CITATION: Allen v. Bricklayers Masons Independent Union of Canada Local 1, 2020 ONSC 3369
DIVISIONAL COURT FILE NO.: 539/19
DATE: 2020/06/01
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and Lederer JJ.
BETWEEN:
Anthony Noel Allen c.o.b. Alcon Construction and/or TLN Masonry, Allen Contracting
Applicant
– and –
Bricklayers Masons Independent Union of Canada Local 1, Labourer’s International Union of North America Local 183, Masonry Council of Unions Toronto and Vicinity and Michael G. Horan
Respondents
Pathik Baxi, for the Applicant
Paul J.J. Cavalluzzo and Aminah Hanif, for the Respondents Bricklayers Masons Independent Union of Canada Local 1, Labourers’ International Union of North America, Local 183, Masonry Council of Unions Toronto and Vicinity
HEARD at Toronto: May 15, 2020
H. Sachs J.
Introduction
[1] This is an application for judicial review of an arbitral award by Arbitrator Michael G. Horan dated October 11, 2018 (the “Horan Award”). As a result of the Horan Award the Applicant, Mr. Allen, was found liable to the Respondent Unions for approximately $55,000.00 in damages plus costs. He was also ordered to provide an irrevocable Letter of Credit or certified cheque in the sum of $50,000.00 to the Respondent Unions.
[2] Mr. Allen did not attend the hearing that resulted in the Horan Award. He admits that he was given notice of the arbitration by mail and courier pursuant to the collective agreement that formed the basis for the Horan Award and to the registered business address for Allen Contracting, the business name he was operating under at the time that he engaged in the conduct that led to the Horan Award.
[3] Mr. Allen seeks an order quashing the Horan Award and setting aside its filing with the Superior Court of Justice. He alleges that he was denied procedural fairness because he did not receive actual notice of the arbitration hearing that resulted in the Horan Award. He also submits that the Horan Award was unreasonable because he went personally bankrupt after entering into the Collective Agreement that formed the basis for the Horan Award and because the assessment of damages was excessive. The Respondent Unions argue that Mr. Allen’s application should be dismissed on the basis of delay.
[4] For the reasons that follow I would dismiss the application. I find that Mr. Allen received proper notice of the arbitration and therefore the Horan Award was not obtained as a result of a denial of procedural fairness. I also find that Mr. Allen cannot challenge the Horan Award on the basis of his bankruptcy since that fact was not before the Arbitrator Horan and it could have been. With respect to damages I find that there was an evidentiary basis for the damages assessment that rendered it reasonable. I would also dismiss Mr Allen’s application on the basis of delay.
Factual Background
[5] Mr. Allen is a stone mason. He has carried on business as a sole proprietor under a number of business names. From 1998 to 2004 his business was known as Alcon Construction; from 2005 to 2013 it was known as TLN Masonry and from 2015 until the present date Mr. Allen has operated as Allen Contracting.
[6] Both the Respondent Unions are construction trade unions within the meaning of the Labour Relations Act, 1995. They have formed a council of unions, known as Masonry Council of Unions Toronto and Vicinity “MCUT”).
[7] MCUT and the Masonry Contractors’ Association of Toronto Inc. (“MCAT”) are parties to a collective agreement applicable to bricklaying and masonry work (the “Collective Agreement”). MCAT is an organisation representing employers in the bricklaying and masonry industry in the Greater Toronto area.
[8] On November 28, 1998 Mr. Allen, carrying on business as Alcon Construction, signed a voluntary recognition agreement in which he agreed to be bound by the Collective Agreement and any renewals thereof. On May 28, 2001, Mr. Allen and MCUT signed an Independent Masonry Collective Agreement for the term commencing May 1, 2001 to April 30, 2004. Under this agreement Mr. Allen also agreed to be bound by the Collective Agreement. The Collective Agreement has been renewed every three years, with the last renewal that is relevant for this application being signed in 2016 and running until 2019.
[9] In 2004 Mr. Allen made an assignment in bankruptcy and was discharged in 2005. Mr. Allen acknowledges that were it not for his bankruptcy (which he argues had the effect of terminating the Collective Agreement) he would still be bound by the Collective Agreement.
