2018 ONSC 4200

DIVISIONAL COURT FILE NO.: DC-17-562-JR DATE: 20180710

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

C. Horkins, Thorburn and Pomerance JJ.

BETWEEN:

S. & T. ELECTRICAL CONTRACTORS LIMITED AND S & T INDUSTRIAL INC.

Applicants

– and –

IRON WORKERS DISTRICT COUNCIL OF ONTARIO and INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS, LOCAL 786 and ONTARIO LABOUR RELATIONS BOARD

Respondents

Richard J. Charney and Andrew McCoomb, for the Applicants

Robert Gibson, for the Respondents, Iron Workers District Council of Ontario and International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 786

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

HEARD at Toronto: May 15, 2018

POMERANCE J.:

[1] S. & T. Electrical Contractors Limited and S & T Industrial Inc. (S & T) seek judicial review of a decision of the Ontario Labour Relations Board (“the Board”) on a Ministerial reference. S & T argues that, because the Minister’s question was not accurately conveyed to the parties, it was denied procedural fairness. The respondents, the Iron Workers District Council of Ontario and International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 786, (“Iron Workers Union”), argue that the decision of the Board on the Ministerial reference is not reviewable and that, in any event, such review would have no practical effect on the outcome. The Ontario Labour Relations Board similarly argues that the application should be dismissed.

BACKGROUND

[2] S & T employs various individuals who work at Essar Algoma Steel Inc. (Essar). In 2013, the Iron Workers Union filed an application for certification in the construction industry to represent employees working for S & T. S & T and the Iron Workers Union entered into Minutes of Settlement (MOS), dated August 9, 2013, in which they agreed to commence collective bargaining no later than June 1, 2014. The MOS stipulated that, if by September 2, 2014, there was no agreement then the parties would automatically become bound by the Iron Workers’ Provincial Collective Agreement for Ontario.

[3] The parties began negotiating. On August 28, 2014, counsel for S & T wrote to the Ministry of Labour to request the appointment of a conciliation officer. On September 2, 2014, the Iron Workers Union wrote to the Minister of Labour to oppose the request for appointment of a conciliation officer on the basis that the parties were, by then, bound to the Provincial Collective Agreement. On September 22, 2014, the Minister sent a letter to the Board referring the following question for determination:

Are S & T Electrical Contractors Limited and S & T Industrial Inc. and Iron Workers District Council of Ontario bound by a collective agreement for maintenance work in OLRB area #21 (that portion of the District of Algoma south of the 49th parallel of latitude)?

[4] On September 24, 2016, the Board sent a confirmation of filing to the parties. This document misidentified the question posed by the Minister. It read as follows:

This will confirm that the Board has received a Referral Application dated September 22, 2014 from the Minister of Labour, requesting the Board to deal with issues relating to:

Whether an Arbitrator/Mediator should be appointed

Whether a “No Board” Notice should be issued.

[5] It is not clear why the Minister’s questions were misstated.

[6] At the time that this was occurring, S & T filed a s. 96(7) application alleging that the respondents had breached the Labour Relations Act, 1995, S.O. 1991 c. 1, Sched. A (“LRA”), by failing to negotiate in good faith. S & T commenced the application on September 4, 2016. S & T alleged that because the Iron Workers Union failed to bargain in good faith the parties were not bound by the Provincial Collective Agreement.

[7] The s. 96 LRA application and the Ministerial reference were heard together. On May 11, 2016, the Board dismissed the s. 96 application concluding, among other things, that the parties were bound by the Provincial Collective Agreement with the Iron Workers Union for maintenance work in Board area 21.

[8] The Board next answered the question posed by the Minister, finding, as it had under s. 96, that the parties were bound by the Provincial Collective Agreement.

[9] In its decision, the Board referred to the question that had been posed by the Minister. It was through the decision that S & T and the Iron Workers Union learned, for the first time, that the Minister’s question was different than the questions conveyed to counsel. Upon learning this, S & T launched an application for judicial review of the Ministerial reference in the Divisional Court, arguing a denial of natural justice. Justice Nordheimer (as he then was), ruled that the application was premature because the parties had not sought a reconsideration of the decision by the Board (see S & T Electrical Contractors Ltd. v. Iron Workers District Council of Ontario, 2017 ONSC 2926):

[2] Unfortunately, and as the Board acknowledges, after the Board received the Ministerial reference, it issued a faulty Confirmation of Filing to the parties. The Confirmation did not accurately reflect the question posed by the Minister to the Board. Rather, it set out two questions that were different from the question posed by the Minister. Additionally, and also unfortunately, the Ministerial reference received by the Board setting out the specific question posed by the Minister was not attached to the Confirmation of Filing (which is the Board’s normal practice) thereby compounding the faulty communication provided to the parties. The parties only learned of the actual question posed by the Minister when they received the Board’s decision.

