/or evidence necessary in the adjudicator’s view, to dispose of and decide the dispute at hand. In other words, the adjudicator picks and chooses what information is outstanding but necessary for disposition of the matter – and obtains that information by consulting with the parties.
[21] The parties are by design not permitted to lead just any evidence that might in their view be relevant – unless that is also the view of the adjudicator.
[22] The Act was amended in the 1960s to make this type of expedited process available in the construction industry where there is a great need for procedural dispatch. It has now been extended by legislation to most of the other types of decision-making tasked to the Board and under a variety of labour and employment statutes. (See sections 41.1 to 41.3 of the Act and the Board’s practice direction on the use of the consultation process.).
[23] In the present case, the Vice Chair provided the parties with the opportunity to make submissions on the process to be used before any decision concerning process was made. The Vice Chair heard the submissions of the parties and decided to proceed by way of consultation while allowing the parties to call some oral evidence to supplement the documentary material provided.
[24] The Board did not direct that Mr Armstrong or the President attend the consultation to be cross examined. The Vice Chair heard submissions on this point and concluded that there were very few points of material disagreement between the parties arising out of the report. In his view, these could be dealt with through the expert called by the local unions and on the material filed.
[25] The first Vice President, Mr. Flemming, was produced for cross examination.
[26] I would note that the applicants filed their own rebuttal report from Mackenzie and Associates in response to the Armstrong Report. The locals were permitted to, and did, call oral evidence from their respective business agents. Will says were filed.
[27] The Board heard the parties’ submissions on the question of onus, keeping in mind that the provisions of sections 147 and 149 provide that jurisdiction and merger would only occur in the event of just cause. The Vice Chair decided that the usual rules applied and directed the applicants to proceed first.
[28] By decision dated December 19, 2011, the Board found that the merger of the three locals was with just cause.
[29] The Board did find there were a number of difficulties that remained to be resolved – those including: trust funds, organizing, and out-of-work lists. The parties were directed to meet to resolve these matters. The parties met and were unable to resolve these issues. This process repeated itself several times with the parties being invited to attempt to resolve particular segments of the outstanding practical issues before adjudication.
[30] The Board’s final decision was issued on June 25, 2012.
[31] The notice of judicial review was filed on June 27, 2012. The applicants filed the record of proceeding on May 21, 2013. Unfortunately, Mr. Flemming passed away the same month.
[32] In the 11 months that it took to perfect this application, the merging local unions have become integrated. For example, the hiring hall lists have been merged through “dove-tailing” and members of the three locals participate in the same pension plan.
[33] Returning to the issue of the choice of procedure and to reiterate, the parties agree that, generally, the Board may proceed in “just cause” applications under sections 147 and 149 of the Act by way of consultation, keeping in mind the significant subject matter expertise of the Board. It is recognized that the Board’s ability to manage and administer the broad procedural discretion inherent in the consultation process is informed by the Board’s expertise.
[34] The Board’s work within the construction industry is essentially a specialty within a specialty and it is this expertise which in part informs and facilitates the choice of process. As here, where the evidence does not turn on issues of bad faith or credibility, the parties are not disadvantaged by the constraints placed on the hearing of evidence orally.
[35] The Board’s finding that there was just cause was supported with extensive and detailed reasoning. It should be remembered that this is a complex and difficult area for decision-making and the expertise of the Board, particularly in the area of the construction industry, should attract significant deference. Indeed the applicants had little to say about the decision to merge the locals other than it was not necessary and they did not agree. There was no substantive disagreement of principle between the parties on the actual merits of the Armstrong Report or the decision of the International to rely on the recommendations in the report. There was no suggestion of bad faith or reliance on inappropriate information or analysis.
[36] The balance of the issues between the parties deal with the procedural and evidentiary decisions made by the Board over the course of the adjudication process.
[37] I accept the submission of Local 353 and the International that there will now be significant prejudice if the process of merger, now almost four years later, is to be reversed or undone. This reality weighs in favour of the responding parties.
[38] There is one area that is troubling in the process followed by the Board and it relates to the decision of the Board not to require the production of a Report prepared by Mr. Flemming and sent to the International President.
[39] Locals 1739 and 894 wanted to call the President of the International Brotherhood of Electrical Workers, Mr. Ed Hill, as a witness. The Board determined that Mr. Hill would not be called as a witness and that in his place Mr. Phil Fleming, the first Vice President of the International Brotherhood of Electrical Workers' Compensation Board, would be called. The Board relied upon the fact that Mr. Flemming had responsibility for all of Canada.
[40] Mr. Flemming was clearly central to the merger decision. He obtained an expert report from Mr. Tim Armstrong. Mr. Armstrong was accepted by the Board as an independent expert in the field of labour relations. All parties agreed that Mr. Armstrong was a respected and honest individual. When Locals 1739 and 894 raised with Mr. Armstrong a concern about the statistical data upon which he would rely in preparing his report, Mr. Armstrong hired Mr. John O’Grady to ensure that the data relied upon by Mr. Armstrong was both accurate and independently analyzed. Mr. O’Grady was a person suggested by representatives of Locals 1739 and 894.
