Metropolitan Toronto Apartment Builders Association v. Labourers’ International Union of North America, Local 183

CITATION: Metropolitan Toronto Apartment Builders Association v. Labourers’ International Union of North America, Local 183, 2014 ONSC 4976
DIVISIONAL COURT FILE NO.: 52/14
DATE: 20140827

ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT

BETWEEN:

METROPOLITAN TORONTO APARTMENT BUILDERS ASSOCIATION, DURHAM RESIDENTIAL CONSTRUCTION LABOUR BUREAU and TORONTO RESIDENTIAL CONSTRUCTION LABOUR BUREAU
Applicants
(responding parties on motion and moving parties on cross-motion)

– and –

LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183
Respondent
(moving party on motion and responding party on cross-motion)

COUNSEL:
S. Crawford & D. Chondon, for the applicants
C. Paliare, for the respondent

HEARD at Toronto: August 25, 2014

Reasons for Decision

NORDHEIMER J.:

[1] On this motion, the moving party, Labourers’ International Union of North America, Local 183, seeks to strike out an affidavit filed on an application for judicial review brought by the responding parties with respect to an interim award made by a labour arbitrator. The responding parties, in turn, bring a cross-motion to strike out certain portions of an affidavit filed by the moving party on the same judicial review application. Included in the issues raised by these motions is the question whether certain documents, belonging to the responding parties, should only be filed with the court if they are subject to a confidentiality order. In an effort to avoid confusion, I will hereafter refer to the moving party as LIUNA and the responding parties collectively as MTAPBA.

Background

[2] MTAPBA are in a collective bargaining relationship with LIUNA. That collective bargaining process is the subject of a letter of understanding that provides for arbitration of issues relating to the renewal of the collective agreements. The parties agreed on an arbitrator for this purpose.

[3] Prior to the commencement of that arbitration process, MTAPBA sought an advisory opinion from the Competition Bureau as to whether certain existing provisions in the collective agreements, and some proposed new provisions, were contrary to the Competition Act, R.S.C. 1985, c. C-34. The Competition Bureau provided an advisory opinion based on the information that had been provided by MTAPBA to the Bureau.

[4] Presumably as a result of having obtained that advisory opinion, MTAPBA included in the issues to be determined by the Arbitrator their request to have certain subcontracting and cross-over provisions deleted from the collective agreements on the basis that the provisions were illegal because they violated various provisions of the Competition Act.

[5] LIUNA raised a preliminary objection to the jurisdiction of the Arbitrator to consider the issue of these disputed provisions. LIUNA contended that only the courts could determine any violation of s. 45 of the Competition Act (one of the sections that MTAPBA was relying on) and, in the alternative, if the Arbitrator did have jurisdiction, it was a shared jurisdiction with the Competition Tribunal and that the Arbitrator should defer to that tribunal to determine any such issues. The Arbitrator decided that he would deal with the jurisdiction question first, as a separate issue, before embarking on his consideration of the other issues raised in the arbitration.

[6] After conducting a hearing and dealing with other associated matters relating to the jurisdiction issue, the Arbitrator released his decision on the jurisdiction issue on December 5, 2013. The Arbitrator determined that, while he did have jurisdiction to determine the issues raised by MTAPBA relating to the Competition Act, he shared that jurisdiction with the Competition Tribunal and, in the particular circumstances of this case, he was going to defer deciding those issues in favour of any consideration and determination that the Tribunal would make.

[7] MTAPBA now seeks judicial review of that decision by the Arbitrator.

LIUNA’s motion to strike

[8] On the judicial review application, MTAPBA has filed the affidavit of Steve Szentesi, a lawyer who has been assisting them with the competition issues. The affidavit can be broken down into two parts. The first part, that includes the first nine paragraphs, detail what the parties did in preparation for the hearing before the Arbitrator including the obtaining of the advisory opinion, the filing of extensive written submissions and the raising of the jurisdiction issue by LIUNA. The affidavit also states that there were no proceedings currently ongoing in the courts or before the Competition Tribunal and that no witnesses were called before the Arbitrator on the jurisdiction issue. The second part of the affidavit, that includes the remaining seven paragraphs, can fairly be described as reiterating arguments that MTAPBA made before the Arbitrator.

[9] Both this motion and the cross-motion raise the issue as to what properly constitutes the record when a judicial review application is brought from a decision of an administrative tribunal or an arbitrator. That issue has been the subject of a number of decisions. It is also partly addressed by statute.