[3] I consider it unnecessary to get into the merits of the application because in my view this application can be dealt with on the basis that it is premature. The Board has express jurisdiction to reconsider any decision that it makes pursuant to s. 114 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. The applicants never requested that the Board reconsider its decision in light of the procedural errors that the Board made regarding the question posed by the Minister.

[10] S & T sought a reconsideration by the Board of its decision. The Board denied the request on August 8, 2017, finding that despite the misstatement of the Minister’s question there had been no denial of natural justice. The Board found that the Ministerial reference was intertwined with the application under s. 96; both asked the same core question: whether the Provincial Collective Agreement came into force on September 2, 2014. The Board noted that all parties, including S & T, had advanced full arguments on this issue. In response to questioning by the Board, S & T was unable to identify what, if anything, it would have done differently had the Minister’s question been disclosed. S & T did not identify any additional evidence or arguments that would have been placed before the Board had the question been correctly stated.

[11] S & T now seeks judicial review of the Board’s decision regarding the Ministerial reference. They ask that the decision be quashed and that there be a de novo hearing before a differently constituted board.

ANALYSIS

Introduction

[12] The applicant alleges a denial of natural justice. In the normal course, this requires that the court consider the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-27: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choice of procedure selected by the agency. The question is whether the requisite standard of procedural fairness has been met.

[13] In this case, there are two impediments to the review sought by the applicant:

a. An advisory opinion offered by the Board to the Minister does not determine legal rights and is therefore not reviewable, even on procedural fairness grounds; and

b. Even if this court were to review the decision, remitting the matter back to the Board could not change the outcome. Therefore, pursuant to s. 123 of the LRA there is no “substantial wrong or miscarriage of justice.”

The decision is not reviewable

[14] Section 115(1) of the LRA allocates to the Board an exclusively advisory role, and reserves the exercise of powers to the Minister of Labour. The decision of the Board on a Ministerial reference is not, itself, subject to judicial review. The Ministerial reference decision is a report to the Minister; it does not alter the substantive legal rights of the parties. The Minister is not bound by the opinion of the Board. While the Minister may, as a matter of course, follow the Board’s recommendations the Minister is not bound to do so.

[15] As was held by Chapnik J. in Corner v. Ontario (Minister of Labour), 2011 ONSC 5979, at paras. 96–98:

The issue here is that the Board itself did not make any decision except to render an opinion to the Minister pursuant to s. 115. The Board’s report constitutes an advisory opinion only. It is the Minister, not the Board, that makes any decision whether to call or to cancel a vote.

Laskin J.A. in Ex Parte Kitchener Food Market Ltd. (1966), 1966 248 (ON CA), 57 D.L.R. (2d) 521 at pp. 530-31, held that a similar report to the Minister was not reviewable because “it does not control in law any following action of the Minister” and “the Board’s decision has no independent legal effect”.

We are of the view that the Board’s opinion report is not reviewable.

[16] S & T argues that even if the Board’s decision is not subject to judicial review, it is open to challenge based on the underlying process being procedurally unfair. It is said that a hearing held by a tribunal must be fair and accord with the principles of natural justice, whether or not the decision is subject to review.

[17] The recent decision of the Supreme Court of Canada in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, addresses this issue, albeit in a different factual context. In Highwood Congregation, the applicant sought a judicial review of a decision made by a religious congregation in which he was “disfellowshipped”. The majority of the Alberta Court of Appeal ruled that even if the decision of the voluntary organization was not subject to judicial review, the court had jurisdiction to intervene in the event of a breach of the rules of natural justice.

[18] The Supreme Court of Canada overturned this decision, holding that there was no jurisdiction to judicially review the decision, solely due to procedural fairness concerns. The Court identified three limitations on the jurisdiction to review for procedural fairness: first, judicial review is reserved for state action and the Congregation was not exercising statutory authority; second, courts may only address procedural fairness concerns if legal rights are at stake; and third, even where review is available, the court will consider only those issues that are justiciable.

