2016 ONSC 6511
DIVISIONAL COURT FILE NO.: 384/15
DATE: 20161215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McLEAN, DAMBROT and PATTILLO JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1059
Applicant
– and –
McKAY-COCKER CONSTRUCTION LIMITED
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
Brian P. MacDonald, for the McKay-Cocker Construction Limited
D. Wray, for the Respondent The Carpenters’ District Council of Ontario
Leonard Marvy, for the Ontario Relations Board
HEARD in Toronto: June 17, 2016
L. A. PATTILLO J.:
Introduction
[1] The Labourers’ International Union of North America, Local 1059 (“Labourers”) seek judicial review of series of decisions of the Ontario Labour Relations Board (the “Board”) ultimately certifying the Carpenters’ District Council of Ontario, United Brotherhood of Carpenters and Joiners of America (“Carpenters”) to represent carpenters and carpenter’s apprentices in the employ of McKay-Cocker Construction Limited (“McKay-Cocker”).
[2] Specifically, the Labourers take issue with the Board’s June 8, 2015 decision which held that the collective agreement between the Labourers and McKay-Cocker does not cover carpenters and carpenters’ apprentices. That decision effectively ended the Labourers’ intervention in the Carpenters certification application.
[3] For the reasons that follow, I dismiss the Labourers’ Application. In my view, the Board’s interpretation of the collective agreement was reasonable having regard to the wording of the collective agreement and the Board’s reasons.
Background
[4] On June 26, 2014, the Carpenters filed an application for certification with the Board concerning carpenters and carpenters’ apprentices in the employ of McKay-Cocker in all sectors of the construction industry in Board Area 3, excluding the industrial, commercial and institutional (“ICI”) sector. The Carpenters already held province-wide bargaining rights with McKay-Cocker within the ICI sector.
[5] The Labourers filed an intervention in the application on the ground that it held subsisting rights for the very bargaining unit forming the subject of the application based on a non-ICI collective agreement which was entered into between the Labourers and McKay-Cocker effective January 1, 2010 (the “Del-Ko collective agreement”).
[6] The Board permitted the Labourers’ intervention and after a series of procedural decisions to narrow the facts in issue, set a hearing to determine whether the Del-Ko collective agreement covered the carpenters and carpenters’ apprentices for whom the Carpenters had filed the application. Although there were factual matters still in dispute, the Board concluded that consideration of the factual disputes would only be necessary if the contractual terms were ambiguous.
[7] The key provisions of the Del-Ko collective agreement are Articles 1 and 8 which provide:
Article 1 – Recognition
1.01 The Company recognizes the Union as the sole collective bargaining agency for all its construction labourers and all employees performing the work within the classifications set out in Article 8 or Schedule “A” engaged on all construction projects within the counties of Middlesex, Bruce Elgin Oxford Perth and Huron, save and except non-working foremen, and persons above the rank of non-working foreman, office and clerical staff and engineering staff.
Article 8 – Jurisdiction
8.01 It is understood and agreed that the following classifications of work come within the Labourers’ category:
Unskilled and skilled labourers
Form Builders (steel and wood) for manholes, catchbasins, sewer appurtenances and all structures for municipalities, factories, etc. (except within building lines as specified in Article 11)
Form Builders (on curbs and gutters, sidewalks, etc.)
Carpenters and Carpenters’ Apprentices
Schedule A lists the salaries of different classes of workers.
The June 8, 2015 Decision
[8] At the outset of its June 8, 2015 decision, the Board noted that the question to be determined was whether the Del-Ko collective agreement under which the Labourers worked covered carpenters and apprentices. After setting out the principles to be applied in interpreting collective agreements and the use that could be made of extrinsic evidence, the Board considered the wording of the Del-Ko collective agreement and in particular, Articles 1 and 8. In that regard, the Board stated at paras. 14 to 18 of the decision:
Article 1.01 is a representation clause that covers “construction labourers” (who are obviously not carpenters) and “all employees performing the work within the classifications set out in Article 8 or Schedule “A”. The second group is, a group of employees, that is, one, would normally expect that they are persons not otherwise described by the term “labourer” who are performing various types of work. By itself, this sentence might be read as referring to a second group or class of persons distinct from that of construction labourers.