[41] Mr. Armstrong’s report unqualifiedly recommended a merger of Locals 1739 and 894 with Local 353.
[42] Mr. Flemming provided Mr. Hill with the Armstrong Report and asked Mr. Hill to order a merger. Mr. Hill responded to the request by directing that Mr. Flemming and Mr. Armstrong meet with him, which they did. Prior to the meeting, Mr. Flemming prepared a Report for Mr. Hill. The first time that counsel for Locals 1739 and 894 learned of the existence of the Flemming Report was during the cross examination of Mr. Flemming before the Board.
[43] Counsel for Locals 1739 and 894 demanded production of the Report. The Board refused without reading the Report. The Report was not marked as a lettered exhibit or otherwise preserved.
[44] The Board indicated firstly that the Report should have been requested earlier. This was not a sufficient reason to deny production. The Report was an entirely manageable document. This was not a case in which the request for production was a request for a significant amount of documentary evidence.
[45] The Board speculated on the contents of the Report, speculated on the use to which it might be put and on that basis declined to order production.
[46] This was not an appropriate way to deal with this problem.
[47] The Board could infer from the circumstances that the Report related to the merger. The Board was trying to determine whether there was just cause for the merger. That was a sufficient reason to order production of the document.
[48] The Board’s assertion that the cross examination on the Report resulted from a desire on the part of counsel for Locals 1739 and 894 to engage in a “rambling and unfocused” cross examination and was unfair and inappropriate. The Board had determined that Mr. Flemming was the appropriate witness. The Report was authored by Mr. Flemming. The subject of the Report was the merger, the appropriateness of which was the subject of the hearing. There may have been something in the Report which suggested a reason for the merger which had not yet emerged. If the Report simply summarized Mr. Flemming’s reasons for merger then cross-examination on it could have been curtailed.
[49] The failure to order production of the Report, the gratuitous observations about counsels’ anticipated cross examination and the failure to read and preserve the Report before making the evidentiary ruling, make it obvious that this aspect of the matter was not properly considered.
[50] This is an application for judicial review and as a result we have discretion to exercise when considering whether to grant a remedy. In this case, Mr. Armstrong’s qualifications are not disputed. The statistical information in his report was verified by Mr. O’Grady, a person suggested by Locals 1739 and 894. Mr. Armstrong made an unqualified recommendation in favour of the merger. It was Mr. Armstrong’s opinion that the merger was decidedly in the best interests of the International Brotherhood of Electrical Workers. Mr. Hill was entitled to rely upon Mr. Armstrong’s report.
[51] As to all of the other rulings that were required in the hearing of this matter before the Board, the Board’s balancing of written evidence versus evidence heard orally does not raise either a fairness or evidentiary issue. As there were no material issues of credibility or bad faith, the use of written evidence and the ability of the parties to call a number of critical witnesses did not disadvantage or prejudice the applicants.
Outcome
[52] I conclude that the Board’s decisions made in the process are well within the range of reasonable expectations and outcomes. The Board’s reasons are certainly adequate.
[53] To reiterate, there can be no doubt, given the Board’s widespread use of the consultation process in most of its adjudication that the Board’s choice of process and ancillary evidentiary rulings were within the reasonable expectations of the parties.
[54] Considering all of the circumstances, including the failure to order production of the Flemming Report, I decline to exercise the court’s discretion to quash the Board’s decision that the President of the International Brotherhood of Electrical Workers acted with just cause in ordering the merger.
[55] The application for judicial review is dismissed.
[56] On agreement of the parties, Local 353 and the International are each entitled to costs from the applicants of $7,000.00 inclusive. Cost obligations are joint and severable, payable forthwith.
[57] Order accordingly.
Whitaker J.
Marrocco J.
Nordheimer J.
Date: April 9, 2014
CITATION: I.B.E.W. Local 894 v. I.B.E.W. First District-Canada, 2014 ONSC 1997
DIVISIONAL COURT FILE NO: 321/12 JR
DATE: 20140409
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO, NORDHEIMER and WHITAKER JJ.
BETWEEN:
International Brotherhood of Electrical Workers, Local 894 and International Brotherhood of Electrical Workers' Compensation Board, Local 1739
Applicants
- and -
International Brotherhood of Electrical workers, First District – Canada, International Brotherhood of Electrical Workers' Compensation Board, Local 353, I.B.E.W. Local 894 Welfare Trust Fund, I.B.E.W. Local 894 Pension Plan Trust Fund and the Ontario Labour Relations Board
Respondents
REASONS FOR JUDGMENT
Whitaker J.
Released: April 9, 2014