Court File and Parties

CITATION: Labourers’ International Union of North America v. Capital Sewer Services Inc., 2023 ONSC 3527

DIVISIONAL COURT FILE NO.: 280/22

DATE: 20230620

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO PROVINCIAL DISTRICT COUNCIL, Applicant

AND:

CAPITAL SEWER SERVICES INC., Respondent

BEFORE: Firestone R.S.J., Pomerance and Matheson JJ.

COUNSEL: Ben Katz, for the Applicant Mark Greiger and Christopher McClelland, for the Respondent Andrea Bowker, for the Ontario Labour Relations Board

HEARD at Toronto: May 30, 2023, by videoconference

Endorsement

[1] The Applicant Union seeks judicial review of the decision of the Ontario Labour Relations Board (“OLRB”) dated November 18, 2021 (the “Decision”) and the related reconsideration decision of April 20, 2022 (the “Reconsideration Decision”). The OLRB dismissed the Union’s application to certify workers employed by the Respondent Capital Sewer Services Inc. because the OLRB determined that the work was maintenance work, not construction work.

[2] After hearing oral submissions, this Court dismissed the application for judicial review with reasons to follow. These are those reasons.

[3] The Union applied for certification of a bargaining unit of all construction labourers employed by Capital Sewer in all sectors of the construction industry, subject to geographical limits. The work at issue took place in London, Ontario. The main work of Capital Sewer is inspection, cleaning, maintenance, and repair of sanitary stormwater sewer pipes. A key component of its work is the installation of “cured-in-place-pipe” (“CIPP”). For CIPP, a plastic tube is inserted into an existing sewer pipe, is inflated and cured in place. CIPP essentially lines the inside of the existing pipe.

[4] The only witness before the OLRB testified that CIPP extends the life span of an existing sewer pipe. Broken sewer pipes are not candidates for CIPP because the pipe itself is the form for CIPP. CIPP does not fix a broken pipe. According to the witness, CIPP does not create a new pipe.

[5] The London project dealt mainly with a section of pipe 400 metres long and 75cm in diameter, called the “big pipe” in the OLRB and court proceedings.

[6] In its Decision, the OLRB found that the work on the London project, in particular the CIPP re-lining of the big pipe, was maintenance work. There is no issue that if the work is maintenance, as found by the OLRB, it is not construction work.

[7] The OLRB considered a core OLRB decision – Master Insulators’ Assn. of Ontario Inc. v. H.F.I.A. Local 95, 1980 863 (ON LRB) – and many other OLRB authorities put forward by the parties. As put in the Decision, the “oft-quoted” Master Insulators’ decision described the analytical challenges of seeking to distinguish between construction and maintenance work. The OLRB noted that the issue is often entirely context specific and that the Union/Capital Sewer case was not an easy one to decide. The OLRB found that certain factors tipped the balance in this case, briefly summarized as follows:

(i) the main purpose of the London project was the inspection, cleaning and CIPP re-lining of the big pipe and the aspects of the work that might, standing alone, be considered “construction” were incidental to and necessary features of the main purpose;

(ii) the inspection and cleaning work merely sustained the big pipe system capacity and, on the evidence, did nothing to change or add to it;

(iii) the big pipe had not failed nor was it at the end of its intended design life when the work was done; and,

(iv) the re-lining did not change the functional purpose or capacity of the big pipe.

[8] The OLRB concluded that the work was maintenance work despite the contract between Capital Sewer and the City of London that referred to the London project as a “construction project” and even though it was treated as a “construction project” for the purposes of the Occupational Health and Safety Act.[^1] The OLRB found that the substance of the relationship outweighed the name/language the parties gave to it in those documents.

[9] In the Reconsideration Decision, the OLRB dismissed the submission that the OLRB had ignored the above contract and other documents. The OLRB also disagreed with the Union’s submission that the OLRB had unduly narrowed the interpretation of “construction industry” in s. 1(1) of the Labour Relation Act, 1995[^2] and its inclusion of the term “altering”. The OLRB found that the Union’s interpretation was an overly narrow parsing of the terms used in the Act and failed to consider the whole of the Act.