However, when one looks at Article 8.01, there is only one group of employees referred to: Labourers. Within that “category” one sees a list of job titles that pertain to the type of work that is said to come within the Labourers’ “category”. In this context, the word “category” is a term that can only be read as referring to a class of persons or a trade. Except for the words “carpenters and carpenters’ apprentices”, all of these job titles refer to work that is commonly performed by construction labourers and claimed under Labourers’ collective agreements. Since the collective agreement already covers construction labourers, persons performing the work identified in Article 8.01 are already covered by the reference to construction labourers in Article 1.01. This is only reinforced by the introductory paragraph that asserts that the work falls within the category of Labourer.
I conclude that the preferable interpretation is one derived from a reading of the entire Article 8.01. Article 8.01 begins with the phrase:
It is understood and agreed that the following classifications of work come within the Labourers’ category: …
The plain meaning of these words is that what follows comes within the “category” of Labourer. There is nothing in the collective agreement that would suggest that the “category” of Labourer should be read as anything other than the trade of construction labourer…
Further, Article 8.01 is entitled “Jurisdiction”, a term used to describe work jurisdiction or claims for work by a union on behalf of the persons whom it represents, rather than the scope of representation itself. In this case, the introductory line clearly states, it is simply the work claimed by Labourers Local 1059 on behalf of the “Labourers” they represent. Hence, at best, the construction labourers covered by this collective agreement continue to be covered by the collective agreement when they perform the work of carpenters and carpenters’ apprentices.
[9] The Board next considered the Labourers’ argument that term “carpenters and carpenters’ apprentices” in Article 8 involves representational rights based on the Board’s prior jurisprudence concerning the term “form builder”. After a lengthy discussion, the Board concluded at paras. 27 and 28:
That lengthy background informs, but does not alter, the way in which this collective agreement should be interpreted. The Labourers argue that in Elmara, the Board determined that a collective agreement similar to this one (although perhaps more strongly worded) used the term form setter and formbuilder as a work jurisdiction claim rather than as a recognition clause. In response to that decision, the Labourers decided in this and, according to counsel, other collective agreements, to add the term carpenters and carpenters’ apprentices. In the case of the Del-Ko collective agreement, it added that term to the jurisdictional clause.
I conclude that in doing so, Labourers Local 1059 and McKay-Cocker (and those who negotiated to full collective agreement) did not create representation rights for the Labourers’ Union for carpenters and carpenters’ apprentices. Indeed it used a structure similar to that in the Elmara collective agreement in trying to do so. It certainly would have done so had the collective agreement referred to “all employees” in Article 1.01, or to carpenters and carpenters’ apprentices. All it does do at the present is to identify construction labourers and other persons who are alleged to be found in Article 8.01. That jurisdiction clause is, however, very straightforward. There is only one “category” of employee under the Del-Ko collective agreement: Labourer.
[10] The Board then concluded that because Articles 1 and 8 were not ambiguous, there was no need to consider extrinsic evidence about the McKay-Cocker’s past hiring practices in respect of two bridge projects. Finally, the Board stated that even if the terms of the Del-Ko collective agreement were ambiguous, it would be inappropriate to consider extrinsic evidence about the Del-Ko collective agreement, because the Carpenters were not a party to this contract.
[11] The Labourers’ request for reconsideration of the June 8, 2015 decision was denied by the Board on June 23, 2015.
[12] In a decision dated July 20, 2015, the Board allowed the Carpenters application and certified it in respect of all carpenters and carpenters’ apprentices in the employ of McKay-Cocker in all sectors of the construction industry in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, excluding the ICI sector.
Standard of Review
[13] The parties agree that the standard of review of the Board’s decision is reasonableness. I agree. In the decision under review, the Board was interpreting a collective agreement in the context of a certification application in the construction industry. The issue falls squarely within the Board’s home statute, the Labour Relations Act, 1995, S.O. 1995, C. 1, Sch. A (the “Act”) and accordingly it is entitled to a high level of deference. See: Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 285 at para. 42; Schuit Plastering & Stucco Inc. v. Ontario (Labour Relations Board), [2009] O.J. No. 2082 (Div. Ct.) at para. 19.
[14] The reasonableness standard is concerned with whether there is “justification, transparency and intelligibility within the decision-making process” and whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law. See: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47. The standard recognizes that there may be more than one reasonable decision with respect to the question before the decision maker. It also requires deference to the decision of the administrative decision maker even on questions of law when those questions are within the decision maker’s core function and expertise. See: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 at para. 30.
