Court File and Parties

CITATION: Canada Bread Company v. Ontario Labour Relations Board, 2018 ONSC 4561

DIVISIONAL COURT FILE NO.: 11/18

DATE: 2018-07-27

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Canada Bread Company, Limited, Applicant

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

BEFORE: Swinton J.

COUNSEL: Sven C. Poysa and Mark Sheeley, for the Applicant Aaron Hart and Andrea Bowker, for the Board Robert Church, for the Respondent Union

HEARD at Toronto: July 25, 2018

Endorsement

[1] The applicant Canada Bread Company, Limited (the “Employer”) has brought a motion for an order in the nature of certiorari to quash an interlocutory decision of the Ontario Labour Relations Board (the “Board”) dated September 14, 2017 and its reconsideration decision dated December 7, 2017. The decisions were made in the course of determining five applications for certification. They determined whether specific individuals were employees within the meaning of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. The respondent Union consents to the order. The Labour Relations Board does not consent to this motion and has filed a factum and motion record explaining why.

[2] Essentially, the applicant is asking for an order granting the application for judicial review, as its draft order would have this Court quash the Board’s decisions and remit the matter to the Board. In my view, this motion should be before the Divisional Court panel.

[3] I am not satisfied that I have the jurisdiction to grant the order sought on this motion. Pursuant to s. 4 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”), the court may make an interim order pending the determination of the application. Normally, motions are determined by a single judge pursuant to s. 21(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“the CJA”).

[4] This motion seeks a final determination of the application for judicial review, not an interim order. Pursuant to s. 6 of the JRPA, applications for judicial review are made to the Divisional Court, unless s. 6(2) applies, when an application may be made to the Superior Court if the conditions in the subsection are met. Pursuant to s. 21(1) of the CJA, a proceeding in the Divisional Court shall be heard by three judges, with the exception of the matters in s. 21(2).

[5] Counsel for the Union argued that s. 2 of the JRPA allows the “court” to order relief in the nature of certiorari, and “court” includes the Superior Court of Justice. Section 2 deals with the relief that can be sought in an application for judicial review. It must be read with s. 6 and the applicable provisions of the CJA. Read together, it is the Divisional Court panel that can grant relief in the nature of certiorari unless s. 6(2) of the JRPA applies.

[6] Accordingly, this motion should be determined by the panel, not a single judge. I note that Southey J. made a similar determination in Re Pritchard and Ontario Human Rights Commission (1999), 45 O.R. (3d) 97, 1999 15058 (see p. 5 of the printout of the report of the Divisional Court reasons).

[7] I come to this conclusion, as well, because of the role of the court in determining whether such a motion should be granted. The limited case law cited by the parties suggests that a court should consider the merits of the application for judicial review, even when some of the parties consent to quashing the decision of an administrative tribunal. That is what happened in Pritchard. It is also the case in Re Sabados and Canadian Slovak League, 1983 CarswellOnt 2645 (Div. Ct.), a decision of the Divisional Court panel (at para. 5). It also seems there was some consideration of the merits by the panel in Children’s Aid Society of Sudbury and Manitoulin v. MacKinnon, 2008 CarswellOnt 1648 (Div. Ct.), although the endorsement is very brief.

[8] In Attorney of Canada v. Goulet, 2012 FCA 62, the Federal Court of Appeal entered into a consideration of the merits of an application for judicial review when the parties sought to have the application granted on consent. The Court stated that an umpire’s decision could not be set aside on the consent of the parties, although the Court could render judgment on a judicial review application by joint motion if special circumstances warranted it (at para. 15). Importantly, the Court held that the application for judicial review could only granted if the parties could demonstrate that there was reason for judicial intervention because of an error by the umpire (at para. 16). Similarly, in Attorney General of Canada v. Burnham, 2008 FCA 380, the Federal Court of Appeal considered the merits of the application for judicial review despite the parties’ consent to a judgment allowing the application.

[9] Courts may exercise their public law jurisdiction to quash a decision of an administrative tribunal like the Labour Relations Board if the decision does not meet the applicable standard of review or a party has been denied procedural fairness. Given that the decisions of the Labour Relations Board are protected by strong privative clauses and reviewable on a standard of reasonableness, the Court must consider the merits of the application, as well as the allegations of procedural unfairness, when quashing a decision.

[10] I note that here, while the Union consents to the relief sought, it has filed no materials on this motion. However, its materials for the stay motion that I determined in March, 2018, which the Board has included in its motion record, argued that the Employer did not have a strong prima facie case, whether on the merits of the decisions or on the allegations of procedural unfairness.

[11] Given the need to consider the merits of the application, this motion should properly be heard by the Divisional Court panel.

[12] I see no urgency that requires this motion to be heard by a special panel, and it should be scheduled before the panel in the ordinary course. The application was launched in January, 2018, and the Union’s applications have now been adjourned sine die by the Board. However, if the Employer and the Union wish to end the litigation, they have the option of going to the Board and seeking an order allowing the Union to withdraw the applications, as they did successfully with the applications relating to non-GTA bargaining units.

[13] For these reasons, in accordance with s. 21(4) of the CJA, the motion is adjourned to the panel to be heard on a date to be fixed by the Registrar agreeable to all parties.

Swinton J.

Date: July 27, 2018