Court File and Parties

CITATION: Brick and Allied Craft Union of Canada, Local 2 v. O.L.R.B., 2015 ONSC 5796

DIVISIONAL COURT FILES NO.: 459/14

DATE: 2015-09-18

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: BRICK AND ALLIED CRAFT UNION OF CANADA, LOCAL 2, Applicant

AND:

ONTARIO LABOUR RELATIONS BOARD; LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183; and BMC MASONRY, A DIVISION OF 2032686 ONTARIO LIMITED, Respondents

BEFORE: MOLLOY, SANDERSON and SACHS JJ.

COUNSEL: Michael McCreary, for the Applicant Leonard Marvy, for the Ontario Labour Relations Board Ronald Lebi, for Labourers’ International Union of North America, Local 183 Herbert Law, for BMC Masonry

HEARD: September 17, 2015 at Toronto

Endorsement

Factual Background

[1] The Brick and Allied Craft Union, Local 2 (“BACU”) had been certified as the exclusive bargaining agent for certain employees of BMC Masonry in 2012. Over a year passed without a collective agreement being negotiated. In February 2014, the Labourers’ International Union of North America (“LIUNA”), on notice to BACU, applied to replace BACU as the bargaining agent for those employees.

[2] The matter proceeded before Vice-Chair Shouldice at the OLRB. BACU argued that the employer had engaged in bad faith bargaining in collusion with LIUNA. The Board ruled on March 5, 2014 that these allegations were unsupported by the pleading of any material facts to support them. He ordered that a representation vote would proceed on March 12, 2014, at which the eligible employees would be asked to indicate whether they wished to be represented by LIUNA or BACU. The Board expressly ruled that the employees eligible to vote were the four individuals listed in a Schedule attached to the decision.

[3] The vote proceeded on March 12, 2014 and the four named employees cast ballots. Subsequently, when those votes were counted, more than 50% of the employees had voted in favour of LIUNA.

[4] Within hours of the vote, and before the ballots were counted, legal counsel for BACU wrote to the OLRB indicating that BACU wished to challenge all four individuals who cast ballots on the following grounds: “(1) Not an employee; (2) Not at work on the application filing date; (3) Managerial (excluded under section 1(3)(b) of the Labour Relations Act, 1995); (4) At work illegally.” Counsel advised that the BACU representative who was present as a scrutineer at the vote, Mr. DeBoer, had communicated his objections to the Board’s Vote Officer conducting the vote on site. However, according to BACU, the Officer told Mr. DeBoer that he had neglected to bring the appropriate Certification Worksheets with him and they should therefore write directly to the Board to inform the Board of the challenges to the voters.

[5] On April 9, 2014, a Case Management Hearing proceeded at the OLRB before Vice-Chair Slaughter. There was a factual dispute as between BACU, LIUNA and BMC about whether BACU had objected to the eligibility of the four employees who had cast ballots in the March 12, 2014 vote. BACU sought a hearing with oral evidence before the Board to deal with the eligibility issue. The Vice-Chair ruled that an oral hearing was not necessary. He dealt with the issue based entirely on the submissions of the parties and held that BACU was not entitled to challenge the eligibility of the individuals who had voted. Written reasons for that decision were issued on April 11, 2014.

[6] BACU sought reconsideration of that decision and also brought an unfair labour practice complaint alleging misconduct by LIUNA and BMC Masonry in the context of the certification application. These applications were heard together by Vice-Chair Slaughter. He issued a written decision dated August 1, 2014 rejecting both of BACU’s applications. BACU applies for judicial review of the decisions of Vice-Chair Slaughter.

The Reasons of the Board

[7] On reconsideration, the Vice-Chair stated that there were several reasons for reaching his decision. He then proceeded to set out three grounds for his decision.

[8] The first reason was based on the implications of the Board’s earlier decision dated March 5, 2014. The Vice-Chair noted that this decision determined two important things: (1) it dismissed BACU’s conspiracy allegations as being vague and lacking in particulars; and (2) it determined the list of eligible voters. The Vice-Chair ruled that it was incumbent upon BACU to seek reconsideration of these rulings within the 20 days permitted under the Board’s Rules, or at the very least, prior to the taking of the vote. He held that, on that basis alone, BACU was “precluded from challenging the voters’ list and seeking to resuscitate its conspiracy allegations.”

[9] Next, the Vice-Chair noted the dispute between the parties about what happened at the time of the vote and whether Mr. DeBoer, on behalf of BACU, challenged the eligibility of the voters at that time. He stated (at para. 40), “While there are conflicting versions about exactly what transpired at the vote, the Board need not resolve the conflict for the purpose of this decision.”