Discussion
[15] The Labourers submit that the Board’s interpretation of the Del-Ko collective agreement to exclude “carpenter and carpenters’ apprentices” from the scope of the Labourers representation rights was unreasonable. In particular, the Labourers submit that the Board’s interpretation is contrary to the plain wording of Article 1, the recognition clause, which incorporates the classifications set out in Article 8 which in turn specifically lists carpenters and carpenters’ apprentices as one of the classifications.
[16] In support of their submission, the Labourers raise a number of grounds including that the Board carried out an irrelevant inquiry; that it’s decision renders ineffective Article 1 entirely; that it conflated the term “Labourer” (meaning Union) with “labourer” (one of several classifications of employee represented by the Labourers); that it disregarded the term “classification” in Articles 1, 8 and 12; that it disregarded the significance of the terms “carpenters and carpenters’ apprentices” and “form builders”; and, it applied principles and jurisprudence that are distinguishable and irrelevant.
[17] As noted, in interpreting the Del-Ko collective agreement, the Board carefully reviewed the wording of the entire agreement and in particular Articles 1 and 8 and reached its conclusion based on the plain meaning of the words having regard to the distinction between representation on the one hand and jurisdiction on the other. Based on a similar review, I consider that the Board’s decision is not only reasonable but correct.
[18] Nor do I consider that any of the above mentioned sub-grounds raised by the Labourers impact on the reasonableness of the Board’s decision. Those arguments are simply further submissions to support the submission that the Board’s interpretation was contrary to the plain meaning of the Del-Ko collective agreement.
[19] In my view, based on the Board’s reasons as a whole together with the provisions of the Del-Ko collective agreement, the Board’s conclusion that carpenters and carpenters’ apprentices were not captured under the Del-Ko collective agreement is reasonable within the meaning of that term in the jurisprudence. Simply put, I consider the Board’s conclusion to be justifiable, transparent and intelligible and to clearly fall within the range of possible outcomes that are defensible in respect of the facts and the law.
[20] The Labourers further submit that the Board erred in failing to consider evidence of past practice. The Board concluded following a detailed analysis of the wording of the Del-Ko collective agreement that the terms in issue were not ambiguous. It stated at para. 32:
- The extrinsic evidence of Labourers Local 1059 with respect to its members performing all of the work of the formsetter/carpenter is not of assistance here. The words of the collective agreement are unambiguous, and capable of a clear interpretation on their face and in the context of how those words are being used in the construction industry and for many years. It certainly would not be proper to use such extrinsic evidence to contradict that words found in the collective agreement.
[21] The Labourers take no issue with the jurisprudence referred to by the Board that extrinsic evidence may only be admitted when the words used in the collective agreement are ambiguous. Their submission, as I understand it, is based on the premise that the Board’s interpretation of the Del-Ko collective agreement is clearly wrong. The ambiguity, which would permit the evidence of past practice to be admitted, arises from the Labourers’ interpretation that the Del-Ko collective agreement clearly includes carpenters and carpenters’ apprentices.
[22] There is no merit to the Labourers’ submission. It amounts to no more than a further attack on the Board’s interpretation of the Del-Ko collective agreement which I have already concluded is reasonable. In my view, the Board’s decision that the words of the Del-Ko collective agreement were unambiguous and capable of a clear interpretation is reasonable.
[23] The Labourers also challenge the Board’s concern about relying on extrinsic evidence to interpret the scope of one trade union’s collective agreement with an employer when a third party such as another trade union is seeking to organize a group of the employer’s employees. That concern, however, was clearly obiter since the Board concluded that the wording of the Del-Ko collective agreement was not ambiguous. Nevertheless, the Board’s jurisprudence is consistent with such an approach. See: Strabag Inc., [2015] 36147.
Conclusion
[24] For the above reasons, therefore, the Labourers’ Application is dismissed.
[25] As agreed by the parties, the Carpenters are entitled to their costs of the Application from the Labourers in the total amount of $5,000. Otherwise no costs.
L .A. PATTILLO J.
I agree H. McLEAN J.
I agree M. DAMBROT J.
Released: December 15, 2016
2016 ONSC 6511
DIVISIONAL COURT FILE NO.: 384/15
DATE: 20161215
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McLEAN, DAMBROT and PATTILLO JJ.
BETWEEN:
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1059
Applicant
– and –
McKAY-COCKER CONSTRUCTION LIMITED
Respondent
– and –
THE CARPENTERS’ DISTRICT COUNCIL OF ONTARIO, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA
Respondent
– and –
THE ONTARIO LABOUR RELATIONS BOARD
Respondent
REASONS FOR JUDGMENT
L. A. PATTILLO J.
Released: December 15, 2016