Labourers’ Int’l Union of North America, Local 1059 v. Int’l Union of Painters and Allied Trades, 2014 ONSC 755
CITATION: Labourers’ Int’l Union of North America, Local 1059 v. Int’l Union of Painters and Allied Trades, 2014 ONSC 755
DIVISIONAL COURT FILE NO.: 181/13
DATE: 20140130
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, SACHS AND HARVISON YOUNG JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1059 Applicant
– and –
INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, LOCAL 1891, BIGGS & NARCISO CONSTRUCTION SERVICES INC., TIM SCOTT and ONTARIO LABOUR RELATIONS BOARD Respondents
Lorne A. Richmond, for the Applicant
Douglas J. Wray, for the Respondent, International Union of Painters and Allied Trades, Local 1891
A. Kelsey Orth, for the Respondent, Biggs & Narciso Construction Services Inc.
Leonard P. Marvy, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: January 30, 2014
HARVISON YOUNG J. (ORALLY)
[1] The applicant Trade Union, Labourers International Union of North America, Local 1059 (“Labourers”) applies for judicial review of two decisions of the Ontario Labour Relations Board dated November 18, 2010 and April 7, 2011 respectively, that rejected Labourers’ argument that the International Union of Painters and Allied Trades, Local 1891 (“Painters”), certification application should have been dismissed by the Board as untimely.
[2] Labourers seeks an order from this Court quashing and setting aside the two Board decisions and referring the matter to a different panel of the Board to determine in accordance with the Court’s directions.
[3] The essence of the applicant’s submission is that the Board did not have jurisdiction to find that it could hear the certification application on its merits because the application was not timely, having been made on July 8, 2010 instead of July 16, 2010. There is no dispute that as of July 8, 2010 the applicant had lost its representation vote and withdrew its challenge to the vote.
[4] The Board issued a decision on July 15, 2010 confirming the vote and terminating Painters’ bargaining rights. Painters filed a certification application on July 16, 2010. There is no dispute that as of July 8, 2010, Painters’ existing certification was still in existence.
Standard of Review
[5] The applicant argues that this is one of those rare cases which is truly one of jurisdiction in that the Board has given itself an authority beyond that which is bestowed by the legislation. It submits that the source of its jurisdiction to change the time periods is not found in the statute. According to the applicant, the Rules are very simple and it seeks simply to have the same rules applied to it as are applied to the respondent. While the applicant submits that the issue is one of true jurisdiction, it agrees that the Board had the jurisdiction to embark on the consideration of whether the application was timely.
[6] We disagree that this is a question of true jurisdiction. It is becoming increasingly clear that Courts should be cautious about branding issues as jurisdictional which are not clearly jurisdictional: see Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 23 (SCC), [1979] 2 S.C.R. 227 (“C.U.P.E.”) and Alberta (Information and Privacy Commissioner) v. Alberta 2011 SCC 61, [2011] 3 S.C.R. 654. Here, the question of timeliness which was before the Board goes to the core of its mandate and its expertise. The dispute between the parties centres on the interpretation of s. 111(3) of the Labour Relations Act, 1995, S.O. 1995. In determining whether it should exercise its discretion to hear the matter on its merits, the Board was interpreting one of its constituent statutes. Moreover, it was interpreting the statute and the application of the timeliness issue within a highly specialized labour context, one which is emblematic of the need for judicial deference and has been recognized as such, going back even to Dickson J.’s decision in CUPE: see C.U.P.E., para. 6, and Alberta (Information and Privacy Commissioner) v. Alberta [2011] 3 S.C.R. 654).
[7] The standard is reasonableness. We agree with the applicant that this standard means “respectful attention or deference rather than blind reverence” and it does not absolve the Court of its duty to consider whether the decision in question meets the standard of reasonableness.
Submissions and Analysis
[8] The heart of the applicant’s submission is that the time periods set out for an application for certification are absolute and that there can be no discretion on the part of the Board to change them. It makes a number of related arguments.
