Brookfield Multiplex Construction Canada Limited v. Labourers’ International Union of North America, 2018 ONSC 5824
CITATION: Brookfield Multiplex Construction Canada Limited v. Labourers’ International Union of North America, 2018 ONSC 5824
DIVISIONAL COURT FILE NO.: 025/18 DATE: 2018/10/01
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
CONWAY, LEDERER and LEMAY JJ.
BETWEEN:
BROOKFIELD MULTIPLEX CONSTRUCTION CANADA LIMITED, BROOKFIELD MULTIPLEX HSP HOLDINGS LIMITED and BROOKFIELD MULTIPLEX CANADA HOLDINGS LIMITED
Applicants
– and –
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL and THE ONTARIO LABOUR RELATIONS BOARD
Respondents
COUNSEL:
Alan Lenczner and Nilou Nezhat, for the Applicants
Lorne Richmond and Lindsay Lawrence, for the Respondent, Labourers’ International Union of North America, Ontario Provincial District Council
Aaron Hart for the Respondent, The Ontario Labour Relations Board
HEARD at Toronto: October 1, 2018
LEMAY J. (Orally)
[1] The Applicants, Multiplex Construction Canada Limited, Brookfield Multiplex HSP Holdings Limited and Brookfield Multiplex Canada Holdings Limited (“Multiplex”) bring this application for judicial review of a certification decision of a Vice-Chair of the Ontario Labour Relations Board (“OLRB”) dated December 18th, 2017.
[2] The Labourers’ International Union of North America, Ontario Provincial District Council (“LIUNA”) filed an application for certification of a bargaining unit on August 20th, 2015 (“the Application Date”).
[3] Specifically, LIUNA sought certification for all construction labourers employed by Multiplex in the industrial commercial and institutional sector of the construction industry in the province of Ontario, as well as all other sectors of the construction industry in Board Area 8. Board Area 8 covers the City of Toronto, as well as portions of the surrounding Regions.
[4] On the Application Date, Multiplex had two projects that it was working on in Board Area 8- the Shuter Street Project, which was a condominium building, and the College Street Project, which was a university residence. Both projects were at the excavation stage, which means that a very limited amount of construction labour was required for either project. Indeed, on the Application Date, which was a Thursday, there were only two people at work performing labourer’s work.
[5] Multiplex opposed the application primarily on the basis that it was not the employer of the two individuals who were performing work on the Application Date. Multiplex had a contract with CLM General Enterprise Limited (“CLM”), a company that provided labour services. Multiplex asserted, both before the OLRB and before this Court, that the employees at work on the Application Date were not their employees, but employees of CLM.
[6] In addition, Multiplex attempted to introduce evidence before the OLRB that demonstrated that the membership of the bargaining unit would be very different (and much larger) after the Application Date. In addition, Multiplex wanted to lead evidence to show that the two individuals in the bargaining unit on the Application Date would have been employed as foremen.
[7] The OLRB rejected Multiplex’s request to consider post-Application Date evidence, and granted the certification application after an 11 day hearing. The OLRB applied the test in Labourers International Union North America Local 183 v. York Condominium Corporation No. 46 [1977] O.L.R.B. Rep. October 645, and as set out by the Supreme Court in Pointe Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015 and found that the two individuals at work on the Application Date were employees of Multiplex. The OLRB subsequently issued a certificate.
[8] Multiplex seeks judicial review of the OLRB’s decision on the basis that the OLRB excluded and/or failed to consider relevant evidence on the question of whether it was the true employer. Multiplex challenges the OLRB’s policy of not considering post-Application Date evidence in making its decision. In addition, Multiplex argues that the OLRB improperly dealt with the pre-application evidence of the relationship between the two employees at work and CLM. Finally, Multiplex challenges the OLRB’s decision not to consider LIUNA’s position, taken in previous cases, that Multiplex did not employ labourers.
[9] For the reasons that follow, I would reject all three arguments and dismiss this Application for Judicial Review.