[10] In March of 2013, Respondent Union representatives discovered Mr. Allen performing bricklaying work employing non-union workers in Toronto under the business name TLN Masonry. The Respondent Unions filed a grievance against him, which was referred to the Ontario Labour Relations Board (the “OLRB”). Mr. Allen failed to respond to the grievance. On July 3, 2013 the OLRB issued a decision finding that Mr. Allen, carrying on business as Alcon Construction and/or TLN Masonry, was bound by and had violated the Collective Agreement. On July 9, 2013 the OLRB assessed damages against Mr. Allen for this violation in the amount of $49, 765.00 (the “2013 OLRB Decision.”) The Respondent Unions filed the 2013 OLRB decision with the Superior Court of Justice.
[11] On September 1, 2017, Arbitrator Bloch, who was appointed by the Minster of Labour, found that Mr. Allen was bound by the 2016-2019 Collective Agreement between the Respondent Unions and MCAT (the “2017 Decision”). Again, Mr. Allen did not appear at the hearing that resulted in this finding.
[12] In August of 2018, a representative of the Respondent Unions discovered Mr. Allen performing bricklaying work employing non-union workers at a property in Kleinburg, Ontario. This time he was operating under the name Allen Contracting. The Respondent Unions filed a grievance and mailed Mr. Allen a copy of the grievance to 67 Dolphin Song Crescent, Brampton, Ontario, which was Mr. Allen’s address for notice purposes in the Voluntary Recognition Agreement. They also mailed the grievance to P.O. Box 2247, Brampton, Ontario, the address listed on Mr. Allen’s TLN Masonry business card.
[13] The grievance was referred to Arbitrator Horan for arbitration under the Collective Agreement. The Respondent Unions sent a notice to Mr. Allen advising him of the referral to arbitration and the hearing details, including the date, time and location of the hearing. Included with the notice was a copy of the August 2018 grievance. This notice was delivered to Mr. Allen in three different ways:
(a) By mail to the P. O Box in Brampton that was listed on the TLN Masonry business card which the Respondent Unions had obtained in 2013.
(b) By courier to 20 Cosmo Court, Brampton, Ontario on October 2, 2018. The Respondent Unions delivered the notice to this address because it was listed as the address for service for Mr. Allen’s spouse in a parcel abstract relating to the sale of 67 Dolphin Song Crescent. The Respondent Unions also conducted searches on an internet directory which showed 20 Cosmo Court as the address for TLN Masonry.
(c) By courier to 1801 Britannia Road East, Unit 4, Mississauga, Ontario. This is the address filed with the Ontario Ministry of Government Services in a Business Names Report for Allen Contracting. The Report was registered in 2014, with an expiry date of 2019. In the report the Britannia Road East address is given as both the mailing address and the address of the principal place of business for Allen Contracting. The same address is shown on the internet directory as an address for TLN Masonry. The courier receipt shows that the notice of hearing was delivered on October 2, 2018. The record before this court contains a copy of an invoice from Allen Contracting to Stefcon Construction dated October 2, 2018. The address shown on the invoice for Allen Contracting is 1801 Britannia Rd. East, Unit 4, Mississauga, Ontario.
[14] The Respondent Unions mailed a production request to Mr. Allen’s attention to 20 Cosmo Court, P.O. Box 247, and 1801 Britannia on October 3, 2018.
[15] Mr. Allen did not appear at the hearing before Arbitrator Horan on October 3, 2018. After waiting the customary 30 minutes, the Arbitrator commenced the hearing. The Respondent Unions submitted a number of documents to Arbitrator Horan (including the 2013 OLRB Decision and the 2017 Decision), called evidence regarding the quantum of damages, and made its submissions regarding the quantum of damages.
[16] Arbitrator Horan issued a decision on October 11, 2018, finding that Mr. Allen on his own behalf and/or carrying on business as Alcon Construction and/or TLN Masonry and/or Allen Contracting was bound to and had violated the Collective Agreement.
[17] The Union filed the Horan Decision with the Superior Court of Justice and made several attempts to enforce the Award by attempting to serve Mr. Allen with a notice of examination in aid of execution between October and December of 2018.
The Horan Award
[18] Arbitrator Horan found that on the basis of the evidence of the Collective Agreement and the previous arbitral awards Mr. Allen was an employer bound to the Collective Agreement. The Arbitrator heard evidence from Mr. Alves, a tradesmen and business representative with 38 years of experience in bricklaying and masonry. Mr. Alves testified that he first attended at the site in Kleinburg on August 3, 2018 and saw bricklaying work being performed by Mr. Allen and two non-union workers. Both non-union members workers confirmed to him that they were working for Mr. Allen. He reattended at the site on October 9, 2018. He testified that the number of hours of bricklaying work performed at the site was 300 hours and that the union had unemployed members who were ready and willing to perform work at the project.
