CITATION: Brookfield Multiplex Construction Canada Limited v. Labourers' International Union of North America, 2018 ONSC 548
DIVISIONAL COURT FILE NO.: 025/18
DATE: 20180201
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
BROOKFIELD MULTIPLEX CONSTRUCTION CANADA LIMITED, BROOKFIELD MULTIPLEX HSP HOLDINGS LIMITED and BROOKFIELD MULTIPLEX CANADA HOLDINGS LIMITED
Applicants (Moving Parties)
– and –
LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL and THE ONTARIO LABOUR RELATIONS BOARD
Respondents (Responding Parties)
Guy Pratte v. Ewa Krajewska, for the Applicants (Moving Parties)
Lorne Richmond, Lindsay Lawrence, Leonard P. Marvy and Aaron Hart for the Respondents (Responding Parties)
HEARD at Toronto: January 19, 2018
c. horkins J.
Overview
[1] The applicants, collectively referred to as Multiplex, seek an order staying the decision of the Ontario Relations Labour Board (the “Board”) released December 18, 2017 (the “decision”), pending judicial review of the decision.
[2] On August 20, 2015, the Labourers’ International Union of North America, Ontario Provincial District Council (the “Union”) filed an application for certification with the Board under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A.
[3] The Union sought certification for a unit of all construction labourers employed by Multiplex in the industrial, commercial and institutional ("ICI") sector of the construction industry, and all other sectors of the construction industry in Board Area 8.
[4] On the date of the application, Multiplex had two construction projects in operation within the proposed bargaining unit. There were two persons at work in the proposed bargaining unit on the application date, one at each site, and they were performing bargaining unit work.
[5] Multiplex opposed the application for certification on the basis that it was not the employer of the two persons in the proposed bargaining unit. It claimed that these individuals were foremen employed by CLM General Enterprise Ltd. ("CLM"), a labour supply company. Multiplex maintained that the two alleged foremen were working under the supervision, control and direction of CLM.
[6] The sole question before the Board was whether Multiplex or CLM was the true employer of the persons working in the proposed bargaining unit. The Board stated that its task was to make a determination based on the facts before it applying the principles of the Labour Relations Act to the current application at the “date of the application.”
[7] The Board applied the factors set out in York Condominium Corporation No. 46 [1997] OLRB Rep. October. 645 at para. 10. At para. 55 the Board found that Multiplex’s claim “that it was not the true employer [of the two foreman] is merely a fiction that does not accord with the reality of the workplaces”. At para. 109, the Board summarized its consideration of the factors:
It was the case that MCCL contracted with CLM solely for the provision of labour including for working foremen. MCCL contracted for the supply of labour to make use of as it saw fit in the context of its operations at these two construction sites. CLM played no role in determining the work to be performed and, aside from sending workers to these work sites and issuing their pay cheques, CLM played no real role with respect to the working conditions and employment of those workers. Whatever working conditions DM and JL worked under, aside from rate of pay, was determined by MCCL.
[8] The Board held that Multiplex was the true employer of employees working on its sites and allowed the Union’s application for certification.
[9] Multiplex has filed an application for judicial review of the Board’s decision. It says that the Board excluded relevant evidence going to the issue of whether Multiplex was the true employer and this was a breach of the rules of natural justice and procedural fairness.
[10] At the Board hearing, Multiplex sought to introduce evidence about the role of the two foremen after the date of application and through to the end of each project. Multiplex had introduced project schedules and budgets. These documents were marked as exhibits. Multiplex wanted to call evidence about the schedules and budgets to demonstrate the evolution of the projects after the date of the certification application and until the end of the projects.
[11] Multiplex argued that the evidence would show that as the projects advanced the number of labourers onsite would increase and the roles of the foremen from CLM would change from “more labour tasked oriented to becoming more supervisory.” Multiplex wanted to call this evidence to rebut the Union’s claim that the foremen from CLM did not have independent supervisory authority. It argued that evidence in the time frame after the application date, would establish that CLM had foremen on site who exercised fundamental direction and control.