[10] Starting with what is or is not provided for by statute on this subject, the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 does not set out what needs to be included in the record. The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 does provide, in s. 20, the minimum requirements for a record but it is agreed that the SPPA does not apply to proceedings before a labour arbitrator. The issue thus becomes what does the common law say, if anything, as to what constitutes the record.

[11] In R. v. Northumberland Compensation Appeal Tribunal ex parte Shaw (1951), [1952] 1 K.B. 338 (Eng. C.A.), Denning L.J. said, at pp. 351-352:

... throughout all the cases there is one governing rule: Certiorari is only available to quash a decision for error of law if the error appears on the face of the record. What, then, is the record? It has been said to consist of all those documents which are kept by the tribunal for a permanent memorial and testimony of their proceedings ... I think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision

[12] It is, of course, expected nowadays in most administrative law proceedings that reasons will be given. Consequently, following on the observations of Denning L.J., on a judicial review application from a labour arbitrator, the record would normally include, at a minimum, the notice of hearing, the decision and the reasons. There are no pleadings in such proceedings so that requirement does not arise. However, in some past cases, parties have also included affidavits as part of the record. An issue then arose as to whether it was proper for affidavits to form part of the record.

[13] In Re Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.), Morden J.A. had the following to say on the subject of including affidavits as part of the record:

Having just completed the exercise of examining, in this fashion, the evidence that was before the arbitrator I would express the view, which is in agreement with that of Pennell, J., that the practice of admitting affidavits of this kind should be very exceptional, it being emphasized that they are admissible only to the extent that they show jurisdictional error. I would think that the occasions for the legitimate use of affidavit evidence to demonstrate the exacting jurisdictional test of a complete absence of evidence on an essential point would, indeed, be rare.

[14] This issue was further addressed in 142445 Ontario Ltd. (c.o.b. Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636, 2009 24643 (ON SCDC), [2009] O.J. No. 2011 (Div. Ct.). After referring to the decision in Keeprite, Swinton J. summarized the state of the law on the use of affidavits in a judicial review application in the following way, at para. 18:

The Keeprite standard for the admission of affidavit evidence on judicial review has been applied in numerous decisions involving labour boards and labour arbitrators. These cases have held that affidavit evidence can be admitted either to show an absence of evidence on an essential point or to disclose a breach of natural justice that cannot be proven by a mere reference to the record.

[15] Lastly on this point, I refer to the recent decision in Endicott v. Ontario (Independent Police Review Office), 2014 ONCA 363, [2014] O.J. No. 2189 (C.A.). In that case, the Court of Appeal held that the contents of the record will vary depending on the nature of the decision and the nature of the decision-maker. In so concluding, Rouleau J.A. said, at para. 40:

It would seem reasonable to conclude that, depending on the decision-maker and the type of decision made, the contents of such a record will be substantially different.

[16] It would seem to follow, therefore, that no hard and fast rule can be laid down as to what properly constitutes the record in any given judicial review application. However, based on the decisions in Keeprite and Kingston, it is clear that the use of affidavits on judicial review applications is only permissible in narrow and limited circumstances. They are restricted, in essence, to situations where there is an argument to be advanced that the decision maker acted without jurisdiction or there is an allegation of a breach of natural justice. The latter does not arise in this case nor, in my view, does the former. It is not suggested, nor was it argued before the Arbitrator, that only the Arbitrator could decide the competition issues. To the contrary, MTAPBA clearly acknowledged that there was overlapping jurisdiction but submitted that the Arbitrator should exercise his jurisdiction in this case. I would add that, even if MTAPBA had suggested that the Arbitrator had sole and exclusive jurisdiction to decide the issue, and that he improperly failed to exercise that jurisdiction, the contents of the Szentesi affidavit do not actually address that issue.

[17] With those principles in mind, I have no difficulty in concluding that the Szentesi affidavit should not be included as part of the record for the judicial review application. The first part of the affidavit attempts to add to, or expand upon, the facts that were before the Arbitrator which is improper on a review. The second part of the affidavit is nothing more than argument that may be properly part of a party’s factum but is not properly advanced as evidence through an affidavit.

[18] The Szentesi affidavit is therefore struck out.

MTAPBA’s cross-motion to strike

[19] LIUNA has also filed an affidavit on the judicial review application. In this instance, it is an affidavit of Sanja Bistricki, a legal assistant to one of the lawyers acting for LIUNA. MTAPBA moves to strike out a number of parts of that affidavit, specifically, a number of the exhibits attached to it. The impugned portions of that affidavit can be broken down into three parts: (i) the competition documents; (ii) the submissions of the parties and (iii) various communications between counsel and the Arbitrator.