[19] The Highwood case is obviously distinguishable on its factual matrix from this case. It involved a decision made by a purely private voluntary association. There was no exercise of state authority. The subject matter of the decision was non-justiciable.

[20] What is pertinent about Highwood, as it relates to this case, is the Supreme Court’s affirmation that procedural fairness concerns are only reviewable if legal rights are at stake. That critical point, made in para. 12 of the decision, is that “there is no free-standing right to procedural fairness.” Procedural fairness is only a ground of review if the decision in question is otherwise reviewable.

[21] This principle makes sense, as it applies in this case. It was the Minister’s decision that determined the rights of the parties; not the Board’s advisory opinion. There is little to be gained by reviewing a decision that is merely advisory, does not determine rights, and does not bind the Minister. By challenging only the advisory opinion of the Board, S & T foreclosed the prospect of a judicial review on substantive or procedural grounds.

[22] This is not to say that the fairness of the hearing is immune from scrutiny. S & T could have sought to review the Minister’s decision not to appoint a conciliator. Had that been done, the process leading up to that decision, including the fairness of the Board’s hearing, could have been properly addressed.

[23] For these reasons, we conclude that the decision of the Board on the Ministerial reference is not reviewable on procedural fairness grounds.

No Substantial Wrong or Miscarriage of Justice

[24] We further find, in any event, that a review of the hearing on the Ministerial reference would not affect the outcome.

[25] It is unfortunate that the Minister’s question was not accurately conveyed to the parties. However, this did not affect the fairness of the hearing on the reference. S & T was aware that one of the core issues before the Board was whether the parties were bound by a collective agreement as of September 2, 2014. This was a component of the arguments made by S & T in its application under s. 96(7) of the LRA. Within that context, S & T exercised the right to call evidence and make submissions on that very issue.

[26] The existence of the Provincial Collective Agreement was also directly relevant to the questions that were erroneously communicated to counsel by the Board. The questions communicated to counsel, while different than the question posed by the Minister, were in substance much the same. In both instances, the existence of the Provincial Collective Agreement served as a complete answer. If the parties were bound by the Provincial Collective Agreement then there would be no reason to appoint an arbitrator or mediator, nor would a conciliator serve any purpose. It would make no sense to appoint someone to assist the parties in reaching an agreement that was already in place. Despite the misstatement of the Minister’s question, it was obvious to the parties that they needed to address the existence of the Provincial Collective Agreement.

[27] Counsel for S & T argues that S & T was distracted by the erroneous questions and could not focus properly on the question that the Minister actually asked. However, on the request for reconsideration, S & T could not identify anything that it would have done differently. It did not identify additional evidence or additional argument that would have been put forward. Therefore the distraction, if any, did not prevent S & T from saying everything that needed to be said on the issue.

[28] The Board found that the parties were bound by the Provincial Collective Agreement. This was based on the evidence and submissions put forward by all parties on that issue, including S & T.

[29] In these circumstances, the procedural defect that arose out of the misstatement of the Minister’s question did not affect the outcome of the Ministerial reference. The result would have been no different if the question had been accurately stated to counsel. Thus, despite the procedural irregularity, the hearing was fair. The parties had ample opportunity to address the core issues and they did so.

[30] Section 123 of the LRA provides that:

No proceeding under this Act is invalid by reason of any defect of form or any technical irregularity and no proceeding shall be quashed or set aside if no substantial wrong or miscarriage of justice has occurred.

[31] The defect in this case resulted in no substantial wrong or miscarriage of justice. There is, accordingly, no basis for a remedy.

[32] The application is dismissed.

[33] In accordance with counsel’s agreement on costs, no costs shall be awarded to the Board. S & T shall pay costs to the Iron Workers Union in the amount of $5,000 inclusive of disbursements and HST.

Pomerance J.

I agree

C. Horkins J.

I agree

Thorburn J.

Date of Release: July 10, 2018

2018 ONSC 4200

DIVISIONAL COURT FILE NO.: DC-17-562-JR DATE: 20180710

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

C. Horkins, Thorburn and Pomerance JJ.

BETWEEN:

S. & T. ELECTRICAL CONTRACTORS LIMITED AND S & T INDUSTRIAL INC.

Applicants

– and –

IRON WORKERS DISTRICT COUNCIL OF ONTARIO and INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS, LOCAL 786 and ONTARIO LABOUR RELATIONS BOARD

Respondents

REASONS FOR JUDGMENT

POMERANCE J.

Date of Release: July 10, 2018