[12] At paras. 43-52 of the decision, the Board explained why it declined to hear the evidence. In summary, the Board found that the evidence was not relevant. The Board explained that it “has repeatedly held that it will not consider post-date of application evidence.” In its reasons, the Board reviewed some of these decisions. In particular, at para. 49, the Board relied on its decision in Quality Haulage and Farming Ltd., [2014] OLRB Rep. July/August 688, 2014 40974 (ON LRB), in which the Board, after referring to the date of application test for determining employee status disputes, wrote (at pp. 690-91):
By now it is trite and well-established law that for determining whether an employee is engaged in bargaining unit work in the construction industry, the Board looks at what the employee is doing for the majority of their time on the date of application only. See E&E Seegmiller Limited, [1987] OLRB Rep. Jan. 41, Gilvesey Enterprises Inc., [1987] OLRB Rep. Feb. 220, Smiths Construction Company Arnprior Limited, [1984] OLRB Rep. March 526, and many other Board decisions too numerous to cite. This jurisprudence arises not only from the inherent transitory nature of employment in the construction industry as explained in these cases, but has a purpose of establishing a clear or “bright line” test to provide not only certainty to all of the parties about the “ground rules” of a construction industry application for certification, but also to efficiently and expeditiously manage and resolve litigation with respect to construction industry certifications (which increasingly have a tendency to evolve into lengthy and fractious litigation, particularly with respect to status disputes).
Accordingly, the Company will not be permitted to adduce evidence with respect to the yard employees concerning how it employed or dealt with them after the date of application – nor will the Board place any weight on such evidence in these circumstances. To do otherwise would leave open to one of the parties the ability to manipulate or alter evidence after the dispute has crystallized (i.e. after the date of application) in its strategic interest to arguably affect the outcome of the litigation (and I make no suggestion that is necessarily what has happened here). More importantly, in the Board’s view this is the approach that is fairest to all of the parties concerned. Just as the jurisprudence would not permit evidence (either before or after the date of application) with respect to a regular employee who unexpectedly was absent from work on the date of application (due to weather, unexpected illness, an accident on the way to work or child care issues to list just a few examples), so the Board, except in the rarest of situations, will not look at evidence of what an employee in the construction industry does after the date of application. Just as the Union must accept those employees doing bargaining unit work on the date of application for a majority of their time, so too must an employer accept that employee status will be determined on what happens on that day of application regardless of the employer’s future plans for their employment. To be clear, this is not a determination that evidence before the application for certification may never be examined – for example, evidence with respect to what may be best described as an employment relationship issue such as a dispute about who the actual employer is, or evidence with respect to managerial authority exercised by employees in a dispute whether an employee is excluded by section 1(3)(b) of the Act – but even in such examples it is evidence before, not after, the date of application. This is not effectively confining the test under section 126 of the Act for whether off-site employees are included in the bargaining unit to the date of application, as the Company argues. It is restricting the evidence to the time when the dispute has crystallized, the date of the application, or where necessary, as part of a relationship question to evidence prior to the date of application. It is not permitting an employer to assert its future plans for an employee and then seek to adduce evidence which it can unilaterally control to corroborate its so-called future plans. The Company has provided the Board no authority that would endorse such a proposition.
[13] At para. 50, the Board accepted the general proposition that the number of labourers, or other trades will increase and decrease as a construction project progresses. However, “evidence that the role of persons whose status is in dispute changed after the date of application so as to support a responding party’s claims in opposition to an application for certification is indeed the type of evidence that is open to manipulation. It is for such reasons that the Board has said that disputes about status crystalize on the date of application.”
[14] Finally, in deciding to exclude the evidence, the Board was critical about certain clauses in the contract between Multiplex and CLM. At para. 51 the Board stated:
… the Board is also of the view that MCCL has placed clauses in its contract with CLM which are designed to give the appearance that CLM exercises the direction and control of the workers that it sends to MCCL’s sites. Those clauses do not comport with the true circumstances of DM’s and JL’s employment at MCCL up to and including the date of application. As well, certain of those clauses required CLM to “assist” MCCL in defending against this application for certification and, if the application is successful as against MCCL, it may terminate its contracts with CLM.
[15] The Board concluded that to “allow MCCL to call evidence which it can unilaterally control and which it says corroborates its contentions in opposition to the application for certification is indeed the type of evidence that the Board guards against when making its determinations about the status of employees in applications for certifications.”
The legal framework
[16] The parties do not agree on the first part of the test that applies to determine if a stay should be granted.
[17] The Union and Board state that the Board’s decision should not be stayed unless Multiplex can establish:
a strong prima facie case on the merits of the application for judicial review;
that it will suffer irreparable harm if no stay is granted; and
that the balance of convenience favours the granting of a stay.
[18] Multiplex argues that the first part of the test only requires the moving party to show that there is a serious issue to be tried. During oral argument, Multiplex advanced another argument. It states that the dispute about the first part of the test is not important because the refusal to allow the evidence was a denial of natural justice and therefore the concept of reasonableness and deference is not engaged. In my view, the strong prima facie test still applies as demonstrated in Bur-Met Contracting Ltd. v. Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, Local 1669, 2013 ONSC 375 (the moving party alleged a denial of natural justice and the court applied the strong prima facie test).
