Universal Workers Union v. Maystar General Contractors Inc., 2016 ONSC 5691

CITATION: Universal Workers Union v. Maystar General Contractors Inc., 2016 ONSC 5691

DIVISIONAL COURT FILE NO.: 368/15 DATE: 20160912

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Nordheimer, Thorburn and Pattillo JJ.

BETWEEN:

Universal Workers Union, Labourers’ International Union of North America, Local 183

Applicant

– and –

Maystar General Contractors Inc.

Respondent

– and –

The Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America

Respondent

– and –

The Ontario Labour Relations Board

Respondent

L.A. Richmond, for the Applicant

Mark D. Contini and Sarah E. Smith for the Respondent, Maystar General Contractors Inc.

J. David Watson and David P. Jacobs, for the Respondent, The Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America

Voy Stelmaszynski for the Respondent, The Ontario Labour Relations Board

HEARD at Toronto: September 12, 2016

Nordheimer J. (ORALLY)

1The applicant union seeks judicial review of the decision of the Labour Relations Board dated January 9, 2015 through which the Board concluded that the respondent Carpenters District Council had obtained bargaining rights for all employees of the respondent Maystar with certain limited exceptions. The applicant union had previously held the bargaining rights for these employees.

2All of the parties agree that the standard of review to be applied to the Board’s decision is the standard of reasonableness. The applicant union contends that the Board’s decision is an unreasonable one. Central to its contention is the Board’s treatment of the voluntary recognition agreement that the Carpenters District Council had entered into with Maystar.

3The applicant union says that the voluntary recognition agreement offends s. 53 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. Section 53 reads:

An agreement between an employer or an employers’ organization and a trade union shall be deemed not to be a collective agreement for the purposes of this Act if an employer or employers’ organization participated in the formation or administration of the trade union or contributed financial or other support to the trade union.

4The applicant union says that the entering into of the voluntary recognition agreement constituted “other support” because it effectively allowed the employer, Maystar, to pick the representative for the employees. In particular, the applicant union says that the Board’s conclusion is inconsistent with the Board’s longstanding principle, referred to as the Nicholls-Radtke principle, that only bona fide pre-hire agreements are exempt from a finding of “other support” under s. 53. The applicant union says that the Board erred in concluding that the voluntary recognition agreement in this case was such a bona fide pre-hire agreement.

5The Board concluded that the voluntary recognition agreement was, in essence, a collective agreement entered into to resolve an outstanding application by the Carpenters District Council to gain the bargaining rights for the Maystar employees. While the Board was critical of the Carpenters District Counsel and Maystar for adopting the mechanism of a voluntary recognition agreement to achieve their goal, the Board found that it should look past the form of the agreement and look at the substance of what the parties intended to achieve.

6Taking that approach, the Board concluded that the intent was to settle the outstanding application and achieve the result of giving the bargaining rights to the Carpenters District Council. The Board also noted the applicant union’s concession that, if the Carpenters District Council and Maystar had structured their resolution in the same fashion that a sister union to the applicant union had done with Maystar, the result of granting the bargaining rights to the Carpenters District Council would be “unassailable”. The Board held that it was not prepared to let the form of the resolution trump the substance of what the parties had intended.

7The applicant union takes issue with the Board’s conclusion that the voluntary recognition agreement was intended to settle the outstanding application because the parties had told the Board, about two months before that agreement was signed, that the application had been resolved. The Board concluded, based on the evidence that it heard, that a settlement had been reached earlier and that the formal execution of a voluntary recognition agreement was a term of that settlement. As the Board said:

Of course any cautionary party would want the collective agreement in hand before withdrawing the application. In this case the Carpenters did not do that, just as it did not do many other sensible things. However, a lack of attention to order and form is not fatal.

8The Board’s analysis and conclusion in this regard was an entirely reasonable one. Indeed, given the prior history regarding the application, it would appear to be the most logical one. I agree with the Board that the mere fact that the voluntary recognition agreement does not specifically mention, that it is part and parcel of a settlement of the application, is not determinative of anything. The Board heard from the parties, and its factual finding that the voluntary recognition agreement was part and parcel of the settlement is one to which this court must defer.

9Once the rationale for the agreement is understood as being the resolution of the outstanding application, then the applicant union’s reliance on the Nicholls-Radtke principle cannot possibly succeed because the applicant union cannot then point to any “other support” so as to invoke s. 53. I note that the Board made the express finding that there was no basis to conclude that the voluntary recognition agreement constituted any sort of employer support.

10The real problem for the applicant union in this case is the same as faced the appellant in McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 where Moldaver J. said, at para. 41:

Accordingly, the appellant's burden here is not only to show that her competing interpretation is reasonable, but also that the Commission's interpretation is unreasonable. And that she has not done. [emphasis in original]

11It is not the job of this court to second-guess the conclusion of the Board, or to interfere with the Board’s findings of fact, or to substitute our view for that of the Board. The applicant union must satisfy the very high hurdle of establishing that the Board’s decision is an unreasonable one. The applicant union has failed in that effort.

12The application for judicial review is dismissed.

COSTS

13I have endorsed the Application Record of the Applicant as follows: “For oral reasons given by me, the application for judicial review is dismissed. In accordance with the agreement of the parties, the applicant shall pay to each of the respondents the sum of $5,000.00 all inclusive for costs. The Board does not seek any costs.

___________________________ Nordheimer J.

Thorburn J.

L.A. Pattillo J.

Date of Reasons for Judgment: September 12, 2016

Date of Release: September 13, 2016

CITATION: Universal Workers Union v. Maystar General Contractors Inc., 2016 ONSC 5691

DIVISIONAL COURT FILE NO.: 368/15 DATE: 20160912

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Nordheimer, Thorburn and Pattillo JJ.

BETWEEN:

Universal Workers Union, Labourers’ International Union of North America, Local 183

Applicant

– and –

Maystar General Contractors Inc.

Respondent

– and –

The Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America

Respondent

– and –

The Ontario Labour Relations Board

Respondent