[19] Based on the foregoing evidence the Arbitrator calculated the damages owing.
Standard of Review
[20] There is no dispute about the standard of review. If procedural fairness was breached the decision must be set aside. If it was not, the decision should be reviewed applying a reasonableness standard.
Was there a breach of Procedural Fairness?
[21] Mr. Allen concedes that he received notice of the arbitration pursuant to the terms of the Collective Agreement. The Collective Agreement provides for an expedited process and does not require personal service. However, Mr. Allen maintains that because he did not receive actual notice of the arbitration hearing, the decision should be set aside.
[22] This court has previously held that where a tribunal complies with the provisions regarding when and how service of a hearing notice is to be effective and only learns after the decision that the served individual did not receive notice, the decision should not be interfered with by the court (see French v. Law Society of Upper Canada (No. 4), 1976 12 O.R. (2d) 361.).
[23] Furthermore, the Respondent Unions were entitled to rely on the address Mr. Allen registered with the Province of Ontario for his business name, namely 1801 Brittania Road East. Other labour tribunals have found that a union may rely on such an address for the purpose of delivering notice. If a business provides an address to the public and then ignores or fails to advise itself of correspondence sent to that address, it does so at its peril (C.J.A., Local 20141 v. Norben Interior Design Ltd., [1984] O.L.R.B. Rep. 851 at para.7). A union should be able to rely on, and take at face value, the registered office information contained in a filing with the government (L.I.U.N.A. v. M3C Demolition Ltd., [2009] O.L.R.B. Rep 703 at para. 40). Any prejudice that may be suffered is the responsibility of the applicant who is not entitled to an order setting aside the tribunal notice due to lack of notice (Willis v. Canada (Minister of Employment & Immigration), (1988) F.C.J. No. 602).
[24] Importantly, in this case there is evidence confirming that the Brittania address was in fact the address that Mr. Allen was using to carry on his business on the date of service, namely, the invoice from his business that is dated the same date as the notice was given.
[25] For these reasons I find that there was no denial of procedural fairness that would justify setting aside Arbitrator Horan’s decision.
Was the Decision Unreasonable?
[26] The first basis advanced for challenging the reasonableness of the decision is Mr. Allen’s bankruptcy. According to Mr. Allen, his bankruptcy terminated the Collective Agreement.
[27] It is not necessary for us to decide whether Mr. Allen is right that his bankruptcy terminated the Collective Agreement. That issue was not before Arbitrator Horan and it could have been if Mr. Allen had attended the hearing. To set aside a labour relations decision as unreasonable on the basis of evidence that was not before the arbitrator because a party has failed to appear after receiving proper notice would undermine two of the fundamental purposes of the labour relations regime – expedition and finality. In that regard it is important to note that s. 48(1) of the Labour Relations Act provides that every collective agreement shall provide for “final and binding settlement by arbitration” and Schedule “C” of the Collective Agreement provides for an expedited arbitration procedure that the Respondent Unions availed themselves of.
[28] Mr. Allen also argues that Arbitrator Horan’s findings with respect to damages were inaccurate and overstated. As Arbitrator Horan described in his decision, he relied on the evidence of an experienced tradesperson and Union business representative in making these findings. This is in accordance with a well-established arbitral principle that an arbitrator may rely on the credible evidence of experienced tradespersons in the absence of other evidence relating to the quantum of damages in construction industry grievances (SMART, Local 285 v – SM v. Subotic, (2018) 136 C.L.A.S. 56 (OLRB) at para. 15; All Volt Electric Services Inc. v. IBEW, Local 353, (2017) 130 C.L.A.S. 59 (OLRB) at para. 7). The fact that Mr. Allen may have actually been paid less for the work is evidence that was not before Arbitrator Horan and could have been. On the basis of the evidence that was before Arbitrator Horan there was a reasonable basis for the damages findings that he made.
Should the Application Be Dismissed for Delay?