[20] Dealing with those parts in reverse order, in my view, any communications between the parties and the person whose decision is being reviewed ought normally to form part of the record, whether on a judicial review application or on an appeal. The parties might agree that some communications are unnecessary for the review given the issues raised but, absent any agreement, it seems to me that any such communications ought properly to be placed before the reviewing court. It can never be known with certainty whether any issue is going to arise in terms of what the parties communicated to the decision maker or vice versa. Given the importance of what the decision maker may have been told by the parties, and what the decision maker may have said to the parties, all of this having occurred outside of the formal hearing, any such communications should form part of the record. I would add that, given that communications between the parties and the decision maker outside of the formal hearing are presumptively inappropriate, it would be expected that this situation should rarely arise.

[21] The submissions of the parties before the Arbitrator have no role to play in the judicial review application and ought not to be part of the record for the same reasons as I set out above in relation to the second part of the Szentesi affidavit. The parties can make their submissions to the court through their facta. What they did or did not submit before the Arbitrator is, except in very rare circumstances, of no relevance. I should add, in fairness, that counsel for LIUNA did not press for this material to be retained.

[22] As a consequence, Exhibits K, L, M and P of the Bistricki affidavit are struck out.

[23] Lastly are what I have referred to as the competition documents. These include the submission letters made by MTAPBA to the Competition Bureau and the resulting advisory opinion. MTAPBA submits that these documents are irrelevant but, if the court disagrees with that position, that the documents should only be filed with the court under the restrictions of confidentiality order.

[24] It is not clear to me that the competition documents are so clearly irrelevant that they should not form part of the record on the judicial review application. These documents were provided to the Arbitrator. There is nothing in the decision of the Arbitrator that makes it clear whether he did, or did not, consider these documents in reaching his conclusion. It is to be remembered, however, that the Arbitrator decided to defer his consideration of the competition issues in favour of having those issues decided by the Competition Tribunal. He gave a number of reasons for reaching that conclusion including that the central issue raised was one of competition law not labour law; that the issues raised questions of market definition and market effects that the Competition Tribunal has particular expertise in determining; that some of the issues raised by MTAPBA were novel and would be better decided in the first instance by the Competition Tribunal and that the questions raised by MTAPBA had ramifications beyond just the parties to the arbitration and thus were more appropriately determined by the Competition Tribunal.

[25] It would not be a surprise if, in formulating his reasons and his conclusion, the Arbitrator reviewed what MTAPBA had communicated to the Competition Bureau and what the Competition Bureau had opined in response. Indeed, it would be surprising if he had not. Consequently, insofar as the Arbitrator may have looked at this material in reaching his conclusions, it may become necessary for the panel hearing the judicial review to also look at this material. At least, it cannot be clearly said that that is not a possibility. The fact that the documents were not marked as formal exhibits does not change that analysis. It remains the fact that the documents were given to the Arbitrator and he may have reviewed them in coming to his decision. It seems to me that, in those circumstances, that material should properly form part of the record on the judicial review application.

Confidentiality order

[26] That conclusion then raises the issue whether MTAPBA should be granted a confidentiality order over the competition documents with the effect that they would not form part of the public record.

[27] MTAPBA does not dispute that, in order to obtain a confidentiality order, they must meet the test set out in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522. In that case, Iacobucci J. set out a two-part test for the granting of a confidentiality order. He said, at para. 53:

A confidentiality order under Rule 151 should only be granted when:

(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.

[28] The decision in Sierra Club stresses that confidentiality orders are not the norm. Rather, they are very much the exception to the central principle that proceedings in court are open and public. While recognizing that there may be instances where there is a sufficiently important commercial interest at stake that would require a departure from the open court rule, Iacobucci J. made it clear that the threshold for finding such a sufficiently important commercial interest is a high one. On that point, he said, at para. 55:

In order to qualify as an “important commercial interest”, the interest in question cannot merely be specific to the party requesting the order; the interest must be one which can be expressed in terms of a public interest in confidentiality. For example, a private company could not argue simply that the existence of a particular contract should not be made public because to do so would cause the company to lose business, thus harming its commercial interests.