[9] The applicant submitted in argument, in effect, that time limits are there to promote certainty, and that permitting the early and untimely application of Painters' application for a certification on July 8 caused it prejudice. It submitted that Labourers was prejudiced because, had it known, it might have applied for certification as well.
[10] The record does not support the argument that the Board’s interpretation and application of the decision caused Labourers any prejudice. The Board did not make any decision with respect to the application on July 8 until after July 16, at which time the applicant could have, but didn’t also apply for certification. It did not apply on July 16 because at the time it thought that by virtue of the results of the vote and the termination of Painters’ bargaining rights, it was already the bargaining agent.
[11] The point is that the applicant cannot point to any prejudice it suffered as a result of the Board’s decision to consider Painters’ application on its merits.
[12] The applicant’s central argument is that had the legislator intended the timeliness provisions to be flexible, it would have said so clearly and explicitly and that the Board’s interpretation of its discretion under s. 113(3) flies in the face of the policy of promoting certainty. Rather, in the applicant’s submission, there is nothing in the Act that permits the Board to change timelines.
[13] The applicant further submits that the Board’s decision will promote uncertainty and abuse in an environment where the legislator has recognized that the opposite is required.
[14] We disagree. The Board carefully considered the interpretation to be given to s. 111(3). It addressed the applicant’s submissions, which were very similar to those made before this Court. The Board considered the wording of the statute and s. 111(3) in particular and it considered the cases that the applicant raised before it. It also considered and reviewed the different possible interpretations and the policy justifications for such interpretations (see paras. 33 and 35 of the November 18, 2010 Decision), and it did so in the context of this highly specialized labour relations context as well as in the context of the somewhat unusual matrix of facts.
[15] It is clear that Painters was entitled to apply for certification once its bargaining rights were terminated. In this case, as in Labourers’ International Union of North America v. R.O.M. Contractors Inc., an OLRB Decision of July 25, 2013, there was no suggestion that there was any likelihood that the employer or Labourers would be making any objections. That is, as of July 8, 2010, it was inevitable that Painters’ bargaining rights would be terminated, as was confirmed on July 15, 2010.
[16] In this unique set of circumstances, the Board’s use of s. 111(3) to allow Painters’ application to proceed was reasonable and entirely consistent with the language and purposes of the legislation.
[17] There was no suggestion before the Board that Painters acted improperly or deviously in the hopes of trying to get an unfair advantage by filing its application when it did. If there had been such a suggestion, there would have been a basis for the Board to have refused to exercise its discretion as it did. Further, there was no suggestion before the Board, either on the timeliness application or the certification application, that the membership evidence presented by Painters to support its application for certification on July 8, 2010 was no longer valid as of July 16, 2010.
[18] The Board was alive to all these considerations. It correctly identified the issue and it reviewed the possible interpretations of s. 111(3), in light of the submissions of the parties, the unique factual matrix and after reviewing other possible interpretations. Its decision was justified, transparent and intelligible and it fell within a range of acceptable possible outcomes that are defensible on the basis of the facts and the law.
[19] The application for judicial review is therefore dismissed.
KENT J.
COSTS
[20] I have endorsed the Application Record: “Application is dismissed for reasons given orally by Harvison Young J. Costs are awarded to the respondent Union of Painters payable by Applicant Union of Labourers fixed in the amount of $5,000 inclusive of disbursements and tax.”
HARVISON YOUNG J.
KENT J.
SACHS J.
Date of Reasons for Judgment: January 30, 2014
Date of Release: February 14, 2014
CITATION: Labourers’ Int’l Union of North America, Local 1059 v. Int’l Union of Painters and Allied Trades, 2014 ONSC 755
DIVISIONAL COURT FILE NO.: 181/13
DATE: 20140130
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, SACHS AND HARVISON YOUNG JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1059 Applicant
– and –
INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, LOCAL 1891, BIGGS & NARCISO CONSTRUCTION SERVICES INC., TIM SCOTT and ONTARIO LABOUR RELATIONS BOARD Respondents
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: January 30, 2014
Date of Release: February 14, 2014