CITATION: United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry v. PCL Constructors Canada Inc., 2015 ONSC 7369
DIVISIONAL COURT FILE NO.: 240/14
DATE: 20151127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, D. L. CORBETT AND RAY JJ.
BETWEEN:
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 46
Applicant
– and –
PCL CONSTRUCTORS CANADA INC. and ONTARIO LABOUR RELATIONS BOARD
Respondents
Ronald N. Lebi, for the Applicant
Mark D. Contini, for the Respondent, PCL Constructors Canada Inc.
Leonard P. Marvy, for the Respondent, Ontario Labour Relations Board
HEARD: at Toronto, November 26, 2015
REASONS FOR JUDGMENT
RAY J.
[1] The applicant Union seeks to quash a decision of the Ontario Labour Relations Board (“Board”) in which the Board accepted the Union’s contention that the respondent PCL had breached the collective agreement by subcontracting work to a non-unionized contractor, but had denied a remedy in the form of an award of damages. It is the question of the award of damages or the remedy that is the subject of this judicial review application.
[2] The standard of review is reasonableness. A Board decision concerning remedy is owed a high degree of deference.[^1]
[3] This dispute arose because PCL had subcontracted the piping and related mechanical equipment installation work associated with the construction of a swimming pool at a community centre to a non-union contractor. The collective agreement provided that work under the jurisdiction of the agreement may be subcontracted only to an employer who is signatory to the collective agreement with the Union. In this case, PCL subcontracted the work to a non-union contractor. The Union grieved. The grievance was referred to the Board under s. 133 of the Labour Relations Act. PCL’s position was firstly, that the work was not covered by the collective agreement because the nature of the work and the product to be installed were very specialized. Only a non-union contractor was capable of performing the work. There was no union contractor who was licenced or authorized who could have performed the work. Alternatively, it argued that if there had been a breach of the collective agreement, the remedy should be limited to a declaration. No damages should be awarded because the Union had sustained no loss.
[4] The Union had argued that PCL should never have put itself in the position of accepting a contract that would have put itself in breach of the collective agreement; and that PCL should have walked away from the contract. Since it did not, it must now pay the price.
[5] The Board reasoned in its decision of April 23, 2014, that the purpose of damages is to put the injured party in the position it would have been, had the collective agreement not been breached. In this case, the breach was not unique to PCL. The situation would have affected any general contractor bound by the same obligations to the Union. Only a contractor not bound by the same obligations to the Union would have been qualified; and that would have deprived the Union of the work, since its members would never have been in a position to do the work under the collective agreement. Hence the Union has suffered no damages at all, and the measure of damages is zero.
[6] The Union argued that the Board failed to consider the labour relations impact of the decision. However, in finding that “The damages that arise from this violation are zero. There is no other remedy that is appropriate in the unusual circumstances of this case.”, the Board commented:
“It is important not to read too much into this decision. It is an outcome that will rarely occur, and is dependent on the narrow facts of this case. The decision does not stand for the proposition that any inconvenience caused by a collective agreement can be ignored by an employer bound to it, or that particular specifications or divisions of work can be manipulated in order to deprive union members of work that they would normally perform under a collective agreement. The result in this case is dependent on the peculiar conditions created by the rigid requirements of a single manufacturer of a product that is rarely part of an overall Building Contract. The likelihood of such facts coming together again is very small.[^2]
[7] The Union contends that the Board’s failure to award monetary damages falls outside the range of possible, acceptable outcomes. Its position is that a mere declaration was unreasonable, and that the Board had failed to fashion a remedy to recognize that contractors must be deterred from ignoring fundamental obligations respecting union work jurisdiction and sub-contracting. It also contends that there is no precedent in which an employer’s breach of its contractual obligation to sub-contract only to unionized contractors, did not give rise to an award of damages. It also argues that a declaration alone in these circumstances cannot reasonably be considered to be an effective remedy, and relies upon Blouin Drywall Contractors Ltd. v. CJA, Local 2486 [^3] for authority that a remedy must be fashioned that would effectively enforce the rights and obligations under a collective agreement.
[8] While the Board accepted that PCL had breached the collective agreement, it found that this was a unique situation that was unlikely to reoccur, and that the decision should not be considered as authority for the proposition that the remedy of damages was not available where an employer breaches the subcontracting provision in a collective agreement. It declined to accept the argument that PCL should have walked away from the contract, and noted that on the peculiar circumstance of the case, that would have meant only a non-union contractor could have done the work, thereby depriving the union members from the work in any event. Implicit in that comment is that deterrence, on the unique facts of this case, was not a factor.
[9] The major thrust of the Union’s argument is that a failure to make a monetary award where no damages have been shown fails to account for the need for deterrence. I am satisfied that the Board did consider deterrence as a factor but rejected the argument.
[10] I am not satisfied that the Board’s decision to decline to award damages is outside the range of reasonable outcomes. This is a remedy decision that is owed deference.
[11] The application is dismissed.
[12] The parties agreed to fix the costs at $5,000. The Board is not seeking costs. Costs are fixed at $5,000, all in, payable by the applicant to the respondent PCL.
RAY J.
SWINTON J.
D. L. CORBETT J.
Released: November 27, 2015
CITATION: United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry v. PCL Constructors Canada Inc., 2015 ONSC 7369
DIVISIONAL COURT FILE NO.: 240/14
DATE: 20151127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, D. L. CORBETT AND RAY JJ.
BETWEEN:
UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 46
Applicant
– and –
PCL CONSTRUCTORS CANADA INC. and ONTARIO LABOUR RELATIONS BOARD
Respondents
REASONS FOR JUDGMENT
Released: November 27, 2015
[^1]: EllisDon Corp v. Ontario Sheet Metal Workers’ and Roofers’ Conference (2015) 123 O.R. (3d) 253, 2014 ONCA 801 at paragraph 56.
[^2]: Board Decision, April 23, 2014 at paragraph 93.
[^3]: (1975), 1975 707 (ON CA), 57 DLR (3d) 199 (Ont. C.A.) at paras. 23 and 26