Labourers' International Union of North America, Ontario Provincial District Council v. A. J. MacKinnon & Associates
[1987] OLRB Rep. October 1204
1135-87-R Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. A. J. MacKinnon & Associates, Angus J. MacKin-non Consultants Limited, Respondents
BEFORE: Harry Freedman, Vice-Chair, and Board Members W. H. Wightman and H. Peacock.
APPEARANCES: A. M. Minsky, Q.C. and M. Mihajlovic for the applicant; Angus J. MacKinnon and Kathryn Stiver for the respondents.
DECISION OF THE BOARD; October 7, 1987
1The Board delivered the following oral decision at its hearing in this matter on October 5, 1987:
This is an application for certification in which the respondent A. J. MacKinnon & Associates takes the position that it is not the employer of the employees affected by this application.
At the first day of hearing on September 28, 1987, the Board, upon the consent of the respondent A. J. MacKinnon & Associates and Angus J. MacKinnon Consultants Limited added Angus J. MacKinnon Consultants Limited as a respondent to this proceeding and declared that the two respondents are one employer for purposes of the Labour Relations Act, pursuant to section 1(4) of the Act.
Angus J. MacKinnon Consultants Limited, hereafter referred to as Consultants, is a construction manager which manages all aspects of a construction project on behalf of a client. It entered into a construction management agreement with Westowne Motors (1983) Limited to provide project management services for the construction of a showroom and service facility at premises owned by Westowne Motors in Toronto.
Consultants retained a construction superintendent for that project. Consultants' intention was to use the employees of sub-contractors on the project to perform whatever general labour that was required. Consultants, pursuant to that intention, used the employees of Fama Concrete Forming initially. The owners of Westowne Motors put a stop to this use because of the cost involved. They chose instead to have that general labour work performed by casual labourers referred to the project from the local Canada Employment Centre, an office of Employment and Immigration Canada.
While the evidence suggests that the order for labour was placed by Westowne Motors, the employees referred to the construction project were put to work by Consultants.
At the time of the application, the project superintendent retained by Consultants was Michael Eisele. He testified that he both hired and dismissed employees working as casual labourers on the construction project. He directed the labourers' day to day work, assigned their duties and recorded the work they performed on the respondents' daily activity sheets.
The employees were paid cash and occasionally by cheque. The cheques were issued by A. J. MacKinnon & Associates. The receipts for the cash were stamped with the name A. J. MacKinnon & Associates.
It seems to us from all of the evidence that there is no doubt that for purposes of the Labour Relations Act, Consultants was employer of the employees affected by this application.
While Consultants is a construction manager, and did not intend to create an employment relationship, it is clear from the evidence that Consultants, through its construction superintendent exercised the kind of fundamental control over the working lives of the employees that makes it the employer for purposes of the Act. See Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538 at 1552-53; Sylvania Lighting Services, [1985] OLRB Rep. July 1173 at 1175.
The determination of who is the employer is very much a question of fact. Merely because Consultants is a construction manager does not thereby prevent a finding that it is the employer of employees who are at work on a construction project. See for example Group Thirty- Three Limited, [1974] OLRB Rep. Dec. 888.
Therefore, we are satisfied that Consultants was the employer of the labourers affected by this application on July 24, 1987, the date the application for certification was made.
2Subsequent to the Board's decision on the determination of who the employer was, the Board dealt with the balance of the application.
[Remainder of decision omitted: Editor]