[19] In the labour relations field, the courts in Ontario have generally applied the strong prima facie test. I accept that this is the test that must apply (Bur-Met Contracting Ltd. v. Carpenters District Council, United Brotherhood of Carpenters and Joiners of America, Local 1669 at para. 3; National Waste Services Inc. v. National Automobile, Aerospace [2009] O.J. No. 4485 (Div. Ct.) at paras. 18-26; Ontario Public Service Employees Union v. Professional Institute of the Public Service of Canada, [2004] O.J. No. 5622 (Div. Ct.) at para. 2, Ellis-Don Ltd. v. Ontario (Labour Relations Board), 1992 6354 (ON SCDC), [1992] O.J. No. 1431 (Div. Ct.); Sobeys Inc. v. U.F.C.W., Local 1000A, 1993 8659 (ON SC), [1993] O.J. No. 453 (Div. Ct.); Edgewater Gardens Long Term Care Centre v. Ontario Public Service Employees Union, [2008] O.J. No. 4489 (Div. Ct.) at paras 7-9, 11. Multiplex relies on my decision in Windsor-Essex Children’s Aid Society v. Canadian Union of Public Employees, Local 2286.1, 2016 ONSC 6482. While I applied the serious issue to be tried test in that case, I decline to follow that decision based on the complete review of the authorities that was before me on this motion.
[20] There are several factors that support using the strong prima facie test. The Board’s decisions are protected by two privative clauses and are afforded significant deference from the reviewing court. The reasonableness standard generally applies to the Board's decisions. It is recognized that the Board has "established and recognized expertise in the 'complex and sensitive field' of labour law". This holds especially true in the context of construction industry labour relations, which has been recognized as a "distinct subspecialty" within the already specialized field of labour relations. Similarly, this Court has confirmed that "the Board's decision about the identity of the employer is a matter that is at the heart of the Board's jurisdiction" (see EllisDon Corp. v. Ontario Sheet Metal Workers’ and Roofers’ Conference, 2014 ONCA 801 at para. 40; International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers, 2007 65617 (ON SCDC), [2007] O.J. No. 2460 at para. 18; Labourers International Union of North America v. SNC Lavalin Inc., 2011 ONSC 6125 (Div. Ct.) at para. 9.
[21] Multiplex argues that the exclusion of the evidence was a denial of natural justice. However, the Board has the power to make such a decision. Section 111(2)(e) of the Labour Relations Act, 1995, provides:
111 (1) The Board shall exercise the powers and perform the duties that are conferred or imposed upon it by or under this Act.
(2) Without limiting the generality of subsection (1), the Board has power,
(e) to accept such oral or written evidence as it in its discretion considers proper, whether admissible in a court of law or not;
[22] This court has held that that a Board decision made under s. 111 (1) of the Labour Relations Act, 1995 is properly considered as an exercise of the Board’s discretion and not a denial of natural justice (Labourers’ International Union of North America, Local 183 v. Allied Construction Employees, Local 1030, 2016 ONSC 745 (Div. Ct.) at paras. 7, 9-10).
[23] In refusing to allow the post application evidence, the Board was exercising its discretion as it is required and authorized to do. The Board fully considered Multiplex’s argument and the evidence in question and made a decision that followed prior Board decisions. Based on my review of the decision and the authorities, I find that Multiplex has not met the strong prima facie test.
[24] Since Multiplex has not met the first part of the test, it is not necessary to consider the remaining parts. The motion is dismissed.
[25] On consent, the costs of this stay motion shall be determined by the panel that hears the judicial review application.
___________________________ C. Horkins J.
Released: February 1, 2018
CITATION: Brookfield Multiplex Construction Canada Limited v. Labourers' International Union of North America, 2018 ONSC 548
DIVISIONAL COURT FILE NO.: 025/18
DATE: 20180201
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
BROOKFIELD MULTIPLEX CONSTRUCTION CANADA LIMITED, BROOKFIELD MULTIPLEX HSP HOLDINGS LIMITED and BROOKFIELD MULTIPLEX CANADA HOLDINGS LIMITED
Applicants (Moving Parties)
– and –
LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL and THE ONTARIO LABOUR RELATIONS BOARD
Respondents (Responding Parties)
REASONS FOR JUDGMENT
C. Horkins J.
Released: February 1, 2018