[10] I start with the standard of review. Multiplex’s counsel has made much of the fact that the Supreme Court is conducting a comprehensive review of the standard of review in the Minister of Citizenship and Immigration v. Alexander Vavilov case, which is being heard together with a number of other cases. The Supreme Court has invited the parties to consider the standard of review in the Vavilov case. As a result, Multiplex’s Counsel originally sought an adjournment of this case. We denied that request for two reasons.
[11] First, the grounds for considering an adjournment of this type of procedure are set out in Mylan Pharmaceuticals ULC v. Astrazeneca Canada Inc., 2011 FCA 312. In deciding whether to defer a case, Stratas J.A. notes that the question the Panel should ask is “whether, in all the circumstances, the interests of justice support the appeal being delayed.” In this case, the interests of justice will not be served by adjourning this appeal. If we were to accede to the request made by counsel to Multiplex, it would result in many, if not all, of the judicial review applications pending before the Divisional Court being adjourned, as they engage the standard of review in at least some manner.
[12] In any event, on the standard of review, this Court remains bound by the Supreme Court’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9. In addition, the OLRB has been recognized as an expert tribunal by all levels of courts for over half a century. In my view, when Dunsmuir is applied to this case, the appropriate standard of review is reasonableness with the exception of the question of whether the OLRB fettered its discretion and denied natural justice, which is reviewed on a standard of correctness.
[13] I now turn to the arguments advanced by Multiplex.
[14] The first issue is Multiplex’s assertion that the OLRB Vice-Chair fettered his discretion by failing to admit and consider evidence of post-Application conduct. On Multiplex’s view, this was a breach of the principles of natural justice, attracting a correctness standard of review. I disagree.
[15] First, the OLRB did not blindly follow an absolute policy that post-Application evidence was not to be considered. In my view, as a result, the OLRB did not fetter its discretion. Instead, when the OLRB’s reasons are read as a whole, it is clear that they concluded that the evidence was neither relevant nor reliable. This was a conclusion that it was open to the OLRB to come to on the record before it.
[16] Starting with relevance, the OLRB considered the context of the employment history of the two individuals employed performing labourer’s work on the Application Date. In addition to looking at what these individuals were doing on the Application Date, the OLRB considered what type of work they had been doing prior to the Application Date. This allowed the OLRB to reach a more general, context based conclusion about the activities of the two individuals at work on the Application Date. This contextual conclusion was not dependent on admitting the post-Application Date evidence.
[17] Then, there is the reliability (or probative value) of this evidence. In its jurisprudence, the OLRB has made it clear that this type of post-Application Date evidence is open to manipulation. However, in this case, the Vice-Chair went further and found that there was evidence which supported this as a substantial concern in this case (see paragraph 82 in particular). In light of that finding, it was open to the Vice-Chair to conclude that the post-Application Date evidence in this case was not reliable.
[18] In support of this ground of appeal, Multiplex also argues that this is simply an OLRB policy, and that the policy works an unfairness. There is a problem with this argument. First, the clear wording of section 128.1 of the Labour Relations Act, 1995, S.O. 1995, c.1 is fatal to the argument advanced by the Applicant. On several occasions in that section, the legislature makes it clear that the OLRB is to conduct its analysis on the facts “as of the date the application is filed”. For example, section 128.1(12) and (13) require the OLRB to determine membership on the date the application is filed.
[19] This brings me to the second reason why the OLRB rejected the post-Application Date evidence. There are good policy reasons for the exclusion of this evidence. The OLRB has explained on numerous occasions why, in addition to the statutory provisions it is bound to apply, it excludes this evidence when considering certification cases in the construction industry. In brief, the OLRB states, in I.U.O.E., Local 793 v. Smiths Construction Co. [1984] O.L.R.B. Rep. 521 at paragraph 9:
For all of these reasons an employer’s complement of employees may vary markedly from day to day so that, in the construction industry, it is very difficult to pin down with any precision those individuals who should be treated unequivocally as “employees” for the purposes of the Labour Relations Act. That is why, in the construction industry, the Board need not have regard for any increase in the employer’s work force after the application for certification. And, of course, this inevitable fluctuation in the employee complement underlines the importance of the expeditious resolution of applications for certification. If there is any significant delay there will be a real possibility that any certificate ultimately issued will affect employees who were not even there when the application for certification was made. The union’s support will have evaporated and bargaining rights will be largely academic…
[20] Moreover, the OLRB’s date of application test has been upheld by the courts on a number of occasions. For example, in Sentry Electrical (Canada) ULC v. IBEW Local 120 and Ontario Labour Relations Board, 2015 ONSC 6506, the OLRB’s use of Saturday as the date of application was upheld by this court in spite of the fact that there were far fewer people at work in the bargaining unit on the Saturday that the Application for Certification was filed than were regularly at work on the weekdays surrounding that Saturday.
[21] There is no dispute that the two employees at work on the Application Date were performing bargaining unit work. There is also, in my view, no real argument that the employees were employed by Multiplex. The OLRB reasonably applied the test in Pointe Claire.
[22] In short, the OLRB’s bright line test for determining bargaining rights based on who is an employee on the date of application and what work they were performing on that date is consistent with the Labour Relations Act, has been upheld by the Courts, and was reasonably applied to the evidence in this case. As a result, Multiplex’s first argument fails.
[23] The second argument is that the OLRB’s decision to exclude pre-Application evidence is allegedly improper and a denial of natural justice. The weight and relevance of this evidence is clearly a question for the trier of fact to determine. The OLRB heard considerable evidence, and had the opportunity to weigh and consider this evidence in the context of all of the evidence presented in the case and to determine what pre-Application Date evidence was relevant. The OLRB’s reasons were intelligible and transparent, and its conclusions were grounded in the evidence before it. In light of those considerations, this court should not interfere in the OLRB’s evidentiary findings.
[24] Finally, Multiplex argues that that LIUNA has taken a different position in other cases, and that the OLRB should have considered this evidence. This issue can be dealt with briefly. The OLRB rejected Multiplex’s argument on the basis that the parties’ positions in certification cases are often shaped by strategic considerations. The OLRB’s decision that it would not consider LIUNA’s prior positions because those positions did not raise issue of res judicata or estoppel is reasonable, and should not be interfered with by this court. I also reject Multiplex’s argument on this point.
[25] As a result, I would dismiss the Application for Judicial Review.
CONWAY J.
[26] I have endorsed the Motion Record as follows: “For oral reasons delivered in court today, the Applicants’ motion for an adjournment is dismissed. Costs of this motion payable as per counsels’ agreement on the Application for Judicial Review.”
[27] I have endorsed the Application Record as follows: “For oral reasons delivered in court today, the Application for Judicial Review is dismissed. In accordance with the agreement of counsel, the Applicants shall pay costs to the Respondent LIUNA in the amount of $15,000, all inclusive, for the previous motion to stay, the motion to adjourn and the Application for Judicial Review. The Respondent OLRB does not seek costs.”
LEMAY J.
I agree
CONWAY J.
I agree
LEDERER J.
Date of Reasons for Judgment: October 1, 2018
Date of Release: October 5, 2018
CITATION: Brookfield Multiplex Construction Canada Limited v. Labourers’ International Union of North America, 2018 ONSC 5824
DIVISIONAL COURT FILE NO.: 025/18 DATE: 2018/10/01
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
CONWAY, LEDERER and LEMAY JJ.
BETWEEN:
BROOKFIELD MULTIPLEX CONSTRUCTION CANADA LIMITED, BROOKFIELD MULTIPLEX HSP HOLDINGS LIMITED and BROOKFIELD MULTIPLEX CANADA HOLDINGS LIMITED
Applicants
– and –
LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL and THE ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
LEMAY J.
Date of Reasons for Judgment: October 1, 2018
Date of Release: October 5, 2018