[10] On the reconsideration, the Union also submitted that the Decision was inconsistent with more recent decisions of the OLRB, specifically Infrared Pavement Repair Corporation, 2020 57580 (ON LRB) and two cases that followed Infrared: 2615194 Ontario Inc. and Focus Flooring and Construction Inc., 2021 127646 (ON LRB) and Vinyl Window Designers Ltd. o/a Performance Windows and Doors, 2021 29679 (ON LRB). The OLRB found that these decisions were far from novel and not at odds with the jurisprudence of the OLRB that founded the Decision.

Analysis

[11] There is no issue that the standard of review for this application is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 10 and 17. Reasonableness is a robust form of review yet it finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers and their specialized expertise: Vavilov, at para. 13; Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, at para. 55.

[12] A reasonable decision is one that is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law that bore on the decision. It bears the hallmarks of reasonableness – justification, transparency, and intelligibility: Turkiewicz, at para. 58, citing Vavilov, at paras. 85 and 99.

[13] The OLRB is a highly specialized tribunal with considerable expertise, placing it in an elevated position to interpret its home statue: Turkiewicz, at para. 77. That expertise is especially high regarding the construction industry, which has industry-specific legislative rules: International Brotherhood of Electrical Workers Local 1739 v. International Brotherhood of Electrical Workers (2007), 2007 65617 (ON SCDC), 86 O.R. (3d) 508 (Div. Ct.), at para. 47.

[14] The Union submits that the Decisions are unreasonable because the OLRB erred as follows:

(i) by interpreting of the definition of s. 1(1) “construction industry” in a manner that renders its terms “constructing” and “altering” meaningless;

(ii) by failing to meaningfully account for some of the Union’s issues and concerns;

(iii) by failing to apply the contextual approach developed in the recent OLRB cases; and,

(iv) by failing to consider all relevant factors.

[15] The definition of “construction industry” in s. 1(1) of the Labour Relations Act is as follows:

“construction industry” means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site;

[16] The Union submitted to the OLRB that the work in question was “constructing” “altering” or “repair”. It submits that the OLRB erred in focusing on “repair” without addressing “constructing” or “altering” in s.1(1) and unduly focused on Master Insulators’ in this regard. The Union submits that the five types of work listed in the above definition are distinct and the three that it raised should have been addressed. However, the Union also acknowledges that work may fall into more than one category.

[17] In its comprehensive Decision, the OLRB expressly set out the Union’s position on both “constructing” and “altering” as well as the Union’s position that the work was “repair”, not maintenance. In its discussion of the factors that tipped the balance, the OLRB specifically found that the work “did nothing to change or add to” the big pipe. The OLRB should not be faulted for choosing this phrase rather than “alter” or “construct”.

[18] Further, Master Insulators’ is relevant to distinguishing between maintenance work and construction work, not just maintenance work and repairs: Master Insulators’, at para. 28.

[19] In its Reconsideration Decision, the OLRB addressed the Union’s statutory interpretation issue arising from the Decision, which was then focused on “altering”. The OLRB noted that the Decision asked whether the work at issue merely sustained an already operative system (not construction work) or instead rehabilitated or improved that system or added to system capacity (construction work), all of which needed to be addressed in the broader contextual purpose of the work at issue. The OLRB was not persuaded that it should adopt a fundamentally different analytical approach depending on whether the assertion was that the work involved “altering” rather than “repairing”. The OLRB found that the Union’s submission called for an overly narrow parsing of the terms without considering the whole of the terms used in the Act.

[20] We find that the OLRB’s interpretation of the definition and the approach to be taken to determine whether or not something is “constructing” “altering” or “repair” falls well within its expertise to interpret its own statute and does not render the Decision or the Reconsideration Decision unreasonable.