[29] Counsel for Mr. Allen first contacted the Respondent Unions on January 24, 2019. On that date he advised that Mr. Allen became aware of the Horan Award on December 20, 2018. He told them that he had instructions to proceed with a motion to set aside the judgments resulting from both the 2013 OLRB Award and the Horan Award. The application for judicial review was not filed or served until October 4, 2018, over 8 months later. During this time the Respondent Unions were clear that they were going to continue to enforce the Awards and did in fact do so.
[30] The only action that Mr. Allen took during this period was to send the Respondent Unions an incomplete draft of his application for judicial review on April 28, 2019. This was done after the Respondent Unions served Mr. Allen with an appointment for an examination in aid of execution for April 30, 2019. In response Mr. Allen’s counsel sent the draft application and said that he would be filing it the next day. He also stated that Mr. Allen would not be attending the examination.
[31] Two months after Mr. Allen’s non-attendance on April 30, 2019 and in the absence of a filed application, the Respondent Unions advised Mr. Allen’s counsel that they intended to bring a motion to compel Mr. Allen’s attendance at an examination in aid of execution. They asked counsel for dates for the motion. In the absence of a reply they set a date for August 26, 2019. Two days before the motion was scheduled, counsel for Mr. Allen contacted counsel for the Respondent Unions and stated that Mr. Allen was not opposing the motion and suggesting dates for the examination. A date of October 8, 2019 was agreed to and an order was taken out to reflect this.
[32] Four days before the scheduled examination this application was filed and one day before the examination counsel for Mr. Allen advised that Mr. Allen would not be attending the examination.
[33] Judicial review is a discretionary remedy which can be denied on the basis of excessive delay. In examining whether to dismiss on the basis of delay the court is to consider the following factors: (1) the length of the delay; (2) whether there is a reasonable explanation for the delay; and (3) whether the moving parties have suffered prejudice as a result of the delay (Nahimy v. Human Rights Tribunal of Ontario, 2019 ONSC 5501 (Div. Ct.)).
Length of the Delay
[34] This court has established a presumptive deadline of six months for the commencement of an application for judicial review (Kaur v. The National Dental Examining Board of Canada, 2019 ONSC 5882 at para. 4).
[35] Accepting for the purpose of argument that Mr. Allen first had notice of the decision on December 20, 2018 (which is what his counsel advised) the delay in this case is over nine months.
Explanation for the Delay
[36] Mr. Allen gave three explanations for the delay. First, the work on the property in Kleinburg was still ongoing. Second, he needed to locate the documents in relation to his bankruptcy and third there were some without prejudice resolution discussions.
[37] The fact that Mr. Allen may have ongoing work is not an explanation for the delay. The documents in relation to his bankruptcy were not voluminous and should not have taken more than 6 months to locate. Ongoing without prejudice settlement discussions cannot be used to justify a delay unless the other party has agreed to waive any complaint about delay pending settlement discussions.
[38] Thus, I find that Mr. Allen did not put forward a reasonable explanation for his delay.
Prejudice
[39] With respect to prejudice, the court does not require the demonstration of actual prejudice; prejudice can be presumed (Khaiter v. Ontario (Labour Relations Board), 2013 ONSC 791 (Div. Ct.) at para.15). However, in this case the Respondent Unions did suffer prejudice because of the delay – they spent time and money trying to enforce the Horan Award.
Conclusion re Delay
[40] As noted above, labour relations matters are time sensitive. In this case the delay is one and a half times more than the presumptive deadline, there is no reasonable explanation for the delay and the Respondent Unions suffered prejudice as a result of the delay. For all of these reasons it is appropriate to dismiss the application on the basis of delay.
Conclusion
[41] The application for judicial review is dismissed. As agreed by the parties, the Respondent Unions are entitled to their costs fixed in the amount of $12,500.00, all inclusive.
H. Sachs J.
I agree _______________________________
Backhouse J.
I agree _______________________________
Lederer J.
Released: June 01, 2020
CITATION: Allen v. Bricklayers Masons Independent Union of Canada Local 1, 2020 ONSC 3369
DIVISIONAL COURT FILE NO.: 539/19
DATE: 2020/06/01
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and Lederer JJ.
BETWEEN:
Anthony Noel Allen c.o.b. Alcon Construction and/or TLN Masonry, Allen Contracting
Applicant
– and –
Bricklayers Masons Independent Union of Canada Local 1, Labourer’s International Union of North America Local 183, Masonry Council of Unions Toronto and Vicinity and Michael G. Horan
Respondents
REASONS FOR JUDGMENT
Released: June 01, 2020