Main Rehabilitation Co. Ltd. and New Tide Investments Limited v. Labourers’ International Union of North America, Local 183

1079-99-M Main Rehabilitation Co. Ltd. and New Tide Investments Limited, Applicants v. Labourers’ International Union of North America, Local 183, Responding Party v. International Union of Operating Engineers, Local 793, Heavy Construction Association of Toronto and Spiniello Companies, Intervenors.

BEFORE: D. L. Gee, Vice-Chair.

DECISION OF THE BOARD; April 26, 2000

1. The applicants have filed a request for reconsideration of the Board’s decision dated March 10, 2000. The applicants assert that the Board reached a determination based on a new test not previously applied by the Board without giving the applicants the opportunity to establish that a prima facie case existed based on the new test.

2. As indicated by the Board in its decision of March 10, 2000, the applicants argued the motion on the basis of the criteria listed by the Board in Mathews Contracting Inc., [1992] OLRB Rep. Oct. 1088. Mathews Contracting Inc. did not concern an application to create a new sector. There are two Board decisions that do consider an application to create a new sector: The Ontario Erectors Association, [1973] OLRB Rep. Aug. 444 and Ellis-Don Limited, [1993] OLRB Rep. Nov. 1130. In neither of these two decisions does the Board adopt the list of criteria set out in Mathews Contracting Inc. as relevant to the Board’s consideration as to whether it is appropriate to establish a new sector. In neither of these two decisions does the Board state that the criteria applied by the Board in the course of determining which sector of the construction industry particular work falls will be applied to a determination as to whether a new sector should be created. Thus, the applicants’ assertion that the criteria applied by the Board in Mathews Contracting Inc. constitutes the “law” applicable to the creation of a new sector is without foundation.

3. The applicants assert that the Board has created a “new test”. While the manner in which the Board articulated the factors that it considers in the course of determining whether or not to create a new sector may be “new”, the factors articulated are not. They are all factors that were considered, albeit not enumerated by the Board as “factors”, in Ellis-Don Limited at paragraphs 38, 39 and 42.

4. Thus, the applicants had ample opportunity to address the question of what test the Board should apply in the course of reaching a determination. The applicants urged the Board to apply the criteria set out in Mathews Contracting Inc. with full knowledge that the criteria set out therein were articulated in the context of an application to determine which sector of the construction industry work in question fell and not an application to create a new sector. The applicants chose not to address other factors considered by the Board in Ellis-Don Limited in the context of an application to create a new sector.

5. The request for reconsideration is hereby dismissed.

“D. L. Gee”

for the Board