[21] The Union submits that the OLRB failed to address other issues or concerns raised by the Union about the purpose and function of the CIPP. The Union submits not only that the CIPP altered the pipe but that it was a modern way of replacing an old sewer pipe with a new one. The OLRB did address these submissions, including in factual findings that the CIPP re-lining of the big pipe did not change the functional purpose or capacity of the pipe in any material fashion.

[22] In this application, the Union placed considerable emphasis on the new OLRB jurisprudence that it relied on at the reconsideration stage, again submitting that it changed the approach used when distinguishing between repair and maintenance. In the Union’s submission, the Infrared decision and the decisions that follow it “abandoned” the prior approach of identifying a “system” as set out in Master Insulators’ and many other cases in favour of a contextual approach that considers the nature and the purpose of the work. The Union submits that the OLRB wrongly rejected the submission that Infrared marked a change in approach and that the OLRB failed to consider key contextual factors such as the purpose and tasks involved with the CIPP work.

[23] As shown in both Decisions, there is very extensive OLRB jurisprudence on the approach to be taken in cases such as this, including Master Insulators’ and many cases since then. As set out in the Reconsideration Decision, the newer case of Infrared begins its analysis with Master Insulators”, which Infrared describes, at para. 46, as “the seminal case in this area of labour relations”. Infrared goes on to quote extensively from Master Insulators’, including its observation that the distinction between construction and maintenance is not easily made, that the context of the employer’s operations must be examined critically, and that work that assists in preserving the functioning of a system or part of a system is maintenance work.

[24] Infrared discusses the points to be drawn from Master Insulators’ and the subsequent cases. The Union relies on that part of the discussion, at paras. 48-53, which highlights challenges in determining the applicable system and the needed contextual approach.

[25] In the Reconsideration Decision, the OLRB considered Infrared and the two other more recent decisions that follow it, along with the extensive body of OLRB jurisprudence that preceded it. The OLRB found that Infrared adopted the Master Insulators’ approach while sounding a “note of caution” that the OLRB must be careful not to obscure the actual realties arising from the particular project at issue. After reviewing the Union’s arguments based on the new cases put forward, the OLRB found that the principles relied on by the Union were not novel, they could have been raised in the original submissions, and that nothing in the new cases would cause the OLRB to change the Decision.

[26] The extensive discussion of the OLRB jurisprudence in both the Decision and the Reconsideration Decision falls squarely within the expertise of the OLRB and its heightened expertise regarding the construction industry. Further, the decisions made under this jurisprudence are acknowledged to be difficult ones. As said in Master Insulators’ the distinction between construction and maintenance is not easily made. With respect to the Decision at issue before us, the OLRB said that it was not an easy case. For decisions such as these, the role of deference to this expert tribunal is particularly important.

[27] The Union also submits that the OLRB failed to consider contextual factors that were identified in the above recent OLRB jurisprudence and failed to consider other relevant factors. These submissions overlap substantially with the Union’s submissions under its other issues. The Union disputes the nature and purpose of the work at issue because it was described as the re-lining of the big pipe rather than as a less invasive method of replacing the pipe. The Union submits that other factors should have been considered or considered differently. These arguments advance different ways of looking at the facts and propose different conclusions that could have been drawn from them. Yet they do not show that the Decisions were irrational or unintelligible.

[28] Having regard for all of the submissions, we conclude that the Decision and Reconsideration Decision are based on an internally coherent and rational chain of analysis and are justified in relation to the facts and law that bore on the Decisions. They are due substantial deference in this application. The Union has not shown that they are unreasonable.

[29] This application is therefore dismissed, with costs to the respondent in the agreed upon amount of $12,500. No costs are ordered for or against the OLRB.

Firestone R.S.J.

Pomerance J.

Matheson J.

Date: June 20, 2023

[^1]: R.S.O. 1990, c. O.1 [^2]: S.O. 1995, c. 1, Sch. A