[29] In this case, MTAPBA says that there are two essential public interests that a confidentiality order would protect. One is against the threat of premature litigation that might arise if the contents of the documents were revealed and the other is the interest in promoting and protecting the confidential nature of the process by which persons can obtain advisory opinions from the Competition Bureau.

[30] In support of their position, MTAPBA refers to two decisions in particular. One is GasTOPS Ltd. v. Forsyth, [2011] O.J. No. 979 (C.A.) where Juriansz J.A. granted a confidentiality order over certain exhibits that formed part of the record on appeal. I note that in that case, however, that the documents were described as involving:

… intellectual property, information connected to national defence and subject matter over which third parties have required secrecy in their commercial dealings with GasTOPS. (para. 17)

[31] The other case is Canada (Commissioner of Competition) v. Chatr Wireless Inc., [2011] O.J. No. 2513 (S.C.J.). That case involved a proceeding under the Competition Act. The Commissioner of Competition sought a confidentiality order over what was described as “commercially sensitive” information. In that case, it appears that the information sought to be kept confidential was financial information belonging to competitors of the company who was the subject of the proceeding. In the end result, Marrocco J. concluded that some of the information would not be the subject of a confidentiality order but that other information (notably financial information) would be.

[32] In my view, neither of these cases greatly assists MTAPBA in their position. First, the material under consideration in GasTOPS is fundamentally of a different kind than is at issue here. Nor is it suggested in this case that there is confidential financial information at stake as was the case in Chatr. I appreciate that there is a desire to protect the confidential process by which persons can obtain advisory opinions from the Competition Bureau. However, if that objective was of such a pressing concern that the Competition Bureau wanted to ensure that any such advisory opinions would for all purposes be protected from disclosure, that result could have been provided for in the Competition Act as it is in other statutes. However, the Competition Act does not so provide. That reason alone is not sufficient to displace the principle of the openness of courts especially when it is the company who obtained the opinion that has chosen to bring the matter before the court.

[33] In terms of the risk of litigation, I have been referred to my earlier decision in Lederer v. 372116 Ontario Ltd. (c.o.b. Hemispheres International Manufacturing Co.) (2000), 2000 22408 (ON SC), 50 O.R. (3d) 282 (S.C.J.) where I addressed the same issue, albeit in a different context. In that case, I said, at para. 32:

It is not uncommon for the launching of one action to be the genesis for the launching of other actions. Class actions are only the most recent example of proceedings that frequently have this result. To suggest that the potential for that result could form the basis for an order to seal the court file from public view would seem to me to establish a very serious precedent. If so, it is one that I am not prepared to run the risk of setting.

[34] The same point can be made here. MTAPBA has chosen to raise this issue, first with the Competition Bureau and then in the arbitration. MTAPBA now wishes to continue to explore the issue before this court. I see no compelling reason why MTAPBA should be protected from any consequences that may arise from that chosen course of action through the granting of a confidentiality order. That is not, in my view, the type of important commercial interest that the decision in Sierra Club was intended to protect. I would add that it is not obvious to me what consequential litigation would arise from any public access to this material in any event.

[35] Rather, what appears to be at issue here is the private commercial interest of MTAPBA in keeping their communications with the Competition Bureau, and the Competition Bureau’s response, private while, at the same time, seeking to litigate the results of those communications. In those circumstances, I am not persuaded that the exceptional relief of a confidentiality order ought to be granted.

Conclusion

[36] The motion by LIUNA to strike the Szentesi affidavit is granted and the affidavit is struck out. The motion by MTAPBA to strike out various exhibits from the Bistricki affidavit is granted but only in respect of Exhibits K, L, M and P. That motion is otherwise dismissed.

[37] In terms of costs, while the result is arguably mixed, LIUNA has been considerably more successful in its part of these motions than has MTAPBA. I therefore order MTAPBA to pay to LIUNA the costs of these motions that I fix in the amount of $7,500 inclusive of disbursements and HST.

[38] Finally, I direct the parties to take the necessary steps to ensure that the record in the Divisional Court is amended so that it complies with the terms of these reasons.

NORDHEIMER J.

Date of Release:

CITATION: Metropolitan Toronto Apartment Builders Association v. Labourers’ International Union of North America, Local 183, 2014 ONSC 4976
DIVISIONAL COURT FILE NO.: 52/14

ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT

BETWEEN:

METROPOLITAN TORONTO APARTMENT BUILDERS ASSOCIATION and others
Applicants

– and –

LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183
Respondent

REASONS FOR DECISION

NORDHEIMER J.

Date of Release: