Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers v. International Union of Bricklayers and Allied Craftworkers
File No.: 2148-00-U Applicants: Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, Jerry Coelho, Tom Oldham, Kerry Wilson, John Haggis, Luigi Scodellaro, and Robert Watson Responding Parties: International Union of Bricklayers and Allied Craftworkers, John T. Flynn and Joe Bognar
Before: David A. McKee, Vice-Chair.
Decision of the Board: December 11, 2000
1This decision deals with the submissions of three parties or groups of parties that they should be granted intervenor status in this proceeding. They are International Union of Bricklayers and Allied Craftworkers, Locals 6, 7, and 25, (“IUBAC Locals 6, 7, and 25”), the International Union of Bricklayers and Allied Craftworkers Locals 1, 2, 4, 5, 10, 12, 20, 23, 28, 29, and 31 (“the 11 IUBAC locals”), and the Brick and Allied Craft Union and its constituent locals (“BACU”).
2The parties have characterized the test for intervenor status as a determination of whether the proposed intervenor has a “real, direct, discernible interest” in the proceeding, or a “direct and substantial” interest in it. While these phrases are, indeed, drawn from previous Board decisions, they miss the essential distinction between types of interest.
3A party is entitled to intervenor status as of right if it can demonstrate a direct and legal interest in the proceeding: Napev Construction Limited and Vepan Leaseholds Limited, [1976] OLRB Rep. Mar 109, (application for judicial review dismissed). A commercial interest, while it may be just as real, direct and discernible as any legal interest, is not sufficient to justify intervenor status: Alpha Taxi Ltd., [1986] OLRB Rep. Feb 165; Municipality of Metropolitan Toronto, [1992] OLRB Rep. July 817. While standing may be available as of right because of the consequential effect of a decision, this is so only in cases where the consequences of the decision impact on the legal rights of the intervenor: CUPE v. Canadian Broadcasting Corporation (1992) 1992 CanLII 8644 (ON CA), 91 DLR (4th) 767 (SCC). Further, it must be a direct consequential effect, rather than one which is real, but nonetheless indirect, such as the precedential impact of a decision: Municipality of Metropolitan Toronto, [1986] OLRB Rep. April 574.
4The Board of course, retains a discretion to grant full or limited intervenor status to any party. The cases are very fact specific, but generally the Board will so exercise its discretion to grant intervenor status where a party will be able to assist the Board by bringing an unrepresented interest to the proceedings, and where the intervenor’s participation will not unduly add to the proceedings.
5The Board declines to grant the BACU and its locals status. The BACU acknowledges that it is a rival trade union to the IUBAC. Some of its members, it states, are not members of the IUBAC. Presumably they can have no legal interest in the internal affairs of the IUBAC at all. The BACU asserts that it has received assets from the applicant and the locals assert that they have received assets from the IUBAC locals. It is concerned that if the IUBAC is permitted to impose a trusteeship on the applicant, it will seek to recover those assets. The BACU seeks to intervene to ensure that control of its rival remains in the hands of those who are less likely to pursue a recovery of assets from the BACU and its locals aggressively or at all. This is not a direct and legal interest. The request for intervenor status is in many ways like the request made in Napev, supra.
6Further, the Board declines to exercise its discretion to grant intervenor status to the BACU and its locals. There is no discernible difference between the pleadings of the BACU and the applicant. Further, there appears to be a very large overlap in personnel between the officers of the applicant and the officers of the BACU. Presumably they can instruct on counsel to put forward all of the necessary submissions. The Board has already commented on the need for greater than usual expedition in this and certain related proceedings among the same main parties.
7IUBAC locals 6, 7, and 25 seek to intervene. So do the 11 IUBAC locals. These two groups of locals are opposed to each other in their support of the main protagonists. Each seeks to intervene to support, partially or fully, the position of the applicant or responding party with which they are allied in interest. Neither of them asserts that they played any significant role in the events which led to the imposition of a receivership. On the other hand, both would clearly be affected by the results of the Board’s decision, at least in a practical sense. It is tempting to deny the proposed intervenors status with respect to a violation of the Act, and to entertain submissions about their right to participate only with respect to any remedial orders the Board might make if it finds the responding party violated sections 147 or 149 (as the Board did in Arosan Enterprises Limited, [1992] OLRB Rep. Jan 10). However, it appears to the Board more appropriate to grant status fully or not at all.
8The applicant and the 11 IUBAC Locals submit that the 11 IUBAC Locals are in the same position as IUBAC Locals 6, 7, and 25. Those three locals (and the responding parties) disagree and assert that they are entitled to status and none of the other proposed intervenors are. It does appear, without the benefit of argument, that the 11 IUBAC Locals and the applicant are correct, at least on this point. That is, either both groups are parties or neither is. However, the Board will hear brief submissions from the parties on December 12, 2000.
“David A. McKee”
for the Board