[10] Nevertheless, the Vice-Chair then proceeded (at paras. 40-42) to delve into the merits of that dispute, finding it to be “most unlikely” that a very experienced Labour Relations Officer would have behaved as described, and finding that BACU’s allegations were not credible and did not reasonably reflect what likely happened at the representation vote.

[11] Thirdly, the Vice-Chair held that even if the Board were to consider BACU’s challenges, they were without merit. He noted that the purported challenges were not particularized to the individuals involved and amounted to nothing more than boilerplate. He also found that the conspiracy/fraud allegations were of a broad and general nature, without any particulars as to names, places, dates or times. Although new evidence had recently emerged as to the employer possibly remitting union dues to a Union Local connected to LIUNA, the Vice-Chair held that this fact in and of itself was not sufficient to establish that the employees in question were covered by a different collective agreement or that there was any fraud or conspiracy involved.

Analysis

[12] With respect to the first and third grounds given by the Vice-Chair, the standard of review is clearly one of reasonableness. These are findings of fact and mixed fact and law central to the Board’s area of specialized expertise. We see no basis whatsoever to interfere in those determinations.

[13] On the argument of the application before us, the main focus of counsel for BACU was on the Board’s findings of fact and credibility with respect to the circumstances surrounding the representation vote, particularly given that this was done solely on submissions without oral evidence. It was submitted that this finding of credibility infected the whole of the Vice-Chair’s decision-making, and was a breach of procedural fairness and natural justice. Further, it was argued that this combined with some of the extreme language used in criticizing the conduct of BACU supported a reasonable apprehension of bias.

[14] We do not agree that there is any basis upon which to find a reasonable apprehension of bias, much less actual bias on the part of the Vice-Chair. We do find it troubling, however, that having determined that there was no reason to resolve the conflicting versions as to what transpired at the March 12, 2014 vote, the Vice-Chair nevertheless proceeded to do precisely that, in the course of which he made adverse credibility findings against BACU.

[15] It is a well-settled principle of law that where the outcome of a decision hinges on a serious issue of credibility, adverse findings of credibility ought not to be made in the absence of an oral hearing: Re Singh and Minister of Employment and Immigration (1985), 1985 65 (SCC), 17 D.L.R. (4th) 422 (S.C.C.); Masciangelo v. Spensieri (1990), 1 C.P.C. (3d) 124 (Ont.H.C.); Khan v. University of Ottawa (1997), 1997 941 (ON CA), 34 O.R. (3d) 535 (C.A.). All of the respondents accept the basic proposition that where credibility issues are critical to decision-making, the decision maker should hear oral evidence before making those factual findings. The position of the respondents is that this principle is not determinative in the circumstances of this case.

[16] We agree. The difficulty in applying that principle in this case is that the credibility findings made were not central to the Vice-Chair’s decision. The Vice-Chair himself said that he did not need to determine this issue. He also found that the failure of BACU to challenge the March 5, 2014 decision as to the eligibility of the four people to cast votes, standing alone, was fatal to BACU’s subsequent ability to challenge those same individuals. This is particularly so given that the challenge, when it was made, was based on entirely generic grounds unspecific to these four individuals. Those are the determining factors in this case. That being so, the findings of credibility are essentially irrelevant, are not central to the Board’s reasoning on the other points, and are easily severable from the rest of the decision.

[17] It is clear that the Board is not required to conduct an oral hearing every time there is a challenge to a certification or representation vote. The Board has a broad discretion to determine when a full hearing is required: Labour Relations Act, 1995, S.O. 1995, c.1, Sch. A, ss. 96, 110(16), 111(2)(n), and 128.1(6); Amalgamated Transit Union Local 113 v. Ontario Labour Relations Board (2007), 2007 59152 (ON SCDC), 88 O.R. (3d) 361 (Div.Ct.); International Brotherhood of Electrical Worker, Local 1739 v. International Brotherhood of Electrical Workers, 2007 65617 (ON SCDC), 86 O.R. (3d) 508 Div.Ct.). The applicant fairly conceded in argument that if the Vice-Chair had accepted the letter from BACU’s counsel as determinative of what happened at the time of the vote, an oral hearing would not be required to decide the issue.

[18] It is unfortunate that the Vice-Chair chose to make the credibility findings on this issue, having already made the determination that he would not hear oral evidence. That said, the point is not central to the decision itself and does not require striking the decision and remitting it to the Board for a new hearing. Our decision might well be different had the credibility findings been central to the determination of the case.

Conclusion and Order

[19] In the result, the application is dismissed. The parties have agreed that the appropriate disposition as to costs is $4000.00 to BMC Masonry and $4000.00 to LIUNA, payable by the applicant.

MOLLOY, J.

SANDERSON J.

SACHS J.

Released: September 18, 2015