Court File and Parties
CITATION: Sheet Metal Workers’ International Association v. O’Brien Fabrications Ltd., 2018 ONSC 6046
DIVISIONAL COURT FILE NO.: 613/17
DATE: 2018-10-12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Marrocco A.C.J.S.C.J., Swinton and Thorburn JJ.
BETWEEN:
SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION Applicant
– and –
O’BRIEN FABRICATIONS LTD. and ONTARIO LABOUR RELATIONS BOARD Respondents
COUNSEL:
Ronald N. Lebi, for the Applicant
Frank Cesario, for the Respondent O’Brien Fabrications Ltd.
Aaron Hart, for the Respondent Ontario Labour Relations Board
HEARD at Toronto: September 12, 2018
Reasons for Judgment
Swinton J.:
Overview
[1] The applicant, the Sheet Metal Workers’ International Association (the “Union”), seeks judicial review of three decisions of the Ontario Labour Relations Board (the “Board”) that relate to an application for certification respecting a construction industry bargaining unit.
[2] The issue in the application for certification was whether members of the bargaining unit should be limited to licensed sheet metal workers - that is, those who hold a Certificate of Qualification (“C of Q”) - and those who have a registered training agreement as part of an apprenticeship program in accordance with the Ontario College of Trades and Apprenticeship Act, 2009, S.O. 2009, c. 22 (“OCTAA”). The Board rejected the Union’s argument that an individual had to be licensed under OCTAA or be a registered apprentice in order to be in the bargaining unit.
[3] For the reasons that follow, I would dismiss the application for judicial review, as the Board’s decisions were reasonable, and there was no denial of procedural fairness.
The Legislative Context
[4] The Board set out a helpful description of the way in which bargaining units are determined in the construction industry in International Brotherhood of Electrical Workers, Local Union 353 v. 1206468 Ontario Ltd. c.o.b. as Quadracon, 2000 7816 (“Quadracon”). It noted that s. 9(3) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (“LRA”) provides that craft bargaining units are determined by reference to the historical work jurisdiction of various crafts. However, the Board can include others who are not skilled tradespeople in the bargaining unit if those employees are commonly associated with the tradespeople in their work (at paras. 53 and 59). The Board also made reference to s. 153, whereby the Minister of Labour has the power to designate the employee categories that construction trade unions are entitled to represent in province-wide collective bargaining.
[5] Under the LRA, a union will not be certified as the bargaining agent for a bargaining unit unless a certain percentage of the individuals in the proposed unit were union members at the time of the application.
[6] In determining the composition of a bargaining unit for purposes of deciding who is eligible to be counted when determining union support, the Board considers who was actively at work on the day of the application for certification and the type of work that individual was performing. At para. 64, the Board stated, “To be in a craft bargaining unit, an individual has to be doing the work of the trade at the time the certification application is made – that is, on the application date”.
Background
[7] The Union brought an application for certification in the construction industry, seeking to represent a craft bargaining unit defined as licensed sheet metal journeymen and registered apprentice sheet metal workers, sheeters, sheeters’ assistants, and material handlers (emphasis added.)
[8] In the Board’s first decision, dated September 16, 2016, it determined that the appropriate bargaining unit would be all sheet metal workers, sheet metal workers apprentices, sheeters, sheeters’ assistants, and material handlers in the geographic areas applied for by the Union. In other words, the Board did not include the licensing requirement nor did it refer to journeymen.
[9] In its second decision, dated August 10, 2017, the Board dealt with the status of certain employees for purpose of determining whether the Union had the necessary membership support in the bargaining unit in order to obtain certification. The Union argued that two individuals should be excluded from the bargaining unit because they were not licensed to perform sheet metal work, and therefore they were working unlawfully because of the provisions of OCTAA. Section 2 of OCTAA prohibits a person from engaging in the practice of a compulsory trade unless he or she holds a C of Q for that trade or is a registered apprentice. Sheet metal work is one of 23 compulsory trades under OCTAA.
[10] The Board relied on its settled jurisprudence, dating from its decision in Quadracon, and focussed on the work done by these two employees and the amount of that work on the day of the application. It held that they came within the bargaining unit, rejecting the Union’s argument that only licensed journeypersons and registered apprentices had the status to be members of the bargaining unit. As a result, the Union did not have sufficient employee support to obtain certification, and its application for certification was dismissed.
[11] The Union sought reconsideration of this decision. It argued that the effect of changes to OCTAA in 2016 (S.O. 2016, c. 37, Sched. 17, s.11) should result in a change to the approach adopted in Quadracon. Those changes gave the Board a role in reviewing Notices of Contravention issued by inspectors pursuant to OCTAA.
[12] On September 25, 2017, the Board dismissed the request for reconsideration, again concluding that OCTAA is a collateral statute to the LRA, and that individuals would not be excluded from the bargaining unit if they were performing the work of the trade applied for, even if they did not have a C of Q for that trade or were not registered apprentices.
The Issues
[13] The Union submits that it was denied procedural fairness because the Board made its decision on the bargaining unit definition without giving reasons and without giving an opportunity to the Union to make submissions.
[14] The Union also argues that the Board made unreasonable decisions when it refused to depart from Quadracon and find that a person must be compliant with OCTAA in order to come within the bargaining unit – that is, he or she must be a licensed journeyperson or a registered apprentice.
[15] In order to address these arguments, it is first necessary to summarize the Board’s decision in Quadracon.
The Quadracon decision
[16] In Quadracon, the Board sat as a three member panel, because it had been asked to reconsider its past practice with respect to the definition of craft bargaining units in the construction industry. As in the present case, the union in Quadracon, the International Brotherhood of Electrical Workers (“IBEW”), argued that the composition of the bargaining unit must be confined to those working lawfully in accordance with the governing legislation, then the Trades Qualification and Apprenticeship Act, R.S.O. 1990, c. T.17 (“TQA”). While the bargaining unit was defined as “electricians and electrician’s apprentices”, the IBEW argued that the term must be defined in accordance with the TQA to mean those lawfully employed to work as electricians and electrician’s apprentices, since the work of electricians was a compulsory trade under the legislation.
[17] The IBEW relied on a line of cases, described as the Irvcon/Marsil cases, which had adopted this line of reasoning and applied the licensing regime under the TQA to determine who was entitled to be in the craft unit (Irvcon Roofing and Sheet Metal (Pembroke) Ltd., [1981] OLRB Rep. Nov. 1594; Marsil Mechanical Inc., [1997] OLRB Rep. July 636).
[18] The Board decided to depart from this line of cases for a number of reasons. First, the TQA was a collateral statute, and the Board had no particular expertise or role in enforcing that statute (at para. 77). Moreover, the TQA was not intended to deal with collective bargaining structures; rather, it focused on licensing and regulation of work.
[19] The Board was also concerned with the impact on litigation if it were required to determine whether a particular individual was working lawfully. Normally, the Board focuses on the work done on the day of the application for certification. In contrast, a consideration of the legality of an individual’s work could take the Board into inquiries beyond the date of application, given the way in which the TQA operated (at paras. 79-81). At that time, an individual could perform the work of a compulsory certified trade union if he or she applied for apprenticeship within 90 days of beginning to perform the work. An individual could also obtain a C of Q, despite working unlawfully in certain circumstances.
[20] The Board also was concerned that a focus on licensing would deprive a number of individuals from exercising the right to bargain collectively, since they would not be eligible for inclusion in any other bargaining unit in the construction industry (at paras. 94-95).
[21] The Board noted that the inclusion of unlicensed people in the bargaining unit for purposes of certification did not require a union or employer to assign work to an individual if that would be contrary to the TQA (at paras. 113-114). The Board concluded (at para. 122):
In our view, the “status” of an individual, actively at work on the date of the application for certification, should be determined with reference to the work that s/he is doing on that day, whether or not that work is being performed “lawfully” in some sense, and whether or not the individual has the required “papers”. The C of Q and the contract of apprenticeship are only pieces of evidence that help characterize the work, and thus the status, of the disputed individual. The absence of a C of Q issued pursuant to the TQA, does not mean that someone cannot be an “electrician” for the purposes of the Labour Relations Act. For the reasons outlined earlier, we prefer this work-based test, which in our view, avoids some of the difficulties and anomalies to which we have referred.
The Procedural Fairness Issue
[22] The Union argues that it was denied procedural fairness because the Board, in its first decision, adopted a different bargaining unit description than that proposed by the Union. The proposed unit would have included licensed sheet metal journeymen and registered sheet metal apprentices. The Employer had not opposed the description.
[23] The approved bargaining unit omitted the references to licensing, journeymen and registration. The Board gave no explanation, nor did it hear submissions. The Union submits that the failure to provide reasons and the failure to provide an opportunity to make submissions is a denial of procedural fairness.
[24] The Union failed to raise the issue of procedural fairness before the Board. It did not ask for reconsideration after the first decision, as it could have done. It did not raise the issue in its request for reconsideration following the dismissal of its application for certification.
[25] The Supreme Court of Canada stated in Ellis-Don Ltd. v. Ontario Labour Relations Board, 2001 SCC 4, [2001] 1 S.C.R. 221 that the failure to seek reconsideration is not necessarily fatal, although it may be a factor to be considered when a court determines whether to grant a remedy in an application for judicial review (at para. 57). In the circumstances of the present case, the Union’s failure to seek reconsideration is reason alone to reject this ground of judicial review. The Union should have exhausted its internal remedies in the circumstances of this case if there was a real concern about the decision on the bargaining unit. That would have given the Board the opportunity to address the allegations of unfairness and, if it thought fit, to correct them (see S. & T. Electrical Contractors Limited v. Iron Workers District Council of Ontario, 2017 ONSC 2926 (Div. Ct.) at para. 5).
[26] In any event, there was no denial of procedural fairness in the circumstances of this case that justifies judicial intervention. The description of the bargaining unit by the Board was consistent with that used by the Board in defining craft bargaining units in the construction industry since the Quadracon decision in 2000. There should have been no surprise to the Union.
[27] Moreover, the key issue between the parties was whether to count unlicensed workers doing sheet metal work when determining Union support in the bargaining unit. The Union was fully able to address the issue of whether unlicensed workers should qualify for membership in the bargaining unit during the status hearing and the reconsideration.
[28] Therefore, I would not give effect to this ground of judicial review.
The Reasonableness of the Board’s Determination on Status
[29] The standard of review is reasonableness with respect to the Board’s decision on the status of the two disputed workers who were unlicensed but doing sheet metal work.
[30] In the proceedings before the Board, both at the status hearing and the request for reconsideration, the Union took the position that the Board should depart from the Quadracon decision because there had been a change to the enforcement provisions of OCTAA in 2016 that undermined the “fundamental” rationale in Quadracon. Pursuant to that amendment, the Board was given the power to review a Notice of Contravention issued by an inspector under OCTAA (see s. 59.2).
[31] The Board concluded that this change did not undermine the rationale for the Quadracon decision. It noted in its August 10, 2017 decision that the TQA had been replaced by OCTAA in 2009. The 2016 amendment did not make the Board primarily responsible for enforcement under OCTAA. Rather, that role was performed by inspectors appointed by the Registrar under OCTAA. The Board concluded that OCTAA remained a collateral statute to the LRA. In applying the LRA, the Board is required to consider the objects and purposes of the LRA (at para. 86). Those include “to facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees” (s.2 1.).
[32] The Board acknowledged that OCTAA no longer had a provision permitting an individual to work for 90 days without the proper licence. However, the Board noted that OCTAA still provided for provisional licences in s. 37(3). The Board also noted that it had no evidence “as to the experience of any one or more persons or what the regulations or registration requirements of the College are” (at para. 95). The Board also noted that the definition of sheet metal worker might well be different before the Board and the College (at para. 97).
[33] The Board in this case, as in Quadracon, emphasized the importance of protecting all workers’ right to have access to collective bargaining. At para. 100, it stated:
Hence the problem of persons who are excluded from the right to bargain collectively remains as pressing in this decision as it was for the Board in Quadracon. It is an improper application of the LRA to find that because of a failure to comply with a licensing statute that is entirely collateral to the LRA, one or more employees are to be deprived of the right to bargain collectively.
[34] The Board expanded upon its analysis in the September 25, 2017 reconsideration decision. It rejected an argument from the Union that bargaining unit membership should be confined to journeyperson sheet metal workers and apprentices because the Ministerial designation, issued pursuant to s. 153 of the LRA, refers to journeymen and apprentice sheet metal workers. Pursuant to s. 1 of OCTAA, “journeyperson” is defined to mean “an individual who holds a certificate of qualification.” According to the Board (at para. 20),
The Sheet Metal Workers rely on the fact that the Ministerial designations issued under s. 153 of the Act all use the term “journeyperson and apprentice [name of trade]” to describe the trades the Minister is designating as trades to be represented by Employee Bargaining Agencies. It is clear that the various Ministers had no intention of giving that phrase a meaning beyond its colloquial meeting [sic]. The same term is applied to non-compulsory trades: carpenters, bricklayers, painters, ironworkers and so on. In any event, most of the designations (or their first versions) were issued in 1978, well before the Board first considered the issue in Irvcon. Hence this was not an attempt to mirror something from the Board’s practice.
[35] The Board also rejected the Union’s argument that the definition of journeyperson added in OCTAA in 2009 should apply to the meaning of journeyperson under the LRA (at para. 25).
[36] The Union now makes the same arguments before this Court that it made to the Board. In effect, it asks this Court to find that the Board’s decision in Quadracon and subsequent cases is “wrong in law,” as well as unreasonable (Factum, para. 52). It argues that the Board’s decision should confine the bargaining unit to journeyperson sheet metal workers in accordance with the Minister’s designation pursuant to s. 153 of LRA. As well, it argues that the bargaining unit should be confined to those who are legally entitled to perform the work of a compulsory trade – namely, licensed journeypersons and registered apprentices.
[37] The task of this Court is to determine whether the Board’s decisions were reasonable. The Board gave careful and detailed reasons explaining why it refused to depart from the jurisprudence established in its 2000 decision in Quadracon. It reasonably stated that the Board’s role in reviewing Notices of Contravention under OCTAA was not determinative, as the role is a limited one. The primary responsibility for the enforcement of OCTAA is with the Registrar and inspectors appointed under that Act.
[38] The Board remained concerned about the impact on its process if it had to make evidentiary determinations about the lawfulness of an individual’s work in order to determine an application for certification. It also stressed the importance of respecting the right of unlicensed workers to engage in collective bargaining, a right that is protected by s. 2(d) of the Canadian Charter of Rights and Freedoms.
[39] The Board decided that it should focus on the provisions and objectives of the LRA in determining the status of those who were members of the bargaining unit. Accordingly, it focussed on the work done by an individual on the date of the application for certification. The Board concluded that it should not apply the provisions of OCTAA to determine the lawfulness of an individual’s work, as OCTAA is a separate statute dealing with licensing of trades. In determining an application for certification, the Board is not prescribing the work that the individual will do in the future.
[40] Determining who is in or out of a bargaining unit for purposes of an application for certification is a matter squarely within the expertise of the Board, particularly in the present context, where the application concerns construction industry work. In my view, the Board’s decision is within a range of possible, acceptable outcomes that are reasonable, given the facts and the applicable law.
Conclusion
[41] Accordingly, the application for judicial review is dismissed. Costs are payable to the Employer by the Union fixed at $10,000, an amount agreed upon by the parties. The Board does not seek costs, and none are awarded to it.
Swinton J.
I agree _______________________________
Marrocco A.C.J.S.C.J.
I agree _______________________________
Thorburn J.
Released: October 12, 2018
CITATION: Sheet Metal Workers’ International Association v. O’Brien Fabrications Ltd., 2018 ONSC 6046
DIVISIONAL COURT FILE NO.: 613/17
DATE: 2018-10-12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Marrocco A.C.J.S.C.J., Swinton and Thorburn JJ.
BETWEEN:
SHEET METAL WORKERS’ INTERNATIONAL ASSOCIATION Applicant
– and –
O’BRIEN FABRICATIONS LTD. and ONTARIO LABOUR RELATIONS BOARD Respondents
REASONS FOR JUDGMENT
Swinton J.
Released: October 12, 2018