Canada Bread Company, Limited v. Ontario Labour Relations Board, 2018 ONSC 1399

CITATION: Canada Bread Company, Limited v. Ontario Labour Relations Board, 2018 ONSC 1399

DIVISIONAL COURT FILE NO.: 11/18

DATE: 20180305

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: canada bread copmany, limited, Applicant/Moving Party

AND

ontario labour relations board and milk and bread drivers, dairy employees, caterers and allied employees, local 647, affiliated with the international brotherhood of teamsters, Respondents/Responding Parties

BEFORE: Swinton J.

COUNSEL: Sven C. Poysa and Jennifer Dolman, for the Applicant/Moving Party

Aaron Hart and Leonard Marvy, for the Respondent Ontario Labour Relations Board

Douglas J. Wray and Robert Church, for the Respondent Union

HEARD at Toronto: February 28, 2018

ENDORSEMENT

[1] Canada Bread Company, Limited (the “Employer”) seeks an interim stay of orders of the Ontario Labour Relations Board (the “Board”) dated September 14, 2017; December 7, 2017; and January 16, 2018 and any related Board proceedings. The stay would prevent the Board from continuing to determine five applications for certification until the application for judicial review of the September 14, 2017 order has been decided.

[2] In the September decision, the Board concluded that certain individuals who have franchise agreements with the Employer for the delivery of its products are dependent contractors and thus they are employees within the meaning of s. 1(1) of the Labour Relations Act, 1995, S.O. 1995, c.1, Sch. A. The Board found that franchisees with one or more full-time employees were excluded from the proposed bargaining units. The other franchisees, even those with part-time employees, were dependent contractors.

[3] The stay would prevent the Board from completing the status review process and identifying which individuals are in the bargaining unit, then counting the ballots from representation votes held in April 2015, and determining whether certification should be ordered for one or more of the bargaining units.

[4] The parties disagree on the first part of the test for a stay. The Employer submits that the test is “a serious issue” to be determined on the appeal, the usual test from RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311. The Union and the Board argue that a more stringent “strong prima facie case” test should be applied, as several judges of the Divisional Court have concluded (see, for example, Brookfield Multiplex Construction Canada Limited v. Labourers’ International Union of North America, 2018 ONSC 548).

[5] I have some doubt about the correctness of the approach of my colleagues in the Divisional Court, as the usual test for an interim stay or injunction is set out in RJR, which also discusses when a more stringent test is applied – for example, when the order would effectively end the litigation. I note that the approach of the Divisional Court is different from the test in other jurisdictions (see, for example, VIA Rail Canada Inc. v. Cairns, 2003 FCA 319 at para. 7 and Affinity Credit Union v. UFCW, Local 1400, 2014 SKQB 198 at para. 9). However, I need not enter further into this issue. For purposes of this motion, even if I apply the “serious issue to be determined” test, this is not an appropriate case for a stay, and the motion must fail.

[6] I accept that the Employer has an arguable case on the merits of the application with respect to the issues of the interaction of the Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3 and the Labour Relations Act and with respect to the reasonableness of the Board’s conclusion that some of the franchisees are dependent contractors.

[7] However, in assessing the strength of the Employer’s case, I cannot ignore the prematurity of the application for judicial review. The determination of status in September 2017 is but one step in an ongoing certification process. The Board continues to hold hearings to determine which individuals are dependent contractors. It issued a further decision in January, is to receive further submissions by early March, and has two days of hearings scheduled in April. The September decision is clearly an interim decision, and the application for judicial review, even if promptly heard, is likely to interrupt the Board’s proceeding.

[8] It is well established in the jurisprudence that courts generally do not engage in judicial review of interim decisions – that is, decisions taken during the course of an administrative proceeding – absent exceptional circumstances (Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at paras. 68-69). The Employer has not identified any exceptional circumstances that, in my view, would warrant a determination of the application for judicial review at this time. There is a real possibility that a panel of the Divisional Court will refuse to hear this application for judicial review on the grounds of prematurity if the Board has not reached a decision on certification.

[9] That brings me to the issue of irreparable harm. The Employer has filed an affidavit from Leslee Willis, Senior Director, Human Relations, describing the damage that may occur if the Union is certified and collective bargaining must then ensue.

[10] In assessing irreparable harm, it is appropriate to consider the length of time that the stay will be in effect. In my view, this application for judicial review could be scheduled for May or June, 2018, particularly if the parties agree on a timetable and seek a date immediately from the Administrative Judge for the Divisional Court, Justice Thorburn. The Board has already prepared the Record of Proceedings. The Employer’s counsel stated, in answer to my questioning, that his factum could be prepared by mid-March. The Union and Board factums could likely be prepared within 30 days thereafter.

[11] I am not satisfied that the Employer will suffer irreparable harm if a stay is denied in these circumstances. The Board proceeding is not complete, as I have explained above. The fact that the Employer must continue to participate in the certification process does not amount to irreparable harm. Even if there is a concern about the counting of the votes before the Court hearing, the Employer could raise its concerns with the Board and ask that the vote be postponed. In any event, even if a certificate is issued in some or all of the units within the next few months, that gives rise to an obligation to bargain, and that bargaining process will obviously take some time.

[12] Ms. Willis expresses concern that the Board’s decision “may” harm customer relations – for example, if there is a strike. She is concerned that the Board’s decision “may” disrupt the Employer’s business. She states that the Employer will have to undertake a drastic reorganization of its go-to-market strategy.

[13] I agree with the Union’s submission that these harms are speculative and not established by evidence, as they should be (see United States Steel Corporation v. Canada (Attorney General), 2010 FCA 200 at para. 7). In particular, I agree with what is stated in paragraph 60 of the Union’s factum:

The only possible harm referred to in the Willis affidavit is in the event the Board proceeds with the applications, issues certificates to the Union, the parties engage in collective bargaining, and the bargaining results in certain terms of employment which the Applicant may not like. This claimed harm is not only speculative; it is entirely premature at this point.

[14] In my view, the Employer has not met the second part of the test. It has not shown that irreparable harm will occur if a stay is not granted until the application is determined. However, even if it had met that element of the test, the balance of convenience weighs against the granting of a stay. This certification process has been lengthy. As other cases have stated, labour relations delayed is labour relations defeated (National Waste Services Inc. v. CAW-Canada, [2009] O.J. No. 4485 (Div. Ct.)). The individuals affected by the certification applications have been awaiting a result of the process since 2015. The stay, if granted, will cause further delay in the process to determine their bargaining rights.

[15] Taking that interest in obtaining a timely resolution of the bargaining rights issue, as well as the lack of satisfactory evidence of irreparable harm (given that this application for judicial review can likely be scheduled on a timely basis), and the issue of prematurity in the judicial review proceeding, the interests of justice do not favour the granting of a stay of the Board’s proceedings.

[16] Accordingly, the motion for a stay is dismissed. Costs to the Union are fixed at $5,000.00 payable by the Employer. The Board does not seek costs.

Swinton J.

Date: March 5, 2018